[Cite as State v. James, 2020-Ohio-720.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-19-30

        v.


MARK A. JAMES,                                            OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2015 CR 00032

                                      Judgment Affirmed

                             Date of Decision: March 2, 2020




APPEARANCES:

        W. Alex Smith for Appellant

        Phillip A. Riegle for Appellee
Case No. 5-19-30



ZIMMERMAN, J.

       {¶1} Defendant-appellant, Mark A. James (“James”), pro se and represented

by counsel, appeals the July 31, 2019 judgment entry of the Hancock County Court

of Common Pleas denying his post-sentence motion to withdraw his no-contest plea.

We affirm.

       {¶2} On February 10, 2015, the Hancock County Grand Jury indicted James

on three counts of trafficking in heroin in violation of R.C. 2925.03(A), fifth-degree

felonies, and one count of possession of heroin in violation of R.C. 2925.11(A), a

second-degree felony. (Doc. No. 1). James appeared for arraignment on February

18, 2015 and entered pleas of not guilty. (Doc. No. 6).

       {¶3} On September 25, 2015, James withdrew his pleas of not guilty and

entered a plea of no contest, under a negotiated plea agreement, to the possession-

of-heroin charge set forth in the indictment. (Doc. Nos. 93, 98). In exchange for

his change of plea, the State agreed to dismiss the trafficking charges. (Doc. Nos.

92, 98). The trial court accepted James’s plea of no contest, found him guilty, and

dismissed the trafficking charges. (Doc. No. 98). (See also Doc. No. 92).

       {¶4} On November 12, 2015, the trial court sentenced James to 7 years in

prison. (Doc. No. 105). James directly appealed his conviction and sentence in

which he challenged only the trial court’s denial of his motion to suppress evidence.



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We affirmed James’s conviction and sentence on October 11, 2016.1 State v. James,

3d Dist. Hancock No. 5-16-14, 2016-Ohio-7262, ¶ 1.

         {¶5} Over three years later, on November 29, 2018, James, pro se, filed a

post-sentence motion to withdraw his no-contest plea under Crim.R. 32.1. (Doc.

Nos. 141, 142). In support of his motion, James challenged the lawfulness of the

search warrant based on “newly discovered” information. (Doc. No. 142).                                 On

December 21, 2018, the State filed a memorandum in opposition to James’s post-

sentence motion to withdraw his no-contest plea. (Doc. No. 145). On January 2,

2019, James filed his reply to the State’s memorandum in opposition to his motion

in which he alleged that his trial counsel was ineffective. (Doc. No. 146). On July

31, 2019, the trial court, without a hearing, denied James’s motion. (Doc. No. 150).

         {¶6} On September 3, 2019, James filed a notice of appeal. (Doc. No. 151).

Represented by counsel, James raises one assignment of error for our review.

Further, after being granted leave, James, pro se, raises four additional assignments

of error for our review. For ease of our discussion, we will address all of the

assignments of error together.

                                       Assignment of Error

         The trial court erred when it denied the defendant’s motion to
         withdraw plea.



1
 In James’s direct appeal, this court recited much of the factual and procedural background of this case, and
we will not duplicate those efforts here. See State v. James, 3d Dist. Hancock No. 5-16-14, 2016-Ohio-7262.

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                       Pro Se Assignment of Error No. I

       Trial Court failure [sic] to Account for all the evidentiary
       Materials offered by defendant Constituted An Abuse of
       Discretion.

                       Pro Se Assignment of Error No. II

       Trial Court [sic] did not give a complete and Impartial hearing
       on defendant [sic] Crim.R.32.1 Motion to withdraw Plea,
       Constituted an Abuse of discretion.

                      Pro Se Assignment of Error No. III

       Trial Court [sic] decision to deny Appellants [sic] Crim.R.32.1
       Motion to withdraw No Contest Plea Constituted an Abuse of
       discretion.

                      Pro Se Assignment of Error No. IV

       6th Amendment U.S. Constitution and 14th Amendment due
       Process, and Article 1 Section 10 of the Ohio Constitution.
       Ineffective Assistance of Counsel – Establish as Manifest
       Injustice.

       {¶7} In his assignment of error, James argues that the trial court erred by

denying his post-sentence motion to withdraw his no-contest plea without a hearing.

James offers a similar argument in his pro se assignments of error. Specifically,

James contends that the “newly discovered” information contained in the affidavit

attached to his post-sentence motion to withdraw his no-contest plea and his

ineffective-assistance-of-counsel claim establish a manifest injustice.




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                                Standard of Review

       {¶8} “Appellate review of the trial court’s denial of a motion to withdraw a

guilty plea is limited to whether the trial court abused its discretion.” State v.

