State v. MobleyState v. Mobley
Rendered on September 25, 2018
On brief: Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
On brief: Alphonso D. Mobley, Jr., pro se.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Alphonso D. Mobley, Jr., appeals from a judgment of the Franklin County Court of Common Pleas denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 15, 2016, a Franklin County Grand Jury indicted appellant on charges of aggravated arson, in violation of
{¶ 3} Appellant subsequently entered a plea agreement whereby he pleaded guilty to aggravated arson with a firearm specification and сriminal use of an explosive device. The parties jointly recommended a prison term of 14 years. On application of the prosecutor, the trial court ordered a nolle prosequi as to the remaining counts in the indictment.
{¶ 4} On May 1, 2017, the trial court convicted appellant and sentenced him to ten years in prison for aggravated arson, plus а mandatory one-year prison term for the firearm specification and three years in prison for criminal use of an explosive device. The trial court ordered appellant to serve the prison terms for the two convictions consecutive to each other and consecutive to the firearm specification, for an aggregate prison term of 14 years. Appellant did not appeal the judgment of conviction and sentence.
{¶ 5} On October 25, 2017, appellant filed a motion to withdraw his guilty plea pursuant to
{¶ 6} The trial court found that res judicata barred appellant from raising the merger argument underlying his motion to withdraw his guilty plea because that argument cоuld have been raised in a direct appeal from the judgment of conviction and sentence. In
{¶ 7} Appellant timely appealed to this court from the judgment of the trial court.
II. ASSIGNMENTS OF ERROR
{¶ 8} Appellant assigns the following as trial court error:
- [1.] Trial court abused its discretion when it denied petitioner motion to withdraw on grounds was not allied offenses of similar import.
- [2.] Trial court abused its discretion when it denied petitioners [sic] motion of [sic] withdraw on grounds of res judicata.
- [3.] Trial court abused its discretiоn when it denied motion to withdraw without a hearing.
- [4.] Trial court abused its discretion when it denied motion to withdraw on grounds that counsel is not ineffective.
- [5.] Trial court abused its discretion when it denied motion to withdraw on grounds: no manifest injustice.
III. STANDARD OF REVIEW
{¶ 9} Pursuant to
IV. LEGAL ANALYSIS
A. Appellant‘s Second Assignment of Error
{¶ 10} Because we find that our resolution of appellant‘s second assignment of error impacts our ruling on each of appellant‘s other assignments of error, we will consider it
{¶ 11} Appellant‘s primary argument in support of his motion to withdraw his guilty plea is grounded on
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 12} Appellant claims that the two counts in the indictment to which he pleaded guilty, aggravated arson and criminal use of an explosive device, are allied offenses of similar import and that
{¶ 13} “Motions to withdraw guilty pleas are governed by
{¶ 14} “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.” (Emphasis omitted.) State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. ” ’ “[R]es judicata promotes the principles of finality and judicial economy by prеventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard.” ’ ” State v. Walden, 3d Dist. No. 4-15-13, 2016-Ohio-258, ¶ 19, quoting State v. Schwieterman, 3d Dist. No. 10-09-12, 2010-Ohio-102, ¶ 23, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18. Consistent with these principles, this court has repeatedly held that res judicata bars a party from raising issues in a postsentencing
{¶ 15} When we apply the rеasoning of the Supreme Court of Ohio in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, to the facts of this case, we conclude that appellant could have raised in a direct appeal from his conviction and sentence the very same merger argument he now makes in support of his motion to withdraw his guilty plea. In Underwood, a grand jury indicted Underwood on two counts of aggravated theft and two counts оf theft. Underwood agreed to plead no contest to all four counts in exchange for receiving a prison term of no more than two years. In its written sentencing recommendation, the state noted that the two counts in each of the different categories of thefts would be considered allied offenses of similar import. However, at sentencing, no disсussion was held regarding allied offenses, and the trial court convicted Underwood of all four counts and imposed a two-year prison sentence for each conviction. The trial court ordered all the sentences to be served concurrently for a total prison term of two years. Id. at ¶ 2-6.
{¶ 16} Underwood appealed, arguing the trial court committеd plain error by convicting him of allied offenses of similar import and imposing multiple sentences. The
{¶ 17} In so ruling, the Supreme Court stated:
[A] trial court is prohibited from imposing individual sentences for counts that constitute allied offenses of similar import. A defendant‘s рlea to multiple counts does not affect the court‘s duty to merge those allied counts at sentencing. This duty is mandatory, not discretionary. Therefore, we conclude that when a sentence is imposed on multiple counts that are allied offenses of similar import in violation of
R.C. 2941.25(A) ,R.C. 2953.08(D) does not bar appellate review of that sentence even thоugh it was jointly recommended by the parties and imposed by the court.
