Case Information
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[Cite as
State v. Rock
,
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
STATE OF OHIO, : O P I N I O N
Plaintiff-Appellee, :
CASE NO. 2018-L-021 - vs - :
DAVID V. ROCK, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2014 CR 000525.
Judgment: Affirmed.
Charles E. Coulson , Lake County Prosecutor, and Karen A. Sheppert , Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
David V. Rock, Jr. , pro se, PID: A663-040, Trumbull Correctional Institution, P.O. Box 901, 5701 Burnett Road, Leavittsburg, OH 44430 (Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, David V. Rock, Jr., appeals from the July 19, 2017 judgment of
the Lake County Court of Common Pleas, denying his motion to withdraw his guilty plea
pursuant to Crim.R. 32.1. For the following reasons, the trial court’s judgment is affirmed.
On March 30, 2015, the Lake County Court of Common Pleas convicted
appellant of one count of operating a vehicle under the influence (“OVI”), a third-degree
felony in violation of R.C. 4511.19(A)(1)(a), and an accompanying R.C. 2941.1413
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specification for having been convicted of five or more OVI offenses within the previous
twenty years. Subsequently, appellant filed several postconviction motions and appeals.
See State v. Rock , 11th Dist. Lake No. 2015-L-047,
{¶3}
Appellant filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1
on June 22, 2017. The state filed a response on July 6, 2017. The motion was denied
on July 19, 2017. The trial court found appellant’s arguments were barred by res judicata.
On July 31, 2017, appellant filed a motion for reconsideration, and on
August 8, 2017, appellant filed a motion for change of venue with the trial court. The court
denied both motions in an order filed August 30, 2017. Appellant filed a notice of appeal
from that order on September 27, 2017. The appeal was dismissed for lack of a final,
appealable order. State v. Rock , 11th Dist. Lake No. 2017-L-119,
[1.] The defense counsel was ineffective by not meeting the demands of the Sixth Amendment rights laid out in the Strickland test.
[2.] The State committed prejudicial error as the State had ‘actual notice’ of ‘constitutionally infirm’ OVI convictions and the State concealed the evidence from the grand jury, the court, and the defense.
[3.] The court summarily denied defendant’s 32.1 motion without a hearing on the States misconduct, defendants affirmative defense and ineffective assistance of counsel.
{¶7} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” “Pursuant to Crim.R. 32.1, to withdraw a guilty plea after the imposition of
sentence, a defendant bears the burden of proving that such a withdrawal is necessary to correct a manifest injustice.” State v. Taylor , 11th Dist. Lake No. 2002-L-005, 2003- Ohio-6670, ¶8, citing State v. Smith , 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. Motions filed pursuant to Crim.R. 32.1 are subject to the doctrine of res
judicata. State v. Gegia , 11th Dist. Portage No. 2003-P-0026,
were already decided by a court and litigation of matters that should have been brought in a previous action. State v. McDonald , 11th Dist. Lake No. 2003-L-155, 2004-Ohio- 6332, ¶21 (citation omitted). “Res judicata bars claims raised in a Crim.R. 32.1 post- sentence motion to withdraw guilty plea that were raised or could have been raised in a prior proceeding.” Id. at ¶22 (citation omitted) (emphasis added). *4 The application of res judicata is generally a question of law that appellate
courts review de novo. State v. Jenkins , 10th Dist. Franklin No. 16AP-105, 2016-Ohio- 5533, ¶18 (citation omitted). In his Crim.R. 32.1 motion and on appeal, appellant argues his OVI
convictions from 1995 and 1997 that were used to enhance his current OVI conviction to a felony were “constitutionally infirm” because he entered uncounseled pleas of “no contest” in those cases without a valid waiver of his right to counsel. Appellant argues that uncounseled priors cannot be used to enhance a conviction and maintains that “[h]ad [he] understood this law, as it relates to the facts when giving his guilty plea, he would have insisted on going to trial[.]” Appellant raises a claim of ineffective assistance of counsel, arguing his trial counsel’s performance was defective because he failed to investigate the alleged uncounseled pleas. Appellant further argues the state “misled the grand jury * * * by withholding exculpatory evidence and willfully presenting ‘constitutionally infirm’ convictions.” Attached to appellant’s Crim.R. 32.1 motion was his own affidavit dated
September 29, 2010. Appellant averred that when he entered a plea of no contest in the
1995 case, he appeared without counsel, did not waive his right to counsel, and was not
informed of the consequences of entering a plea of no contest. He further averred that
when he entered a plea of no contest in the 1997 case, he appeared without counsel and
signed a “boilerplate waiver of counsel form” but was not informed of his rights or of the
consequences of entering a plea of no contest. Appellant was therefore aware of the
alleged uncounseled convictions since September 29, 2010. Further, the record reflects
defense counsel raised in the trial court the issue of appellant’s previous pleas. During
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appellant’s sentencing hearing, defense counsel stated: “Your honor, I think what he’s
trying to explain to you is that when he entered the pleas on the priors, he’s telling me
after he entered the plea on this case that he didn’t have an attorney and that the Court
didn’t advise him that he had voluntarily waived that right. And that’s why I told him not
to pursue that one.” Thus, appellant could have raised the issues pertaining to ineffective
assistance of counsel and the state’s withholding exculpatory evidence in his direct
appeal. He did not. See Rock ,
Crim.R. 32.1 motion. However, “[n]o hearing is required on postsentence motions under
Crim.R. 32.1 unless the facts as alleged by the appellant, taken as true, would require the
trial court to permit withdrawl of the plea.” State v. Beachum , 6th Dist. Sandusky Nos. S-
10-041 & S-10-042,
Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.