CITY OF CONNEAUT v. RUDOLPH BABCOCK
CASE NO. 2023-A-0036
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
December 18, 2023
[Cite as Conneaut v. Babcock, 2023-Ohio-4605.]
MARY JANE TRAPP, J.
Criminal Appeal from the Conneaut Municipal Court, Trial Court No. 2021 CRB 00037. Judgment: Affirmed.
Donald Gallick, 190 North Union Street, Suite 102, Akron, OH 44304 (For Defendant-Appellant).
OPINION
MARY JANE TRAPP, J.
{1} Appellant, Reverand Doctor Rudolph Babcock (“Dr. Babcock), appeals from the judgment of the Conneaut Municipal Court denying his Crim.R. 32.1 postconviction motion to withdraw his no contest plea to one count of discharging firearms, a fourth-degree misdemeanor, in violation оf
{2} Dr. Babcock raises two assignments of error, contending (1) the state of Ohio does not recognize municipal firearm ordinances; therefore, the trial court lacked subject matter jurisdiction, and his conviction is void; and (2) the trial court abused its discretion by denying his motion to withdraw his plea of no contest after he demonstrated
{3} After a careful review of the record and pertinent law, we find Dr. Babcock‘s assignments of error to be without merit since they are barred by the doctrine of res judicata. Our review of the record reveals Dr. Babcock raised the constitutionality of
{4} The judgment of the Conneaut Municipal Court is affirmed.
Substantive and Procedural History
{5} In February 2021, Dr. Babcock was charged via complaint in the Conneaut Municipal Court with discharging an air gun, a fourth-degree misdemeanor, in violation of
{6} Ultimately, he pleaded no contest in November 2021. The trial court sentenced him to 30 days in jail, with 30 days suspended, one year of unsupervised
{7} In June 2022, we affirmed his conviction in Conneaut v. Babcock, 11th Dist. Ashtabula No. 2021-A-0045, 2022-Ohio-2101, finding his assignments of error, which raised speedy trial and constitutional issues (albeit not the constitutional issue he raises herein), to be without merit. Id. at ¶ 37.
{8} Dr. Babcock obtained new counsel and in July 2022, he filed a jurisdictional appeal in the Supreme Court of Ohio, contending, as he does now on appeal, that
{9} In September 2022, Dr. Babcock filed an application to reopen pursuant to
{10} In November 2022, we denied his application to reopen, determining the postconviction remedies pursuant to
Crim.R. 32.1 Postsentence Motion to Withdraw Plea
{11} In April 2023, Dr. Babcock filed a
{12} Dr. Babcock attached his own affidavit, as well as affidavits from his former trial/appellate counsel and his current counsel. Dr. Babcock averred that he was unaware his former counsel had failed to make the argument that municipal firearm ordinances were repealеd by the Ohio General Assembly and upheld by the Supreme Court of Ohio, and he “stands convicted of a crime that did not exist.” Dr. Babcock‘s former counsel averred that he failed to advise Dr. Babcock that he was pleading no contest to a violation of a municipal firearm ordinance, which may be invalid due to the Supreme Court of Ohio‘s decision in Cleveland v. State. Lastly, Dr. Babcock‘s current counsel averred that he believed Dr. Babcock received ineffective assistance of counsel because his former counsel failed to file a motion to dismiss due to
{13} The city of Conneaut (the “city“) contended Dr. Babcock‘s claim was barred by the doctrine of res judicata since he raised this issue in the municipal court, this court, and the Supreme Court of Ohio.
{14} The trial сourt held an evidentiary hearing, at which Dr. Babcock testified on his own behalf.
{15} Dr. Babcock testified he was not aware that a municipality‘s ability to enforce firearm regulations had been struck down by the Supreme Court of Ohio until he hired new counsel following his appeal. Had he known this, he would have gone to trial instead of entering a no contest plea.
{17} In a judgment entry issued оn May 31, 2023, the trial court overruled Dr. Babcock‘s motion, finding it barred by the doctrine of res judicata. The trial court reviewed that it overruled Dr. Babcock‘s argument on the constitutionality of
{18} Dr. Babcock raises two assignments of error on appeal:
{19} “[1.] Appellant‘s conviction and sentence are void because Ohio does not recognize municipal firearm ordinances; the municipal court lacked subject matter jurisdiction over the criminal case.
{20} “[2.] The trial court committed an abuse of discretion by denying the motion to withdraw the guilty plea as appellant‘s plea was based on erroneous legal advice as Babcock entered a plea to a void complaint.”
{21} Pursuant to
{22} In State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, the Supreme Court of Ohio explained existing plea-withdrawal precedent:
{23} “‘A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice.’ State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. A ‘manifest injustice’ is a ‘clear or openly unjust act,’ State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), and relates to a fundamental flaw in the plea proceedings resulting in a miscarriage of justice, State v. Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030, ¶ 7 (1st Dist.), citing Kreiner at 208 and Smith at 264. The term ‘has been variously defined, but it is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases.’ Smith at 264.
{24} “Although
{25} An abuse of discretion is the trial court‘s “‘failure to exercise sound, reasonable, and legal decision-making.‘” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black‘s Law Dictionary 11 (8th Ed.2004). “When a pure issue of law is involved in appellate review, the mere fact that the reviewing court would decide the issue differently is enough to find error.” Id. at ¶ 67. “By contrast, where the issue on review has been confided to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error.” Id.
{26} In Dr. Babcock‘s first assignment of error, he contends the trial court lacked subject matter jurisdiction to convict and sentence him because
{27}
{28} Our review of the record reveals Dr. Babcock raised the constitutionality of
{29} Thus, Mr. Babcоck‘s assertion that he was unaware of this argument until he retained new counsel following his appeal is contradicted by the record. Dr. Babcock also raised this issue on appeal to the Supreme Court of Ohio, which declined jurisdiction, and in an аpplication to reopen to this court, which we denied.
{31} The doctrine of res judicata bars the assertion of claims against a valid, final judgment of conviction that have bеen raised or could have been raised on appeal. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59. Courts have applied res judicata to bar the assertion of claims in a motion to withdraw a guilty plea that were or could have been raised at trial or on appeal. Id.; Straley, supra, at ¶ 23. See State v. Feathers, 11th Dist. Portage No. 2021-P-0004, 2021-Ohio-4137, ¶ 13 (thе appellant‘s claim should have been raised on appeal since he relies on information known or available at that time).
{32} Furthermore, Dr. Babcock failed to establish that his counsel was deficient. While ineffective assistance of сounsel is a proper basis for seeking a postsentence withdrawal of a plea, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pishner, supra, at ¶ 18. Thus, Dr. Babcock was required to show that (1) his trial counsel
{33} Thus, the trial court did not abuse its discretion in denying Dr. Babcock‘s postsentence motion to withdraw his plea of no contest since his claims are barred by the doctrine of res judicata. Most fundamentally, he has failed to show a manifest injustice sufficient to withdraw his plea since he did not demonstrate that he did not enter his plea knowingly, intelligently, or voluntarily.
{34} The judgment of the Conneaut Municipal Court is affirmed.
MATT LYNCH, J.,
EUGENE A. LUCCI, J.,
concur.