{¶ 18} The Underwood court explained that
{¶ 19} Pursuant to the decision of the Supreme Court in Underwood, there can be no doubt that appellant could have raised the merger argument he advanced in his
{¶ 20} For the foregoing reasons, we hold the trial court did not err when it concluded that res judicata barred appellant‘s merger argument in support of his
B. Appellant‘s First and Fifth Assignments of Error
{¶ 21} In appellant‘s first and fifth assignments of error, appellant makes the same merger argument we addressed in connection with appellant‘s second assignment of error. In each of these assignments of error, appellant claims that manifest injustice occurred when he was convicted of aggravated arson and criminal use of an explosive device because those two counts in the indictment are allied offenses of similar import.
{¶ 22} As we determined in connection with appellant‘s second assignment of error, res judicata barred appellant from raising the merger argument in support of his motion to withdraw his guilty plea because appellant could have raised that argument in a direct appeal from the judgment of conviction and sentence. Moreover, even if res judicata did not bar appellant from raising a merger argument in support of his
{¶ 23} State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, sets forth the standard to apply to merger determinations under
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must ask three questions when defendant‘s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
(Emphasis added.) Id. at ¶ 31.
{¶ 24} Here, appellant‘s affidavit attached as an exhibit to his motion to withdraw his guilty plea does not provide any information regarding the сonduct underlying the convictions. Appellant did not file a copy of the transcript of the plea hearing or the sentencing hearing with his motion. Additionally, we note that the only relevant factual information that may be gleaned from the indictment is that appellant committed the two offenses at issue on the same date. The trial court concluded that “Dеfendant‘s crimes (F1 Aggravated arson with firearm specification, and F2 Criminal Use of an Explosive Device) are not allied offenses of similar import.” (Dec. 15, 2017 Entry at 3.) The trial judge who issued the judgment of conviction and sentence in this case is the same trial judge who denied appellant‘s motion to withdraw his guilty plea.
{¶ 25} On this record, we have no basis on which to question the trial court‘s determination that the count in the indictment charging appellant with aggravated arson did not merge with the count charging appellant with criminal use of an explosive device for purposes of conviction and sentence. Accordingly, appellant‘s first and fifth assignments of error are overruled.
C. Appellant‘s Fourth Assignment of Error
{¶ 26} In his fourth assignment of error, appellant argues that his trial counsel provided ineffective assistance by failing to make the merger argument at sentencing. We disagree.
{¶ 27} In the Askew case, the Fifth District Court of Appeals held that res judicata barred appellant‘s
{¶ 28} We agree with the reasoning employed by the Fifth District. Accordingly, we hold the trial court did not err when it determined that res judicata barred appellant from raising his claim of ineffective assistance of trial counsel in support of his motion to withdraw his guilty plea. Moreover, the trial court found that appellant‘s claim of ineffective assistance of trial counsel was “wholly unsupported by the record, and * * * entirely meritless.” (Dec. 15, 2017 Entry at 3.) As notеd in connection with appellant‘s first and fifth assignments of error, appellant failed to file the transcript of his plea hearing or his sentencing hearing. Consequently, even if res judicata did not bar appellant from raising ineffective assistance of counsel as a basis to withdraw his guilty plea, there is insufficient evidence in the record for this court to determine the merits of appellant‘s claim.
{¶ 29} For the foregoing reasons, appellant‘s fourth assignment of error is overruled.
D. Appellant‘s Third Assignment of Error
{¶ 30} In his third assignment of error, appellant argues the trial court abused its discretion when it denied his motion to withdraw his guilty plea without first conducting an evidentiary hearing. We disagree.
{¶ 31} A trial court is not automatically required to hold a hearing on a postsеntence motion to withdraw a guilty plea. Barrett at ¶ 9. A hearing must only be held if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea. Id. As previously noted, appellant‘s affidavit in support of his motion did not contain information regarding the conduct underlying the offenses to which he pleaded guilty. Thus, the faсts alleged by the appellant, if accepted as true, would not support his merger argument. Moreover, the record evidences the fact that res judicata barred appellant from raising a merger argument in his
{¶ 32} For the foregoing reasons, appellant‘s third assignment of error is overruled.
V. CONCLUSION
{¶ 33} Having оverruled appellant‘s five assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and HORTON, JJ., concur.
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