[Cite as State v. Woody, 2014-Ohio-302.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99774

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

MIKE WOODY

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-478107 

BEFORE: Keough, P.J., Kilbane, J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: January 30, 2014 
ATTORNEYS FOR APPELLANT

Robert A. Dixon 

The Brownhoist Building 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

Thomas J. Escovar 

Steuer, Escovar, Berk & Brown Co. 

55 Public Square, Suite 1475 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Mary H. McGrath 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, P.J.: 

{¶1} Defendant-appellant, Mike Woody (“Woody”), appeals from the trial 

court’s judgment denying his second motion to withdraw his guilty plea. For the reasons 

that follow, we affirm. 

 I. Background 

{¶2} In October 2005, Woody, then a juvenile, was arrested in connection with 

the death of an elderly woman. Woody and other members of the “Goonies” gang 

snatched the woman’s purse, which caused her to fall and hit her head. She was 

hospitalized for a head injury and a separated shoulder; she subsequently developed 

pneumonia as a result of her injuries and died a short time later. 

{¶3} In November 2005, Woody was referred to the juvenile court diagnostic 

clinic for psychological evaluation related to his competency to participate in the court 

proceedings. Dr. Joseph Konieczny found that Woody had “significant intellectual 

limitations” but that he had “an adequate understanding as to the nature and objective of 

the current proceedings.” In January 2006, after an evidentiary hearing, the juvenile 

court judge found him competent to stand trial. 

{¶4} In February 2006, Woody was bound over to the common pleas court and, 

in March 2006, he was indicted on counts of murder, aggravated robbery, and felonious 

assault, with gang specifications. 

{¶5} Woody was referred to the court psychiatric clinic in April 2006 for another 

competency evaluation. In May, Dr. Brad Booth evaluated Woody on two occasions and 
Dr. George Schmedlen gave him an IQ test. In light of his evaluations and Dr. 

Schmedlen’s report, in June 2006, Dr. Booth issued a report in which he opined that 

Woody suffered from ADHD and mild mental retardation but that despite the limitations, 

he was capable of understanding the nature and objectives of the court proceedings and of 

assisting in his defense. 

{¶6} In August 2006, the trial court granted defense counsel’s motion for 

appointment of Dr. James J. Karpawich as defense psychologist. After evaluating 

Woody, Dr. Karpawich opined, as the other psychologists had, that although Woody had 

“intellectual limitations,” he was capable of understanding the nature and objective of the 

proceedings against him and of assisting in his defense. None of the psychologists’ 

reports, however, were made part of the record. 

{¶7} In January 2007, Woody pled guilty to involuntary manslaughter and 

felonious assault, and the court sentenced him to the agreed upon sentence of 18 years 

incarceration. Subsequently, in August 2007, this court granted Woody’s motion to file a 

delayed direct appeal. However, in December 2007, appellate counsel moved to dismiss 

the appeal, noting that he had reviewed the transcripts from the plea and sentencing and 

found no error, and that absent evidence outside the record, it appeared that Woody had 

entered a knowing, intelligent, and voluntary plea. This court granted the motion and 

dismissed the appeal. Later, this court denied as untimely Woody’s motion to reopen the 

appeal. State v. Woodey [sic], 8th Dist. Cuyahoga No. 90317, 2008-Ohio-2825. 
{¶8} In January 2008, Woody filed a Crim.R. 32.1 motion to withdraw his guilty 

plea due to a manifest injustice,1

 alleging that (1) there were unresolved issues of his 

competency when he entered his plea, (2) he lacked the mental capacity to understand his 

plea due to his low IQ and the drugs he was taking at the time of the plea, and (3) trial 

counsel was ineffective for failing to litigate these issues. The trial court denied 

Woody’s motion without hearing. This court affirmed the trial court’s judgment on 

appeal, holding that because Woody had not filed a transcript of the plea hearing on 

appeal, the court had to presume regularity and, therefore, Woody had failed to meet his 

burden of demonstrating a manifest injustice. State v. Woody, 8th Dist. Cuyahoga No. 

