2008 Ohio 1146 | Ohio Ct. App. | 2008
{¶ 2} On May 19, 2004, a complaint was filed against Helton by Patrolman George Schlub, who alleged that Helton had engaged in unlawful sexual conduct with a minor, a violation of R.C.
{¶ 3} Sentencing was apparently rescheduled for September 13, 2004, but Helton failed to appear, thus violating the terms of his O.R. bond. During this time, Helton engaged in criminal activity in Logan County. The trial court issued a bench warrant for Helton on October 5, 2004. On October 18, 2004, a return was filed by a Hardin County deputy sheriff indicating that he had arrested Helton pursuant to the bench warrant on October 13, 2004. The trial court held a joint sexual offender classification and sentencing hearing on October 27, 2004. The court classified Helton as a sexually oriented offender and ordered him to serve seventeen months in prison.
{¶ 4} Helton failed to file a direct appeal, but on December 14, 2004, he sent a handwritten letter to the trial court asking to withdraw his guilty plea. On January 11, 2005, Helton filed a handwritten motion to withdraw guilty plea *4 pursuant to Crim.R. 32.1. In his motion and attached affidavit, Helton alleged that the prosecutor had agreed to release him on an O.R. bond and to recommend community control sanctions in exchange for his guilty plea. Helton argued that the prosecutor breached the plea agreement by recommending a prison term of either fifteen months or sixteen months at the sentencing hearing.2 The trial court overruled Helton's motion on January 20, 2005, finding that the court was not required to follow the prosecutor's recommendation; that Defendant was represented by counsel at the sentencing hearing; and that Defendant had personally acknowledged his understanding of the proceedings both in open court and in writing without objection. Helton did not appeal the trial court's judgment.
{¶ 5} In April 2005, Helton was transported to Logan County for sentencing on unrelated charges. The Logan County Common Pleas Court ordered Helton to serve a prison term of three years consecutive to the sentence imposed by the Hardin County Common Pleas Court in this case.
{¶ 6} On May 1, 2007, Helton filed a "motion to correct or vacate sentence and to withdraw said plea." Helton challenged his sentence based on the Ohio Supreme Court's holding in State v. Foster,
{¶ 7} On May 14, 2007, Helton filed an "addendum" to his motion to withdraw guilty plea, alleging ineffective assistance of counsel at sentencing. Helton argued that he asked his attorney to file an appeal at the time of sentencing, and that he had "discovered" trial counsel did not do so. Helton also alleged that trial counsel was ineffective for his failure to object when the prosecutor breached the plea agreement at sentencing.
{¶ 8} On May 25, 2007, Helton filed a notice of appeal, challenging the trial court's May 9, 2007 judgment entry. On October 29, 2007, this Court affirmed the judgment of the trial court. Specifically, we held that Helton's claims concerning the prosecutor's breach of the plea agreement were barred by the doctrine of res judicata because he could have raised and litigated his complaints on direct appeal but failed to do so. We also held that the doctrine of res judicata prevented Helton from relitigating issues he had raised in his prior motions to withdraw guilty plea. As to Helton's complaint that he had the ineffective assistance of counsel, we held that the issue was not properly before us because that issue was not raised until after the trial court denied his Crim.R. 32.1 motion. *6
{¶ 9} On December 14, 2007, Helton filed a motion to withdraw guilty plea based on the alleged ineffective assistance of counsel because counsel failed to file a direct appeal. Helton's attached affidavit alleged that the prosecutor had agreed to recommend community control sanctions in exchange for his guilty plea, and the trial court accepted that agreement on the record on June 16, 2004. Helton stated he would not have accepted the guilty plea if he knew the prosecutor was not going to make the agreed upon recommendation or if he knew that the court was not going to adopt the recommendation.
{¶ 10} On December 18, 2007, Helton filed an addendum to his motion, requesting a hearing before the trial court. Helton argued that the prosecutor breached the terms of the plea agreement and also alleged that his due process rights had been violated due to the increased registration requirements imposed on sexual offenders by R.C.
{¶ 11} On January 4, 2007, the trial court filed a judgment entry overruling Helton's motions. The trial court determined that Helton was simply trying to "rehash" the arguments he had previously raised; that he had presented no evidence of trial counsel's deficient performance; and that Helton's sentence was *7
based on his voluntarily violating the terms of the O.R. bond and engaging in other felonious conduct. The court also held that it lacked jurisdiction to consider Helton's arguments based on R.C.
