[Cite as State v. Marshall, 2013-Ohio-2018.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :        C.A. CASE NO.       25329

v.                                                      :        T.C. NO.      08CR177/1

RODNEY J. MARSHALL                                      :            (Criminal appeal from
                                                                      Common Pleas Court)
        Defendant-Appellant                             :

                                                        :

                                               ..........

                                               OPINION

                         Rendered on the         17th       day of       May      , 2013.

                                               ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

RODNEY J. MARSHALL, #597807, Madison Correctional Institute, P. O. Box 740,
London, Ohio 43140
      Defendant-Appellant

                                               ..........

DONOVAN, J.

        {¶ 1}     This matter is before the Court on the Notice of Appeal of Rodney Marshall,
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filed August 15, 2012. Marshall appeals from the July 17, 2012 decision of the trial court

which overruled his post-sentence motion to withdraw his guilty pleas. We hereby affirm the

judgment of the trial court.

       {¶ 2}    In State v. Marshall, 2d Dist. Montgomery No. 23243, 2009-Ohio-5746, ¶

1-6, in which this Court affirmed the decision of the trial court which overruled Marshall’s

pre-sentence motion to withdraw his guilty pleas, as well as a motion to dismiss, we set forth

the procedural history herein as follows.

               * * * On February 13, 2008, an indictment was returned against

       Marshall containing 34 counts, and on August 19, 2008, another charge was

       added in a “B” indictment.

               The matter was set for trial on September 22, 2008, and on that date,

       Marshall filed a “Notice of Conflict of Interest,” requesting that the

       Montgomery County Prosecutor's Office be barred from the prosecution of all

       charges in both indictments. Alternatively, Marshall requested that the

       prosecutor's office be barred from the prosecution of the charges in Counts 14

       and 15 of the initial indictment, since the alleged victims therein were the

       wife and son of the county prosecutor. Marshall's notice further indicated

       that the county prosecutor's wife is a municipal court judge.

               On the day of trial, Marshall withdrew his previous pleas of not guilty

       and pled guilty to 18 of the 35 counts against him, namely: two counts of

       grand theft (motor vehicle), in violation of R.C. 2913.02(A)(1), felonies of

       the fourth degree; two counts of theft (over $500), in violation of R.C.
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2913.02(A)(1), felonies of the fifth degree; one count of receiving stolen

property (motor vehicle), in violation of R.C. 2913.51(A), a felony of the

fourth degree; three counts of breaking and entering (unoccupied structure),

in violation of R.C. 2911.13(A), felonies of the fifth degree; one count of

burglary (occupied structure/ person present), in violation of R.C.

2911.12(A)(1), a felony of the second degree; three counts of burglary

(occupied/criminal offense), in violation of R.C. 2911.12(A)(3), felonies of

the third degree; two counts of theft (R.C. 2913.71 property), in violation of

R.C. 2913.02(A)(1), felonies of the fifth degree; two counts of receiving

stolen property (firearm), in violation of R.C. 2913.51(A), felonies of the

fourth degree; one count of having weapons while under disability (prior

offense of violence), in violation of R.C. 2923.13(A)(2), a felony of the third

degree, and from the “B” indictment, one count of engaging in a pattern of

corrupt activity, in violation of R.C. 2923.32(A)(1), a felony of the first

degree. The remaining charges were dismissed in exchange for his pleas,

including the charges involving the wife and son of the county prosecutor.

There was an agreed upon sentencing range of not less than eight and not

more than 12 years in prison. A presentence investigation was ordered, and

sentencing was set for October 8, 2008.

       On October 7, 2008, Marshall filed a motion to withdraw his guilty

pleas, and sentencing was postponed. After retaining substitute counsel,

Marshall filed a supplemental motion to vacate the pleas and a motion to
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       dismiss. A hearing was held on January 8, 2009, at which Marshal and his

       mother, Lisa Jewett, testified.

               According to Marshall, his counsel misled him, and he did not

       understand the implications of his guilty pleas and that he would be sentenced

       to prison. He testified that he instructed his attorney to file a motion to

       suppress, and that his attorney told him it had been filed, although it had not.

       He further testified that his attorney advised him that the judge would hold

       hearings on both the motion to suppress and the motion regarding the alleged

       conflict of interest after he signed the plea forms. According to Marshall, his

       counsel “was leading me on to believe that after I signed the plea form, that

       then [the court] * * * would rule on the motions before he went on with the

       proceedings * * *.”

