[Cite as State v. Moore, 2014-Ohio-5682.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                      Nos. 100483 and 100484



                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            ROBERT MOORE

                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                     Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                           Case Nos. CR-09-521078-A and CR-09-525878

        BEFORE: Keough, J., Jones, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: December 24, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

APPELLANT

Robert Moore, pro se
No. 572-298
Grafton Correctional Institution
2400 S. Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




KATHLEEN ANN KEOUGH, J.:
       {¶1} In this consolidated appeal, defendant-appellant, Robert Moore, appeals the trial

court’s decision denying his motion to withdraw his guilty plea and to vacate the plea agreement.

For the reasons that follow, we affirm the judgment of the trial court.

                                     I. Procedural History

       {¶2} In 2009, Moore was charged in a multi-count indictment under case number

CR-09-521078 with several codefendants relating to various drug-related activities that occurred

between February 13 and 15, 2009.

       {¶3} During the course of the case, Moore filed multiple suppression motions, which

were denied after an evidentiary hearing. Approximately a week or two prior to trial, defense

counsel was made aware that another indictment was possibly going to be filed against Moore

stemming from a controlled buy from a confidential informant that also occurred on February 13,

2009. (Tr.1705-1706.) It was discussed between trial counsel and the prosecutor that if Moore

went to trial on the pending case, this second indictment would be filed against Moore. (Tr.

1706.) The trial court indicated to Moore that given the nature of the two cases and in the event

of guilty verdicts in both cases, the court would impose at the very least an aggregate 18-year

sentence. (Tr.12-18.) Moore exercised his right to go to trial, and the state filed the second

indictment — case number CR-09-525878, charging him with other drug-related offenses.

       {¶4} Following a week-long jury trial, Moore was found guilty in CR-521078 of all

charges and was facing over 16 years in prison. Following the verdict but before sentencing, a

plea deal was reached in case number CR-525878 that also involved an agreed sentence in

CR-521078. The agreement provided that Moore would plead guilty to drug trafficking in

violation of R.C. 2925.03(A)(1), as charged in Count 1 of the indictment in CR-525878 and

waive any discovery and suppression issues, and appellate rights in that case. (Tr. 1610, 1628).
Moore would also waive his appellate rights on any suppression or trial issues in CR-521078 (tr.

1610) and agree to forfeit vehicles and money. (Tr. 1610). In exchange, the state would nolle

Counts 2 and 3 in CR-525878 and an agreed total sentence of 13 years in prison would be

imposed for both cases.

       {¶5} During the beginning of the plea colloquy, the trial court asked Moore whether he

was threatened, promised, forced, or induced by anyone to accept the plea. (Tr. 1614). Moore

responded:

       No. I was told by [my attorney] and basically by the prosecutor for me to get my

       plea I have to give up my rights, the money that they took from me, drugs. If I

       don’t, I’m going to get like 20 years, 20 some years, so basically I have to give up

       everything. That’s what I was told to do.

       {¶6} The trial court then explained that the court never indicated it was imposing a

20-year sentence. The court reminded Moore of the conversation they had prior to the start of

trial about the potential sentence he was facing — a minimum of 18-years total on both cases.

(Tr. 12-18; 1614-1616). The court then reiterated that it never discussed with anyone a 20-year

sentence. Moore stated he understood the court’s explanation and agreed about the earlier

conversation.

       {¶7} The trial court accepted Moore’s plea as presented in case number CR-525878 and

sentenced him to an agreed sentence of nine-years incarceration to run concurrent with the agreed

13-year sentence imposed in case number CR-521078. As part of these agreed sentences, Moore

agreed to forfeiture of vehicles and money, and waived his appellate rights regarding discovery,

suppression, and any issues raised at trial.
          {¶8} In September 2009, Moore filed timely notices of appeal in both cases. This court

subsequently dismissed the appeals because the trial court’s sentencing entry indicated that as

part of the agreed-upon sentences, Moore had waived his appellate rights. State v. Moore, 8th

Dist. Cuyahoga Nos. 93934 and 93935 (Sept. 21, 2009).

          {¶9} In September 2010, Moore filed a “motion to vacate and void sentence” challenging

the court’s waiver of mandatory fines. He argued that because no affidavit of indigency was

filed prior to sentence, the court erred in waiving the fines; thus, his entire sentence should be

void. The trial court denied his motion. This court reversed the trial court’s decision, but

determined that only the waiver of fines was void; the other aspects of Moore’s sentence

remained intact and resentencing was limited to the imposition of the mandatory fine. State v.

