State v. TaborState v. Tabor
Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
Tony A. Tabor, pro se.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Defendant-appellant, Tony A. Tabor, was originally indicted in case No. 05CR04-2322 on four counts: Counts 1 and 2 alleged that appellant committed robbery in violation of
{¶2} On July 24, 2006, appellant was indicted in case No. 06CR07-5342 on two counts of robbery and one count of receiving stolen property. Appellant agreed to plead guilty to the lesser-included offense of theft on Count 1 and the court imposed a sentence of one year of incarceration. At the hearing in which the trial court accepted appellant‘s plea in case No. 06CR07-5342, appellant stipulated that he had violated the terms of his community control in case No. 05CR04-2322. In case No. 05CR04-2322, the court imposed seven years of incarceration on Count 1 and four years of incarceration on Count 3, with those sentences to be served concurrently with the one-year sentence imposed in case No. 06CR07-5342. Appellant appealed and this court affirmed. See State v. Tabor, 10th Dist. No. 07AP-267, 2007-Ohio-5796.
{¶3} In August 2008, appellant filed a motion to withdraw his guilty plea in case No. 05CR04-2322, alleging that the indictment was defective because it omitted the mens rea. Appellant was relying upon State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (”Colon I“). The trial court denied appellant‘s motion.
{¶4} Appellant filed a notice of appeal and raised the following assignments of error:
I. The trial court abused its discretion by denying defendant[‘]s motion to withdraw guilty plea to set aside judgment which seeked to correct manifest injustice.
II. The trial court abused its discretion when defendant was deprived of his rights to a grand jury indictment, to due process pursuant to Article I, Section 10 of the Ohio Constitution and the Fifth and Fourteenth Amendment to the United States Constitution when the indictment failed to include all the essential elements of the offense charged and the jury and never instructed on the culpable mental state.
III. The trial court abused its discretion when it entered the judgment of conviction in the absence of sufficient evidence to establish all the elements of the offense charged in the indictment.
{¶5} The first two assignments of error are interrelated and will therefore be addressed together. In the first assignment of error, appellant contends that the trial court abused its discretion by denying his motion to withdraw his guilty plea. In his second assignment of error, appellant contends that the trial court abused its discretion when he was deprived of his rights to a grand jury indictment, to due process pursuant to
{¶6} A post-sentence motion to withdraw a guilty plea, pursuant to
{¶8} Appellant argues that his indictment was defective for failing to allege a culpable mental state based upon Colon I. However, several appellate districts, including the Tenth District, have found Colon I inapplicable where the defendant has entered a guilty plea and, thus, not tried under the indictment. See State v. McGinnis, 3d Dist. No. 15-08-07, 2008-Ohio-5825, ¶26; State v. Gant, 3d Dist. No. 1-08-22, 2008-Ohio-5406, ¶13; State v. Smith, 6th Dist. No. L-07-1346, 2009-Ohio-48, ¶10; State v. Hayden, 8th Dist. No. 90474, 2008-Ohio-6279, ¶6; State v. Mills, 10th Dist. No. 08AP-687, 2008-Ohio-6609; State v. Straughter, 10th Dist. No. 08AP-777, 2009-Ohio-641.
{¶9} Even if the holding in Colon I were applicable to situations in which a defendant has entered a guilty plea, we find that the trial court did not abuse its discretion in finding that Colon I does not mandate granting appellant‘s request to
{¶10} Appellant‘s arguments are also barred by res judicata because he could have raised the issue of the defective indictment in the trial court or on direct appeal. The doctrine of res judicata provides that “[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus. In Grava, the court stated that the doctrine of res judicata bars not only subsequent actions involving the same legal theory of recovery as the previous action, but also claims which could have been litigated in the previous action:
It has long been the law of Ohio that “an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit” (emphasis sic) (quoting Rogers v. Whitehall [1986], 25 Ohio St.3d 67, 69, 25 OBR 89, 90, 494 N.E.2d 1387, 1388). We also declared that “[t]he doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it.
{¶11} In his third assignment of error, appellant contends that the trial court abused its discretion when it entered a judgment of conviction in the absence of sufficient evidence to establish all the elements of the offense. Unlike the defendant in Colon I, who had a jury trial, here, appellant pleaded guilty to the charges. “The plea of guilty is a complete admission of the defendant‘s guilt.”
{¶12} Since appellant has not demonstrated manifest injustice as required by
Judgment affirmed.
BROWN and McGRATH, JJ., concur.