STATE OF OHIO, PLAINTIFF-APPELLEE, v. JASON C. THOMAS, DEFENDANT-APPELLANT.
CASE NO. 10-10-17
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY
August 29, 2011
[Cite as State v. Thomas, 2011-Ohio-4337.]
Appeal from Mercer County Common Pleas Court Trial Court No. 09-CRM-008 Judgment Affirmed
Gene P. Murray for Appellant
Matthew K. Fox for Appellee
ROGERS, P.J.
{¶2} In January 2009, the Mercer County Grand Jury indicted Thomas on Count One: felony murder (based on the predicate offense of felоnious assault in violation of
{¶3} On February 2, 2009, Thomas made his initial appearance before the trial court. At that time the trial court assigned Thomas a court appointed attorney, as he was found to be indigent, and set arraignment for March 4, 2009. Subsequently, Thomas filed a motion for continuance of the arraignment, which the trial court granted. On April 29, 2009, Thomas was arraigned and entered a plea of not guilty to all counts in the indictment.
The Court: Do you also understand you‘re waiving your right to appeal the judgment of this court if the court is to find you guilty?
The Defendant: Yes.
Change of Plea Hearing Tr., p. 7.3 After the colloquy, the State read the stipulation of facts into the record, and Thomas signed a written stipulation of facts. The stipulation read:
On or about January 14, 2009, approximately 7:17 p.m., the Celina Police Department received a report of an injured child in the City of Celina, County of Mercer, State of Ohio. Celina Police officers responded to the child‘s residence along with emergency medical service personnel and found a 10 [and a half] month old child apparently not breathing, unresponsive with multiple bruises on his face, chest and abdomen.
The child was taken to Mercer Health, and transferred to Children‘s Medical Center in Dayton, Ohio, where the child died on January 15, 2009. The cause of death was reported to be non-accidental multiple blunt force trauma to the child. Also, multiple bruises, broken bones and injuries to the child‘s internal organs were found. The opinion of the treating physician at Children‘s Medical Center was that the child was abused. The injuries and death were consistent with Shaken Baby Impact Syndrome.
Jason Thomas admitted to committing the assault against the minor child that resulted in the child‘s death.
Thereafter, the trial court accepted Thomas’ pleas of no contest to Counts One and Two of the indictment, finding that they were entered voluntarily, knowingly, and intelligently.
{¶5} On July 22, 2009, the matter proceeded to sentencing. On Count One of the indictment the trial court sentenced Thomas to a prison term of fifteen years to life. On Count Two of the indictment the trial court sentenced Thomas to an eight-year prison term to run concurrently with his sentence in Count One.
{¶6} On August 4, 2010, Thomas filed a Motion to Withdraw pursuant to
{¶7} On November 15, 2010, the trial сourt filed its judgment entry denying Thomas’ Motion to Withdraw, finding, in pertinent part:
* * * With regard to the claimed new evidence, the affidavit of Kelly L. Reck, the paternal grandmother of the child victim, and the affidavit of Sue Thomas, the defendant‘s mother, claim that on December 4, 2009, they were told by Celina Police Department Detective Calvin Freeman that the police knew that Sidney Steinecker, the victim‘s mother, caused his fatal injuries аnd that the police never had any evidence on the defendant. First and foremost, those statements are blatant hearsay when used to prove the truth of the matter asserted in those statements. If the motion had been accompanied by an affidavit from Detective Freeman to that same effect, such evidence may be a factual basis for the court to consider defendant‘s motion to withdraw his plea. Furthermore, the motion is not supported by any affidavit or statement of the defendant that contradicts the stipulation of facts signed by the defendant and acknowledged at the change of plea hearing on June 3, 2009.
The court concludes that there exists insufficient evidence in support of defendant‘s motion to establish manifest injustice
sufficient to permit him to withdraw his plea. Furthermore, there is insufficient evidence to warrant an evidentiary hearing on the motion.
With regard to the second and third bases for defendant‘s motion, the court has reviewed the transcript of the change of plea hearing. It is apparent from the record that the court complied with Criminal Rule 11 during the change of plea hearing, specifically with regard to defendant‘s claim that the court incorrectly advised the defendant that by entering the no сontest plea he was waiving his right to appeal. That allegation is misleading and inaccurate. Specifically, the court did advise the defendant that by entering the no contest pleas, he was waiving his right to appeal the judgment of the court if the court found him to be guilty, that being an accurate statement of an effect of his no contest plea. The court did not advise him that he could not appeal аny other issue other than the court‘s judgment.
November 15, 2010 Judgment Entry, pp. 2-3.
{¶8} It is from this judgment Thomas appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT REVERSIBLY ERRED IN DENYING THE DEFENDANT-APPELLANT‘S MOTION TO WITHDRAW HIS NO CONTEST PLEAS AND TO VACATE JUDGMENTS OF GUILTY AND JUDGMENTS OF SENTENCES, PURSUANT TO
Assignment of Error No. II
THE TRIAL COURT REVERSIBLY ERRED IN DENYING THE DEFENDANT-APPELLANT‘S MOTION TO WITHDRAW HIS NO CONTEST PLEAS AND TO VACATE JUDGMENTS OF GUILTY AND JUDGMENTS OF SENTENCES, PURSUANT TO
Assignment of Error No. III
IN AN ABUSE OF ITS DISCRETION, THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENDANT-APPELLANT‘S MOTION TO WITHDRAW HIS NO CONTEST PLEAS AND VACATE JUDGMENTS OF GUILTY AND JUDGMENTS OF SENTENCES, PURSUANT TO
{¶9} Due to the nature of Thomas’ assignments of error we will address his second assignment of error first, followed by his first and third assignments of error.
