[Cite as State v. Rock, 2018-Ohio-4175.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2018-L-021

 - vs - : 

DAVID V. ROCK, JR., : 

 Defendant-Appellant. : 

Criminal Appeal from the Lake County Court of Common Pleas. 

Case No. 2014 CR 000525. 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant

Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,

Painesville, OH 44077 (For Plaintiff-Appellee). 

David V. Rock, Jr., pro se, PID: A663-040, Trumbull Correctional Institution, P.O. Box 

901, 5701 Burnett Road, Leavittsburg, OH 44430 (Defendant-Appellant). 

TIMOTHY P. CANNON, J. 

{¶1} Appellant, David V. Rock, Jr., appeals from the July 19, 2017 judgment of 

the Lake County Court of Common Pleas, denying his motion to withdraw his guilty plea 

pursuant to Crim.R. 32.1. For the following reasons, the trial court’s judgment is affirmed. 

{¶2} On March 30, 2015, the Lake County Court of Common Pleas convicted 

appellant of one count of operating a vehicle under the influence (“OVI”), a third-degree 

felony in violation of R.C. 4511.19(A)(1)(a), and an accompanying R.C. 2941.1413 
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specification for having been convicted of five or more OVI offenses within the previous 

twenty years. Subsequently, appellant filed several postconviction motions and appeals. 

See State v. Rock, 11th Dist. Lake No. 2015-L-047, 2015-Ohio-4639; State v. Rock, 11th 

Dist. Lake No. 2016-L-011, 2016-Ohio-8516; State v. Rock, 11th Dist. Lake No. 2017-L010, 2017-Ohio-7294; State v. Rock, 11th Dist. Lake No. 2016-L-118, 2017-Ohio-7955. 

{¶3} Appellant filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1 

on June 22, 2017. The state filed a response on July 6, 2017. The motion was denied 

on July 19, 2017. The trial court found appellant’s arguments were barred by res judicata. 

{¶4} On July 31, 2017, appellant filed a motion for reconsideration, and on 

August 8, 2017, appellant filed a motion for change of venue with the trial court. The court 

denied both motions in an order filed August 30, 2017. Appellant filed a notice of appeal 

from that order on September 27, 2017. The appeal was dismissed for lack of a final, 

appealable order. State v. Rock, 11th Dist. Lake No. 2017-L-119, 2017-Ohio-9339. 

{¶5} On January 31, 2018, appellant filed a motion for leave to file a delayed 

appeal from the trial court’s July 19, 2017 judgment entry. This court granted the motion. 

{¶6} Appellant raises three assignments of error, which we address together: 

[1.] The defense counsel was ineffective by not meeting the demands 

of the Sixth Amendment rights laid out in the Strickland test. 

[2.] The State committed prejudicial error as the State had ‘actual 

notice’ of ‘constitutionally infirm’ OVI convictions and the State 

concealed the evidence from the grand jury, the court, and the 

defense. 

[3.] The court summarily denied defendant’s 32.1 motion without a 

hearing on the States misconduct, defendants affirmative defense 

and ineffective assistance of counsel. 

 
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{¶7} Crim.R. 32.1 provides that “[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.” 

{¶8} “Pursuant to Crim.R. 32.1, to withdraw a guilty plea after the imposition of 

sentence, a defendant bears the burden of proving that such a withdrawal is necessary 

to correct a manifest injustice.” State v. Taylor, 11th Dist. Lake No. 2002-L-005, 2003-

Ohio-6670, ¶8, citing State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the 

syllabus. 

{¶9} Motions filed pursuant to Crim.R. 32.1 are subject to the doctrine of res 

judicata. State v. Gegia, 11th Dist. Portage No. 2003-P-0026, 2004-Ohio-1441, ¶24 

(citations omitted). “Thus, ‘when presented with a motion to withdraw a guilty plea * * *, 

[trial courts and appellate courts] should consider first whether the claims raised in that 

motion are barred by res judicata.’” Id., quoting State v. Reynolds, 3d Dist. Putnam No. 