Moore, 8th Dist. Cuyahoga Nos. 96111 and 96112, 2011-Ohio-4246, ¶ 18, aff’d State v. Moore,

135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432 (“Moore I”).

          {¶10} A year later in September 2011, Moore filed two motions in CR-525878 —

“Presentencing Motion to Withdraw Guilty Plea” and an “Amended Motion Requesting to

Withdraw Guilty Plea Prior to Resentencing based on Double Jeopardy.” In October 2011, he

filed a “Motion to Amend Defendant’s Timely Presentencing Motion to Withdraw Guilty Plea.”

In these motions, Moore maintained that the firearm specifications were the same under both

indictments and therefore when he was convicted and sentenced in both cases on the firearm

specifications, he was put in jeopardy twice. Moore also moved to vacate and void his judgment

of conviction contending that he should not have been sentenced on the count of possessing

criminal tools in CR-521078 because the jury verdict forms indicated that he was found not

guilty.
        {¶11} On November 8, 2011, the trial court filed two journal entries both under

CR-521078.       The first journal entry denied Moore’s motion to withdraw his guilty plea

reasoning that Moore was “barred by res judicata as the issue before the court could have been

raised on direct appeal as it is a sentencing issue.” Under separate journal entry, the trial court

also denied Moore’s motion to vacate and void his judgment of conviction finding that “no

evidence has been presented by the defendant to support his claim that the jury found him not

guilty of possession of criminal tools.”

        {¶12} Moore appealed these decisions under both case numbers. See State v. Moore, 8th

Dist. Cuyahoga Nos. 97654 and 97655. These appeals were subsequently dismissed. Case

number 97655 was dismissed in December 2011 for lack of a final appealable order — “the trial

court has not ruled on appellant’s motion to vacate. The appeal is premature.”1 Case number

97654 was dismissed in February 2012 for failing to file the record.

        {¶13} In November 2011, Moore filed another post-judgment motion — “Motion for

Acquittal Pursuant to Crim.R. 29(C) after Verdict or Discharge of the Jury” contending that the

jury verdict forms were renumbered to his prejudice because Count 7 of the indictment was

changed to “Count 6” on the jury verdict forms when in fact, Count 6 of the indictment pertained

to a codefendant.

        {¶14} The trial court denied his motion for acquittal finding that the jury verdict forms

were not renumbered to his prejudice. Moore appealed that decision. State v. Moore, 8th Dist.



        1
          It appears that the dismissal of this appeal may have been in error. See tr. 1661-1664. The trial court
denied Moore’s motions to withdraw his plea and vacate and void sentence on November 8, 2011. These journal
entries were only filed under CR-521078. Therefore, when Moore appealed the denial of his motion to withdraw
his plea under CR-525878, the docket did not reflect that the trial court ruled on the motion. But looking under
CR-521078, the entry was indeed filed prior to Moore’s appeal. The confusion exists because the trial court’s
journal entry contained the wrong case number. No correction of the record was requested.
Cuyahoga No. 97775, 2012-Ohio-2935. (“Moore II”). This court found that Moore’s appeal

was barred by res judicata because he could have raised this issue in his prior appeal in Moore I.

Id. at ¶ 14. This court nevertheless addressed the assignment of error and found that Moore’s

challenge to the jury verdict forms was untimely and the renumbering of the counts in the jury

verdict forms were to avoid confusion for the jurors, not to the prejudice Moore. Id. at ¶ 15-17.

        {¶15} By January 2013, the Ohio Supreme Court had issued its decision affirming this

court’s decision rendered in Moore I. The trial court conducted a hearing for the limited

purpose of resentencing Moore regarding mandatory fines. Appointed counsel was present and

requested the court to continue the resentencing so that Moore could file the requisite affidavit of

indigency and accounting for the purpose of requesting the trial court to waive the mandatory

fines. The trial court agreed and the matter was continued.

        {¶16} Subsequently, Moore filed two additional motions — a motion to withdraw his

plea and a motion for a hearing to determine allied offenses. In each motion, Moore contended

that his plea was not made knowingly, intelligently, and voluntarily because the offenses he was

indicted for under CR-525878 were allied to the offenses he was convicted of in CR-521078 and

he was not advised that this violated his right against double jeopardy.