               On January 16, 2009, the trial court overruled the motion to withdraw

       the guilty pleas. The trial court found that Marshall's testimony “that he did

       not know in this case that he was pleading guilty, having certain charges

       dismissed, admitting to the truth of the remaining charges, waiving his rights,

       and that he would be sentenced to a prison sentence of between eight and

       twelve years, is not credible.” On January 21, 2009, Marshall was sentenced

       to 10 years.

       {¶ 3}      In affirming the denial of his motions, this Court noted that it deferred to

the trial court’s assessment of credibility, “and the trial court expressly found Marshall’s

testimony about his misunderstanding of the plea proceedings not credible. Other than
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Marshall’s testimony, the record does not support a finding of deficient performance by

counsel.” Id., ¶ 16. This Court further noted that “the trial court’s thorough decision

denying Marshall’s motion belies his assertion that the court did not give full and fair

consideration to the request to withdraw his pleas.” Id., ¶ 17. Finally, having determined

that the trial court did not abuse its discretion in denying Marshall’s motion to withdraw his

pleas, this Court noted that while the trial court did not rule upon Marshall’s motion to

dismiss by judgment entry, the court indicated at sentencing, “‘[t]here was a motion to

dismiss and the Court implicitly denied that by not ruling on it. Furthermore, the Court

finds it to have been waived by the plea[s] of guilty which the Court has, by entry, found to

be knowingly, voluntarily and intelligently [made].’” Id., ¶ 19. This Court agreed that

“Marshall has waived any argument regarding a conflict of interest as set forth in his motion

to dismiss,” and further noted that “the two counts which purportedly gave rise to a conflict

of interest were in fact dismissed as part of the plea bargain.” Id., ¶ 20.

       {¶ 4}    On January 7, 2010, Marshall filed an application to reopen his appeal,

asserting that appellate counsel and the trial court failed to advise him that he was subject to

mandatory post-release control.      This Court denied that application on June 1, 2010,

determining that the “record reflects that Marshall was properly advised of his mandatory

term of post-release control,” and that ineffective assistance was not demonstrated.

       {¶ 5}    While his application to reopen was pending, in January, 2010, Marshall

filed two motions to withdraw his guilty pleas and a motion for resentencing. On February

17, 2010, the trial court overruled his motions to withdraw, but granted Marshall a hearing

on his motion for resentencing. The court then issued a nunc pro tunc termination entry on
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May 18, 2010, setting forth the mandatory nature of post-release control.

       {¶ 6}    Marshall appealed from the nunc pro tunc entry. State v. Marshall, 2d Dist.

Montgomery No. 24079. This Court, on November 4, 2011, issued a Decision that provides

in part, “[r]es judicata applies to all aspects of Marshall’s conviction and sentence (other

than post-release control), including the determination of guilt and the lawful elements of the

sentence. Thus, Marshall cannot raise any challenge to his 2009 conviction and sentence

that was or could have been raised on direct appeal.” Id. This Court further noted that

Marshall did not “assign any error to the manner in which the trial court corrected and

clarified his term of post-release control at the nunc pro tunc hearing.” Id.

       {¶ 7}    In his May 18, 2011 motion that is the subject of this appeal Marshall

repeated his arguments that his plea was not entered knowingly, that a conflict existed in that

the wife and son of the prosecutor were the victims in Counts 14 and 15, and that Marshall

received ineffective assistance of counsel. He further asserted that the trial court exhibited

bias in denying his presentence motion to withdraw his pleas. Marshall asserted that the

prosecutor and his assistant “repeatedly pressured subordinates to contribute money and time

to political campaigns, in defiance of federal law.” Marshall asserted that his “motion to

dismiss case in regard to conflicts, misconduct, et cetera, was never addressed, was basically

ignored,” and the trial court “was evasive about it just as the previous motion.”

       {¶ 8}    We note that Marshall filed a supplemental motion on July 1, 2011, in which

he asserted that the “entire plea (or what was considered a plea) in this case was void

because the prosecutor[‘]s office and defendant’s attorney were not allowed to be negotiating

in the first place.” He further asserted that his appellate counsel, in prosecuting his appeal
                                                                                           7

from the nunc pro tunc termination entry “failed to expose the current evidence that

Defendant has exposed/presented in this current Motion to Withdraw Plea” filed May 18,

2011.

        {¶ 9}    In overruling Marshall’s final motion to withdraw his pleas, the trial court

determined, upon “consideration of the entire record, the Court is satisfied that manifest

injustice has not been worked upon Mr. Marshall and his motion to withdraw guilty pleas is

OVERRULED.”