Streeter, 3d Dist. Allen No. 1-08-52, 2009-Ohio-189, ¶ 12, citing State v. Nathan,

99 Ohio App.3d 722, 725 (3d Dist.1995), citing State v. Smith, 49 Ohio St.2d 261

(1977). An abuse of discretion suggests the trial court’s decision is unreasonable,

arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).

                                      Analysis

       {¶9} Crim.R. 32.1 provides, “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 court after sentence may set aside the judgment of conviction and

permit the defendant to withdraw his or her plea.” “However, a trial court has no

jurisdiction to consider a Crim.R. 32.1 motion to withdraw a guilty [or no-contest]

plea after the judgment of conviction has been affirmed by an appellate court.”

Streeter at ¶ 14, citing State ex rel. Special Prosecutors v. Judges, Court of Common

Pleas, 55 Ohio St.2d 94, 97-98 (1978). See also State v. Ketterer, 126 Ohio St.3d

448, 2010-Ohio-3831, ¶ 61.

       {¶10} Here, because this court affirmed James’s conviction and sentence on

direct appeal, we conclude that the trial court lacked jurisdiction to consider his

post-sentence motion to withdraw his no-contest plea. Accord Ketterer at ¶ 62;


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Streeter at ¶ 15; State v. Huggins, 3d Dist. Seneca No. 13-15-13, 2015-Ohio-3400,

¶ 15. Likewise, because the trial court was without jurisdiction to consider James’s

claims, the trial court did not err by denying his motion without a hearing. Accord

State v. Rose, 12th Dist. Butler No. CA2010-03-059, 2010-Ohio-5669, ¶ 17

(“Without jurisdiction to consider appellant’s claims, the trial court did not err in

failing to hold a hearing.”).

       {¶11} However, even if the trial court had jurisdiction, we would nonetheless

affirm on the merits. A defendant seeking to withdraw a guilty or no-contest plea

after sentence has been imposed has the burden of demonstrating a “manifest

injustice.” Smith at paragraph one of the syllabus. This court previously defined a

“manifest injustice” as a “clear or openly unjust act.” State v. Walling, 3d Dist.

Shelby No. 17-04-12, 2005-Ohio-428, ¶ 6. Notably, a post-sentence withdrawal of

a guilty or no-contest plea is available only in “extraordinary cases.” Smith at 264.

An evidentiary hearing on a post-sentence motion to withdraw a guilty or no-contest

plea “is not required if the facts as alleged by the defendant, and accepted as true by

the court, would not require that the guilty plea be withdrawn.” State v. Patterson,

5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, ¶ 18, citing State v. Blatnik, 17

Ohio App.3d 201, 204 (6th Dist.1984).

       {¶12} On appeal, James contends his post-sentence motion to withdraw his

no-contest plea should have been granted in light of “newly-discovered”


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information contained in affidavit of a person who he alleges to be the confidential

informant (“CI”) who participated in law enforcement’s controlled-narcotics

operation involving James, and a video recording depicting a controlled-narcotics

buy between the CI and James, which James’s alleges supports the CI’s claims in

her affidavit. In particular, James contends that CI’s affidavit amounts to manifest

injustice because she asserts that she committed “multiple felony offenses against

[James], while acting on behalf of the state and law enforcement officer [sic] to set

[James] up on false drug charges, by falsifying statements, tampered with evidence”

and that James was a “target * * * because of his race.” (Appellant’s Brief at 3).

Likewise, James contends at least one of the CI’s allegations is supported by the

video recording because it depicts “a burglary R.C. 2911.12(A); was committed by

HANCOCK LAW ENFORCEMENT OFFICER against [James].” (Emphasis

sic.) (Id. at 2).

       {¶13} James further argues (assuming that his argument was properly raised

before the trial court) that his trial counsel’s failure to file a motion to suppress the

video recording amounts to ineffective assistance of trial counsel, which establishes

that a manifest injustice occurred.

       {¶14} A claim of ineffective assistance of trial counsel may serve as a basis

for seeking a post-sentence withdraw of a guilty or no-contest plea under Crim.R.

32.1. See State v. Taveras, 12th Dist. Warrant No. CA2016-06-054, 2017-Ohio-


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1496, ¶ 17, citing State v. Guerrero, 12th Dist. Butler No. CA2010-09-231, 2011-

Ohio-6530, ¶ 5 and State v. Tapia-Cortes, 12th Dist. Butler No. CA2016-02-031,

2016-Ohio-8101, ¶ 13. See also State v. Mills, 9th Dist. Summit No. 29224, 2019-

Ohio-2205, ¶ 9, citing State v. Graham, 9th Dist. Summit No. 28153, 2017-Ohio-

908, ¶ 8. “‘When an alleged error underlying a motion to withdraw a guilty plea is

ineffective assistance of counsel, the defendant must show (1) that his counsel’s

performance was deficient and (2) that there is a reasonable probability that, but for

counsel’s errors, he would not have pled guilty.” Taveras at ¶ 17, quoting Tapia-

Cortes at ¶ 13, citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.