12-01-11, 2002-Ohio-2823, ¶27. If the claim is not barred by res judicata, courts can then 

apply the manifest injustice standard in accordance with Crim.R. 32.1. Reynolds, supra, 

at ¶27. 

{¶10} Application of the doctrine of res judicata prevents relitigation of issues that 

were already decided by a court and litigation of matters that should have been brought 

in a previous action. State v. McDonald, 11th Dist. Lake No. 2003-L-155, 2004-Ohio6332, ¶21 (citation omitted). “Res judicata bars claims raised in a Crim.R. 32.1 postsentence motion to withdraw guilty plea that were raised or could have been raised in a 

prior proceeding.” Id. at ¶22 (citation omitted) (emphasis added). 
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{¶11} The application of res judicata is generally a question of law that appellate 

courts review de novo. State v. Jenkins, 10th Dist. Franklin No. 16AP-105, 2016-Ohio5533, ¶18 (citation omitted). 

{¶12} In his Crim.R. 32.1 motion and on appeal, appellant argues his OVI 

convictions from 1995 and 1997 that were used to enhance his current OVI conviction to 

a felony were “constitutionally infirm” because he entered uncounseled pleas of “no 

contest” in those cases without a valid waiver of his right to counsel. Appellant argues 

that uncounseled priors cannot be used to enhance a conviction and maintains that “[h]ad 

[he] understood this law, as it relates to the facts when giving his guilty plea, he would 

have insisted on going to trial[.]” Appellant raises a claim of ineffective assistance of 

counsel, arguing his trial counsel’s performance was defective because he failed to 

investigate the alleged uncounseled pleas. Appellant further argues the state “misled the 

grand jury * * * by withholding exculpatory evidence and willfully presenting 

‘constitutionally infirm’ convictions.” 

{¶13} Attached to appellant’s Crim.R. 32.1 motion was his own affidavit dated 

September 29, 2010. Appellant averred that when he entered a plea of no contest in the 

1995 case, he appeared without counsel, did not waive his right to counsel, and was not 

informed of the consequences of entering a plea of no contest. He further averred that 

when he entered a plea of no contest in the 1997 case, he appeared without counsel and 

signed a “boilerplate waiver of counsel form” but was not informed of his rights or of the 

consequences of entering a plea of no contest. Appellant was therefore aware of the 

alleged uncounseled convictions since September 29, 2010. Further, the record reflects 

defense counsel raised in the trial court the issue of appellant’s previous pleas. During 
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appellant’s sentencing hearing, defense counsel stated: “Your honor, I think what he’s 

trying to explain to you is that when he entered the pleas on the priors, he’s telling me 

after he entered the plea on this case that he didn’t have an attorney and that the Court 

didn’t advise him that he had voluntarily waived that right. And that’s why I told him not 

to pursue that one.” Thus, appellant could have raised the issues pertaining to ineffective 

assistance of counsel and the state’s withholding exculpatory evidence in his direct 

appeal. He did not. See Rock, 2015-Ohio-4639, ¶5-6. Consequently, the issues are 

barred by res judicata. 

{¶14} Appellant further argues the trial court should have held a hearing on his 

Crim.R. 32.1 motion. However, “[n]o hearing is required on postsentence motions under 

Crim.R. 32.1 unless the facts as alleged by the appellant, taken as true, would require the 

trial court to permit withdrawl of the plea.” State v. Beachum, 6th Dist. Sandusky Nos. S10-041 & S-10-042, 2012-Ohio-285, ¶22 (citations omitted). Because the trial court 

determined the issues raised in appellant’s motion were barred by res judicata, it was not 

required to hold an evidentiary hearing. 

{¶15} Appellant’s first, second, and third assignments of error are without merit. 

{¶16} For the foregoing reasons, the judgment of the Lake County Court of 

Common Pleas is affirmed. 

THOMAS R. WRIGHT, P.J., 

CYNTHIA WESTCOTT RICE, J., 

concur.