State v. IkharoState v. Ikharo
Rendered on June 7, 2011
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Brian C. DiFranco, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Appellant, Musa A. Ikharo, filed this appeal seeking reversal of a judgment by the Franklin County Court of Common Pleas overruling his motion to withdraw his plea of guilty pursuant to
{¶3} Appellant filed a direct appeal, asserting four assignments of error, including: (1) that his plea was not entered knowingly, voluntarily, and intelligently, based on the trial court‘s failure to inform him that the convictions could adversely affect his immigration status, as required by
{¶4} In 2004, appellant filed a motion to withdraw his plea of guilty pursuant to
{¶5} In addressing appellant‘s argument regarding the trial court‘s failure to inform him of the effect of his convictions on his immigration status, we concluded that this issue had been raised and addressed on direct appeal, and had therefore become the law of the case. Id. at ¶9. We rejected appellant‘s claim of ineffective assistance of counsel because appellant had not properly raised the issue in the
{¶6} In September 2010, appellant filed a second motion seeking to withdraw his plea of guilty pursuant to
{¶7} Appellant then filed this appeal, and asserts ten assignments of error:
FIRST ASSIGNMENT OF ERROR
The Trial Court abused its’ [sic] discretion and denied appellant due process under the U.S. and Ohio Constitutions by failing to address or otherwise adjudicate a Federal claim presented in Appellant‘s Motion to Withdraw Guilty Plea specifically pursuant to Padilla v. Kentucky, ___ U.S. ___ (2010) 130 S.Ct. 1382 (March 31, 2010). Appellant was
denied effective assistance of counsel. Prior to conviction former Counsel failed to provide Appellant affirmative advice or to assist him upon request whether his guilty plea rendered him Removable from the United States. SECOND ASSIGNMENT OF ERROR
The Trial Court abused its’ [sic] discretion and denied appellant due process under the U.S. and Ohio Constitutions by failing to address the merits of Appellant‘s speedy trial claim presented in his Motion to Withdraw Guilty Plea, specifying that the trial court in 1994 failed to rule on a properly filed motion to dismiss based on a speedy trial violation and failed to preserve matters for appellate review pursuant to
O.R.C. 2945.71-73 .THIRD ASSIGNMENT OF ERROR
The Trial Court abused its’ [sic] discretion and denied Appellant due process when it failed to address the Federal question/claim presented pursuant to
O.R.C. 2963.30 , Art. IV and V, Interstate Agreement of [sic] Detainers. The Trial Court failed to bring Appellant to trial within 120 days and the Trial Court was aware of the issue and awarded Appellant credit on his sentencing.FOURTH ASSIGNMENT OF ERROR
The Trial Court cannot avoid ruling on a substantive matter and send that matter to the appellate court that is without jurisdiction to determine the matter. The Trial Court failed to address Appellant‘s filed motion to dismiss for speedy trial and instead the issue only decided [sic] by the appellate court.
FIFTH ASSIGNMENT OF ERROR
The Trial Court was divested of jurisdiction to convict and sentence Appellant on December 14, 1994 when it failed to comply with the mandatory requirements established pursuant to
O.R.C. 2963.30 , Art. IV and V, the Interstate Agreement on Detainers.
SIXTH ASSIGNMENT OF ERROR
The Trial Court was divested of jurisdiction to convict and sentence Appellant on December 14, 1994 when it failed to comply with the mandatory requirements established pursuant to
O.R.C. 2945.71-73 , and did not conduct a hearing on Appellant‘s motion to dismiss for speedy trial violations.SEVENTH ASSIGNMENT OF ERROR
The Appellant/Defendant‘s guilty plea was not made knowingly, intelligently and voluntarily.
EIGHTH ASSIGNMENT OF ERROR
The Trial Court abused its’ [sic] discretion and prejudiced the Defendant‘s rights to proper notice when it removed J. Tullis Rogers (0034225) from representation in this matter without specifying or requiring a reason for the removal on the record as required by Local Rule 18.01.
NINTH ASSIGNMENT OF ERROR
Appellant was denied effective assistance of counsel by J. Tullis Rogers and Scott Weisman [ ] pursuant to State v. Dukes, 34 Ohio App.3d 263, 518 N.E.2d 28 (Ohio App. 8 Dist. 1986). Tullis Rogers disappeared from the case without preserving Appellant‘s speedy trial rights. Scott Weisman failed to inform Appellant that a motion to dismiss was filed and failed to investigate Appellant‘s removability from the United States as required by [ ], Padilla v. Kentucky, ___ U.S. ___ (2010) 130 S.Ct. 1382 (March 31, 2010).
TENTH ASSIGNMENT OF ERROR
Appellant suffered manifest injustice in this matter pursuant to
Crim. R. 32.1 where he was compelled to give up one substantive right for another. See United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 120 (3rd Cir.1977) (finding that conditioning the exercise of the right to testify upon waiver of the right to counsel is an impermissible infringement upon both rights).
