State v. NickelsonState v. Nickelson
{¶ 1} 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.
{¶ 2} 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.”
{¶ 3} 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.
{¶ 4} 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, 2009-Ohio-7006 (Nickelson I). Appellant’s attempts to appeal to the Ohio Supreme Court were rebuffed. See e.g. State v. Nickelson, 124 Ohio St.3d 1523, 923 N.E.2d 622, 2010-Ohio-1075; State v. Nickelson, 126 Ohio St.3d 1515, 930 N.E.2d 333, 2010- Ohio-3331.
{¶ 5} Appellant commenced the instant proceedings on April 7, 2010 with another motion to withdraw his 2005 guilty plea. The trial court summarily denied his motion. This appeal followed.
{¶ 7} Our analysis begins with the proposition that the decision whether to grant a
{¶ 8} 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.)
{¶ 9} 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
{¶ 10} 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.
{¶ 11} 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
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.