[Cite as State v. Ford, 2019-Ohio-2991.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin J.
-vs-                                         :
                                             :
DAEMON FORD                                  :       Case No. 2019CA00028
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 14-CR-
                                                     1993A




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 23, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ANDREA K. BOYD                                       DAEMON FORD, PRO-SE
150 East Gay Street                                  #A664-328
16th Floor                                           Marion Correctional Institution
Columbus, OH 43215                                   P.O. Box 57
                                                     Marion, OH 43301
Stark County, Case No. 2019CA00028                                                       2



Baldwin, J.

       {¶ 1} Defendant-Appellant, Daemon Ford, appeals his April 28, 2015 sentence

by the Court of Common Pleas of Stark County, Ohio. Appellant also appeals the trial

court's January 18, 2019 judgment entry denying his motion to withdraw his plea. Plaintiff-

Appellee is state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On December 12, 2014, the Stark County Grand Jury indicted appellant on

one hundred twenty-six counts involving nineteen offenses including drug trafficking (R.C.

2925.03), drug possession (R.C. 2925.11), conspiracy (R.C. 2923.01), engaging in a

pattern of corrupt activity (R.C. 2923.32), and having weapons while under disability (R.C.

2923.13).

       {¶ 3} On February 27, 2015, appellant pled guilty to twelve of the counts, two

counts of trafficking in heroin, two counts of trafficking in cocaine, two counts of

possession of heroin, two counts of possession of cocaine, two counts of conspiracy to

trafficking, one in heroin and one in cocaine, the corrupt activity count, and the weapons

count. The remaining counts were dismissed. By judgment entry filed April 28, 2015, the

trial court sentenced appellant to an aggregate term of eight years in prison. Appellant

did not appeal his convictions and sentence.

       {¶ 4} On November 13, 2018, appellant filed a motion to withdraw his guilty pleas,

claiming ineffective assistance of counsel, his guilty pleas were involuntary and

unintelligent, and plain error in sentencing. By judgment entry filed January 18, 2019, the

trial court denied the motion.
Stark County, Case No. 2019CA00028                                                      3


      {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

      {¶ 6} "I. THE TRIAL COURT ERRED WHEN ACCEPTING A GUILTY PLEA TO

SPECIFIC OFFENSES AND THE CONSPIRACIES OF COMMITTING THE SPECIFIC

OFFENSES THEN SENTENCING APPELLANT FOR BOTH IN VIOLATION OF THE

STATUTORY LAW R.C. 2923.01(G) THUS VIOLATING 5TH AND 14TH AMENDMENT

OF THE U.S. CONSTITUTION AND OHIO CONSTITUTION ART. 1 SECT. 10

PROCEDURAL DUE PROCESS OF LAW AND PROTECTION FROM DOUBLE

JEOPARDY."

      {¶ 7} "II. EVEN ON AGREED UPON SENTENCE IN ACCORDANCE WITH R.C.

2953.08(D) TRIAL COURT ERRED AND LACK THE AUTHORITY TO SENTENCE

APPELLANT ON MORE THAN ONE COUNT PURSUANT TO OHIO REVISED CODE

2923.01 CONSPIRACY (A)(1)(F) UNDER A SINGLE COUNT INDICTMENT CASE,

THUS VIOLATING THE U.S. CONSTITUTION 5TH AND 14TH AMENDMENT AND

OHIO CONSTITUTION ART. 1. SECT. 10."

      {¶ 8} "III. THE TRIAL COURT ERRED IN FAILING TO ORDER AN

EVIDENTIARY HEARING ON APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA

BASED ON INEFFECTIVE            ASSISTANCE           OF   COUNSEL THUS       VIOLATING

PROCEDURAL DUE PROCESS OF THE 5TH, 6TH AND 14TH AMENDMENT UNDER

THE U.S. CONSTITUTION AND ART. 1 SECT. 10 UNDER OHIO CONSTITUTION."

                                              I,II

      {¶ 9} In his first and second assignments of error, Appellant claims the trial court

erred in accepting his guilty pleas for specific offenses and the conspiracy counts for
Stark County, Case No. 2019CA00028                                                            4


committing the specific offenses and then sentencing him on each. Appellant also claims

the trial court erred in sentencing him on more than one count of conspiracy. We hold

that these assignments of error are barred by res judicata because Appellant failed to

assert these errors in a direct appeal. State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-

337, 671 N.E.2d 233 (1996).

      {¶ 10} Assignments of Error I and II are denied.

      {¶ 11} In his third assignment of error, appellant claims the trial court erred in failing

to hold a hearing on his motion to withdraw.

      {¶ 12} All of appellant's claims made in his motion to withdraw could have been

raised on direct appeal which appellant chose not to pursue.             Therefore, we hold

appellant's arguments on appeal are barred by the doctrine of res judicata. State v. Perry,

10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus ("a final

judgment of conviction bars the convicted defendant 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"). "Ohio courts

of appeals have applied res judicata to bar the assertion of claims in a motion to withdraw

guilty plea that were or could have been raised at trial or on appeal." State v. Ketterer,

126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9.

       {¶ 13} Even if we were to consider the merits of Appellant’s third assignment of

error, our decision would not change.

       {¶ 14} In deciding a Crim.R. 32.1 motion, the good faith, weight, and credibility of

a moving party's assertions are a matter for resolution by the trial court. State v. Smith,
Stark County, Case No. 2019CA00028                                                        5


49 Ohio St.2d 261, 264 (1977). Thus, the trial court has great discretion in assessing the

credibility of affidavits used to support a Crim.R. 32.1 motion. State v. Roberts, 8th Dist.

No. 93439, 2010–Ohio–1436. Appellant's motion to withdraw his guilty pleas was filed

almost four years after his sentencing. Although not dispositive on its own, “[a]n undue

delay between the occurrence of the alleged cause for withdrawal of a 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 the granting of the motion.” Smith, supra at paragraph three

of the syllabus as quoted in State v. Martin, 5th Dist. Richland No. 11CA0116, 2012-Ohio-

4394, ¶¶ 14-15

       {¶ 15} "A trial court is not automatically required to hold a hearing on a post

sentence motion to withdraw a plea of guilty. A hearing must only be held if the facts

alleged by the defendant, accepted as true, would require that the defendant be allowed

to withdraw the plea." State v. Bable, 5th Dist. Fairfield No. 18-CA-32, 2019-Ohio-1209,

¶ 33, citing State v. Kent, 10th Dist. Franklin No. 03AP722, 2004-Ohio-2129, ¶ 8. "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. Robinson, 9th Dist. Summit No. 27881, 2017-Ohio-272, ¶ 11.

       {¶ 16} A trial court's decision whether to hold a hearing on a motion to withdraw is

reviewed under the abuse of discretion standard. Bable, supra, at ¶ 34, citing State v.

Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). In order to find an abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Stark County, Case No. 2019CA00028                                                       6


      {¶ 17} The trial court conducted a thorough analysis of the record and concluded

that Appellant’s allegations were belied by the record. We have held that Appellant’s

request to withdraw his plea is barred by res judicata, but, if we were to consider the

merits, we would hold that the trial court did not abuse its discretion by not conducting a

hearing because the materials submitted in support of Appellant's motion to withdraw did

not demonstrate a manifest injustice that warranted a hearing.

      {¶ 18} Assignment of Error III is denied.

      {¶ 19} The decision of the Stark County Court of Common Pleas is affirmed. The

judgment of the Stark County Court of Common Pleas is hereby affirmed.

By Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