92929, 2010-Ohio-72, ¶ 10-11. 

{¶9} In September 2010, Woody filed a second motion to withdraw his guilty plea. 

 Among other documents, Woody attached to the motion the psychiatric reports from Drs. 

Konieczny, Booth, and Karpawich, as well as jail medication records from December 

2006 and January 2007. In his motion, Woody acknowledged that the issues raised in the 

second motion were similar to the first motion but argued that the earlier motion did not 

include the documentation attached to this motion — specifically, the psychiatric reports 

and jail medication records. Woody argued further that because the first motion to 

 1

Under Crim.R. 32.1, “[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.” 

 
withdraw was denied without a hearing or findings of fact or conclusions of law, it was 

unclear whether the motion was overruled on substantive or procedural grounds, or both. 

{¶10} The trial court subsequently denied the motion as barred by the doctrine of 

res judicata, finding that it was a reassertion of claims that were raised or could have been 

raised in the first motion to withdraw or the prior appeals. The court stated that “the only 

discernible difference between the current motion and the previous motion is that defense 

counsel have appended copies of records from Defendant’s file to the motion — all of 

which were available to the court at the time of the plea and sentencing.” 

{¶11} Woody now appeals from this judgment. 

 II. Analysis 

{¶12} In his single assignment of error, Woody contends that the trial court erred 

by finding that the claims raised in his second motion to withdraw the guilty plea were 

barred by the doctrine of res judicata. 

The usual formulation of res judicata in postconviction proceedings is that it 

bars the assertion of claims against a valid, final judgment of conviction 

that have been raised or could have been raised on appeal. State v. Perry, 

10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. 

Res judicata does not, however, apply only to direct appeals, but to all 

postconviction proceedings in which an issue was or could have been 

raised. Thus, res judicata bars the assertion of claims in a motion to 

withdraw a guilty plea that were, or could have been, raised in a prior 

proceedings. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 

N.E.2d 9, ¶ 59, citing State v. McGee, 8th Dist. Cuyahoga No. 91638, 

2009-Ohio-3374, ¶ 9. 

State v. Montgomery, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193, ¶ 42. 
{¶13} Contrary to the state’s assertion, the issues raised in Woody’s second 

motion to withdraw the guilty plea could not have been raised on direct appeal because 

they relied on matters outside the record. Thus, they were properly the subject of a 

postconviction motion to withdraw the guilty plea. Id. at ¶ 43, citing State v. Smith, 17 

Ohio St.3d 98, 101, 477 N.E.2d 1128 (1985), fn. 1. 

{¶14} Nevertheless, the issues raised by Woody in his second motion to withdraw 

the guilty plea could have been raised in his first motion to withdraw the plea, and thus 

are barred by res judicata. Attached to Woody’s second motion to withdraw the plea 

were (1) a juvenile court judgment entry dated January 31, 2006, finding Woody 

competent to stand trial; (2) Dr. Konieczny’s report, dated November 16, 2005; (3) Dr. 

Schmedlen’s report, dated May 15, 2006; (4) Dr. Booth’s report, dated June 2, 2006; (5) 

Dr. Karpawich’s report, dated September 18, 2006; (6) jail medication reports dated 

December 2006 and January 2007 regarding medications given to Woody while he was in 

jail; and (7) a transcript of the plea hearing. In his motion, Woody argued that he should 

be allowed to withdraw his plea because these documents demonstrated that on the day of 

the plea, he was under the influence of psychotropic medications administered by the 

county jail, suffered from ADHD and depression, and was mildly mentally retarded, all of 

which affected his ability to understand the ramifications of his plea. 

