STATE OF OHIO, Plаintiff-Appellee v. ATRAVION PRESTON, Defendant-Appellant
Appellate Case No. 28451
Trial Court Case No. 2011-CR-3212/2 (Criminal Appeal from Common Pleas Court)
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 20, 2020
2020-Ohio-1042
HALL, J.
Attorney for Plaintiff-Appellee
KIMBERLY K. CORRAL, Atty. Reg. No. 0089866, 16855 Foltz Industrial Parkway, Strongsville, Ohio 44149
Attorney for Defendant-Appellant
OPINION
Rendered on the 20th day of March, 2020.
I. Facts and Procedural History
{¶ 2} In March 2012, Preston pleaded guilty to one count of aggravated burglary and one count of rape. He moved to withdraw his plea eight days later on the grounds that he did not knowingly plead guilty. He claimed that he did not understand the nature of his offenses, his constitutional rights, or what he was doing at the plea hearing. Preston also argued that the victim was unable to identify him during the bind-over hearing in juvenile court and that additional investigation was needed. After an evidentiary hearing, the trial court overruled his plea withdrawal motion. The trial court sentenced Preston to an aggregate term of 12 years in prison.
{¶ 3} Preston appealed from the judgment overruling his plеa withdrawal motion. He argued that he did not knowingly plead guilty, because he did not understand all aspects of his case or what was discussed at the plea hearing. In September 2013, wе affirmed the trial court’s judgment in State v. Preston, 2d Dist. Montgomery No. 25393, 2013-Ohio-4404 (Preston I). We concluded that the record established that Preston knowingly pleaded guilty, that the trial court considered all the factors that must be weighed when ruling on a motion to withdraw a plea, and that a majority of them weighed against withdrawal.
{¶ 4} Around five years later, in September 2018, Preston filed pro se a motion to withdraw his pleas and a pеtition for post-conviction relief. As grounds for withdrawal, he
{¶ 5} On May 31, 2019, the trial court sustained thе state’s motion for summary judgment, overruling Preston’s motion to withdraw his guilty pleas and dismissing his petition for post-conviction relief. On the plea withdrawal motion, the court concluded that Preston failed to show manifest injustice. On the petition, the court concluded that it was untimely and that Preston failed to satisfy the untimeliness exception, leaving the court without jurisdiction to rule оn it.
{¶ 6} Preston appeals.
II. Analysis
{¶ 7} Preston assigns two errors to the trial court. The first challenges the overruling of his motion to withdraw his guilty pleas, and the second challenges the dismissal of his petition for post-convictiоn relief.
A. Post-sentence motion to withdraw guilty pleas
{¶ 8} The first assignment of error alleges:
The Trial Court Abused its Discretion When it Denied Appellant’s [
Crim.R. ] 32.1 without Conducting a Meritorious Analysis of Petitioner’s Manifest Injustice Claim.
{¶ 9} “Appellate courts review trial court decisions оn motions to withdraw pleas for abuse of discretion.” State v. Rozell, 2018-Ohio-1722, 111 N.E.3d 861, ¶ 25 (2d Dist.), citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the
{¶ 10}
{¶ 11} The trial court here relied on our decision in State v. Dixon, 2d Dist. Clark No. 2017-CA-80, 2019-Ohio-1385, to overrule Preston’s рost-sentence motion to withdraw his guilty pleas. In Dixon, we said that “a manifest injustice cannot be established where a defendant could have sought redress ‘through another form of apрlication,’ including a direct appeal.” Id. at ¶ 7, quoting State v. Minkner, 2d Dist. Champaign No. 2009 CA 16, 2009-Ohio-5625, ¶ 25-32. “Thus, much like res judicata,” we said, “the manifest-injustice standard precludes relief under
{¶ 12} The trial court concluded that thе claims Preston raised in support of his post-sentence motion to withdraw could have been raised on direct appeal. We agree. In Preston I, Preston appealed from the trial court judgment overruling his presentence motion to withdraw his guilty pleas on grounds that he did not knowingly plead guilty. He argued in his motion to withdraw that he lacked the requisite knowledge to enter his guilty pleas, because he did not understand the nature of his offenses, his constitutional rights, or what was going on at the plea hearing. He testified to all of this at an evidentiary hearing. In thе current post-sentence motion to withdraw, Preston asserts five claims of trial counsel’s ineffectiveness. He argues that trial counsel was ineffective for (1) failing to investigate thе collection of evidence, including DNA evidence; (2) failing to investigate
{¶ 13} We also conclude that res judicata bars Preston’s plea-withdrawal claims. In Dixon, the defendant argued that res judicata did not apply to the arguments raised in his
{¶ 14} Finally, we agree with the trial court’s conclusion that Preston’s ineffective assistance claims are proper grounds for post-conviction relief under
{¶ 15} For any of these reasons, the trial court did not abuse its discretion by overruling Preston’s post-sentence motion to withdraw his guilty pleas.
{¶ 16} The first assignment of error is overruled.
B. Petition for post-conviction relief
{¶ 17} The second assignment of error alleges:
The Trial Court Erred in Denying Appellant’s Petition Without a Hearing.
{¶ 18}
{¶ 19} Here, Preston’s petition for post-conviction relief is untimely, as it was filed roughly five years after we decided his direct appeal, and the exception is not satisfied. No new federal or state right applies to Preston. Preston failed to explain in the trial court, and fails to explain on appeаl, how he was unavoidably prevented from discovering the facts on which his petition relies. Therefore the trial court correctly concluded that it lacked jurisdiction over Preston’s petition for post-conviction relief and properly dismissed it.
{¶ 20} The second assignment of error is overruled.
III. Conclusion
{¶ 21} We have overruled both of the assignments of error presented. The trial court’s judgment is therefore affirmed.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Kimberly K. Corral
Hon. Mary E. Montgomery