        {¶ 10}   Marshall asserts five assignments of error herein, which we will consider

together. They are as follows:

        {¶ 11} “PROSECUTOR MISCONDUCT AND DEFENDANT’S PRIOR TRIAL

AND       APPELLATE          COUNSEL         HAVE        VIOLATED         DEFENDANT[’]S

CONSTITUTIONAL           RIGHTS      RENDERING         DEFENDANT[’]S        COUNSELORS

INSUFFICIENT,”

        And,

        “RES JUDICATA DOES NOT APPLY TO ANY ASPECTS OF DEFENDANT[’]S

CASE TO INCLUDE THIS CURRENT APPEAL,”

        And,

        “VINDICTIVE PROSECUTION CAUSED CONFLICTS WITH TRIAL JUDGE

AND DEFENDANT[’]S COUNSELORS IN VIOLATION OF DEFENDANT[’]S

CONSTITUTIONAL RIGHTS,”

        And,

        “THE     TRIAL     COURT       CAUSED      MANIFEST        INJUSTICE      AGAINST
                                                                                               8

DEFENDANT BY VIOLATING HIS CONSTITUTIONAL RIGHTS AND DUE

PROCESS,”

        And,

        “DEFENDANT’S PLEA IS VOID, UNCONSTITUTIONAL, AND THE TRIAL

COURT FAILED TO PROPERLY ANALYZE[,] RESEARCH, AND EXAMINE

DEFENDANT[’]S MOTION TO WITH DRAW (sic) IN VIOLATION OF HIS DUE

PROCESS.         FOR THE REASONS SET FORTH IN THE PREVIOUS 4 ASSIGNED

ERRORS, THE TRIAL COURT FAILED TO GIVE MR. MARSHALL’S MOTION TO

WITH DRAW (sic) PLEA FILED MAY 18, 2011 ANY JUST AND FAIR

CONSIDERATION.”

        {¶ 12} Marshall repeats the arguments addressed by the trial court in his

pre-sentence motion to withdraw his pleas and his motion to dismiss regarding conflicts of

interest and ineffective assistance of counsel. He asserts that he has suffered a manifest

injustice; that the doctrine of res judicata does not apply herein; that the prosecutor exhibited

vindictiveness and misconduct; that the trial court did not comply with Crim.R. 11 in

accepting his pleas, misstated his term of post-release control, exhibited bias towards him

and failed to analyze his pre-sentence motion to withdraw his pleas; and that his “plea was

void in the first place.” The State responds that “Marshall’s challenges to the State’s

prosecution of him and the validity of his pleas have been litigated in full,” that they are

barred by res judicata, and that Marshall “cannot establish that he has suffered a manifest

injustice.”

        {¶ 13}    Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest
                                                                                            9

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.”

       {¶ 14} As this Court has previously noted: “Crim. R. 32.1 provides that a trial court

may grant a defendant's post-sentence motion to withdraw a guilty plea only to correct a

manifest injustice. State v. Bush (2002), 96 Ohio St.3d 235, 2002-Ohio-3993.” State v.

Moore, 2d Dist. Montgomery No. 24387, 2011-Ohio-4546, ¶ 8. “A defendant can only

establish a manifest injustice in ‘extraordinary cases.’ * * * A manifest injustice has been

defined by the Ohio Supreme Court as a ‘clear or openly unjust act.’ * * * .” Id., ¶ 9. “‘A

motion made pursuant to Crim. R. 32.1 is addressed to the sound discretion of the trial court,

and the good faith, credibility and weight of the movant's assertions in support of the motion

are matters to be resolved by that court.’” Id. (Citations omitted).

       {¶ 15}      As the Supreme Court of Ohio determined:

                 “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

       to be expected that most instances of abuse of discretion will result in

       decisions that are simply unreasonable. AAAA Enterprises, Inc. v. River

       Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597

       (1990).

       {¶ 16}      The Ohio Supreme Court, in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d

104 (1967), syllabus at ¶ 9, determined:

                 Under the doctrine of res judicata, a final judgment of conviction bars
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       a convicted defendant who was represented by counsel 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.

       {¶ 17}       We agree with the State that the validity of Marshall’s pleas has been fully

litigated and determined, and as this Court noted in dismissing Marshall’s appeal from his

nunc pro tunc termination entry, res judicata applies to all aspects of Marshall’s conviction

and sentence, and his assertions herein are accordingly barred. Finally, Marshall has not

demonstrated a manifest injustice requiring his pleas to be withdrawn, and an abuse of

discretion is not demonstrated.

       {¶ 18} Marshall’s assigned errors are overruled, and the judgment of the trial court

overruling Marshall’s fourth motion to withdraw his pleas is affirmed.



                                          ..........

FAIN, P.J. and WELBAUM, J., concur.

Copies mailed to:

Kirsten A. Brandt
Rodney J. Marshall
Hon. Michael W. Krumholtz
