[Cite as State v. Joyner , 2017-Ohio-8652.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 17CA5

vs. : DECISION AND JUDGMENT ENTRY REUBEN L. JOYNER, Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: Reuben L. Joyner, Orient, Ohio, Appellant Pro Se. Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain, Pickaway County Assistant Prosecutor, Circleville, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 11-8-17 ABELE, J. {¶ 1} Reuben L. Joyner, defendant below and appellant herein, appeals from the Pickaway County Common Pleas Court denial of his moti on to withdraw a guilty plea and assigns the following error for review:

“THE TRIAL COURT ABUSED ITS DI SCRETION WHEN THE COURT FAILED TO “SQUARELY ADDRESS” THE EVIDENTIARY ISSUES RAISED BY THE DEFENDANT IN HIS CRIMINAL RULE 32.1 MOTION TO WITHDRAW GUILTY PLEA, IN VIOLATION OF ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.”

{¶ 2} On March 20, 2015, a Pickaway County Grand Ju ry returned an indictment that charged appellant with seventeen counts, including: (1) engaging in a pattern of corrupt activityPICKAWAY, 17CA5 2 with a specification as a major drug offender, (2) trafficking in cocaine with a specification as a major drug offender, (3) three c ounts of trafficking in cocaine, (4 ) nine counts of trafficking in heroin, (5) complicity to trafficking in heroin, (6 ) trafficking in heroin, (7) possession of heroin, and (8) possession of cocaine. These counts included three first-degree felonies, one second-degree felony, one third-de gree felony, two fourth-degree felonies, and ten fifth-degree felonies. Appellant pled not guilty to all charges. {¶ 3} On January 13, 2016, the trial court arraigned a ppellant on an amended indictment that included (1) one count of engaging in a pattern of corrupt activity with specification as a major drug offender (Count 1), a second-degree felony, (2) trafficking in cocaine with specification as a major drug offender (Count 2), a first-degree fe lony, (3)trafficking in heroin (Count 27), a second-degree felony, and (4) possession of cocai ne (Count 31), a fourth-degree felony. On January 28, 2016, the trial court ex plained appellant’s rights unde r the United States and Ohio Constitutions, as well as Ohio law, the nature of the crimes charged and their penalties, appellant’s right to a trial by jury, compulsory process, confrontation of witn esses, right against self-incrimination, and the state’ s burden of proof. A ppellant then pled guilty to the amended

indictment. {¶ 4} On March 3, 2016, the trial court sentenced appellant to serve five years on Count 1, eleven years mandatory on Count 2, four y ears on Count 27, and 24 months on Count 31. The court further ordered that (1) th e sentences for Counts 2 and 31 be served concurrently, (2) after the completion of the mandatory 11 year senten ce for Count 2, the senten ces for Counts 1 and 27 are suspended, and (3) appellant will serve 5 years of community control. {¶ 5} Nearly one year later, on February 3, 2017, appellant filed a pro se motion toPICKAWAY, 17CA5 3 withdraw his guilty plea pursuant to Crim.R. 32.1, as well as a “Motion for Request of Mutual Rescission of Plea Agreement.” After the state responded, the tria l court denied both motions. This appeal followed. 1 {¶ 6} Appellant asserts in his assignment of error that th e trial court erred by denying his post-sentence motion to withdraw his guilty plea. Crim.R. 32.1 provides: “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 c ourt after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” A defendant seeking to withdraw a guilty plea after sentencing has the burden to establish that a manifest injustice will occur if the plea

stands. State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 ( 1977), paragraph one of the syllabus. A manifest injustice is a “clear or openly unjust act.” State v. Darget , 4th Dist. Scioto No. 12CA3487, 2013-Ohio-603, ¶ 21, citing State v. Dotson , 4th Dist. Washington No. 03CA53, 2004-Ohio-2768, ¶ 5, citing State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). This is an extremely high sta ndard and will permit a de fendant to withdraw a guilty plea only in extraordinary cases. Darget at ¶ 21, citing State v. Whitaker , 4th Dist. Scioto No. 10CA3349, 2011-Ohio-6923, ¶ 8. {¶ 7} Crim.R. 32.1 requires a defenda nt making a post-sentence motion to withdraw a plea to demonstrate manifest injustice because it is designed “to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.” State v. Boswell , 121 Ohio St.3d 575, 2009–Ohio–1577, 906 N.E.2d

