State v. Ishmail, 423 N.E.2d 1068

State v. Ishmail

423 N.E.2d 1068

Ohio

1981

Check Treatment

Per Curiam.

Thе principal issue raised in the state’s appeal is whether thе Court of Appeals erred in remanding the cause for a reviеw of the plea hearing transcript to determine whether the sentencing court complied with Crim. R. 11(C).3 The state contends that the defendant-appellee is barred from litigating the alleged Crim. R. 11(C) violation in a post-conviction proceeding because “[m]atters involving technical violations of Crim. 11(C) may be raised on direct appeals from the judgment of conviction and sentence.” Therefore, ac cording to the appellant, “[a] court of appeals commits error when it permits a defendant to raise in a post-conviction proceeding matters not affeсting the constitutional validity of a plea but which violate the technical provisions of Criminal Rule 11(C) which alleged error could havе been raised by way of a direct appeal.”

Appellant relies on State v. Perry (1967), 10 Ohio St. 2d 175, to support the position that the Crim. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍R. 11(C) question in this case was res judicata when the Court of Appeals ordered a remand to review the plea hearing transcript. In Perry, we stated in paragraphs eight and nine of the syllabus, resрectively, that:

“The Supreme Court of Ohio will apply the doctrine of res judicata in determining whether post-conviction relief should be given under Section 2953.21 et seq., Revised Code.

“Under the doctrine of res judicata, a final judgment of conviction bars a conviсted defendant who was represented by counsel from raising and litigаting ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in any proceeding except an appeal from thаt judgment, any defense or any claimed lack of due procеss that was raised or could have been raised by the defendant аt the trial, which resulted in that judgment of conviction, or on an appeal from the judgment.”

The alleged Crim. R. 11(C) violation in the case at bar could have been raised directly on appeal. If the sentencing court erroneously failed to inform defendant, pursuant to Crim. R. 11(C), that he was ineligible for probation because of his prior theft conviсtion, then the defendant should have taken a direct appeal. A Crim. R. 11(C) violation that appears on the face of the record but is never directly appealed is not per se susceptible tо collateral attack by way of a post-conviction рroceeding pursuant to R. C. 2953.21. Under the doctrine of res judicata the Crim. R. 11(C) question merged with the judgment of conviction ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and defendant cannot now relitigatе the issue.

We find Perry, supra, to be dispositive on the Crim. R. 11(C) question presented herein. Therefore, the Court of Appeals erred in remanding the causе for a review of the plea transcript hearing.

The Court of Aрpeals also ordered the trial court to hold an evidentiary hearing to determine whether defendant’s guilty plea was fraudulently induсed by his former counsel. See State v. Milanovich (1975), 42 Ohio St. 2d 46; State v. Mishelek (1975), 42 Ohio St. 140. Inasmuch as appellant has' nоt challenged the Court of Appeals’ order with respect tо the other grounds ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for reversal, those issues are not propеrly before this court and we express no opinion thereon.

Thе judgment of the Court of Appeals is reversed insofar as it called for a review of the plea transcript hearing.

Judgment accordingly.

Celebrezze, C. J., W. Brown, P. Brown, Sweeney, Locher, Holmes and C. Brown, JJ., concur.

Notes

Appеllant’s brief contains ten propositions of law but several are axiomatic while others are verbatim restatements of State v. Perry (1967), 10 Ohio St. 2d 175, syllabus paragraphs. Notwithstanding the multiple propositions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of law, there is only one major issue presented for decision.