2003 Ohio 5989 | Ohio Ct. App. | 2003
{¶ 2} On August 11, 1999, appellant was indicted on two counts of illegal use of a minor in nudity-oriented material. The charges involved appellant's creation, direction, production or transferring of material that showed two different minor children in a state of nudity. Appellant pled not guilty.
{¶ 3} Appellant moved to suppress statements he made during an interrogation conducted by the Butler County Sheriff's Office. After a hearing on October 9, 1998, the trial court overruled the motion.
{¶ 4} On January 15, 1999, appellant withdrew his not guilty plea and entered a negotiated Alford plea of guilty. See North Carolina v.Alford (1970),
{¶ 5} On March 5, 1999, the trial court sentenced appellant to four years in prison on the first count and three years in prison on the second court. Appellant was ordered to serve both sentences consecutively. On appeal, the convictions and the sentences were affirmed. State v. Bailey (July 24, 2000), Butler App. No CA99-03-067, motion for delayed appeal denied,
{¶ 6} On April 21, 2000, appellant filed a petition for post-conviction relief ("PCR"). On April 10, 2001 the trial court overruled the petition for PCR. No appeal was taken from that judgment. On January 30, 2003, appellant filed a motion to reduce his sentence and a motion to withdraw his guilty plea. The trial court overruled both motions on February 19, 2003. Appellant appeals the denial of his motions raising four assignments of error. We will address the first three assignments of error together as they are closely related:
{¶ 7} Assignment of Error No. 1:
{¶ 8} "The Trial Court Erred To The Prejudice Of Defendant Appellant In Overruling His Motion To Reduce Sentence That Was Filed On January 30, 2003."
{¶ 9} Assignment of Error No. 2:
{¶ 10} "The Trial Court Erred To The Prejudice Of Defendant Appellant In Overruling His Motion To Reduce Sentence That Was Filed On January 30, 2003, By Imposing Consecutive Sentences."
{¶ 11} Assignment of Error No. 3:
{¶ 12} "The Trial Court Erred To The Prejudice Of Defendant Appellant In Overruling His Motion To Reduce Sentence That Was Filed On January 30, 2002 [sic], By Stating That He Had Previously Served A Prison Term."
{¶ 13} A motion to reduce sentence is a petition for postconviction relief as statutorily defined in R.C.
{¶ 14} "Whether a hearing is or is not held on a petition filed pursuant to section
{¶ 15} "(1) Either of the following applies:
{¶ 16} "(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.
{¶ 17} "(b) Subsequent to the period prescribed in division (A)(2) of section
{¶ 18} "(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact finder would have found the petitioner guilty of the offense of which the petitioner was convicted * * *."
{¶ 19} Appellant's petition for postconviction relief fails to satisfy the jurisdictional requirements of R.C.
{¶ 20} Since the trial court lacked jurisdiction to consider appellant's claim, it was not required to hold a hearing on the petition, nor was it required to make findings of fact and conclusions of law when denying the motion. See State v. Mootispaw (Apr. 2, 2001), Fayette App. No. CA2000-06-017.
{¶ 21} Furthermore, appellant's "motion to reduce sentence" is barred by res judicata. "(A) final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or an appeal from that judgment." State v.Szefcyk,
{¶ 22} Appellant's "motion to reduce sentence" claims his sentence is "contrary to law." However, appellant has already raised issues regarding his sentence in his direct appeal. See State v. Bailey (July, 24, 2000), Butler App. No. CA99-03-067. Therefore, we find the trial court's dismissal of appellant's petition for postconviction relief was proper. Accordingly, appellant's first, second, and third assignments of error are overruled.
{¶ 23} Assignment of Error No. 4:
{¶ 24} "The Trial Court Erred To The Prejudice Of Defendant Appellant In Overruling His Motion To Reduce Sentence That Was Filed On January 30, 2002 [sic]. Appellant Was Charged And Sentenced Under The Incorrect Statute."
{¶ 25} It has been expressly recognized by the weight of authority that a defendant seeking to withdraw a plea of guilty after sentence has the burden of establishing the existence of manifest injustice. UnitedStates v. Mainer (C.A. 3, 1967),
{¶ 26} In his motion to withdraw the guilty plea, appellant has alleged that the "sentence of seven years imposed on his plea" was contrary to law, "and to prevent manifest injustice, the Court must vacate it." In his pro se brief, appellant alleges that there were no photographs that depicted a minor in any state of nudity as evidence against him.
{¶ 27} However, appellant made his plea in open court, knowingly and voluntarily, with full knowledge of all possible sentences that were available. A guilty plea acts as a complete admission to all of the essential elements of the offense charged. See Crim.R. 11(B). We find that the trial court properly concluded that manifest injustice had not been demonstrated. Accordingly, appellant's fourth assignment of error is overruled.
{¶ 28} Judgment affirmed.