        {¶17} At the resentencing in March 2013, the trial court heard arguments from Moore’s

counsel regarding these pro se motions. Because the state had not responded to the arguments

raised by Moore in his motions, the court continued the matter again for resentencing and for a

motion hearing. In the interim, Moore’s counsel filed a formal motion to withdraw Moore’s

plea.
       {¶18} Finally, in August 2013, the trial court resentenced Moore for the limited purpose

of accepting Moore’s affidavit of indigency and waiving the mandatory fines as directed by the

Ohio Supreme Court.

       {¶19} On this date, the trial court also conducted a hearing on Moore’s motion to

withdraw his plea. Moore maintained in his motion that at the time he pleaded guilty, he did not

know that the offenses indicted for in CR-525878 were allied offenses and subject to merger with

the offenses he was convicted of in CR-521078. He also moved to withdraw his plea because he

was led to believe that he was facing the possibility of an additional 25-years in prison on the

second case; thus, he alleged he was induced into entering a plea on CR-525878. He stated had

he known that the offenses in the two cases would have likely merged for sentencing and he

would not face any additional time, he never would have entered into the plea, which included

waiving his right to appeal.

       {¶20} The trial court heard testimony from both Moore and his trial counsel, and also

considered oral arguments from both the defense and the state. The trial court issued a written

decision concluding the issue of allied offenses can only be raised on direct appeal and that

because Moore waived his appellate rights, Moore’s motion was denied. However, the court

stated that even addressing the merits of the motion, Moore did not demonstrate a manifest

injustice as required by Crim.R. 32 to withdraw the plea. The court found that Moore received

the benefit of the bargain and was facing a higher sentence if he did not accept the plea

agreement. Furthermore, the court noted that trial counsel testified that he did not address the

issues of double jeopardy and allied offenses with Moore because in his opinion, those issues did

not exist — at the time of the plea, drug trafficking in violation of R.C. 2925.03(A)(1) was not

necessarily considered to be an allied offense with drug trafficking in violation of R.C.
2925.03(A)(2) or drug possession in violation of R.C. 2925.11(A). See State v. Cabrales, 118

Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 29-33.

       {¶21} Moore now appeals, raising one assignment of error through counsel. Moore

raises three additional assignments of error, pro se, after obtaining leave from this court. Some

of the assignments of error will be addressed together.

                                      II. Withdraw of Plea

       {¶22} In the assignment of error raised by counsel, Moore contends that his “guilty plea

was neither knowing nor intelligent because it was prompted by misinformation about the

applicable law and the proper sentence that could be imposed.”

       {¶23} Crim.R. 32.1 authorizes the postconviction withdrawal of a plea only to correct a

manifest injustice.   State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).           The

defendant bears the burden of proving manifest injustice. Id. A defendant can only establish a

manifest injustice in “extraordinary cases.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324

(1977), paragraph one of the syllabus. “‘A manifest injustice has been defined by the Ohio

Supreme Court as a “clear or openly unjust act.”’” State v. Sage, 2d Dist. Montgomery No.

25453, 2013-Ohio-3048, ¶ 16, quoting State v. Moore, 2d Dist. Montgomery No. 24387,

2011-Ohio-4546, ¶ 9, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699

N.E.2d 83 (1998). “Although Crim.R. 32.1 does not prescribe a time limitation, an ‘undue delay

between the occurrence of the alleged cause for withdrawal of the guilty plea and the filing of a

motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and

militating against granting of the motion.’” Stage v. Nooks, 10th Dist. Franklin No. 10AP-108,

2010-Ohio-2982, ¶ 6, quoting Smith at paragraph three of the syllabus. The determination of

whether the defendant has sustained his burden is committed to the sound discretion of the trial
court and will not be disturbed on appeal, absent an abuse of discretion. State v. Caver, 8th Dist.

Cuyahoga Nos. 90945 and 90946, 2008-Ohio-6155, citing Smith at paragraph two of the

syllabus.

       {¶24} Reviewing the motion to withdraw filed with the trial court, the transcript of the

proceedings, and the brief on appeal, Moore appears to challenge that he was denied effective

assistance of counsel at the time of the plea in 2009. Moore contends that he was induced into

entering into the plea agreement based on his trial counsel’s failure to correctly advise him

regarding the penalty he was facing under the second indictment.

       {¶25} Moore maintains that at the time he pleaded guilty, he did not know that the

offenses he allegedly committed on February 13, 2009 — both charged in CR-521078 and

525878 — were allied offenses; thus, under the Double Jeopardy Clauses of the State and

Federal Constitutions, and the law in the state of Ohio, the state is barred from obtaining

convictions on at least two of the three charges in the second indictment as well as the firearm

specifications related to all three charges. He argues that had he been correctly advised of the

Double Jeopardy and allied offense implications of the second indictment — that drug

possession and at least one of the drug trafficking counts were allied in the first indictment — he

would have never pled guilty in CR-525878 and forfeited his right to a direct appeal in

CR-521078.

