[Cite as State v. Graham, 2017-Ohio-908.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.      28153

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
LETROY GRAHAM                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2011 12 3442 (B)

                                DECISION AND JOURNAL ENTRY

Dated: March 15, 2017



        SCHAFER, Presiding Judge.

        {¶1}    Defendant-Appellant, Letroy Graham, appeals the judgment of the Summit

County Court of Common Pleas denying his motion to withdraw his guilty pleas. We affirm.

                                                I.

        {¶2}    On July 27, 2012, Graham pleaded guilty to one count of aggravated possession

of drugs in violation of R.C. 2925.11(A)(C)(1), one count of possession of cocaine in violation

of R.C. 2925.11(A)(C)(4), as well as an attendant criminal forfeiture specification pursuant to

R.C. 2941.1417. In exchange for Graham’s guilty pleas, two major drug offender specifications

were dismissed.      The trial court subsequently sentenced Graham to seven years in prison.

Graham did not take a direct appeal.

        {¶3}    On January 17, 2014, Graham filed a motion for leave to file a delayed appeal,

which this Court denied, see State v. Graham, 9th Dist. Summit No. 27215 (Feb. 5, 2014), as

well as a pro se petition for post-conviction relief. The trial court denied Graham’s petition for
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post-conviction relief, concluding that it lacked jurisdiction to consider the petition.       On

February 10, 2016, Graham filed a pro se motion to withdraw his guilty pleas pursuant to

Crim.R. 32.1. On February 22, 2016, the trial court denied Graham’s motion to withdraw his

guilty pleas without holding a hearing.

       {¶4}     Graham filed this timely appeal and raises one assignment of error for our review.

                                                II.

                                      Assignment of Error

       [The] trial court erred by denying Appellant Letroy Graham’s Motion to
       Withdraw Guilty Plea, without opposition from [the] State, violating
       Appellant’s U.S. Constitutional rights to counsel and due process.

       {¶5}     In his sole assignment of error, Graham argues that the trial court erred by

denying his Crim.R. 32.1 motion to withdraw his guilty pleas. Specifically, Graham contends

that the ineffectiveness of his trial counsel coupled with the Supreme Court of Ohio’s holding in

State v. Gonzales, Slip Opinion No. 2016-Ohio-8319, warrant the withdrawal of his guilty pleas.

We disagree.

       {¶6}     We review a trial court’s ruling on a Crim.R. 32.1 motion for an abuse of

discretion.    State v. Cargill, 9th Dist. Summit Nos. 27011, 27590, 2015-Ohio-661, ¶ 8.

Accordingly, since trial courts are vested with discretion when addressing motions to withdraw

guilty pleas, “the good faith, credibility and weight of the movant’s assertions in support of the

motion are matters to be resolved by [the trial] court.” State v. Smith, 49 Ohio St.2d 261 (1977),

paragraph two of the syllabus. A trial court abuses its discretion when its decision is arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

When applying the abuse of discretion standard, a reviewing court may not simply substitute its
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own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

          {¶7}   Crim.R. 32.1 pertinently provides that “[a] motion to withdraw a plea of guilty * *

* 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.” “One who enters a guilty plea has no right to withdraw it.” (Internal citations

omitted.) State v. Brown, 9th Dist. Summit No. 24831, 2010-Ohio-2328, ¶ 8, quoting State v.

Xie, 62 Ohio St.3d 521, 526 (1992). A defendant filing a post-sentence motion to withdraw a

guilty plea “has the burden of establishing the existence of manifest injustice.”          Smith at

paragraph one of the syllabus. The term “manifest 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). “Manifest injustice relates to

some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is

inconsistent with the demands of due process.” Ruby at ¶ 11, quoting State v. Williams, 10th

Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 5. “Under the manifest injustice standard, a

post-sentence ‘withdrawal motion is allowable only in extraordinary cases.’” Brown at ¶ 9,

quoting Smith at 264. An evidentiary hearing on a post-sentence motion to withdraw a guilty

plea is not required when the movant fails to submit evidentiary materials demonstrating a

manifest injustice. State v. Buck, 9th Dist. Lorain No. 04CA008516, 2005-Ohio-2810, ¶ 14.

          {¶8}   Graham’s primary basis for moving to withdraw his guilty pleas was that his trial

attorneys were ineffective. “Ineffective assistance of counsel can form the basis for a claim of

manifest injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1.” State v.

