[Cite as State v. Silva, 2013-Ohio-5605.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 13AP-176 

v. : (C.P.C. No. 06CR-05-3445) 

Jesus M. Silva, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 19, 2013 

 

 

Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for 

appellee. 

Jesus M. Silva, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

McCORMAC, J. 

{¶1} Defendant-appellant, Jesus M. Silva, appeals from a judgment of the 

Franklin County Court of Common Pleas which denied his pro se "Motion to Vacate 

Void Judgments of Defendant's Conviction for Trafficking in Cocaine and Engaging in 

Corrupt Activity as Both Judgments Violate Defendant's Due Process Rights as 

Guaranteed by the Fifth Amendment to the United States and Ohio Constitutions." For 

the following reasons, we affirm. 

{¶2} On May 8, 2006, appellant was indicted on eleven counts, including two 

counts of trafficking in cocaine, two counts of possession of cocaine, two counts of 

aggravated funding of drug trafficking, and four counts of money laundering and 

engaging in a pattern of corrupt activity ("RICO" counts). Several of those counts 

contained a major drug offense specification. On October 9, 2007, appellant entered a 
No. 13AP-176 2

plea of guilty to Counts 1 and 8 of the indictment, trafficking in cocaine, and Count 12 of 

the indictment, engaging in a pattern of corrupt activity. A nolle prosequi was entered 

for the remaining counts. On October 31, 2007, the trial court held a sentencing 

hearing. Appellant was sentenced to eight years for Count 1, eight years for Count 8, 

and four years for Count 12. The sentences were to run consecutive with each other. 

{¶3} Appellant filed a pro se appeal, contending that he did not fully 

understand the implications of his plea and waiving his rights. Appointed counsel also 

raised the issue of whether the trial court substantially complied with Crim.R. 11 by not 

informing appellant that his sentences would be mandatory. This court overruled both 

assignments of error, finding that the trial court substantially complied with Crim.R. 11, 

and affirmed the judgment. See State v. Silva, 10th Dist. No. 07AP-986, 2009-Ohio699. Appellant filed a motion for reconsideration, which was also denied. 

{¶4} Appellant filed a motion for leave to appeal alleging his sentence of 

incarceration is contrary to law. His motion for leave to appeal was denied. See State v. 

Silva, 10th Dist. No. 07AP-986 (Mar. 16, 2010) (memorandum decision). 

{¶5} On December 30, 2011, appellant filed pro se the motion at issue, a 

"Motion to Vacate Void Judgments of Defendant's Conviction for Trafficking in Cocaine 

and Engaging in Corrupt Activity as Both Judgments Violate Defendant's Due Process 

Rights as Guaranteed by the Fifth Amendment to the United States and Ohio 

Constitutions." Appellant argued that there was insufficient evidence to support the 

trafficking conviction, that the trafficking counts should have merged with the RICO 

count, and that the court failed to comply with R.C. 2929.14(E) in imposing consecutive 

sentences. 

{¶6} The trial court determined that the state was not required to prove the 

trafficking offense under Count 8 because appellant pled guilty to the charges. The trial 

court also found that the trafficking counts should not have merged with the RICO 

offense because appellant committed them with a separate animus. The trial court found 

it had discretion to impose consecutive sentences pursuant to State v. Foster, 109 Ohio 

St.3d 1, 2006-Ohio-856. Finally, these issues were barred by res judicata because 

appellant could have raised them in his direct appeal. 

{¶7} In his appeal, appellant filed the following two assignments of error: 
No. 13AP-176 3

FIRST ASSIGNMENT OF ERROR 

The Trial Court Error [sic] When It Imposed a Sentence were 

[sic] Insufficient Evidence Supported the Conviction. 

SECOND ASSIGNMENT OF ERROR 

The Trial Court Erred by not Addressing Appellant's 

Ineffective Assistance of Counsel Claim, as Counsel was 

Ineffective during the Sentencing Phase of Proceedings. 

{¶8} By his first assignment of error, appellant contends that the trial court 

erred when it imposed a sentence on Count 8, trafficking in cocaine,1 when there was 

insufficient evidence to support the fact that drugs were recovered. Appellant's 

argument surrounds the testimony at the sentencing hearing when the detective stated 

that no drugs were recovered. However, upon review of the transcript, the detective 

stated that 25 kilograms were recovered. (Oct. 9, 2007 Tr. 7.) They believed appellant 

was involved with another 90 kilograms of cocaine, which was not recovered. 

{¶9} Appellant pled guilty to the three counts. A guilty plea is defined as a 

"complete admission of the defendant's guilt." Crim.R. 11(B)(1). " 'By entering a plea of 

guilty, the accused is not simply stating that he did the discrete acts described in the 

indictment; he is admitting guilt of a substantive crime.' " State v. Tabor, 10th Dist. No. 

08AP-1066, 2009-Ohio-2657, ¶ 11, citing State v. Kitzler, 3d Dist. No. 16-02-06, 2002-

Ohio-5253, ¶ 12, quoting State v. Barnett, 73 Ohio App.3d 244, 248 (2d Dist.1991). 

Thus, appellant admitted the elements of the offense when he pled guilty to the charge 

and cannot now argue that those elements were not proven. See also State v. Hill, 10th 

Dist. No. 10AP-634, 2011-Ohio-2869. 

{¶10} Appellant also argues that his sentence is void because the trial court 

imposed the sentence when the evidence did not support the conviction, and, thus, the 

trial court lacked subject-matter jurisdiction. Appellant's sentence is not void. As stated, 

the guilty plea is an admission of the elements of the crime. Moreover, the sentence 

 

1 Appellant's motion to vacate addressed Count 8, trafficking in cocaine. In his reply to the memorandum 

contra the motion to vacate and in the argument section of his brief, appellant's argument is addressed to 

Count 1, trafficking in cocaine. Regardless of which count, or both, appellant is referring to, the same 

disposition by us would occur as appellant pled guilty to both counts. 
No. 13AP-176 4

imposed is within the range of prison terms for a first-degree felony. See R.C. 

2929.14(A)(1). 

{¶11} This argument is also barred by res judicata. "Under the doctrine of res 

judicata, 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." State v. Wooden, 10th Dist. No. 02AP-473, 2002-Ohio7663, ¶ 19, citing Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995). "Res judicata 

prevents repeated attacks on a final judgment and applies to issues that were or might 

have been previously litigated." State v. Sappington, 10th Dist. No. 09AP-988, 2010-

Ohio-1783, ¶ 10, citing State v. Brown, 8th Dist. No. 84322, 2004-Ohio-6421. An 

argument regarding insufficient evidence could have been raised in his direct appeal. 

{¶12} Appellant's argument is similar to the defendant's argument in State v. 

Totten, 10th Dist. No. 05AP-278, 2005-Ohio-6210. Totten argued that the evidence of 

crack cocaine was never introduced or presented to the trial court to establish the 

identity and quantity of the substance. This court found no merit to the argument since 

Totten pled no contest to the charge; he had admitted the facts as presented by the 

prosecution. Thus, the state was not required to present evidence of the identity or 

quantity of the cocaine. Appellant's first assignment of error is overruled. 

{¶13} By his second assignment of error, appellant contends the trial court erred 

by not addressing his claim that his trial counsel was ineffective during the sentencing 

phase. He argues that his trial counsel was ineffective for advising appellant to plead 

guilty. Appellant did not raise this argument to the trial court until his reply 

memorandum to the memorandum contra the motion to vacate. The state argues that 

this failure to comply with Loc.R. 12.02, Franklin County Court of Common Pleas, 

General Division, which restricts reply memoranda to matters in rebuttal, is sufficient 

reason for the trial court to reject this argument. 

{¶14} In order to demonstrate that his counsel's representation was ineffective, 

appellant must demonstrate that: (1) counsel's performance was deficient; and (2) this 

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 

687 (1984), superseded by statute on other grounds. "A defendant does not state a 

claim for ineffective assistance of counsel unless his attorney acted unreasonably given 
No. 13AP-176 5

the facts of the case, and the unreasonable conduct was prejudicial to the defense." 

State v. Mills, 62 Ohio St.3d 357, 370 (1992), certiorari denied, Mills v. Ohio, 505 U.S. 

1227 (1992). To demonstrate prejudice by trial counsel's deficient performance in the 

guilty-plea context, a defendant must prove that there exists a reasonable probability 

that, but for counsel's error, he would not have pled guilty and would have insisted on a 

trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). 

{¶15} In this case, appellant argues that trial counsel failed to advise him not to 

plead guilty to trafficking in cocaine when the cocaine was not recovered and tested. 

Here, the record does not contain all the evidence that would have been presented at 

trial. Appellant was facing 11 counts in the indictment, several of which contained major 

drug offender specifications, and the plea bargain involved a guilty plea to three counts 

and a nolle prosequi of the remaining ones. There is no evidence regarding the 

conditions of the plea bargain, nor did appellant present an affidavit or other evidence 

that would demonstrate his counsel's ineffectiveness. Appellant also did not produce 

evidence that demonstrates he would have proceeded to trial without counsel's advice. 

His bare allegations are insufficient to demonstrate ineffective assistance of counsel. 

Hill at ¶ 16, citing State v. Kimbrough, 5th Dist. No. 07-CA-44, 2008-Ohio-4363, ¶ 25. 

{¶16} Moreover, appellant did not attach any evidence from outside the record. 

Where the claim of ineffective assistance of counsel depends on evidence from outside 

the record, the proper procedure is a petition for post-conviction relief. State v. 

Cooperrider, 4 Ohio St.3d 226 (1983). 

{¶17} Appellant's motion to vacate and correct a void sentence is actually a 

petition for post-conviction relief. See State v. Holloman, 10th Dist. No. 07AP-875, 

2008-Ohio-2650, ¶ 12. ("A motion to correct or vacate a sentence filed subsequent to a 

direct appeal is properly treated as a petition for post-conviction relief under 

R.C.2953.21.") R.C. 2953.21(A)(1)(a) provides for post-conviction relief, as follows: 

Any person who has been convicted of a criminal offense or 

adjudicated a delinquent child and who claims that there was 

such a denial or infringement of the person's rights as to 

render the judgment void or voidable under the Ohio 

Constitution or the Constitution of the United States, * * * 

may file a petition in the court that imposed sentence, stating 

the grounds for relief relied upon, and asking the court to 
No. 13AP-176 6

vacate or set aside the judgment or sentence or to grant other 

appropriate relief. The petitioner may file a supporting 

affidavit and other documentary evidence in support of the 

claim for relief. 

 

{¶18} Post-conviction petitions must also be timely, pursuant to R.C. 

2953.21(A)(2), which provides that "a petition * * * shall be filed no later than one 

hundred eighty days after the date on which the trial transcript is filed in the court of 

appeals in the direct appeal." Appellant's direct appeal was determined by this court in 

February 2009, and he filed his motion in December 2011, which is more than 180 days 

after the trial transcript was filed. Appellant's motion, which was filed years after the 

deadline, is therefore untimely. 

{¶19} When a post-conviction petition is untimely, the trial court lacks 

jurisdiction to consider it, unless the petitioner demonstrates that he can meet one of 

the exceptions in R.C. 2953.23(A). State v. Anderson, 10th Dist. No. 12AP-516, 2013-

Ohio-2454. Appellant must demonstrate that: (1) he was avoidably prevented from 

discovering facts upon which he relies to advance his petition, or that his claim is based 

upon a newly recognized federal or state right that applies retroactively to persons in his 

situation and the petition asserts a claim based upon that right; and (2) clear and 

convincing evidence demonstrates that no reasonable fact finder would have found him 

guilty in the absence of the alleged constitutional error. Finally, the trial court could 

consider an untimely petition if the petitioner presented DNA evidence demonstrating 

his actual innocence by clear and convincing evidence. See R.C. 2953.23(A)(2). 

{¶20} Appellant claims that trial counsel failed to advise him not to plead guilty 

to trafficking in cocaine when the cocaine was not recovered and tested. Appellant 

cannot justify the untimely petition on the grounds that he was "unavoidably prevented 

from discovery" of evidence since he knew the charges he was facing and the evidence as 

summarized by the state at the sentencing hearing. His petition also did not evoke the 

exception that the United States Supreme Court recognized a new federal or state right 

that applies retroactively, nor is there DNA evidence involved. Accordingly, appellant's 

petition does not fit within the R.C. 2953.23(A) exceptions. Since appellant has failed to 

demonstrate any of the exceptions to the timely filing requirement, his petition was 
No. 13AP-176 7

untimely, and the trial court did not have jurisdiction to consider his petition, and, thus, 

denial of his motion is proper. Appellant's second assignment of error is overruled. 

{¶21} For the foregoing reasons, both of appellant's assignments of error are 

overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

BROWN and O'GRADY, JJ., concur. 

McCORMAC, J., retired, of the Tenth Appellate District, 

assigned to active duty under the authority of the Ohio 

Constitution, Article IV, Section 6(C). 

________________