       {¶26} Ineffective assistance of counsel is a proper basis for seeking a postsentence

withdrawal of a guilty plea. State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 N.E.2d

607, ¶ 8 (8th Dist.), citing State v.Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d

509, ¶ 18 (10th Dist.). When an alleged error underlying a motion to withdraw a guilty plea is

the ineffective assistance of counsel the defendant is required to demonstrate that (1) his
counsel’s performance was seriously flawed and deficient and (2) that there is a reasonable

probability that, but for counsel’s errors, he would not have pled guilty.         Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Xie, 62 Ohio St.3d

at 524, 584 N.E.2d 715. “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment.”

Strickland at 690.

       {¶27} After reviewing the pertinent law at the time of Moore’s plea and the transcript of

the proceedings, we conclude that the trial court did not abuse its discretion in denying Moore’s

motion to withdraw because (1) Moore’s motion is arguably barred by res judicata, (2) Moore is

attempting to appeal an agreed sentence, and (3) Moore has not demonstrated that counsel was

deficient; thus, unable to satisfy his burden of demonstrating that a manifest injustice has

occurred.

                                          A. Res Judicata

       {¶28} The trial court did not abuse its discretion in denying Moore’s motion to withdraw

his plea because the motion is arguably barred by res judicata. “Res judicata prevents repeated

attacks on a final judgment and applies to all issues that were or might have been litigated.”

State v. Sneed, 8th Dist. Cuyahoga No. 84964, 2005-Ohio-1865, ¶ 16, citing State v. Brown, 8th

Dist. Cuyahoga No. 84322, 2004-Ohio-6421.

       {¶29} Moore waived his appeal rights in these cases regarding issues pertaining to

discovery, suppression, and trial. Nothing precluded Moore from filing an appeal challenging

whether he knowingly, voluntarily, and intelligently entered into the plea agreement in 2009.

Although we recognize that this court dismissed his direct appeal, the appeal should have only

been dismissed insofar as it challenged any pretrial or trial issues.
          {¶30} Furthermore, res judicata would also prohibit Moore’s appeal because this is an

appeal from his fifth motion to either withdraw his plea or vacate a void sentence. “‘The doctrine

of res judicata is applicable to successive motions to withdraw a guilty plea under Crim.R.

32.1.’” State v. Steinke, 8th Dist. Cuyahoga No. 100345, 2014-Ohio-2059, ¶ 20, quoting State v.

Muhumed, 10th Dist. Franklin No. 11AP-1001, 2012-Ohio-6155, ¶ 13.

          {¶31} Moore challenged the trial court’s imposition of court costs in 2010, but did not

make any argument challenging his plea. Again, in 2011, he filed multiple motions seeking to

withdraw his plea and vacate his sentence. Because we recognize that the appeal from the

November 8, 2011 journal entry denying his motion to withdraw his plea was possibly dismissed

erroneously, this court will not use the doctrine of res judicata to bar Moore’s appeal in this

matter.     See, e.g., State v. Holmes, 8th Dist. Cuyahoga No. 100388, 2014-Ohio-3816, ¶ 23,

citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 25-27.

However, other reasons exist which require this court to affirm the trial court’s decision denying

his motion to withdraw his plea.

                                       B. Agreed Sentence

          {¶32} The underlying basis for which Moore requests his plea to be withdrawn is that the

offenses contained in CR-525878 are allied offenses with the offenses contained in CR-521078.

Moore contends, therefore, that he was not facing any additional sentence and the misinformation

about the potential additional 25-year jail sentence for the second indictment induced him into

taking the plea, which included waiving his appellate rights.

          {¶33} The record demonstrates that the trial court expressly addressed this issue with

Moore at the beginning of the plea colloquy. See tr. 1614-1616. In fact, the court advised
Moore prior to the trial that if he was convicted of all charges in both cases, he faced a minimum

of 18 years. (Tr. 12-18.)

       {¶34} Even if the offenses were allied, R.C. 2953.08(D) forecloses review of the actual

sentence imposed by the trial court pursuant to an agreed sentence upon entering a plea of guilty.