Adames, 5th Dist. Licking No. 16-CA-45, 2017-Ohio-587, ¶ 9, citing State v. Dalton, 153 Ohio
                                                  4


App.3d 286, 2003-Ohio-3813, ¶ 18 (10th Dist.). During the course of his criminal proceedings,

Graham was represented by three separate attorneys. In support of his Crim.R. 32.1 motion,

Graham argued that his second attorney was ineffective for failing to file pretrial motions, that

his third attorney was ineffective for failing to brief certain issues concerning the suppression

motion that she filed, and that both attorneys were ineffective for failing to request that the

cocaine seized at the time of Graham’s arrest be tested for its purity.

         {¶9}   On this latter point, Graham asserted in his Crim.R. 32.1 motion that had his

attorneys raised this issue at trial, the State would not have been able to charge him with, and he

therefore would not have pleaded guilty to, possession of cocaine as a first-degree felony given

the Sixth District Court of Appeals’ holding in State v. Gonzales, 6th District Wood No. WD-13-

086, 2015-Ohio-461. We note, however, that this argument lacks merit substantively. Since the

parties filed their respective briefs in this matter, the Supreme Court of Ohio has issued two

decisions concerning Gonzales. In its first decision, State v. Gonzales, Slip Opinion No. 2016-

Ohio-8319 (Gonzales I), the Supreme Court affirmed the Sixth District’s decision, holding that

the State, in prosecuting cocaine offenses involving mixed substances under R.C.

2925.11(C)(4)(b) through (f), must prove that the weight of the actual cocaine, excluding the

weight of any filler materials, meets the statutory threshold. Id. at ¶ 1. However, the Supreme

Court subsequently released a second decision, see State v. Gonzales (Gonzales II), Slip Opinion

No. 2017-Ohio-777, wherein it granted the State’s motion for reconsideration, vacated its

decision in Gonzales I, and reversed the judgment of the Sixth District Court of Appeals. Id. at ¶

3. Accordingly, Graham’s reliance upon the Sixth District’s holding in Gonzales is without

merit.
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       {¶10} Moreover, “[t]he doctrine of res judicata ‘bars the assertion of claims against a

valid, final judgment of conviction that have been raised or could have been raised on appeal.’”

State v. Boware, 9th Dist. Summit No. 27446, 2014–Ohio–5779, ¶ 6, quoting State v. Ketterer,

126 Ohio St.3d 448, 2010–Ohio–3831, ¶ 59. Several Ohio appellate courts have repeatedly

applied the doctrine of res judicata to Crim.R. 32.1 motions. See State v. Miller, 9th Dist. Lorain

No. 03CA008259, 2003-Ohio-6580, ¶ 9; see also State v. Frazier, 4th Dist. Pickaway No.

15CA14, 2016-Ohio-5306, ¶ 13, citing State v. Bryukhanova, 6th Dist. Fulton No. F-10-002,

2010-Ohio-5504, ¶ 12 (collecting cases).

       {¶11} Here, Graham pleaded guilty to both drug-related offenses contained in the

indictment, as well as the criminal forfeiture specification. It is undisputed that Graham did not

take a direct appeal, but instead elected to file several post-sentence motions over the course of

four years. However, each of Graham’s ineffective assistance of counsel arguments raised in his

Crim.R. 32.1 motion were arguments that he could have raised on direct appeal. As such, we

conclude that Graham’s arguments are now barred by the doctrine of res judicata.

       {¶12} Lastly, “when a defendant pleads guilty, he waives all claims of ineffective

assistance of counsel, except to the extent that counsel’s performance caused an unknowing and

involuntary plea.” Id., citing State v. Brown, 4th Dist. Highland No. 07CA2, 2007-Ohio-5008, ¶

16. A review of Graham’s Crim.R. 32.1 motion indicates that Graham did not argue that his trial

attorneys’ respective performances caused him to make an unknowing and involuntary plea.

Thus, Graham has waived the ineffective assistance of counsel arguments contained in his

Crim.R. 32.1 motion.
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       {¶13} For the aforementioned reasons, we determine that the trial court did not abuse its

discretion by denying Graham’s post-sentence motion to withdraw his guilty pleas. Accordingly,

Graham’s assignment of error is overruled.

                                                III.

       {¶14} With Graham’s sole assignment of error having been overruled, the judgment of

the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing 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 constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court 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 make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

LETROY GRAHAM, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
