STATE OF OHIO, Plaintiff-Appellee -vs- KEVIN D. BRADFORD, Defendant-Appellant
Case No. 2023CA00056
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 6, 2024
[Cite as State v. Bradford, 2024-Ohio-428.]
JUDGES: Hon. William B. Hoffman, P.J. Hon. Craig R. Baldwin, J. Hon. Andrew J. King, J.
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2020CR1981. JUDGMENT: Affirmed.
For Plaintiff-Appellee
KYLE L. STONE Prosecuting Attorney Stark County, Ohio
VICKI L. DESANTIS Assistant Prosecuting Attorney Appellate Division 110 Central Plaza South, Suite #510 Canton, Ohio 44702-1413
For Defendant-Appellant
GEORGE URBAN 116 Cleveland Avenue, N.W., Suite #808 Canton, Ohio 44702
Hoffman, P.J.
{¶1} Defendant-appellant Kevin D. Bradford appeals the June 13, 2023 Judgment Entry entered by the Stark County Court of Common Pleas, which denied his motion to withdraw guilty plea. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On December 2, 2020, the Stark County Grand Jury indicted Appellant on one count of murder, in violation of
{¶3} On April 14, 2021, the Stark County Grand Jury returned a superseding Indictment, charging Appellant with one count of murder, in violation of
{¶4} Pursuant to plea negotiations, Appellant withdrew his former pleas of not guilty and enter guilty pleas to Count 2, murder [
{¶5} On March 8, 2023, Appellant filed a pro se motion to withdraw guilty plea pursuant to
{¶6} On June 1, 2023, Appellant filed a Notice of Appeal from the April 30, 2021 Judgment Entry. On the same day, Appellant filed a Statement, Praecipe and Notice to Court Reporter as well as a Motion for Preparation of Complete Transcript of Proceedings at State Expense, Motion for Appointment of Counsel, and an Affidavit of Indigency. Via Order filed June 16, 2023, this Court granted Appellant‘s request to file a delayed appeal and remanded the matter to the trial court to rule on Appellant‘s motion for transcript and motion for appointment of counsel. Via Judgment Entry filed July 19, 2023, the trial court granted Appellant‘s motion for transcript and appointed Attorney George Urban as appellate counsel. This Court dismissed the appeal for want of prosecution on September 27, 2023.
{¶7} Via Judgment Entry filed June 13, 2023, the trial court denied Appellant‘s motion to withdraw guilty plea. The trial court found Appellant failed to meet his burden of showing a manifest injustice. The trial court further found Appellant had been fully advised in all matters by the trial court pursuant to
APPELLANT‘S RIGHTS WERE VIOLATED WHEN THE TRIAL COURT ABUSED ITS DISCRETION AND FAILED TO INFORM APPELLANT OF HIS RIGHT TO APPEAL AND, OR WHEN IT DENIED APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA.
STANDARD OF REVIEW
{¶9} A reviewing court will not disturb a trial court‘s decision whether to grant or deny a motion to withdraw a plea absent an abuse of discretion. State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). In order to find an abuse of discretion, we must determine the trial court‘s decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶10}
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.
Crim. R. 32.1 .
{¶12} “A trial court is not automatically required to hold a hearing on every postsentence motion to withdraw a guilty plea. * * * A hearing is required only if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea.” State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818, ¶ 11.
I
{¶13} Appellant predicated his post-sentence motion to withdraw his guilty plea on two grounds. First, Appellant maintained he was denied the effective assistance of counsel in entering his plea. Second, Appellant alleged the trial court failed to comply with
Ineffective Assistance of Trial Counsel
{¶14} In his motion to withdraw his guilty plea, Appellant argued trial counsel‘s failure to convey correct information regarding his right to appeal and right to appointed
{¶15} Challenges to guilty pleas based upon allegations of ineffective assistance of counsel during the plea process are evaluated under the two-pronged cause and prejudice test of Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Hill v. Lockhart, 474 U.S. 52, 58 (1985). “First, the defendant must show that counsel‘s performance was deficient.” Strickland, at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, the defendant must demonstrate prejudice resulting from counsel‘s deficient performance. Id. The defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill at 59, 106 S.Ct. 366; State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992). This demonstration “focuses on a defendant‘s decision making” and requires “contemporaneous evidence that but for his counsel‘s erroneous advice, [the defendant] would have made a different decision.” State v. Bozso, 162 Ohio St.3d 68, 2020-Ohio-3779, ¶ 29, 164 N.E.3d 344, quoting Lee v. United States, — U.S. —, 137 S.Ct. 1958, 1966, 198 L.Ed.2d 476 (2017).
{¶16} Appellant has failed to demonstrate with reference to any contemporaneous evidence focused on his decision-making, apart from his allegations of trial counsel‘s ineffectiveness, he would have chosen not to enter a guilty plea.
{¶17} Accordingly, we find the trial court did not abuse its discretion in denying his motion to withdraw his guilty plea on his claim of ineffective-assistance of counsel.
{¶18} In his motion to withdraw his guilty plea, Appellant claimed, because the trial court failed to correctly state the law during the
{¶19} During the change of plea hearing, the trial court conducted a
{¶20} After accepting Appellant‘s plea and finding him guilty, the trial court immediately proceeded to sentencing.
{¶22} Although a trial court has an “obligation to advise a defendant of his right to appeal,” that obligation only “becomes operative ‘after imposing sentence.‘” State v. Nicholas, 11th Dist. Portage No. 2009-P-0049, 2010-Ohio-1451, 2010 WL 1254331, ¶ 26, quoting State v. Atkinson, 9th Dist. Medina No. 05CA0079-M, 2006-Ohio-5806, 2006 WL 3160001, ¶ 22. The trial court‘s duty to notify a defendant as to the right to appeal “is not a requirement to be performed prior to the acceptance of a plea and has no bearing on whether the plea was knowingly, intelligently or voluntarily made.” State v. Finch, 5th Dist. Licking No. 11 CA 6, 2011-Ohio-4273, ¶ 26. See also, State v. Barr, 8th Dist. Cuyahoga No. 96907, 2011-Ohio-6651, ¶ 10.
{¶23} We further find the lengthy delay in filing his motion to withdraw guilty plea is problematic. Appellant filed the motion to withdraw his guilty plea almost two years after his sentence was imposed. The length of passage of time between the entry of a plea and a defendant‘s filing of a
Res Judicata
{¶24} “Res judicata generally bars a defendant from raising claims in a
{¶25} Appellant did not file a direct appeal from his original convictions and sentence. Accordingly, we find Appellant is precluded by the doctrine of res judicata from litigating these issues now, in precisely the sort of repeated attacks on a final judgment the doctrine of res judicata is intended to prevent.
{¶26} Upon review of the record, we find Appellant has failed to establish the existence of manifest injustice. As such, we find the trial court did not abuse its discretion in denying Appellant‘s motion to withdraw his guilty plea.
{¶27} Appellant‘s sole assignment of error is overruled.
{¶28} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
King, J. concur