 This court and other districts have concluded that agreed sentences, even those containing allied

offense issues, are not appealable. See State v. Stansell, 8th Dist. Cuyahoga No. 75889, 2000

Ohio App. LEXIS 1726, *12-13 (Apr. 20, 2000). Therefore, Moore could not have appealed his

sentence, raising these allied offense issues because it was an agreed sentence. The effect of the

agreed sentence also overrules Moore’s first pro se assignment of error challenging the court’s

discretion in sentencing him on duplicitous indictments that violate the double jeopardy clause.

                            C. Deficient Performance/Manifest Injustice

       {¶35} Reaching the merits of the assignment of error, we find that the trial court did not

abuse its discretion in denying Moore’s postconviction motion to withdraw his plea. Moore has

not demonstrated that his trial counsel was seriously flawed or deficient in failing to address

double jeopardy and allied offense issues regarding the second indictment sufficient to withstand

his burden of proving that a manifest injustice occurred.

       {¶36} The Double Jeopardy Clause is promulgated under the Fifth Amendment to the

United States Constitution and Article I, Section 10 of the Ohio Constitution and it “protect[s] a

defendant from successive prosecutions and multiple punishments for the same offense.” State

v. Mullins, 5th Dist. Fairfield No. 12 CA 17, 2013-Ohio-1826, ¶ 12, citing State v. Kelly, 7th

Dist. Columbiana No. 08 CO 23, 2009-Ohio-1509, ¶ 18.

       “[T]he successive prosecution branch of the Double Jeopardy Clause prohibits the

       state from trying a defendant for a greater offense after a conviction of a lesser
       included offense and from twice trying a defendant for the same offense.” State

       v. Morton, Montgomery App. No. 20358, 2005-Ohio-308, ¶ 8 (internal quotations

       and additional citations omitted).    In comparison, “[u]nder the ‘cumulative

       punishment’ prong, double jeopardy protections do ‘no more than prevent the

       sentencing court from prescribing greater punishment than the legislature

       intended.’” State v. Coe, Stark App. No. 2009 CA 00050, 2010-Ohio-1840, ¶

       109, quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L. Ed.2d

       535 (1983).

Mullins at ¶ 12.

       {¶37} In this case, Moore contends that the second indictment falls under both prongs of

the double jeopardy clause; thus, trial counsel was deficient for failing to explain, address, or

argue these issues before the trial court. According to Moore, had trial counsel advised him

properly that the second indictment may not have subjected him to any additional sentence, he

would not have entered into the plea agreement and agreed sentence.

       {¶38} First, we must determine whether the second indictment violated his right against

successive prosecutions. “To determine whether a subsequent prosecution is barred by the

Double Jeopardy Clause of the Fifth Amendment, a court must first apply the Blockburger [v.

United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306] test.” State v. Tolbert, 60 Ohio

St.3d 89, 573 N.E.2d 617 (1991). “The applicable rule is that where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each provision requires proof of a fact

which the other does not.” Blockburger at 304. “If the application of the test reveals that the
offenses have identical statutory elements or that one is a lesser included offense of the other, the

subsequent prosecution is barred.” Tolbert at paragraph one of the syllabus.

        {¶39} In support of his argument that the second indictment was barred, Moore relies on

State v. Edwards, 8th Dist. Cuyahoga Nos. 94568 and 94929, 2011-Ohio-95, and Rashad v. Burt,

108 F.3d 677 (6th Cir.1997), where the courts found that the double jeopardy clause prohibiting

successive prosecutions barred the prosecutions in subsequent indictments.

        {¶40} In Rashad, the defendant was prosecuted for possession with intent to deliver

cocaine found in his automobile after he had been convicted for possession with intent to

distribute cocaine found in his house; both convictions stemmed from the execution of a single

search warrant. Id. at 678. Similarly, in Edwards, the defendants were charged with drug

trafficking, drug possession, and possession of criminal tools based on a search of one

defendant’s car.   After the defendants had entered into a plea and were sentenced, a new

indictment was filed based on additional drugs that were subsequently located in the car. This

court held that the defendants in Edwards had a sense of finality when they entered into their

plea.

        {¶41} In this case, and unlike Edwards and Rashad, both indictments were pending prior

to trial commencing.      The parties, including Moore, were well aware of the facts and

circumstances surrounding each indictment. Therefore, there was no sense of finality after

Moore was found guilty of the first indictment. Furthermore, and as explained by Moore’s trial

counsel, the two events did not stem from one search warrant or arrest, but rather different events

involving different offenses, drug amounts, and locations.