1 Appellant’s notice of appeal references the denial of both his Crim.R. 32.1 motion to withdraw his guilty plea and his “motion for request of mutual rescissi on of plea agreement,” his assignment of error and briefPICKAWAY, 17CA5 4 422, ¶ 9, quoting State v. Caraballo , 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). Further, the decision to grant or to deny a Crim.R. 32.1 mo tion is generally committed to the trial court's sound discretion and appella te review of the denial of a post-sentence motion to withdraw a guilty plea is limited to a determina tion of whether the trial court a bused its discretion. The term

‘abuse of discretion’ connotes an attitude on the part of th e court that is unreasonable, unconscionable, or arbitrary.” Whitaker at ¶ 9. {¶ 8} Turning to the case at bar, appellant argues that the trial court’s denial of his motion to withdraw his guilty plea failed to “squarely address” the evidentiary issues raised within the motion. Appellant relies on State v. Jeffrey , 9th Dist. Summit No. 26639, 2013-Ohio-2985, to support his claims. Jeffrey was indicted on 11 counts and later pled guilty to burglary and domestic violence. After plead ing guilty and being released on bond to attend two family funerals, Jeffre y failed to appear and was later arrested. Id. at ¶ 3. The trial court denied Jeffrey’s motion to withdraw his guilty plea, and, on appeal, the Nint h District reversed. Appellant, however, fails to notice the stri king differences between this case and Jeffrey . Most notably, the Jeffrey court considered Jeffrey’s motion to be a pre-sentence motion to withdraw a plea, which “should be freely and liberally granted.” State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). Here, appellant filed his motion eleven months after his sentence. This court has noted that timeliness “is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.” Darget at ¶ 19, quoting State v. Bush , 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522. Second, Jeffre y claimed that the recent deaths of

only addresses the former.PICKAWAY, 17CA5 5 his daughter and sister had aff ected his plea. The court held that while the trial court had considered his sister’s death, it did not consider the impact of his five-year-old daughter’s recent death and the fact that Jeffrey had to make funera l arrangements for his daughter as well as his

sister. Jeffrey at ¶ 10-11. Finally, Jeffrey argued that he did not understand the elements of the charges against him, and that if he had, he would not have pled guilty. In the case sub judice, appellant makes no cl aim that he did not understand the elemen ts of the charges against him. In fact, our review of the transcript reveals that the trial court thoroughly explained the charges against appellant and que stioned him to be sure that his plea was knowing and voluntary. Thus,

we find Jeffrey to be inapplicable. {¶ 9} Appellant further contends that the tria l court erred in denying his motion to withdraw his guilty plea because: (1) he received ineffective assistance of counsel because his

trial counsel “knew that appellant could not have been c onvicted of a major drug offender specification where nowhere in the record had the appellant met the statutory qualifications for a major drug offender specification,” (2) the trial court erred in findi ng that appellant's ineffective

