Case Information
*1
[Cite as
State v. Nickelson
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 10CA21 vs. :
LESHAWN R. NICKELSON, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. : _________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: LeShawn R. Nickelson, #598-117, C.C.I., P.O. Box 5500,
Chillicothe, Ohio 45601, Pro Se COUNSEL FOR APPELLEE: J.B. Collier, Jr., Lawrence County Prosecuting Attorney,
and Brigham M. Anderson, Lawrence County Assistant Prosecuting Attorney, Lawrence County Courthouse, Ironton, Ohio 45638
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-17-11
ABELE, J.
This is an appeal from a Lawrence County Common Pleas Court judgment that
denied a motion filed by LeShawn R. Nickelson, defendant below and appellant herein, to withdraw his guilty plea. Appellant assigns the following error for review:
“IT IS UNREASONABLE UNDER BOTH THE U.S. AND OHIO CONSTITUTIONS WHEN THE TRIAL COURT ERROR [sic] AND ABUSE [sic] ITS [sic] DISCRETION BY DENYING MR.
NICKELSON’S POST SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEAS PURSUANT TO [CRIM.R.] 32.1 WITHOUT AN EVIDENTIARY HEARING, WHEN A MANIFEST INJUSTICE IS ESTABLISHED.” On August 24, 2005, the Lawrence County Grand Jury returned an indictment
charging appellant with nine counts of drug trafficking and one count of possession of criminal tools. He initially pled not guilty, but later agreed with the prosecution to plead guilty to two counts in exchange for the dismissal of the remaining eight counts. On October 25, 2005, after the trial court reviewed with appellant his various constitutional rights, the court accepted his guilty pleas. The court then scheduled a November 9, 2005 sentencing hearing. Appellant, however, did not appear for sentencing. Several years later, authorities apprehended appellant. On January 28, 2009,
appellant filed a pro se motion and requested to withdraw his guilty pleas from three years
earlier. At the February 2, 2009 sentencing hearing, the trial court overruled appellant's motion
and then sentenced appellant to serve seven years imprisonment on one count, eight years on the
other count, and ordered the sentences to be served consecutively. We affirmed that conviction.
See State v. Nickelson, Lawrence App. No. 09CA8,
motion to withdraw his 2005 guilty plea. The trial court summarily denied his motion. This appeal followed.
Appellant asserts in his assignment of error that the trial court erred by denying his post-sentence motion to withdraw his guilty plea. We disagree with appellant. Our analysis begins with the proposition that the decision whether to grant a
Crim.R. 32.1 motion to withdraw a plea lies in a trial court's sound discretion and should not be
reversed absent an abuse of that discretion. State v. Xie (1992),
In Jackson v. Friley, Jackson App. No. 07CA1, 2007-Ohio- 6755, at ¶17, we wrote:
“‘Under the doctrine of res judicata, a final judgment 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 the defendant raised or could have raised at trial or on appeal.’‘More specifically, a criminal defendant cannot raise any issue in a postsentence motion to withdraw a guilty plea that was or could have been raised at trial or on direct appeal.’ * * * ‘This doctrine has been extended to Crim.R. 32.1 motions.’” (Emphasis added and internal citations omitted.) In the case sub judice, appellant filed a motion to withdraw his guilty plea before
he was sentenced. The trial court denied his motion and we addressed the issue in Nickelson I, supra at ¶¶ 13-26. Although it is not entirely clear that anything new appears in appellant’s most recent post-sentence motion, it does appear that everything in that motion that could have been raised and argued in Nickelson I. [1]
Therefore, we conclude that (1) appellant's arguments are barred by the doctrine of res judicata; and (2) the trial court committed no error when it overruled appellant's motion to withdraw his guilty pleas. Accordingly, we hereby overrule appellant's assignment of error and affirm the
trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee to recover of appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, P.J. & Kline, J.: Concur in Judgment & Opinion For the Court BY: Peter B. Abele, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
[1] Although not a model of clarity, appellant’s pro se motion to withdraw his guilty plea appears to be based on several claims that he was denied the effective assistance of trial counsel. This general issue was also raised on direct appeal. See Nickelson I, at ¶¶5-8.