        {¶42} Applying the Blockburger test, the second indictment charged Moore with drug

trafficking in violation of R.C. 2925.03(A)(1), whereas he was charged under the first indictment
with drug trafficking in violation of R.C. 2925.03(A)(2). The former requires it to be proven

that the offender intends to sell the controlled substance, whereas trafficking under R.C.

2925.03(A)(2) does not. According to the Blockburger “same elements” test, Moore’s right

against successive prosecutions was not violated.

       {¶43} Regarding the multiple punishment prong of the Double Jeopardy Clause, Moore

relies on State v. Johnson, 128 Ohio St.3d 153, 161-162, 2010-Ohio-6314, 942 N.E.2d 1061, in

maintaining that the drug trafficking offenses in CR-525878 are allied with the drug trafficking

and possession offenses in CR-521078.         However, State v. Cabrales, 118 Ohio St.3d 54,

2008-Ohio-1625, 886 N.E.2d 181, governed allied offenses at the time these offenses occurred

and at the time of the plea and sentencing.

       {¶44} Under Cabrales, the Ohio Supreme Court relaxed the previous standard by

providing that “[i]nstead, if, in comparing the elements of the offenses in the abstract, the

offenses are so similar that the commission of one offense will necessarily result in commission

of the other, then the offenses are allied offenses of similar import.” Id. at ¶ 26. In Cabrales,

the Ohio Supreme Court expressly addressed those offenses that Moore claims are allied in his

case. The court held that drug trafficking in violation of R.C. 2925.03(A)(1) was not necessarily

allied with drug trafficking in violation of R.C. 2925.03(A)(2), and that drug trafficking under

the (A)(1) section was not necessarily allied with drug possession in violation of R.C.

2925.11(A). Id. at ¶ 29-33. Accordingly, Moore’s offenses were not allied offenses under

Cabrales.

       {¶45} Trial counsel testified that he did not discuss the issue of allied offenses or double

jeopardy with Moore because he did not think an issue existed and that the two offenses were not

subject to merger because, as he explained,
        We did not discuss double jeopardy. We did not discuss allied offenses. After
        careful analysis of the facts that I knew of the case, about the first and the second
        case, given the separate dates, separate times, separate amounts, separate
        witnesses, it was my analysis that those were separate incidents and they did not
        qualify for merger, so I did not have that discussion.

(Tr. 1709-1710.)

        {¶46} Trial counsel testified that he had approximately 23-years experience as an attorney

and primarily represented individuals charged with drug-related offenses.          Given counsel’s

experience and explanation regarding why he did not believe the offenses were subject to merger,

considering his knowledge of the law as it existed at the time, counsel’s performance was not

deficient. Counsel was well aware of the effect of allied offenses and merger because various

counts in CR-521078 were merged for sentencing. Finally, Cabrales would have prevented the

trial court from merging the drug trafficking offense in CR-525878 with any of the other offenses

in CR-521078. Based on the foregoing, Moore has not demonstrated that his trial counsel was

deficient.

        {¶47} Moreover, Moore has failed to meet his burden of demonstrating that a manifest

injustice occurred. Moore entered into an agreed sentence after being found guilty by a jury of

two counts of drug trafficking, drug possession, and one count of possessing criminal tools, with

each count containing firearm specifications. Moore was facing over 16 years in prison under

this indictment alone. The fact that he received an agreed 13-year sentence under both cases

demonstrates that Moore received the benefit of the bargain.

        {¶48} Based on the foregoing reasons, including the delay in alleging that trial counsel

was deficient, the trial court did not abuse its discretion in denying Moore’s motion to withdraw

his plea based on a claim of ineffective assistance of counsel. Accordingly, Moore’s assignment

of error raised by counsel and his first assignment of error raised pro se are overruled.
                       III. Second and Third Pro Se Assignments of Error

       {¶49} In his second assignment of error raised pro se, Moore contends that the prosecutor

committed “prosecutorial misconduct when she questioned Officer Todd Clark concerning

evidence containing [sic] to the case he had not actually been charge [sic] without being formal

[sic] charge [sic].” In his third assignment of error raised pro se, Moore contends that he was

denied “effective assistance in violation of his Sixth Amendment rights to the United States

Constitution due to trial counsel’s failure to move for a mistrial due to [the] prosecutor

present[ing] unindicted evidence before the court.”

       {¶50} Moore’s second and third pro se assignments of error are summarily overruled

because the issues raised are defeated by the underlying plea agreement waiving his right to

appeal issues that arose at trial in case number CR-521078. Accordingly, the assignments of

error are overruled.

       {¶51} Affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR
