[Cite as State v. Mobley, 2021-Ohio-492.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 20AP-350 

v. : (C.P.C. No. 16CR-2061)

Alphonso D. Mobley, Jr., : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on February 23, 2021 

 

On brief: [G. Gary Tyack], Prosecuting Attorney, and 

Seth L. Gilbert, for appellee. 

On brief: Alphonso D. Mobley, Jr., pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Defendant-appellant, Alphonso D. Mobley, Jr., acting pro se, appeals from a 

judgment of the Franklin County Court of Common Pleas denying his Crim.R. 32.1 motion 

to withdraw his guilty plea. For the following reasons, we affirm. 

{¶ 2} On April 15, 2016, appellant was charged in a six-count indictment, including 

one count of aggravated arson in violation of R.C. 2909.02, and one count of criminal use 

of an explosive device in violation of R.C. 2909.27; each count also carried a firearm 

specification. On May 1, 2017, appellant entered a counseled guilty plea to one count of 

aggravated arson, with a firearm specification, and one count of criminal use of an explosive 

device. On the same day, the trial court sentenced appellant to an aggregate prison term of 

14 years. Appellant did not appeal the May 1, 2017 judgment of conviction. 
No. 20AP-350 2 

{¶ 3} On October 25, 2017, appellant filed a pro se motion to withdraw his guilty 

plea pursuant to Crim.R. 32.1, essentially arguing that the plea was involuntary because the 

aggravated arson and criminal use of explosives should have merged pursuant to R.C. 

2941.145. The trial court overruled the motion on December 15, 2017, finding that res 

judicata barred appellant from raising the merger argument, as it could have been raised in 

a direct appeal from the judgment of conviction and sentence. Alternatively, the trial court 

determined that appellant did not allege facts in his motion to support a finding of manifest 

injustice, prosecutorial misconduct, or ineffective assistance of trial counsel. Consequently, 

the trial court denied the motion without an evidentiary hearing. Appellant timely appealed 

to this court. In a decision rendered on September 25, 2018, we affirmed. State v. Mobley, 

10th Dist. No. 18AP-23, 2018-Ohio-3880. 

{¶ 4} In the interval between the trial court's denial of the Crim.R. 32.1 motion and 

our affirmance thereof, appellant, on July 6, 2018, filed a pro se motion for leave to file a 

delayed appeal from the May 1, 2017 judgment of conviction. In his motion, appellant set 

forth the reasons for his failure to timely perfect an appeal, as well as the substantive 

argument he proposed to raise on direct appeal, i.e., that the indictment was defective. This 

court denied appellant's motion on grounds that he failed to meet his App.R. 5(A) burden 

of demonstrating a reasonable explanation for failure to perfect a timely appeal. State v. 

Mobley, 10th Dist. No. 18AP-539 (Oct. 25, 2018). 

{¶ 5} On December 18, 2019, appellant filed a second Crim.R. 32.1 motion to 

withdraw his guilty plea; he filed an amendment to his motion on January 10, 2020. In his 

December 18, 2019 filing, appellant asserted that manifest injustice compelled the 

withdrawal of his guilty plea, arguing that (1) he involuntarily waived his right to counsel 

on appeal, resulting in a forfeiture of his right to a timely appeal; (2) he unintelligently pled 

guilty to less than all the elements of R.C. 2909.02(A)(1) and 2929.27(A); (3) the conditions 

of the plea agreement were not entered into the record, resulting in the involuntary waiver 

of the right to notice of the nature and cause of the allegations; and, (4) he was denied 

effective assistance of counsel due to counsel's failure to investigate evidence, object to 

amendments of the indictment, file a notice of appeal, and request appointment of counsel 

on appeal. In his January 10, 2020 filing, appellant further asserted that he involuntarily 

waived his rights (1) to have the trial court consider a victim impact statement and make 

findings of harm, (2) to court approval of nolle prosequi of the firearm specification, and, 
No. 20AP-350 3 

(3) regarding forfeiture of his property. Appellant also asserted claims for fraud on the 

court perpetrated by the prosecutor and defense counsel and prejudicial conduct/bias on 

the part of the trial judge. 

{¶ 6} In its judgment denying appellant's motion, the trial court concluded that no 

manifest injustice occurred, specifically finding that appellant's assertions that he waived 

his right to appellate counsel, that he pled guilty to insufficient elements of the offenses, 

that the terms of the plea agreement were not entered into the record, and that his counsel 

was ineffective were unsupported by the record. As noted above, these assertions were 

made in appellant's initial filing on December 18, 2019. The trial court did not expressly 

address the additional assertions made in the January 10, 2020 amended filing. In addition 

to finding no manifest injustice, the trial court determined that appellant's motion was 

untimely, having been filed more than two and one-half years after entry of his guilty plea. 

