{¶ 1} Defendant-appellant, Michael Snyder, appeals the judgment of the Pike County Court of Common Pleas denying his post-sentence motion to withdraw guilty plea. On appeal, Snyder argues that he should be allowed to withdraw his plea because (1) his conviction is void for lack of subject matter jurisdiction; and (2) he received ineffective assistance of counsel.
{¶ 2} Snyder argues that his conviction is void for lack of subject matter jurisdiction because he was convicted of an unclassified felony when the indictment charged him with a first-degree felony. However, Snyder waived any defects in the indictment by failing to object to the indictment and pleading guilty.
{¶ 3} Snyder also argues that his trial counsel was ineffective for allowing him to plead guilty to an unclassified felony and then allowing the trial court to convict him of an unclassified felony. However, Snyder's ineffective assistance of counsel claim could have been raised on direct appeal and is therefore barred by res judicata.
{¶ 4} Accordingly, we affirm the judgment of the trial court.
I. Facts and Procedural History
{¶ 5} On June 30, 2014, a complaint was filed in the Pike County Court charging Snyder with one count of murder in violation of R.C. 2903.02(A). Snyder was subsequently indicted by a Pike County Grand Jury on the same charge, along with an attendant firearm specification. Snyder entered a plea of not guilty.
{¶ 6} Through discovery, the following facts were uncovered. On June 13, 2016, police received a call about a dispute on Fairview Road in Peebles, Ohio. Deputy Cottrell of the Pike County Sherriff's Office responded to the scene and spoke with the caller, Kim Snyder ("Snyder's wife"). Snyder's wife stated that her neighbor's son, Tylor Tong ("Tylor"), was threatening her and her husband. Apparently, the threats related to an ongoing property-line dispute between the two families.
{¶ 7} Snyder told Deputy Cottrell that he was going to shoot anyone who trespassed onto his property. Deputy Cottrell advised Snyder that that was against the
{¶ 8} Later that day, however, police received a call that Tylor's father, Kenneth Tong ("Tong"), had been shot. Once on scene, police discovered Tong lying in a field with a single gunshot wound to the head. Tong was taken to the hospital where he later died.
{¶ 9} When police approached Snyder, he admitted to shooting Tong. Eyewitness later confirmed that the shooting occurred during a heated altercation between Snyder, Tong, and Snyder's stepson.
{¶ 10} On February 2, 2015, a change-of-plea hearing was held. At the start of the hearing, the trial court brought up an error in the indictment:
The Court: All right. * * * The indictment itself says, uh, murder, a felony of the first degree. * * * Technically, murder is not a felony of the first degree. It's an unclassified felony under, uh, Ohio's law. Both the State and defense understand that, correct?
[The Prosecutor]: Correct, Your Honor.
[Defense Counsel]: Oh, we do, Your Honor.
The Court: And so, we're proceeding then, uh, with the understanding that the charge of murder is an unclassified felony. * * *
(Feb. 2, 2015, Hrg., p. 8).
{¶ 11} After waiving his rights, Snyder pleaded guilty to one count of murder, an unclassified felony, and was immediately sentenced to 15 years to life in prison.
{¶ 12} Snyder timely appealed; but his appeal was dismissed shortly thereafter upon his request.
{¶ 13} After approximately twenty-two months, in December 2016, Snyder moved to withdraw his guilty plea. First, he argued that the trial court and trial counsel erred in failing to inform him that the State would have to prove beyond a reasonable doubt that he purposely killed Tong. Snyder maintained that if he had known the alleged culpable mental state, he would have gone to trial because he did not act purposely. In that regard, he maintained that the trial court failed to comply with Crim.R. 11 and that he received ineffective assistance of counsel. Second, he argued that trial counsel was ineffective for failing to raise the defense of accident. Third, Snyder argued that the State failed to properly indict him for the offense of murder. Specifically, he argued that he was never put on notice that he was charged with an unclassified felony. Finally, he argued that trial counsel was ineffective for advising him to plead guilty to an offense other than first-degree murder.
{¶ 14} On December 12, 2016, the trial court denied Snyder's motion.
{¶ 15} Snyder timely appealed the denial of the motion to withdraw guilty plea.