The trial court erred to the prejudice of Defendant-Appellant in denying his motion to withdraw his guilty plea and by doing so without conducting a hearing on the motion to a claim he was denied ineffective assistance of counsel * * * .
The trial court abused its discretion and erred to the prejudice of Defendants-Appellants [sic] due-process rights in denying his motion to withdraw his guilty plea and by doing so without conducting a hearing on the motion to withdraw said guilty plea.
{¶ 12} In the first assignment of error, Helton argues that his allegations of ineffective trial counsel entitled him to an evidentiary hearing. In his brief, Helton contends that he asked counsel to object to his sentence at the sentencing hearing, and that he requested counsel file a notice of appeal, which counsel did not do. Helton asserts, "Appellant 60 days after sentencing made his first attempt at withdrawing said plea and requested new counsel so new counsel could appeal because trial counsel would not, the same was overruled by the trial court." *8
{¶ 13} Helton's claims are barred by the doctrine of res judicata. "`Under the doctrine of 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 on an appeal from that judgment.'" State v.Herbert, 3d Dist. No. 16-06-12,
{¶ 14} Since Helton alleges that he asked trial counsel to object at the sentencing hearing, and counsel failed to do so, he was clearly aware of a possible error at the original sentencing hearing, which was held in October 2004. Helton could have simply bypassed his allegedly ineffective counsel and requested court appointed counsel for purposes of filing a direct appeal, at which time he could have raised the issue of ineffective assistance of counsel. Furthermore, this is *9 Helton's third motion to withdraw guilty plea. Each motion has argued essentially the same issue: that Helton believes the prosecutor violated the terms of the plea agreement. The only difference in this motion is that Helton has rephrased the underlying issue as an ineffective assistance of counsel claim. There are no new facts upon which Helton bases his latest motion, and as such, the argument could have been raised in the first or second motion to withdraw guilty plea, if not on appeal. Therefore, Helton's claim is barred by the doctrine of res judicata.
{¶ 15} Should Helton continue to file motions to withdraw his guilty plea based on the same underlying arguments, the trial court is directed to dismiss the motion(s). After a direct appeal of a judgment, "the trial court has no jurisdiction to consider a defendant's Crim.R. 32.1 motion to withdraw his guilty plea, and the appropriate action for the trial court is to dismiss the motion." See Herbert, at ¶ 14, citingSanchez, at ¶ 15, citing State v. Allen, 12th Dist. No. CA2006-01-001,
{¶ 16} Furthermore, even if we were to consider the merits of Helton's claims, they would fail. "A trial court may grant a post-sentence motion to withdraw a guilty plea only to correct `manifest injustice.'"State v. Heath, 12th Dist. No. CA2006-03-036,
{¶ 17} To establish ineffective assistance of counsel, a defendant must show that "(1) counsel's performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defense." State v. Price, 3d Dist. No. 13-05-03,
{¶ 18} To prove that an attorney's conduct was deficient or unreasonable, the appellant "must overcome the presumption that the attorney provided competent representation, and show that the attorney's actions were not trial strategies prompted by `reasonable professional judgment.'" State v. Scott-Hoover, 3d Dist. No. 3-03-20,
{¶ 19} Helton has supplied no transcript of the plea hearing or the sentencing hearing. Therefore, we must presume regularity in the proceedings of the trial court. App.R. 9; Loc.R. 5; State v. Moore, 3d Dist. No. 14-06-43,
{¶ 20} Helton's affidavit was filed approximately three years after the original sentencing hearing, and approximately one and one-half years after his prison term expired (even though he is still serving time from the Logan County Common Pleas Court). Furthermore, there is no evidence, other than Helton's unsubstantiated claims, that counsel acted contrary to his instructions. Therefore, on the merits of Helton's claim, we would be unable to hold that the trial court abused its discretion when it denied his motion to withdraw guilty plea without an evidentiary hearing as he has failed to demonstrate a manifest injustice. The first assignment of error is overruled.
{¶ 21} In the second assignment of error, Helton contends he would not have pled guilty to the offense charged in the indictment had he known he would be subjected to a longer registration period, as provided by R.C.
{¶ 22} The judgment of the Hardin County Common Pleas Court is affirmed.
Judgment affirmed. SHAW, P.J., and ROGERS, J., concur.