[Cite as State v. Guy , 2020-Ohio-3011.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) STATE OF OHIO Appellee

v. SCOTT GUY Appellant C.A. No. 29496

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 08 07 2335 DECISION AND JOURNAL ENTRY Dated: May 20, 2020

CARR, Presiding Judge. {¶1} Appellant, Scott Guy, appeals the judgment of the Summit County Court of Common Pleas. This Court affirm s in part, reverses in part, an d remands.
I. {¶2} In 2009, Guy pleaded guilty to rape in relation to an incident that occurred in 2006. The trial court sentenced Guy to life imprisonment with parole eligibility after ten years and further ordered that his prison sentence in this matter be served conse cutively to his sentence in a different case. The trial court also classi fied Guy as a Tier III sex of fender under the Adam Walsh Act. {¶3} In the following years, Guy filed a number of motions challengi ng his sentence. In 2013, Guy filed a motion arguing that the trial court imposed a n unlawful term of post-release control. The trial cou rt denied the motion. {¶4} In 2014, Guy filed a motion challenging his classification as a Tier III sex offender. The State filed a memorandum ac knowledging that Guy should have been classified under2 Megan’s Law. The trial court did not rule on the motion prior to 2016, when it appointed new counsel for Guy. {¶5} Newly appointed counsel filed a motion to withdraw Guy’s guilty plea on the basis that trial counsel was ineffectiv e. Newly appointed counsel fu rther argued that Guy’s classification as a Tier III sex offender rendered his entire s entence void. The State filed a memorandum in opposition to Guy’s m otion to withdraw his plea. {¶6} After a video conference in ear ly 2018, the trial court took th e matter under advisement. Guy subsequently file d a pro se motion asking the trial judge to recuse herself. Shortly thereafter, Guy filed a pro se motion requesting new co unsel. {¶7} On July 12, 2019, the trial court issued a journal entry denyin g Guy’s pending motions. {¶8} On appeal, Guy raises four assignments of error.
II. ASSIGNMENT OF ERROR I THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE WHEN IT SENTENCED THE APPELLANT AS A SEXUAL PREDATOR UNDER THE ADAM WALSH ACT VIOLATING HIS CONSTITUTIONAL RIGHTS[.] {¶9} In his first assignment of error, Guy contends that his entire sentence is void because the trial court imprope rly classified him as a Tier III sex offender under the Adam Walsh Act when he should have been cla ssified under Megan’s Law. {¶10} In 2007, the Ohio General Assembly enacted the Adam Walsh Act a nd repealed Megan’s Law, effective January 1, 2008. The Supreme Court of O hio subsequently concluded that the Adam Walsh Act could not be applied retroactively to o ffenses committed prior to the law’s effective date. State v. Williams , 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 17, 22.3
{¶11} The offense at issue here was committed in 2006. The State con ceded below that Guy was improperly classified under the Adam Walsh Act and that he should be reclassified under Megan’s Law. The State renews t his concession on appeal but em phasizes that the improper classification does not render the entirety of Guy’s sentence v oid. {¶12} Megan’s Law contained statut orily mandated sanctions. See State v. Hayden , 96 Ohio St.3d 211, 2002-Ohio-4169, ¶ 16. A trial court’s failure to properly impose a statutorily mandated sanction renders that s pecific portion of the sentence void, but such a failure does not render the entire sentence void ab initio. State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 7. Contrary to Guy’s asserti on on appeal, only the classific ation portion of his sentence is void. See generally State v. Vang , 9th Dist. Summit No. 25769, 2011-Ohio-5010, ¶ 5 (“The trial c ourt was not empowered to vacate or otherwise amend the parts of the original sentence that were not void.”); State v. Cortez , 5th Dist. Licking No. 13-CA-121, 2014-Ohio-3814, ¶ 13 (noting that an improper sex offender classifica tion renders only that portion of the sentence void). Accordingly, while Guy’s sex offender classification is void, his underlying conviction and the lawful portions of his sentence remain in place. Holdcroft at ¶ 7. {¶13} The first assignment of error is sustained to the extent that t his matter must be remanded for Guy to be reclassified under Megan’s Law. ASSIGNMENT OF ERROR II THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE APPELLANT[’]S MOTION TO WITHDRAW HIS GUILTY PLEA[.] {¶14} In his second assignment of erro r, Guy contends that the trial court abused its discretion when it denied his mo tion to withdraw his guilty ple a. This Court disagrees. {¶15} An appellate court review’s a tri al court’s order denying a mot ion to withdraw a guilty plea for an abuse of discretion. State v. Chavers , 9th Dist. Wayne No. 10CA0031, 2011-4 Ohio-3248, ¶ 7. An abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶16} Crim.R. 32.1 states: 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 cour t after sentence may set aside the judgment of convic tion and permit the defendant t o withdraw his or her plea. {¶17} The general rule is that a pre-sentence motion to withdraw shou ld be freely and liberally granted. State v. Xie , 62 Ohio St.3d 521, 527 (1992). Wh ile a defendant does not ha ve an absolute right to withdraw his plea prior to sentencing, the trial court must conduct a hearing to determine whether legitimate g rounds for withdrawal exist befor e denying the requested relief. Id