II. Assignments of Error
{¶ 16} Snyder assigns the following errors for our review:
Assignment of Error No. 1:
The trial courts [sic] December 12th, 2016 decision and corresponding judgment entry overruling and denying the defendants [sic] Pre Sentence Motion to Withdraw Guilty Plea was a prejudicial error as a result of the courts [sic] failureto correct a manifest injustice' [sic] as contemplated.
Assignment of Error No. II:
The trial court erred in finding defendant guilty and imposing sentence upon charges for which the court did not have jurisdiction.
Assignment of Error No. III:
Ineffectiveness of trial counsel when a defendant is entering a guilty plea can be a manifest injustice to withdraw a guilty plea and/or counsel representation fell below an objective standard of reasonableness.
III. Law and Analysis
{¶ 17} 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." "A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Smith,
{¶ 18} The decision to grant or deny a Crim.R. 32.1 post-sentence motion to withdraw a guilty plea is committed to the sound discretion of the trial court; appellate review of the denial of the motion is thus limited to a determination of whether the trial court abused its discretion. Walton at ¶ 11 ; see also Smith at paragraph two of the syllabus ("A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court."). "A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary." State v. Darmond,
{¶ 19} In the case sub judice, Snyder's motion to withdraw guilty plea is premised on the argument that his conviction is void for lack of subject matter jurisdiction because he was convicted of an unclassified felony when the indictment charged him with a first-degree felony. In support, he relies on the Ohio Supreme Court's holding in State v. Cimpritz ,
{¶ 20} However, Cimpritz was "explained and distinguished" in Midling v. Perrini ,
{¶ 21} The court ultimately held that "where a defendant while represented by counsel pleads guilty to an offense and is sentenced, the judgment of conviction cannot be collaterally attacked on the ground that the indictment fails to state one or more essential elements of the offense." Midling at 107,
{¶ 22} "What Midling makes clear is that a judgment of conviction arising from an indictment that omitted a material element of the charged offense is not void for lack of subject matter jurisdiction, but, instead, merely voidable on a direct appeal from that judgment of conviction." (Emphasis added.) Shie at ¶ 54, citing Midling at 107,
{¶ 23} Unlike true issues of voidness, "[a] voidable error can be waived." State v. Peeks , 10th Dist. Franklin No. 05AP-1370,
{¶ 24} In State v. Barton ,
{¶ 25} Although the Court chose to consider the merits of the defendant's claim anyway, it "agre[ed] with the state that [the defendant] waived any deficiency in the indictment by failing to object to the indictment and by pleading guilty to the offense." Id. at ¶ 73. The Court explained,
Crim.R. 12(C)(2) mandates that "Defenses and objections based on defects in the indictment" must generally be raised "[p]rior to" trial, and we have previously held that "failure to timely object to the allegedly defective indictment constitutes a waiver of the issues involved." State v. Biros (1997),, 436, 78 Ohio St.3d 426 . Crim.R. 11(B)(1) states, "The plea of guilty is a complete admission of the defendant's guilt." 678 N.E.2d 891
(Citations omitted.)
{¶ 26} Like the defendant in Barton , Snyder did not object to the indictment and pleaded guilty to the offense. Therefore, he waived any deficiency in the indictment.
{¶ 27} Snyder also argues that his trial counsel was ineffective for allowing him to plead guilty to an unclassified felony and then allowing the trial court to convict him of an unclassified felony.
{¶ 28} "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
{¶ 29} "Courts, including this one, have applied res judicata to bar defendants from raising claims in a Crim.R. 32.1 postsentence motion to withdraw that they either raised or could have raised in a direct appeal from their judgment of conviction and sentence." State v. Mackey , 4th Dist. Scioto No. 14CA3645,
{¶ 30} Because Snyder could have raised his argument in a direct appeal, his argument is barred by the doctrine of res judicata; and he cannot now raise it in a motion to withdraw guilty plea. See , e.g. , State v. Young , 8th Dist. Cuyahoga No. 104861,
IV. Conclusion
{¶ 31} Having determined that Snyder's first claim was waived and his second claim is barred by res judicata, we overrule his assignments of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Abele, J. and McFarland, J.: Concur in Judgment and Opinion.
Notes
In exchange for his plea, the State agreed, inter alia, not bring charges against Snyder's stepson for crimes he may have committed on the day of the murder. It is unclear what charges, if any, the State planned to bring against Snyder's stepson. However, Snyder's stepson eventually admitted to hitting Tong and knocking him to the ground immediately before Snyder shot him.