Finally, the trial court found that res judicata barred appellant from raising the claims 

underlying his motion because those claims could have been raised in his prior motion to 

withdraw his guilty plea. Accordingly, the trial court denied the motion without an 

evidentiary hearing. 

{¶ 7} Appellant timely appeals, advancing two assignments of error for our review: 

I. The trial court abused its discretion when it found: (1) No 

Manifest Injustice; (2) Res judicata bars relief; (3) There 

exist[s] an undue delay. 

II. The trial court abused its discretion when it failed to 

consider: (1) Breach of Contract; (2) Fraud on the Court by 

officers of the Court and Defense Counsel. 

{¶ 8} Appellant's assignments of error are interrelated and will be considered 

together.1 In them, appellant contends that the trial court abused its discretion in denying 

 

1 We note that addition to his briefing, appellant has filed several documents in this court purportedly 

relevant to his appeal. On July 20, 2020, appellant filed documents captioned "Statement of Evidence 

Pursuant to Ohio App.R. 9(C)," "Statement to the Clerk Pursuant to Ohio App.R. 9(B)(5)," and "Statement 

of Proceedings Pursuant to Ohio App.R. 9(C)." To the extent appellant intends these documents to be a 

substitute for the actual appellate record certified and filed by the Franklin County Clerk of Courts, the 

filings are improper. The record certified and filed by the clerk is complete and includes a transcript of the 

plea and sentencing proceedings. As such, the provisions in App.R. 9 are inapplicable. Further, on 

August 6, 2020, appellant filed a document captioned "Judicial Notice of Adjudicative Facts Ohio Evidence 

Rule 201." Attached to this document are various unauthenticated documents purporting to be responses 

to correspondence appellant sent to various public agencies, including the Columbus Division of Fire, Fire 

and Explosives Investigations Unit, the Franklin County Public Defender, the Ohio Public Defender, and 

the Ohio Department of Commerce. It does not appear that these documents are contained in the appellate 
No. 20AP-350 4 

his motion to withdraw his guilty plea on grounds of no manifest injustice, res judicata, and 

undue delay and in failing to consider his claims for breach of contract and fraud on the 

court. 

{¶ 9} "Motions to withdraw guilty pleas are governed by Crim.R. 32.1, which 

provides that the motion '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.' " State v. Spivakov, 10th Dist. No. 13AP32, 2013-Ohio-3343, ¶ 9, quoting Crim.R. 32.1. "Manifest injustice relates to some 

fundamental flaw in the proceedings which results in a miscarriage of justice or is 

inconsistent with the demands of due process." Id. at ¶ 10, citing State v. Williams, 10th 

Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. " ' "[I]t is clear that under such standard, a 

postsentence withdrawal motion is allowable only in extraordinary cases." ' " Id., quoting 

State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-3656, ¶ 7, quoting State v. Smith, 49 

Ohio St.2d 261, 264 (1977). "A defendant seeking to withdraw a post-sentence guilty plea 

bears the burden of establishing a manifest injustice based on specific facts either contained 

in the record or supplied through affidavits attached to the motion." Id., citing State v. 

Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986, ¶ 8. 

{¶ 10} "An appellate court will not reverse a trial court's denial of a motion to 

withdraw a plea absent an abuse of discretion." State v. Muhumed, 10th Dist. No. 11AP1001, 2012-Ohio-6155, ¶ 8, citing State v. Totten, 10th Dist. No. 05AP-278, 2005-Ohio6210, ¶ 5. An abuse of discretion connotes a decision that is unreasonable, arbitrary, or 

unconscionable. State v. Wilson, 10th Dist. No. 19AP-536, 2020-Ohio-1136, ¶ 14, citing 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Where, however, the issue is the 

applicability of res judicata, which is a question of law, an appellate court conducts a de 

novo review. Muhumed at ¶ 11, citing EMC Mtge. Corp v. Jenkins, 164 Ohio App.3d 240, 

249, 2005-Ohio-5799, ¶ 15 (10th Dist.). 

{¶ 11} Appellant's successive motion to withdraw his guilty plea (comprised of the 

December 18, 2019 and January 10, 2020 filings) is barred by res judicata. "Under 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 

 

record. Accordingly, appellant's reliance on these documents in support of his assignments of error is 

improper. State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. 
No. 20AP-350 5 

that judgment, any defense or claimed lack of due process that was raised or could have 

been raised by the defendant at trial, which resulted in that judgment of conviction, or on 

an appeal from that judgment." (Emphasis omitted.) State v. Perry, 10 Ohio St.2d 175 

(1967), paragraph nine of the syllabus. " ' "[R]es judicata promotes the principles of finality 

and judicial economy by preventing endless relitigation of an issue on which a defendant 

has already received a full and fair opportunity to be heard." ' " State v. Walden, 3d Dist. 