Assignment of Error No. II
{¶10} In his second assignment of error, Thomas contends that the trial court erred in denying his Motion to Withdraw because the trial court failed to advise him of his right to appeal during the sentencing hearing in violation of
{¶11} Review of record reveals that Thomas did not raise the foregoing sentencing issue in his Motion to Withdraw. A court of appeals is not required to consider issues not raised before the trial court. State v. Robinson, 3d Dist. No. 8-97-20, 1999 WL 152890, *1, citing Republic Steel Corp. v. Bd. of Revision (1963), 175 Ohio St. 179. Consequently, we decline to consider the merits of Thomas’ second assignment of error.
{¶12} However, had Thomas raised the sentencing issue in his Motion to Withdraw, and had we found his argument meritorious, it would not be grounds to reverse the trial court‘s denial of his Motion to Withdraw, because such an error
{¶13} Accordingly, we overrule Thomas’ second assignment of error.
Assignments of Error Nos. I & III
{¶14} In his first assignment of error, Thomas contends that the trial court erred in denying his Motion to Withdraw because the trial court improperly advised him of his right to appeal during the
Standard of Review
{¶15}
{¶16} The decision to grant or deny a
Notification of Right to Appeal during Crim.R. 11 Colloquy
{¶17} Initially, we note that consideration of Thomas’ first assignment of error is barred by res judicata. “[U]nder 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 beеn raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, syllabus. Consequently, res judicata will serve to bar all claims raised in a
{¶18} In his first assignment of error, Thomas contends that the trial court erred in denying his Motion to Withdraw because the trial court improperly advised him of his right to appeal during the
{¶19} Although we have found that Thomas’ first assignmеnt of error is barred by res judicata, we also note that the assignment of error also fails on the merits.
{¶20} It is well established that a plea of guilty or no contest must be made knowingly, intelligently, and voluntarily for it to be valid and enforceable. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶25. To ensure that a plea in a felony case is being made knowingly, intelligently, and voluntarily,
{¶21} The nonconstitutional requirements of
{¶22} During the plea colloquy the trial court asked Thomas:
The Court: Do you also understand you‘re waiving your right to appeal the judgment of this court if the court is to find you guilty?
The Defendant: Yes.
Change of Plea Hearing Tr., p. 7. Thomas contends that the foregoing notification incоrrectly informs him of his right to appeal as it exists subsequent to entering a plea of no contest. Thomas interprets the trial court‘s statement to mean that he was waiving his right to appeal “any and all judgments of the trial court.” Thomas App. Br., p. 8. Additionally, Thomas seemingly contends that the trial court must notify him of the judgments and issues that may be appealed despite entering a plea of no contest. We disagree on both accounts.
{¶24} The trial court‘s statement concerning Thomas’ right to appeal was proper. The context of the trial court‘s statement does not support Thomas’ interpretation that the trial court informed Thomas that his plea of no contest would waive his right to appeal all judgments of the trial court. First, the trial court used ‘judgment’ in the singular. This fact would not lead a reasonable person to surmise that the trial court was referring to multiple judgments. Second, Thomas’ case contains only one judgment, the finding of guilt after the
{¶25} Additionally, we can find no support for Thomas’ contention thаt the trial court must notify him of the judgments and issues that may be appealed, nor has Thomas provided us with any support. See
Affidavits
{¶27} Initially, we note that Thomas’ third assignmеnt of error, unlike his first assignment of error is not barred by res judicata, as the evidence proffered in support of this assignment of error was unknown to Thomas and did not come to light until several months after Thomas was sentenced. Consequently, we will address the merits of Thomas’ third assignment of error.
{¶28} In his third assignment of error, Thomas challenges the trial court‘s determination concerning the credibility of the affidavits attached to his Motion to Withdraw. Specifically, Thomas contends that the affidavits contain exculpatory information, and as a result he should have, at the very least, been granted a hearing. We disagree.
{¶29} A trial court may, in its discretion, judge the credibility of affidavits submitted in support of a motion to withdraw a plea in determining whether to accept the affidavits as true statements of fact. State v. Williams, 12th Dist. No.
{¶30} Several facts, apparent from the affidavits, support the trial court‘s finding that the affidavits lacked credibility. First, the affidavits were rife with hearsay. Specifically, the statements that form the basis of Thomas’ contention that law enforcement did not reveal their belief that Sydney Steinecker, the mother, caused the child‘s death were hearsay. Second, one of the affidavits was submitted by a biased party, Thomas’ mother, See State v. Yearby, 8th Dist. No. 79000, 2002 WL 120530, *3, while the other was submitted by the child‘s paternal grandmother. Third, the affidavits were filed nearly a year after Thomas was sentenced, and six months after the affiants allegedly learned of the exculpatory information. Last, Thomas did not file an affidavit contradicting the facts he stipulated to during the change of plea hearing. By citing this fact we are not suggesting that a defеndant must file an affidavit contradicting the facts he or she stipulated to during the change of plea hearing, but we do find the absence thereof may raise issues concerning the credibility of affidavits offered in support of defendant‘s innocence. Considering the foregoing facts in their totality, we find
{¶31} Accordingly, we overrule Thomas’ first and third assignments of error.
{¶32} Having found no error prejudicial to Thomas herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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