2052 (1984). “‘The proponent of an ineffective assistance claim must establish both

elements to warrant relief.’” Id., quoting State v. Robinson, 12th Dist. Butler No.

CA2014-12-256, 2015-Ohio-4649, ¶ 48.

       {¶15} Even if we accept all of James’s allegations as true, which we do not,

none of the allegations serve as a basis to permit James to withdraw his no-contest

plea. Importantly, James has not shown any error that caused him to forgo trial and

plead no-contest instead. State v. Straley, ___ Ohio St.3d ___, 2019-Ohio-5206, ¶

17 (“We agree with the trial court that Straley did not show that any error caused

him to forgo trial and plead guilty instead.”). The totality of James’s argument

challenges the lawfulness of the search warrant.         That is, in this case, law

enforcement “obtained a warrant to search James’s apartment for contraband” based


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on “three transactions,” which were conducted on behalf of law enforcement by a

confidential informant. James, 2016-Ohio-7262, at ¶ 6. Accordingly, James is

alleging that evidence obtained from the execution of the search warrant should

have been suppressed based on allegations of the CI as depicted in her affidavit and

the video recording.    However, James failed to demonstrate how any of his

allegations would have resulted in the evidence seized as part of the search warrant

being suppressed. See State v. Taylor, 6th Dist. Huron No. H-01-053, 2002-Ohio-

2168, ¶ 5. See also Mills at ¶ 12. Because James failed to demonstrate how any of

his allegations would have resulted in the evidence seized as part of the search

warrant being suppressed, neither the allegations contained in the CI’s affidavit nor

James’s ineffective-assistance-of-trial-counsel claim amount to manifest injustice.

       {¶16} Furthermore, in his direct appeal from his conviction and sentence,

James challenged the trial court’s decision denying his motion to suppress evidence,

which challenged the lawfulness of the search warrant. The doctrine of “[r]es

judicata bars the assertion of claims against a valid, final judgment of conviction

that have been raised or could have been raised on appeal.” Ketterer, 126 Ohio

St.3d 448, 2010-Ohio-3831, at ¶ 59. See also State v. Szefcyk, 77 Ohio St.3d 93

(1996), syllabus. The doctrine of res judicata “bars claims raised in a Crim.R. 32.1

post-sentence motion to withdraw a plea that were raised or could have been raised




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in a prior proceeding.” State v. Johnson, 12th Dist. Butler No. CA2016-07-128,

2017-Ohio-4116, ¶ 11, citing Rose at ¶ 18. See also Ketterer at ¶ 59.

       {¶17} Moreover, James’s arguments challenging the lawfulness of the search

warrant either were or could have been raised in his direct appeal. Thus, as noted,

his challenges are now barred by the doctrine of res judicata. That James casts the

C.I.’s affidavit as “new” evidence does not prevent the application of the doctrine

of res judicata. Indeed, the evidence that James contends represents “new” evidence

is not new evidence; rather, it is evidence that was available to James (or could have

been discoverable through reasonable diligence) prior to the time he entered his no-

contest plea in this case. See State v. Urbina, 3d Dist. Defiance No. 4-06-17, 2006-

Ohio-6921, ¶ 30; State v. Van Dyke, 9th Dist. Lorain No. 02CA008204, 2003-Ohio-

4788, ¶ 19. See also State v. Armstrong, 2d Dist. Montgomery No. 27138, 2017-

Ohio-474, ¶ 17 (“We also note that Armstrong’s allegations of ineffective assistance

do not constitute new evidence that he was unaware of at the time he entered into

the plea.”).

       {¶18} Notwithstanding our rejection of the merits of James’s arguments

supporting his desire to withdraw his no-contest plea, we also note that James

entered a favorable plea agreement with the State in which the State agreed to

dismiss the trafficking charges in exchange for his no-contest plea to the possession




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charge. For these reasons, we cannot conclude that there is any evidence that James

would have proceeded to trial instead of pleading no contest to possessing heroin.

       {¶19} Because there is no evidence of any error that would have caused

James to forgo trial and plead no-contest instead, the trial court did not abuse its

discretion by denying James’s post-sentence motion to withdraw his no-contest plea

without a hearing. See State v. Morris, 10th Dist. Franklin No. 19AP-152, 2019-

Ohio-3795, ¶ 13 (“And because this motion was barred by res judicata, the trial

court did not err in denying the motion without a hearing.”), citing State v. Rock,

11th Dist. Lake No. 2018-L-021, 2018-Ohio-4175, ¶ 14; Mills, 2019-Ohio-2205, at

¶ 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.’”), quoting State v. Robinson, 9th Dist. Summit No. 28065,

2016-Ohio-8444, ¶ 11.

       {¶20} James’s assignment of error and James’s pro se assignments of error

are overruled.

       {¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr


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