[Cite as State v. Gilmore, 2012-Ohio-3962.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97884



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                            CHRISTOPHER GILMORE
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-520561 and CR-521758

        BEFORE:          Celebrezze, P.J., Rocco, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                      August 30, 2012
FOR APPELLANT

Christopher Gilmore, pro se
Inmate No. 573-466
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: James M. Price
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, Christopher Gilmore, seeks to reverse the trial court’s denial of his

motion to withdraw his guilty pleas in two cases. Appellant argues that the trial court

erred in denying his motion without a hearing, that counsel was ineffective, and that his

indictment was defective. After a thorough review of the record and law, we affirm the

trial court’s decision.

                             I. Factual and Procedural History

       {¶2} On February 4, 2009, appellant was indicted in CR-520561 on three counts of

rape with sexually violent predator specifications, three counts of kidnapping with sexual

motivation and sexually violent predator specifications, and one count of aggravated

robbery. Those charges stem from an incident that occurred on December 10, 2008.

       {¶3} On March 13, 2009, appellant was also indicted in CR-521758 on one count

of intimidation of a crime victim or witness, two counts of intimidation by stalking, and

one count of telecommunications harassment. Those charges stem from incidents that

occurred on February 1 and 2, 2009.

       {¶4} On July 2, 2009, the state moved to join the two cases, but appellant changed

his pleas in these cases before a decision on joinder was reached by the trial court. On

September 3, 2009, as part of a plea agreement with the state, appellant pled guilty in

CR-520561 to one count of sexual battery, in violation of R.C. 2907.03, a third-degree
felony, without a sexually violent predator specification,1 and the remaining counts were

dismissed. In CR-521758, appellant pled guilty to one count of intimidation of a crime

victim or witness, in violation of R.C. 2921.04(B), a third-degree felony, and the

remaining counts were dismissed.

      {¶5} After a presentence investigation report was completed and reviewed by the

trial court, appellant was sentenced on September 25, 2009, to an aggregate prison term

of seven years: five years for sexual battery in CR-520561, to be served consecutively to

two years for intimidation in CR-521758. Appellant was also advised that five years of

postrelease control was applicable in CR-520561 and three years in CR-521758.

However, the statement on postrelease control in the journal entry did not include an

advisement of the possible penalties that could result from a violation of conditions of

postrelease control. The sentencing entry in CR-520561 also included reference to a

sexually violent predator specification.    Appellant did not perfect a timely appeal

challenging these two errors.

      {¶6} On March 26, 2010, the trial court issued a nunc pro tunc sentencing entry in

CR-520561 that redacted the reference to the sexually violent predator specification and

reflected proper notification of postrelease control. The plea entry was also corrected to

delete the sexually violent predator specification. Appellant then, without leave to file a




      1  The trial court’s entry documenting appellant’s change of plea hearing
indicated that appellant also pled guilty to the sexually violent predator
specification.
delayed appeal, sought to appeal his conviction and sentence on September 23, 2010,

which this court dismissed on September 29, 2010.

       {¶7} Appellant filed a “Motion to Vacate Payment of Fines, Court Costs, and

Restitution Requirements” on August 12, 2011. The trial court denied this motion on

August 28, 2011, and appellant did not appeal that decision.

       {¶8} Appellant next filed a motion to withdraw his pleas with the trial court in

both cases on September 8, 2011. Therein he argued violations of his right to a speedy

trial, ineffective assistance of counsel, prosecutorial misconduct during the grand jury

proceedings, and that his indictments in his two criminal cases were carbon copies of

each other. The trial court denied this motion without hearing on December 28, 2011.

Appellant then timely appealed, pro se, to this court for review.

                                  II. Law and Analysis

       {¶9} On appeal appellant presents five errors:

       I. Carbon copy indictments violate appellant’s Fifth and Sixth Amendment,
       U.S. Constitution: Section 10, Article I, Ohio Constitution.

       II. The trial court failure to comply with Criminal Rule 23(C) of the Ohio
       Rules of Criminal Procedure violated his substantial rights in not providing
       the time stamp of the clerk to indicate journalization.