. {¶18} On the other hand, a defendant filing a post-sentence motion to withdraw a guilty plea “has the burden of establis hing the existence of manifest injustice.” State v. Smith , 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. The term “man ifest injustice” has been described as a “clear or openly unjust act.” State v. Ruby , 9th Dist. Summit No. 23219, 2007-Ohio-244, ¶ 11, quoting State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 208 (1998). “Under the manifest injustice standard, a post-senten ce ‘withdrawal motion is allow able only in extraordinary cases.’”
State v. Brown , 9th Dist. Summit No. 24831, 2010-Ohio-2328, at ¶ 9, quoting Smith at 264. An evidentiary hearing on a post-sentence motion to withdraw a gui lty plea is not required when the movant fails to submit evidentiary materials demonstrating a ma nifest injustice. State v. Buck , 9th Dist. Lorain No. 04CA008516, 2005-Ohio-2810, ¶ 14. {¶19} Here, Guy filed his motion to wit hdraw more than eight years af ter he was sentenced. The central component of Guy’s argument on appeal i s that because his sentence was rendered void by his improper cl assification under the Adam Wal sh Act, the trial court should have reviewed his motion to wit hdraw under the pre-sentence sta ndard. As noted in our resolution5 of Guy’s first assignment of error, an improper classification under the Adam Walsh act renders only that sanction void and the lawful portions of Guy’s senten ce remain in place. Thus, the trial court did not err in reviewing Guy’s motion to withdraw under a post-sentence standard. As Guy has not set forth a manifest injustice argument in his merit br ief, this Court declines to create one for him. See App.R. 16(A)(7); Akron v. Johnson , 9th Dist. Summit No. 26047, 2012-Ohio-1387, ¶ 3. {¶20} The second assignment of error is overruled. ASSIGNMENT OF ERROR III THE TRIAL COURT COMMITTED JUDICIAL MISCONDUCT WHEN IT RULED UPON A MOTION TO RECUSE AND DID NOT ALLOW THE ADMINISTRATIVE JUDGE TO CONSIDER THE APPELLANT[’]S REQUEST[.] {¶21} In his third assignment of error, Guy contends that the trial c ourt erred when it denied his motion for recusal . This Court disagrees. {¶22} The process for disqualifying a trial judge of the court of com mon pleas is governed by R.C. 2701.03. “Before filing an affidavit for disqualificat ion [pursuant to R.C. 2701.03,] a party may choose to file a motion with the trial court requesti ng that the trial judge voluntarily recuse himself or herself. However, if that motion is denied t he party seeking disqualification must comply with R.C. 2701.03.” State v. Fry , 9th Dist. Summit No. 26121, 2012-Ohio-2602, ¶ 49. Thus, when a trial court deni es a motion for voluntary rec usal, this Court lacks authority to review the matter. Id

. {¶23} Here, Guy filed a motion for the trial judge to recuse herself and that motion was denied. Guy must follow the dis qualification procedure set for th in R.C. 2701.03(A)/(B), which entails filing an affidavit of disqualification with the Suprem e Court. As this Court lacks authority to review the trial court’s ru ling on Guy’s motion, his third a ssignment of error is overruled.6

ASSIGNMENT OF ERROR IV THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL[.] {¶24} In his final assignment of error, Guy contends that original tr ial counsel rendered ineffective assistance when he failed to object to the trial ju dge’s influence on the plea bargaining process. Guy further contends t hat newly appointed trial couns el rendered ineffective assistance by allowing the trial court to delay in ruling on the motion to withdraw. This Court disagrees. {¶25} As an initial matter, we note that Guy’s argument that original trial counsel rendered ineffective assistance during plea negotiations is bar red by res judicata. Guy points to statements made by the trial court at the plea colloquy and at sentencing in support of his claim. Res judicata bars claims that we re either raised or could have been raised on direct appeal. See State v. Daniel , 9th Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 11. Guy could have raised a claim against trial counsel on direct appeal. As Guy elected n ot to file a direct appeal, he is now barred from raising that issue in a subsequent appeal under the doctrine of res judicata. Id

. {¶26} Guy’s second argument involving newly appointed counsel is also without merit. In order to succeed on an ineffective assistance claim, Guy mus t demonstrate both that counsel’s performance was deficient and that but for counsel’s allegedly deficient performance, the result below would have been different. See Strickland v. Washington , 466 U.S. 668, 687 (1984). Here, Guy contends that counsel “never filed anything to get th[e] [m otion to withdraw] properly resolved[.]” The record indicates that on October 4, 2018, new ly appointed counsel filed a motion requesting that the trial court rule on Guy’s outstanding motio ns, including his motion to withdraw his guilty plea. The trial court ultimately issued a journal e ntry denying Guy’s motion to withdraw. In his merit brief, Guy has failed to explain how he was prejud iced by counsel’s allegedly deficient performance. App.R. 16(A)(7); see also State v. Ray , 9th Dist. Summit No. 22459, 2005-Ohio-7 4941, ¶ 10 (this Court need not address both prongs of the Strickland test if the appellant fails to satisfy either prong). Under th ese circumstances, Guy cannot p revail on his ineffective assistance claim. {¶27} Guy’s fourth assignment of error is overruled.
III. {¶28} Guy’s first assignment of error is sustained to the extent that this matter must be remanded for the trial court to reclassify Guy under Megan’s La w. Guy’s second, third, and fourth assignments of error are overru led. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed i n part, and the cause is remande d. Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30.8 Costs taxed equall y to both parties.

DONNA J. CARR FOR THE COURT

SCHAFER, J. TEODOSIO, J. CONCUR.

APPEARANCES: SCOTT GUY, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.