{¶9} A trial court‘s decision to deny a post-sentence motion to withdraw a plea of guilty and the decision whether to hold a hearing on the motion are subject to review for abuse of discretion. State v. Smith (1977), 49 Ohio St.2d 261. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶10} For ease of discussion, we will group appellant‘s assignments of error together where common issues exist. In his second, third, fourth, fifth, and sixth assignments of error, appellant takes issue with the time that passed while appellant‘s case was pending. Appellant points to two separate provisions:
{¶11} We have consistently concluded that res judicata bars a party from raising issues in a post-sentencing
{¶12} In this case, appellant raised violation of his speedy trial rights as set forth in
{¶13} Accordingly, appellant‘s second, third, fourth, fifth, and sixth assignments of error are overruled.
{¶14} In his first, seventh, and ninth assignments of error, appellant argues that he was denied the effective assistance of counsel. Specifically, appellant argues that
{¶15} Appellant‘s claim of ineffective assistance of counsel arising from his first attorney‘s withdrawal or removal from representation was raised in his direct appeal, and we found no merit to the claim. Ikharo I at *11-12. Res judicata bars further litigation of that claim.
{¶16} As for appellant‘s claim of ineffective assistance of counsel based on his second attorney‘s failure to specifically inform him of the consequences to his immigration status of entering a guilty plea, that issue was addressed in both appellant‘s direct appeal and in his appeal of the trial court‘s denial of his first
{¶17} Appellant argues that the trial court‘s compliance with
{¶18} Appellant argues that Padilla creates a duty regarding a defendant‘s immigration status that differs from the duty set forth in
{¶19} However, even assuming that appellant is correct that res judicata does not bar him from continuing to claim ineffective assistance of counsel, Ohio courts since Padilla have concluded that Padilla is not implicated in cases where a trial court complied with
{¶20} In this case, the record shows that at the plea hearing, appellant expressed concern about the possible effect of the plea on his immigration status. However, notwithstanding this expressed concern, there is nothing in the record that would indicate that if appellant had been told that he would, as opposed to might, be removed as a result of his guilty pleas, he would not have agreed to enter the plea. Consequently, even assuming that appellant‘s continuing claim of ineffective assistance of counsel is not barred by the doctrine of res judicata because Padilla provided a new basis for making the claim, appellant cannot show that he was prejudiced as a result of the failure to inform him that he would be subject to removal as a result of his guilty plea.
{¶21} Accordingly, appellant‘s first, seventh, and ninth assignments of error are overruled.
{¶22} In his eighth assignment of error, appellant argues that the trial court erred when it removed his first attorney, J. Tullis Rogers, 19 days prior to the scheduled trial in this case. This argument differs from the arguments presented in appellant‘s direct appeal and in his ninth assignment of error in this case, in which he describes attorney Rogers as having “disappeared” while the case was pending, which suggests a more
{¶23} Accordingly, appellant‘s eighth assignment of error is overruled.
{¶24} In his tenth assignment of error, appellant argues that a manifest injustice occurred in this case because appellant was placed in a position of having to choose between two constitutional rights during the pendency of this case before the trial court. It is not clear what rights appellant is claiming he was forced to choose between in asserting this assignment of error. In the section of his brief titled “ASSIGNMENTS OF ERROR/ISSUES PRESENTED,” appellant states that he was forced to choose between his right to a speedy trial and his right to a full and fair trial. However, appellant does not repeat this argument in the body of his brief, but instead argues under his tenth assignment of error that the trial court erred when it declined to fully address his argument regarding application of Padilla.
{¶25} To the extent that appellant‘s tenth assignment of error continues to argue that his speedy trial rights were violated, we have already concluded that res judicata bars continued litigation of that issue. To the extent that the assignment of error argues that the trial court erred in failing to address his Padilla argument, we have concluded that the argument has no merit. Consequently, it could not have been error for the trial court to have failed to address that argument.
{¶26} Accordingly, appellant‘s tenth assignment of error is overruled.
Judgment affirmed.
BRYANT, P.J., and DORRIAN, J., concur separately.
BRYANT, P.J., concurring separately.
{¶28} I agree with the majority‘s conclusion that res judicata bars the issues addressed in ¶11 and 12 but write separately to clarify I do so because the issues either were raised and resolved in appellant‘s appeal of his guilty plea or were raised or could have been raised in his first motion to withdraw his guilty plea. See State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128.
DORRIAN, J., concurring separately.
{¶29} I concur with the majority‘s conclusion but write separately to clarify that I believe Padilla v. Kentucky (2010), ___ U.S. ___, 130 S.Ct. 1473, imposes upon counsel a duty separate and apart from the duty imposed upon the trial court pursuant to
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