No. 4-15-13, 2016-Ohio-258, ¶ 19, quoting State v. Schwieterman, 3d Dist. No. 10-09-12, 

2010-Ohio-102, ¶ 23, quoting State v. Saxton, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18. 

Consistent with these principles, this court has repeatedly held that res judicata bars a party 

from raising issues in a postsentencing Crim.R. 32.1 motion that were or could have been 

raised in a direct appeal. State v. Ikharo, 10th Dist. No. 10AP-967, 2011-Ohio-2746, ¶ 11, 

citing State v. Hagler, 10th Dist. No. 10AP-291, 2010-Ohio-6123. 

{¶ 12} Here, all of appellant's asserted claims appear on the face of the record and 

could have been raised on direct appeal. Appellant admits as much in his brief. (Appellant's 

Brief at 2, 7, 13, 17, 19, and 32.) 

{¶ 13} To the extent appellant argues that he could not have raised his claims on 

direct appeal because he was not advised of his appellate rights at the time he entered his 

plea, we note that " ' "[t]he trial court's duty to advise a defendant of his right to appeal does 

not arise until sentencing and, therefore, has no effect upon whether the defendant's guilty 

plea was entered knowingly, voluntarily, and intelligently." ' " State v. Allen, 9th Dist. No. 

27494, 2017-Ohio-2831, ¶ 15, quoting State v. Jordan, 9th Dist. No. 27690, 2015-Ohio4354, ¶ 6, quoting State v. Meredith, 9th Dist. No. 25198, 2011-Ohio-1517, ¶ 6. See also

State v. Tunstall, 2d Dist. No. 23730, 2010-Ohio-4926, ¶ 35 (failure properly to advise a 

defendant of his appellate rights has no bearing on the validity of a guilty plea). 

{¶ 14} Moreover, the record includes appellant's signed, written plea of guilty, which 

demonstrates that appellant was advised of his appellate rights. Indeed, the plea agreement 

states that "I understand that I can appeal as a matter of right from my plea and sentence 

within thirty days of the filing of my judgment of conviction." (May 1, 2017 Entry of Guilty 

Plea, at 2.) Appellant admitted at the plea hearing that he signed the plea agreement, 

reviewed it with his attorney, and understood its contents. (May 1, 2007 Tr. at 35.) 

Appellant concedes that "on page two of the plea agreement appellant acknowledges that 

he has the right to appeal from his sentence and plea." (Appellant's Brief at 5.) 
No. 20AP-350 6 

{¶ 15} In addition, appellant could have, but did not, assert the claims raised in his 

second Crim.R. 32.1 motion in his July 6, 2018 motion for leave to file a delayed appeal of 

his May 1, 2017 judgment of conviction. As noted above, appellant's motion asserted as 

grounds for appeal only that the indictment was defective. 

{¶ 16} Finally, the claims appellant asserts in his second Crim.R. 32.1 motion are 

also barred by res judicata because they could have been raised in his first Crim.R. 32.1 

motion. Appellant acknowledges that he "is aware that both of the claims could have been 

presented in his previous 32.1 motion." (Appellant's Brief at 17.) "Res judicata * * * acts to 

bar raising issues in a successive Crim.R. 32.1 motion to withdraw a plea of guilty where 

those issues could have been raised in the prior Crim.R. 32.1 motion." Ikaro, 10th Dist. No. 

10AP-967, 2011-Ohio-2746, at ¶ 11, citing State v. Gallegos-Martinez, 5th Dist. No. 10-

CAA-06-0043, 2010-Ohio-6463, ¶ 12. Appellant maintains that he could not have raised 

all of the claims in his first Crim.R. 32.1 motion because "all of his claims are based on the 

trial court[']s record" and, accordingly, res judicata would have barred those claims. 

(Appellant's Brief at 8-9.) Appellant's argument suggests that because res judicata barred 

him from raising his claims in his first Crim.R. 32.1 motion, he should be permitted to raise 

the same claims in a successive motion to withdraw. As observed by the state, "[s]imply to 

state this argument is enough to defeat it." (Appellee's Brief at 8.) 

{¶ 17} Appellant's successive motion to withdraw his guilty plea (comprised of both 

the December 18, 2019 and January 10, 2020 filings) is barred by res judicata because the 

claims asserted therein could have been raised on direct appeal or in his motion for delayed 

appeal and, further, could have been raised in his first motion to withdraw his guilty plea. 

Accordingly, the trial court properly denied appellant's successive Crim.R. 32.1 motion to 

withdraw his guilty plea. 

{¶ 18} Having so determined, we overrule appellant's first and second assignments 

of error, and affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed.

BROWN and SADLER, JJ., concur.