       III. Denial was improper because the state failed to grant hearing and
       denying procedural due process when not issuing findings of fact and
       conclusions of law.
       IV. Appellant was denied effective assistance of counsel pursuant to Sixth
       Amendment, U.S. Constitution: Section 10, Article I, Ohio Constitution in
       agreed plea misrepresenting the facts, but for this the outcome would have
       been different.
       V. Denial was improper because petition was supported with evidentiary
       materials warranting a hearing.

       {¶10} Appellant’s assigned errors can be grouped into two categories — those

challenging the denial of his motion based on its content and those challenging the

procedure afforded by the trial court. The first category of errors are barred by the

doctrine of res judicata, and the second category of errors are inapposite as a result.

                               A. Manifest Injustice Standard

       {¶11} Crim.R. 32.1 provides that “[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.”

       {¶12} Although appellant argues that his motion should be treated as a presentence

motion to withdraw, it came long after a valid sentence was imposed. Therefore, it is a

postsentence motion requiring appellant to demonstrate a manifest injustice necessitating

withdrawal.    “‘Manifest injustice is a fundamental flaw in the path of justice so

extraordinary that the defendant could not have sought redress from the resulting

prejudice through another form of application reasonably available to him or her.’” State

v. Beasley, 8th Dist. No. 96806, 2011-Ohio-6650, ¶ 5, quoting State v. Cottrell, 8th Dist.

No. 95053, 2010-Ohio-5254, ¶ 15.

                      B. Motion to Withdraw Plea and Res Judicata

       {¶13} In appellant’s first and fourth assignments of error, he sets forth the grounds

in his motion to withdraw his guilty pleas and why these issues necessitate withdrawal.
In his second assignment of error, appellant argues that the trial court erred in finding him

guilty of the sexually violent predator specification in the journal entries when one was

not actually included in the plea agreement, the plea hearing, or at sentencing; or his

sentence was improper because the sentencing entry did not dispose of all charges against

him.    These are not reasons demonstrating why appellant should be permitted to

withdraw his plea.

       {¶14} The inclusion of the sexually violent predator specification was a clerical

error the trial court cleared up with a nunc pro tunc entry.

       Although trial courts generally lack authority to reconsider their own valid
       final judgments in criminal cases, they retain continuing jurisdiction to
       correct clerical errors in judgments by nunc pro tunc entry to reflect what
       the court actually decided

State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶

13. Further, “[a] nunc pro tunc entry cannot go beyond correcting a clerical error * * *.”

 State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 26. Here,

there is no evidence the trial court improperly used the nunc pro tunc tool to correct the

journal entries in this case.

       {¶15} Appellant’s arguments surrounding defects in his indictments, ineffective

assistance of counsel, and certain errors in the journal entries are also barred by the

doctrine of res judicata.

       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. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the
       syllabus. Ohio courts of appeals have applied res judicata to bar the
       assertion of claims in a motion to withdraw a guilty plea that were or could
       have been raised at trial or on appeal. See State v. McGee, 8th Dist. No.
       91638, 2009-Ohio-3374, ¶ 9; State v. Totten, 10th App. No. 05AP-278 and
       05AP-508, 2005-Ohio-6210, ¶ 7 (collecting cases).

State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59.

       {¶16} Appellant failed to timely appeal from his convictions in this case, and this

court dismissed the untimely appeal that he had filed in 2010. Appellant has waived his

right to challenge anything that he could have raised in that appeal. “[E]xceptions to res

judicata apply to void judgments or to claims that are supported by evidence outside the

record.” State v. Britford, 10th Dist. No. 11AP-646, 2012-Ohio-1966, ¶ 8. However, no

such exception applies here.

       {¶17} Appellant first argues that his indictments are “carbon copy” indictments

prohibited by the United States and Ohio constitutions. His indictments in the two

underlying criminal cases are not identical in any way. They are not “carbon copy”

indictments as he claims. Further, these supposed errors were known at the time of

appellant’s convictions and should have been appealed to this court at that time.