assistance of counsel claim should have been raised on direct app eal, and (3) the doctrine of res judicata does not bar his claims. {¶ 10} Appellant asserts that the indictment charged that he engaged in criminal activities from August 2010 to December 2014. However, appella nt argues that the record showed that appellant did not arrive in Circleville until 2013 and left ar ound 2014. Thus, he contends, he could not have been a major drug offender. Ho wever, the trial court noted that during the plea hearing it advised appellant that he had the right to proceed to a jury trial where the state’s evidence would have been presented and consid ered. Instead, appellant freely and voluntarilyPICKAWAY, 17CA5 6 signed a waiver of jury trial and pled guilty to the charges. Thus, the trial court correctly held that it could not analyze what evidence supposedly existed, or what evidence the state would have used, to prove the major drug offender specification. {¶ 11} Second, appellant cont ends that ineffective assist ance of counsel may form the basis of a defendant’s post-sentence motion to withdraw guilty plea if the defendant can show that counsel’s performance was deficient and a reasonable proba bility exists that, but for counsel’s deficient perfo rmance, the petitioner would not have pleaded guilty and would have insisted on going to trial. State v. Holloman , 1st Dist. Hamilton No. C-030391, 2004-Ohio-2178, ¶ 14. Holloman involved a situation in which the defendant challenged the voluntary nature of his guilty plea because it was induced by the court’s and counsel’s promise that he would be sentenced to a community corrections center rather than prison. Id. at ¶ 13. Because this case involves no such inducement, Holloman is inapposite. {¶ 12} Further, appellant argued that his “pre -trial plea counsel fa iled to investigate evidence to determine if the plea was valid.” Appellant points to State v. Spates , 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), in which the Supreme Court of Ohio stated that “a guilty plea waives the right to claim ineffective assistance of counsel except to the extent that the defects complained of caused the plea to be less than knowing and voluntary.” Also, in the case sub judice the trial court noted that “the Fourth Dist rict Court of Appeals ha s clearly provided that Crim.R. 32.1 is the ‘improper vehicl e’ for Defendant’s ineffective a ssistance of counsel claim, as his claim relies on matters that are clearly outside the record,” citing State v. Ables , 4th Dist. Pickaway No. 11CA22, 2012-Ohio-3377, ¶ 11, and State v. Marcum , 4th Dist. Hocking No. 12CA20, 12CA24, 12CA25, 2013-Ohio-2447. We agree. Claims of ineffective assistance ofPICKAWAY, 17CA5 7 counsel surrounding a plea should generally be ra ised in a petition for post-conviction relief.

Ables at ¶ 12. “Matters outside the record that allegedly corrupted the defendant's choice to enter a plea of guilty or no contest so as to render the plea less than knowing and voluntary are proper grounds for an R.C. 2953.21 petition for pos t-conviction relief. In 1996, the General Assembly limited the number of such petitions to but one, which mu st be filed within 180 days after the time for appeal has expired, absent certain narrow showings that R.C. 2953.23(A) requires. Since then, grounds formerly presen ted in support of petiti ons for post-conviction relief are now more frequently employed to s upport Crim.R. 32.1 motions, which are not subject

to similar limitations. Neverthe less, the availability of R. C. 2953.21 relief on those same grounds removes them from the form of extraord inary circumstance dem onstrating a manifest injustice which is required for Crim.R. 32.1 relief.” Ables at ¶ 11, citing State v. Moore , 2d Dist. Montgomery No. 24378, 2011–Ohio–4546, ¶ 14, quoting State v. Hartzell , 2d Dist. Montgomery No. 17499, 1999 WL 957746 (Aug. 20, 1999). {¶ 13} Finally, appellant argues that the trial court erred when it held that the doctrine of res judicata barred him from raising an issue in a post-sentence Crim.R. 32.1 motion to withdraw guilty plea that could have been raised, but was not, on direct appeal. “Under the doctrine of res judicata, a final judgment bars a convicted defendant who wa s represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or claimed lack of due process that the defendant raised or could have raised at trial or on appeal.’ ‘More specifically, a criminal defendant cannot raise any issue in a postsentence motion to withdraw a guilty plea that was or could have b een raised at trial or on direct appeal.’ * * *

This doctrine has been extended to Crim.R. 32.1 motions.’” (Emphasis added and internalPICKAWAY, 17CA5 8 citations omitted.) Jackson v. Friley , 4th Dist. Jackson No. 07CA1, 2007-Ohio-6755, at ¶ 17. Thus, we believe that the trial court properly found that res judi cata bars appellant from raising

this issue in this manner. {¶ 14} Accordingly, based upon the foregoing reas ons we agree with the trial court's conclusion that appellant failed to establish that a manifest injustice would occur if his plea stands. Thus, we overrule appellant's assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.PICKAWAY, 17CA5 9

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and releas e upon bail has been previously granted, it is continued for a period of sixty days upon the bail pr eviously posted. The purpose of said stay is to allow appellant to file with the Supreme Cour t of Ohio an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty-day period. The stay will also terminate if appellant fails to file a notice of appeal with the Supreme Court of Ohio in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if th e Supreme Court of Ohio dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. McFarland, J. & Hoover, J.: C oncur in Judgment & Opinion

For the Court

BY: Peter B. Abele, JudgePICKAWAY, 17CA5 10

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.