[Cite as State v. Fisher, 2019-Ohio-3334.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

JACKSON COUNTY 

STATE OF OHIO, : 

 : Case No. 19CA5 

Plaintiff-Appellee, : 

 : 

vs. : DECISION AND JUDGMENT 

: ENTRY 

GEORGE FISHER, : 

 : 

Defendant-Appellant. : Released: 08/14/19 

_____________________________________________________________ 

APPEARANCES: 

George Fisher, Lancaster, Ohio, Pro Se Appellant. 

Dave Yost, Ohio Attorney General, and Andrea K. Boyd, Special 

Prosecutor, Assistant Ohio Attorney General, Ohio Attorney General’s 

Office, Columbus, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J. 

{¶1} This is an appeal from the Jackson County Common Pleas 

Court’s denial of Appellant George Fisher’s petition for post-conviction 

relief under R.C. 2953.21. Appellant pleaded guilty to one count of 

possession of heroin, for which the trial court sentenced him to nine years in 

prison. Appellant filed a direct appeal of the trial court’s judgment, which 

this Court affirmed. Appellant now contends the trial court erred in denying 

his subsequent petition for post-conviction relief. Specifically, Appellant 

argues the petition should have been granted because his counsel was 
Jackson App. No. 19CA5 2

ineffective for failing to (1) withdraw Appellant’s plea before sentencing 

and (2) move the trial court to conduct a hearing on his motion to suppress. 

Because the doctrine of res judicata bars Appellant from raising these 

purported constitutional violations in his motion for post-conviction relief, 

we overrule his assignments of error and affirm the trial court’s judgment. 

FACTS 

{¶2} On January 13, 2016, Appellant was indicted for one count of 

possession of heroin, a felony of the first degree, with a specification that 

Appellant was a major drug offender. On March 22, 2017, Appellant, with 

retained counsel, pleaded guilty to the charge pursuant to an agreement with 

Appellee, the State of Ohio, to drop the major drug offender specification. 

The parties did not make a joint sentencing recommendation and requested a 

separate sentencing hearing. 

{¶3} On May 23, 2017, the trial court held a second plea hearing, at 

which the parties indicated their plea agreement contemplated a sentencing 

range encompassing the sentence for a felony in the first degree, rather than 

the eleven-year sentence mandated by a major drug offender specification. 

Appellee also asked to amend the charge to reduce the amount of heroin 

alleged to be possessed to avoid a mandatory maximum sentence. The trial 

court permitted the amendment, vacated the previous plea and proceeded 
Jackson App. No. 19CA5 3

with the new plea hearing. Appellant pleaded guilty to possessing heroin, a 

felony of the first degree, in violation of R.C. 2925.11(A). Pursuant to the 

plea agreement, the major drug offender specification was dismissed. 

{¶4} The trial court then heard argument regarding sentencing. 

Appellee requested the maximum sentence, while Appellant, through his 

attorney, argued for a lesser sentence. Appellant chose not to speak. After 

the parties concluded their arguments, the trial court sentenced Appellant to 

nine years in prison. 

{¶5} Appellant was granted leave to file a delayed appeal of his 

sentence. This Court held oral argument and then denied the appeal on June 

28, 2018. State v. Fisher, 4th Dist. Jackson No. 17CA5, 2018-Ohio-2718, 

¶ 42. The Supreme Court of Ohio denied Appellant’s petition for 

jurisdiction on October 24, 2018. State v. Fisher, 153 Ohio St.3d 1505, 

2018-Ohio-4285, 109 N.E.3d 1261. On November 9, 2018, Appellant filed 

a pro se motion for post-conviction relief, which the trial court denied on 

February 11, 2019. On March 7, 2019, Appellant timely filed this appeal of 

the trial court’s decision. 
Jackson App. No. 19CA5 4

ASSIGNMENTS OF ERROR 

“I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO 

WITHDRAW THE PETITIONER’S PLEA PRIOR TO 

SENTENCING. 

II. THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO 

HAVE THE COURT CONDUCT A HEARING ON HIS MOTION 

TO SUPPRESS EVIDENCE. COUNSEL FAILED TO INSIST 

THAT A HEARING BE HELD ON THE MOTION TO SUPPRESS 

THE EVIDENCE, AND THERE WAS NEVER A RULING BY THE 

COURT.” 

ASSIGNMENTS OF ERROR I AND II 

{¶6} Both of Appellant’s assignments of error are based on the 

contention that he received ineffective assistance of counsel. In his first 

assignment of error, he argues that his trial counsel was ineffective for 

failing to withdraw his plea before sentencing. In the second assignment of 

error, Appellant argues that his trial counsel was ineffective for failing to 

insist that the trial court hold a hearing on his pending motion to suppress. 

Appellant dedicates his brief to arguing the merits of these assignments of 

error. Appellee argues, in response, that Appellant’s claims are both barred 

by the doctrine of res judicata and fail on their merits. Because we agree 

that the doctrine of res judicata bars Appellant’s claims of ineffective 

assistance of counsel, we consider his first and second assignments of error 

together here. 
Jackson App. No. 19CA5 5

{¶7} The Supreme Court of Ohio has held the doctrine of res judicata 

applies when determining whether post-conviction relief is warranted under 

R.C. 2953.21. State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), 

syllabus; State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). “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 that judgment, any defense or any claimed 

lack of due process that was raised or could have been raised by the 

defendant at the trial, which resulted in that judgment of conviction, or on an 

appeal from that judgment.” Perry at 176; see also Szefcyk at 96. 

{¶8} Appellant’s assignments of error are based on claims of 

purported ineffective assistance of counsel that could have been raised on 

direct appeal from his judgment of conviction. In fact, Appellant did raise a 

claim of ineffective of counsel, albeit on different grounds, on direct appeal 

from his judgment of conviction. Fisher, 2018-Ohio-2718, ¶ 32. Appellant 

does not argue that he could not have brought his new claims of ineffective 

assistance of counsel in his direct appeal. Nor does Appellant claim to have 

discovered any new evidence relevant to his plea hearing or sentencing. 

Because Appellant had a full opportunity to raise his ineffective assistance 

claims on direct appeal and failed to do so, the doctrine of res judicata bars 
Jackson App. No. 19CA5 6

him from raising them now in a petition for post-conviction relief. 

Accordingly, Appellant’s first and second assignments of error are 

overruled. 

{¶9} Having overruled Appellant’s assignments of error because his 

claims are barred by res judicata, we affirm the trial court’s judgment. 

 JUDGMENT AFFIRMED. 
Jackson App. No. 19CA5 7

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and that costs be 

assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Jackson County Common Pleas Court to carry this judgment into 

execution. 

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

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

Rule 27 of the Rules of Appellate Procedure. 

Abele, J. & Hess, J.: Concur in Judgment and Opinion. 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.