       {¶18} Similarly, appellant’s claims of ineffective assistance of counsel relate to

trial counsel’s performance in failing to present sufficient mitigating evidence, failing to

object to the imposition of court costs, and failing to raise speedy trial issues. These

were all known at the time appellant could have perfected a timely appeal, and present

nothing new that would necessitate a hearing on the motion to withdraw his pleas. They

also do not demonstrate a manifest injustice. The only issue that arguably could provide

a means of satisfying this standard is the ineffective assistance based on speedy trial
grounds, but appellant presents nothing to support this allegation. Further, appellant’s

guilty plea waives that issue. State v. Mayle, 5th Dist. No. CA 07-3, 2008-Ohio-286, ¶

39, citing State v. Barnett, 73 Ohio App.3d 244, 249, 596 N.E.2d 1101 (2d Dist.1991);

State v. Farley, 5th Dist. No. 98-CA-25, 1999 Ohio App. LEXIS 2035 (May 5, 1999);

State v. Johnson, 8th Dist. No. 61904, 1993 Ohio App. LEXIS 1263 (Mar. 4, 1993).

      {¶19} Appellant’s argument that res judicata does not apply because his sentence

is void is incorrect. Ketterer at ¶ 63. Appellant’s sentencing entries were properly

reformed to reflect a valid sentence with the proper imposition of postrelease control.

See Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, at the syllabus

(“When a defendant is notified about postrelease control at the sentencing hearing, but

notification is inadvertently omitted from the sentencing entry, the omission can be

corrected with a nunc pro tunc entry and the defendant is not entitled to a new sentencing

hearing”).

      {¶20} Appellant’s argument that his sentence is void because the prison term

imposed was beyond that allowed for the convicted offenses is also incorrect.            A

third-degree felony offense was punishable by a prison term up to five years in length.

Former R.C. 2929.14(A)(3). Appellant’s sentence consisted of one five-year sentence

and one two-year sentence, to be served consecutively to one another. Further, even if

the sentence was contrary to law, that does not mean it is void, but voidable. See State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923. “In contrast to a void

judgment, res judicata applies to a voidable judgment.” State v. Gibson, 8th Dist. No.
96117, 2011-Ohio-3074, ¶ 28, citing State v. Simpkins, 117 Ohio St.3d 420,

2008-Ohio-1197, 884 N.E.2d 568, ¶ 30 (“res judicata applies to a voidable sentence and

may operate to prevent consideration of a collateral attack based on a claim that could

have been raised on direct appeal from the voidable sentence”).

      {¶21} Appellant’s sentence was not void, and res judicata bars consideration of the

alleged errors that were not properly raised in a timely appeal. Therefore, res judicata

acts to bar appellant’s attempted use of a motion to withdraw a plea as a substitute for a

timely appeal. Appellant’s first, second, and fourth assignments of error are overruled.

                      C. Denial of a Motion to Withdraw Guilty Pleas

      {¶22} In his third and fifth assignments of error, appellant argues the trial court

erred when it denied his motion without a hearing and without issuing findings of fact and

conclusions of law.

      {¶23} “A trial court is not required to hold an evidentiary hearing on a

post-sentence motion to withdraw a guilty plea, except when the facts, as alleged by the

defendant, indicate a manifest injustice would occur if the plea was allowed to stand.”

Britford, 10th Dist. No. 11AP-646, 2012-Ohio-1966, ¶ 12. The trial court did not need to

hold a hearing on appellant’s motion when his claims were barred by res judicata and

were unsupported. State v. Carnail, 8th Dist. No. 95580, 2011-Ohio-3464, *11-12.

Also, a trial court does not have to issue findings of fact and conclusions of law when

denying a motion to withdraw a guilty plea. State ex rel. Molton v. Matia, 8th Dist. No.

83661, 2003-Ohio-6630, ¶ 3.
      {¶24} Therefore, the trial court did not err in denying appellant’s motion without a

hearing and without issuing findings where appellant demonstrated no probability of

success. Appellant’s third and fifth assignments of error are overruled.

                                     III. Conclusion

      {¶25} Appellant’s motion to withdraw his guilty plea does not begin to satisfy the

requirements of demonstrating a manifest injustice regarding his pleas. All of his stated

reasons deal with issues relating to claimed procedural errors the trial court made when

imposing sentence or his trial counsel’s perceived failings during the plea and sentencing

stages. These are barred by res judicata. Accordingly, the trial court did not err in

denying appellant’s motion.

      {¶26} Judgment 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. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR
