[Cite as State v. Carnes , 2020-Ohio-3566.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2020-T-0004 - vs - : MARK E. CARNES, : Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2014 CR 00395.

Jud g ment: Affirmed.

Dennis Watkins , Trumbull County Prosecutor, and Ashleigh Musick , Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Str eet, N.W., Warren, OH 44481-1092 ( For Plaintiff-Appellee )

. Mark E. Carnes , pro se, PID: A662-583, Madison Correctional Institution, 1851 State Route 56, P.O. Box 740, London, OH 43140 ( Defendant-Appellant )

.

TIMOTHY P. CANNON, P.J. {¶1} Appellant, Mark E. Carnes, appeals from the judgment of the Tru mbull County Court of Common Pleas, entered on January 14, 2020, deny ing appellant’s post-sentence motion to vacate his guilty plea. The judgment i s affirmed. {¶2} On May 16, 2014, appellant was indicted on five counts of rape, felonies of the first degree, in violation of R.C. 2907.02(A)(2) and (B) ; five counts of unlawful sexual conduct with a minor, felonies of the third degree, in v iolation of R.C. 2907.04(A)2 and (B)(3); five counts of compe lling prostitution, felonies of the third degree, in violation of R.C. 2907.21(A)(2)(a) and (C); and eleven counts of illegal use of a minor in nudityoriented material or performance, felonies of the second degree , in violation of R.C. 2907.323(A)(1) and (B). The indictments alleged that appellant had engaged in this conduct with two female minors, ages 11 and 13, from 2009 throu gh 2014. Appellant entered a plea of not guilty to all charges in the indictment. {¶3} A change of plea hearing was held on October 2, 2014. Appellan t signed a written plea of guilty to five counts of unlawful sexual cond uct with a minor, five counts of compelling prostitution, and eleven counts of illegal use of a minor in nudity-oriented material or performance. The trial court accepted the plea on October 3, 2014, and a nolle prosequi was entered on the remaining five counts of rape

. {¶4} On November 13, 2014, the trial court held a sentencing hearing . The trial court merged the five counts of compelling prostitution into th e five counts of unlawful sexual conduct with a minor. Appellant was sentenced to an agg regate prison term of 33 years. Appellant was also fined $10,000.00 and classified a Tier II Sex Offender. {¶5} Appellant filed a direct appeal from this sentencing entry, arg uing the trial court’s imposition of consecutive sentences was both contrary t o law and not supported by the record. The judgment was affirmed in State v. Carnes , 11th Dist. Trumbull No. 2014-T-0120, 2015-Ohio-4429. {¶6} On May 25, 2017, appellant filed a motion to withdraw his guilt y plea, in which he argued the indictment violated his constitutional righ t to due process and unconstitutionally denied him protection against double jeopard y. The trial court denied this motion on May 31, 2017. No appeal was taken from this ord er.3 {¶7} On July 31, 2017, appellant filed a second motion to withdraw h is guilty plea, in which he raised the same arguments. The trial court a gain denied the motion without a hearing on August 7, 2017. Appellant noticed an appe al from this entry, arguing his guilty pleas were not made intelligently because of alleged defects in his indictment. The judgment was affirmed in State v. Carnes , 11th Dist. Trumbull No. 2017-T-0088, 2018-Ohio-2075. {¶8} On January 9, 2020, appellant filed a “Motion to Vacate Previou sly Entered Plea of ‘Guilty’ and to Vacate Void Judgment and For La ck of Subject Matter Jurisdiction Pursuant to Crim.R. 11, 32.1 & 52, Instanter.” Ap pellant argued his guilty plea should be vacated because his defense counsel failed to re quest, and the trial court failed to make, reasonable accommodations for an alleged hearing impairment, as provided in R.C. 2311.14(A)(1): “Whenever because of a hearing, speech, or other impairment a party to or witness in a legal proceeding cannot r eadily understand or communicate, the court shall appoint a qualified interpreter to assist such person.” {¶9} The trial court denied the motion on January 14, 2020. {¶10} Appellant noticed this timely appeal and asserts two assignment s of error

