STATE OF OHIO v. JUSTIN BLASHAW
No. 98719
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 20, 2012
[Cite as State v. Blashaw, 2012-Ohio-6011.]
BEFORE: E. Gallagher, J., Stewart, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION; PLAINTIFF-APPELLEE VS. DEFENDANT-APPELLANT; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-524897; RELEASED AND JOURNALIZED: December 20, 2012
Justin Blashaw, pro se
572-575
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Justin Blashaw appeals from the Cuyahoga County Court of Common Pleas’ denial of his motion to vacate a guilty plea pursuant to
{2} On May 17, 2009, appellant crashed his vehicle on Interstate 90 in Rocky River, Ohio. Appellant‘s two daughters were in the car and sustained severe injuries. Police Officers determined that appellant was under the influence of alcohol at the time of the crash and was also driving under a license suspension.
{3} The Cuyahoga County Grand Jury indicted appellant on June 9, 2009, and charged him with two counts of second-degree felony aggravated vehicular assault, two counts of third-degree felony aggravated vehicular assault, two counts of third-degree felony endangering children, two counts of fifth-degree felony endangering children, two counts of driving while under the influence, and one misdemeanor count of obstructing official business.
{4} On August 6, 2009, appellant rescinded his not guilty pleas and pled guilty to all counts as charged. The trial court‘s journal entry indicates that “defendant [was] fully advised in open court of his/her constitutional rights and penalties.”
{5} On August 27, 2009, the trial court merged the two second-degree aggravated vehicular assault charges and the two third-degree aggravated vehicular assault charges and sentenced Blashaw as follows: eight years on the merged
{6} Blashaw appealed the trial court‘s sentencing order to this court arguing that the trial court failed to justify the imposition of consecutive, maximum terms and that it improperly failed to merge all of the vehicular assault charges. In State v. Blashaw, 8th Dist. No. 93943, 2010-Ohio-4673 (hereinafter “Blashaw I“), we affirmed the sentencing order.
{7} Thereafter, appellant filed a pro se motion with the trial court to withdraw his guilty plea pursuant to
{8} Appellant‘s sole assignment of error states:
The trial court erred when it denied the Criminal Rule of Proc. 32.1 motion to withdraw plea, as manifest injustice.
[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.
{10}
{11} We review the trial court‘s denial of a motion to withdraw a guilty plea for an abuse of discretion. See State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. As stated by this court in State v. Longo, 4 Ohio App.3d 136, 446 N.E.2d 1145 (8th Dist. 1982) in paragraph three of the syllabus, “[a]buse of discretion implies an unreasonably, arbitrary or unconscionable attitude on the part of the court. Such concept of abuse applies to a court‘s determination of a motion to change a plea.”
{13} The procedural posture of this case, including appellant‘s failure to produce a transcript, renders the case almost identical to that in Smith I, supra. In Smith I, the appellant also appealed from the denial of a motion to withdraw a guilty plea after he had already lost a direct appeal from the sentencing on the plea. Because the appellant failed to provide the court with a transcript of the plea colloquy, he failed to carry his burden of showing a manifest injustice and, therefore, the court was forced to “assume the trial court satisfied its duties to appellant.” Id.
{14} Here, as in Smith I, the appellant failed to provide this court with a transcript in order to assess whether a manifest injustice occurred during the plea colloquy. In his brief, appellant asserts numerous irregularities in the plea colloquy, and even provides citations to the transcript of the colloquy but, in the absence of the transcript itself, these statements are only “bald claims in [appellant‘s] brief.” Id. at ¶ 12. Indeed, the trial court‘s journal entry statement to the effect that appellant was “fully advised in open court of * * * penalties” implies that the appellant‘s asserted irregularities are incorrect. Because our finding of regularity implies a distinct lack of
{15} Our presumption of regularity in the plea colloquy would, in and of itself, be enough to justify affirming the trial court‘s denial of appellant‘s motion to withdraw his guilty plea. An additional basis for our holding is the doctrine of res judicata. “Res judicata bars the assertion of claims from a valid, final judgment of conviction that have been raised or could have been raised on direct appeal.” State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374, ¶ 8 citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus; see also Smith I at ¶ 19. An exception to the rule of res judicata exists for situations where the movant raises “new, competent, relevant and material evidence” that was outside the record at the time of the direct appeal. Smith I at ¶ 20.
{16} Given the facts of this case, res judicata is clearly applicable to appellant‘s motion to withdraw his plea. Again, our judgment mirrors our earlier opinion in Smith I. Just as in Smith I, any defects in the plea colloquy were known to appellant at the time of his direct appeal in Blashaw I and, therefore, should have been raised before this court at that time. Furthermore, there is no “new, competent, relevant and material evidence” supporting appellant‘s motion to withdraw his guilty plea and thus appellant fails to satisfy the exception to the rule of res judicata.
{17} Appellant argues that res judicata is not applicable to this case because his sentence is a “void sentence” and, therefore, a nullity with no preclusive effect on his
{18} Based on the foregoing, we can find no “manifest injustice” that would permit the trial court to allow appellant to withdraw his guilty plea. Additionally, the trial court‘s journal entry statement to the effect that its decision was based on res judicata was entirely proper and not an abuse of its discretion. Therefore, we affirm the judgment of the trial court.
{19} Blashaw‘s sole assignment of error is overruled.
{20} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
MARY EILEEN KILBANE, J., CONCUR