{¶15} All of these documents, however, were available at the time of the guilty 

plea and sentencing, which Woody concedes. Although the documents were not made 

part of the record, there is no evidence that defense counsel was unaware of these 
documents. Accordingly, any issues regarding Woody’s understanding of the plea 

relative to the documents could have been raised in Woody’s first motion to withdraw the 

plea and, therefore, are res judicata. “Any issue that was, or should have been, litigated 

in a prior action between the parties may not be relitigated.” State v. Perry, 10 Ohio 

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. 

{¶16} Woody contends, however, that applying res judicata in this case would 

work an injustice. He argues that the trial court denied his first motion to withdraw 

without a hearing or opinion so there is no indication whether the trial court denied the 

motion on the merits or on some other procedural basis, and that this court affirmed the 

denial not on the merits but because counsel failed to attach the transcript of the plea 

hearing. Therefore, he contends, under such circumstances and in light of his mental 

history and deficiencies as demonstrated by the documents attached to his motion, it 

would be unjust to apply the doctrine of res judicata. We find no such injustice. 

Because this is a postsentence motion to withdraw a guilty plea, we apply 

Crim.R. 32.1, which permits a criminal defendant to withdraw a plea after 

the imposition of sentence only to correct a “manifest injustice.” A 

manifest injustice has been defined as a “clear or openly unjust act.” State 

ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271, 699 

N.E.2d 83. Under the manifest injustice standard, a postsentence 

withdrawal motion is allowable only in extraordinary cases. State v. Smith, 

49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “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.” Id., at 

paragraph two of the syllabus. We therefore review a trial court’s refusal 

to allow a postsentence motion to withdraw a guilty plea for an abuse of 

discretion. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). 

Montgomery, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193 at ¶ 61. 
{¶17} Woody has failed to demonstrate a manifest injustice because the 

psychiatric reports attached to his motion to withdraw his guilty plea demonstrate that 

each psychiatrist who examined him found him competent to stand trial and to assist in 

his defense. Dr. Konieczny opined that although Woody showed “significant intellectual 

limitations,” he “has an adequate understanding as to the nature and objective of the 

current proceedings.” Dr. Booth opined that despite Woody’s limitations, he “is capable 

of understanding the nature and objective of the court proceedings.” And Dr. 

Karpawich, the defense psychologist, opined that 

[c]oncerning his competency to stand trial, Mr. Woody is aware of the 

charges against him, he has a basic knowledge of legal terms, he 

understands the adversarial nature of the legal process, and he is aware of 

the roles of courtroom figures. He does not report any problems in 

working with his attorney, he is able to given an account of his behavior 

around the time of the offense, he can make decisions which are in his best 

interest, and he can control his behavior in the courtroom. 

{¶18} Dr. Karpawich further opined that despite his intellectual limitations, 

Woody was “capable of understanding the nature and objectives of the proceedings 

against him and of assisting in his defense.” Thus, the reports relied on by Woody as the 

basis for withdrawal of his plea contradict his claim of incompetency. 

{¶19} Further, the record of the plea hearing refutes Woody’s claim that he was 

under the influence of drugs when he entered his plea. The transcript reflects that 

Woody answered “no” when the judge asked him prior to accepting his plea if he was 

“under the influence of drugs, alcohol, or any medication.” 
{¶20} Accordingly, Woody has not shown that the application of res judicata 

under these circumstances is unjust or that the trial court should have allowed him to 

withdraw his plea to prevent a manifest injustice. Therefore, the trial court did not abuse 

its discretion by denying Woody’s second motion to withdraw the guilty plea. 

{¶21} Likewise, we find no merit to Woody’s contention that counsel’s “failure 

to insure that the record contained all necessary documents” was a denial of his 

constitutional right to effective assistance of counsel. To establish ineffective assistance 

of counsel, a defendant must show (1) that counsel’s performance was deficient; and (2) 

prejudice, i.e., a reasonable probability that but for counsel’s errors, the result of the 

proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 

S.Ct. 2052, 80 L.Ed.2d 674 (1984). 