for our review: [1.] The trial court failed to insure [sic] that the defendant’ s right to a fair trial was protected, when it failed to make reasonable accommodations for his hearing impairment so he could confront his accusers. [2.] The defendant Mark E. Carnes was denied his right to effec tive assistance of counsel, when counsel failed to petition the cour t for reasonable accommodations for his hearing impairment. {¶11} Appellant argues the trial court erred in denying his post-sent ence motion to vacate his guilty plea because he was denied reasonable acco mmodations for his4 hearing impairment at the plea hearing and because his defense counsel was ineffective by failing to request such accommodations. Appelle e, the state of Ohio, responds that these arguments are barred by the doctrine of res judicata. {¶12} After a criminal defendant has been sentenced, the trial court may permit withdrawal of a guilty plea only to correct a manifest injustic e. Crim.R. 32.1. “The burden of establishing the existence of such injustice is upon the defendant. The logic behind this precept is to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the sente nce was unexpectedly

severe.” State v. Caraballo , 17 Ohio St.3d 66, 67 (1985), citing State v. Smith , 49 Ohio St.2d 261 (1977), paragraph one of the syllabus, and State v. Peterseim , 68 Ohio App.2d 211, 213 (8th Dist.1980). {¶13} An appellate court’s “review of this matter is somewhat limited as a motion made pursuant to Crim.R. 32.1 is left to the sound discretion o f the trial court. It is that court which determines the credibility of a defendant’s claim i n support of the motion.”

Id. , citing Smith , supra , paragraph two of the syllabus. {¶14} Additionally, it is well-established that claims raised in a po st-sentence motion to withdraw a guilty plea that were raised or could have been raised in a direct appeal may be barred by res judicata. State v. Ketterer , 126 Ohio St.3d 448, 2010- Ohio-3831, ¶59; accord State v. Curry , 11th Dist. Ashtabula No. 2014-A-0056, 2015- Ohio-1768, ¶8. “Thus, ‘when presented with a motion to withdra w a guilty plea * * *, [appellate courts] should consider first whether the claims rai sed in that motion are barred by res judicata.’” State v. Gegia , 11th Dist. Portage No. 2003-P-0026, 2004-5 Ohio-1441, ¶24, quoting State v. Reynolds , 3d Dist. Putnam No. 12-01-11, 2002-Ohio2823, ¶27. {¶15} “Under the doctrine of res judicata, a final judgment of convic tion 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 been raised by the de fendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment.” State v. Perry (1967), 10 Ohio St.2d 175 (1967), paragraph nine of the syllab us. {¶16} It has been held that claims regarding the purported denial of interpreter rights under R.C. 2311.14 may be barred by the doctrine of res judicata. See Gegia,

supra , at ¶15 & ¶24; see also State v. Bravo , 9th Dist. Summit No. 27881, 2017-Ohio272, ¶40, citing State v. Ibrahim , 10th Dist. Franklin No. 14AP-355, 2014-Ohio-5307, ¶12. Claims of ineffective assistance of trial counsel may als o be barred by the doctrine of res judicata, when such claims could have been made on direc t appeal without resort

to evidence outside the trial court record. Gegia , supra , at ¶34-35, citing State v. Lentz , 70 Ohio St.3d 527, 529 (1994); see also State v. Cole , 2 Ohio St.3d 112 (1982), syllabus. {¶17} The arguments set forth in appellant’s first assignment of erro r regarding the purported denial of his rights under R.C. 2311.14 could hav e been raised on direct appeal and, for that matter, in his initial motion to withdraw his guilty plea. Further, as the failure to request accommodations for a hearing impairment is indicated in the record and appellant was represented by new counsel on appeal, appellant could have raised his ineffective assistance claim on direct appeal.6 {¶18} Because he failed to do so, the doctrine of res judicata barred the trial court from considering these claims of a due process violation and ineffective assistance of counsel, which appellant raised for the first tim e in his third successive motion to vacate his guilty plea. {¶19} Even if the doctrine of res judicata did not bar these claims, appellant’s assignments of error lack merit. Appellant has not established , and the record does not support, that granting the motion to vacate his guilty plea is necessary to correct a manifest injustice. {¶20} The trial court did not abuse its discretion in denying appella nt’s “Motion to Vacate Previously Entered Plea of ‘Guilty’ and to Vacate Void J udgment and For Lack of Subject Matter Jurisdiction Pursuant to Crim.R. 11, 32.1 & 5 2, Instanter.” {¶21} Appellant’s first and second assignments of error are without m erit. {¶22} The judgment of the Trumbull Coun ty Court of Common Pleas is af firmed.

THOMAS R. WRIGHT, J., MATT LYNCH, J.,

concur.