STATE OF OHIO, Plaintiff-Appellee, - vs - DAVID E. BRODY, Defendant-Appellant.
CASE NOS. 2012-L-050, 2012-L-051, and 2012-L-052
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
January 28, 2013
2013-Ohio-340
TIMOTHY P. CANNON, P.J.
Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 10 CR 000026, 10 CR 000029, and 10 CR 000366.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
David E. Brody, pro se, PID: A591175, Grafton Correctional Institution, 2500 South Avon Belden Road, Grafton, OH 44044 (Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, David E. Brody, appeals the judgmеnts of the Lake County Court of Common Pleas, denying his post-sentence motions to withdraw his guilty pleas in three separate cases. At issue is whether the trial court abused its discretion in finding a lack of manifest injusticе to support a withdrawal of the pleas. For the reasons that follow, the judgments are affirmed.
{¶3} On June 23, 2010, appellant entered into a plea bargain with the state pursuant to which he entered a guilty plea in each of his three cases. In case No. 10 CR 000026, appellant pled guilty to misuse of credit cards, a fifth-degree felony in violation of
{¶4} In case No. 10 CR 000029, appellant pled guilty to breaking аnd entering, a fifth-degree felony in violation of
{¶5} Finally, in case No. 10 CR 000366, appellant pled guilty to burglary, a second-degree felony in violation of
{¶6} Pursuant to the plea bargain, in exchange for appellant‘s guilty pleas, the trial court dismissed the multiple remaining counts in the indictments.
{¶7} The trial court found appellant‘s guilty pleas were made knowingly, intelligently, and voluntarily; accepted the guilty pleas; and found appellant guilty. On July 29, 2010, the court sentenced appellant consecutively in each of his cases for an aggregate of 18 years in prison.
{¶9} Shortly thereafter, appellant filed a motion to withdraw his guilty plea in each of his respective cases, arguing ineffective assistаnce of counsel during the plea bargain stage. Upon consideration, the court denied the motions. Appellant, pro se, now appeals. This court, sua sponte, consolidated the сases for purposes of appeal. Appellant raises two assignments of error which, as they are interrelated, will be considered together:
{¶10} “[1.] The trial court abused its discretion by denying Defendаnt-Appellant‘s motion to withdraw his guilty plea.
{¶11} “[2.] Defendant-Appellant was not provided his Sixth Amendment right to Effective Assistance of Counsel during the plea bargain stage.”
{¶12} Appellant argues his pleas were nоt entered knowingly, intelligently, or voluntarily because his counsel was ineffective in counseling him during the plea bargain stage. Appellant explains his counsel‘s performance was deficient in that he rеceived erroneous advice on the nature of his sentence. Appellant additionally charges his attorney with coercing him into a plea bargain even though no discovery had been cоnducted. As such, appellant contends the trial court abused its discretion in denying his motions to withdraw his pleas as his allegations are tantamount to manifest injustice.
{¶13} An appellate court analyzes а trial court‘s decision regarding a motion to withdraw a guilty plea based on an abuse of discretion standard of review. State v. Gibbs, 11th Dist. No. 98-T-0190, 2000 Ohio App. LEXIS 2526 (June 9, 2000), *6-7. An
{¶14}
{¶15} Here, appellant filed his motion to withdrаw his plea after his sentencing. Thus, pursuant to
{¶16} However, claims raised in a post-sentence motion to withdraw a guilty plea which were raised or could have been raised in a direct appeal are barred by res judicata. State v. Lorenzo, 11th Dist. No. 2007-L-085, 2008-Ohio-1333, ¶21; State v. Green, 11th Dist. Nos. 2005-A-0069 & 2005-A-0070, 2006-Ohio-6695, ¶13; and State v. McDonald, 11th Dist. No. 2003-L-155, 2004-Ohio-6332, ¶22. See also State v. Thomas, 3d Dist. No. 10-10-17, 2011-Ohio-4337, ¶18; and State v. Rose, 12th Dist. No. CA2010-03-059, 2010-Ohio-5669, ¶18.
{¶17} For instance, in State v. Johnson, 6th Dist. No. OT-11-101, 2012-Ohio-1400, the defendant filed a post-sentence motion to withdraw his guilty plea based on ineffective assistance of trial counsel during plea bargaining. The Sixth Appellate District concluded that, as appellant was able to, but failed to, raise the claims during his direсt appeal, res judicata barred him “from raising those claims in his motion to withdraw his guilty plea.” Id. at ¶10. See also State v. LaPlante, 4th Dist. No. 11CA3215, 2011-Ohio-6675, ¶8 (finding res judicata to bar ineffective assistance of counsel claims found in defendant‘s post-sentence
{¶18} Here, the arguments appellant asserts in his
{¶19} Appellant explains, in a response brief, that he tried to raise this matter in his direct appeals, but his attorney explained issues regarding his plea would best be
{¶20} In the alternative, appellant contends that, if res judicata bars his claims, then, by the same token, he received ineffective assistance of appellate counsel because the matter of an involuntary plea was not assigned as error in his direct appeal. However, an application for reopening is the proper procedural mechanism by which to raise a claim of ineffective assistance of appellate counsel, pursuant to
{¶21} It is also worth noting that post-conviction relief petitiоns were not filed in these cases; thus, any conversation between appellant and his attorney that may support his claims of erroneous advice is simply not part of the record. See, e.g., State v. Bond, 2d Dist. No. 20674, 2005-Ohio-3665, ¶10 (“[i]t is well settled, however, that when an alleged error requires the presentation of evidence outside the record, it must be raised in a petition for post-conviction relief rather than on direct аppeal“).
{¶22} Nonetheless, the contentions set forth in appellant‘s
{¶23} As a final matter, though not framed as an individual assignment of error, appellant additionally contends the trial court should have held a hearing on his motions. We take notice that appellant attempted to compel the trial court to hold an evidentiary hearing on his motions to withdraw his pleas via writ of procedendo, which was dismissed on procedural grounds by this court, sua sponte, in Brody v. Lucci, 11th Dist. No. 2011-L-139, 2012-Ohio-1132. However, a motion to withdraw a guilty plea made after sentencing does not require a hearing unless “the facts alleged by the defendant аnd accepted as true would require the trial court to permit withdrawal of the plea.” State v. Whiteman, 11th Dist. No. 2001-P-0096, 2003-Ohio-2229, ¶19. As set forth above, appellant‘s contentions are barred by res judicata, and further, appellant hаs failed to assert any facts that establish manifest injustice would occur if he were not permitted to withdraw his plea.
{¶24} Thus, the trial court did not abuse its discretion in denying appellant‘s motions to withdraw his guilty pleas.
{¶25} Appellant‘s first and second assignments of error are without merit.
MARY JANE TRAPP, J.,
THOMAS R. WRIGHT, J.,
concur.