{¶22} As discussed above, the reports that Woody claims counsel should have 

been included in the record demonstrate that although each psychologist who examined 

Woody noted his low IQ and limitations, each psychologist — including the defense 

psychologist — found him competent to stand trial and able to assist in his defense. 

Thus, even if counsel had acted to include the reports in the record, they would not have 

supported a challenge to Woody’s competency. Accordingly, we find no prejudice 

resulting from counsel’s failure to include the reports in the record. 

{¶23} Appellant’s assignment of error is overruled and the trial court’s judgment 

is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 
The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. Case remanded to the trial court for 

execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

EILEEN T. GALLAGHER, J., CONCURS; 

MARY EILEEN KILBANE, J., DISSENTS. (SEE ATTACHED DISSENTING 

OPINION.) 

MARY EILEEN KILBANE, J., DISSENTING: 

{¶24} I respectfully dissent. I would find that the claims raised in Woody’s 

second motion to withdraw his guilty plea are not barred by res judicata. 

{¶25} The basis of Woody’s claim of manifest injustice focuses on his mental 

competency. There is no dispute that Woody has “significant intellectual limitations” 

and is mildly mentally retarded. In his report, Dr. Karpawich cautioned that certain 

safeguards needed to be in place to minimize Woody’s mental deficiencies. Dr. 

Karpawich recommended that: 

[Woody’s] attorney spend sufficient time with [Woody] outside the 

courtroom to discuss his case in simple terms and to ensure that [Woody] 

has understood what he had been told. In addition, [Woody] may need 

more frequent and longer recesses to discuss his case with his attorney. 
Finally, it is recommended that all courtroom personnel make the effort to 

use simple language when [Woody] is present in court[.] 

{¶26} While the issue of competency was raised at the trial court, the record 

reflects that no hearing was held pursuant to R.C. 2945.37.2

 When Woody filed his first 

Crim.R. 32.1 motion, it was denied without a hearing, and the subsequent appeal was 

affirmed solely because the plea transcript was not filed with the appeal. Woody’s 

second Crim.R. 32.1 motion did contain the additional reports and documentation, but the 

trial court denied this motion without a hearing as well. Thus, there is no indication that 

the issues he raised in his motions were ever addressed on the merits, and the merits of his 

prior appeal were never addressed solely because no transcript was filed with the appeal. 

{¶27} The doctrine of res judicata should not ‘“be applied so rigidly as to defeat 

the ends of justice or so as to work an injustice.’ Washburn v. Senff, 5th Dist. Stark No. 

2002CA00393, 2003-Ohio-4379, ¶ 16, quoting Bauer v. Huntington Nat. Bank, 10th Dist. 

Franklin No. 99AP-347, 2000 Ohio App. LEXIS 412 (Feb. 10, 2000) (Citations 

omitted).” State v. Tinney, 5th Dist. Richland No. 2011 CA 41, 2012-Ohio-72, ¶ 31, 

discretionary appeal not allowed, 131 Ohio St.3d 1542, 2012-Ohio-2025. 

{¶28} In the instant case, Woody was “qualified” as competent, yet there was no 

competency hearing, as well as no hearing on his motion to withdraw his guilty plea. 

 2

R.C. 2945.37(B) provides that: “[i]n a criminal action in a court of common 

pleas, a county court, or municipal court, the court, prosecutor, or defense may raise 

the issue of the defendant’s competence to stand trial. If the issue is raised before 

the trial has commenced, the court shall hold a hearing on the issue as provided in 

this section.” (Emphasis added.) 
Moreover, there was no indication that his motion was ever decided on the merits, and the 

appeal from his first Crim.R. 32.1 motion was affirmed solely on the basis of the lack of a 

transcript. I would find that these circumstances work as an injustice to Woody. As a 

result, I would not apply res judicata to Woody’s Crim.R. 32.1 motion.