[Cite as State v. Ogle, 2014-Ohio-2251.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             HOCKING COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case Nos. 13CA18
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
MELANIE A. OGLE,               :    ENTRY
                               :
    Defendant-Appellant.       :    Released: 05/21/14
_____________________________________________________________
                         APPEARANCES:

Melanie A. Ogle, Rockbridge, Ohio, Pro Se Appellant.

Laina Fetherolf, Hocking County Prosecutor, and William L. Archer, Jr.,
Assistant Hocking County Prosecutor, Logan, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Defendant-Appellant Melanie Ogle appeals the August 14, 2013

judgment entry of the Hocking County Common Pleas Court denying her

Motion to Withdraw Alford Plea and Set Aside Judgment Entry of Sentence

and Dismiss Indictment. Appellant sets forth two related assignments of

error. However, having reviewed the record and the pertinent law, we find

the trial court did not abuse its discretion by denying Appellant’s motion.

We therefore overrule Appellant’s assignments of error and affirm the

judgment of the trial court.
Hocking App. No. 13CA18                                                           2


            FACTUAL AND PROCEDURAL BACKGROUND

      {¶2} In August 2011, Melanie Ogle (hereinafter “Appellant”) was

convicted by a jury in the Hocking County Court of Common Pleas of

assault on a peace officer. Various appeals have followed Appellant’s

felony conviction. The events serving as a backdrop to Appellant’s felony

conviction and the instant appeal are set forth in detail in State v. Ogle, 4th

Dist. Hocking Nos. 11CA29,11CA32, 12CA2, 12 CA11,12CA12, 12CA19,

2013-Ohio-3420. Pursuant to the assault conviction, Appellant was

sentenced to six months in a county jail, a fine, and restitution.

       {¶3} Appellant was also required to wear an ankle monitor as part of

her sentence on the assault conviction. Appellant executed a contract with

Greco’s Electronic Monitoring Service for ankle monitoring equipment and

service. On or about November 25, 2011, Appellant submerged the ankle

monitor in water causing irreparable damage to the equipment. Appellant

was subsequently indicted on February 24, 2012, of one count of vandalism

of the ankle monitor in violation of R.C. 2909.05(B)(1)(b), a felony of the

fifth degree.

      {¶4} Appellant was arraigned and pleaded not guilty to the

indictment. Discovery ensued. Appellant and her counsel filed various

pretrial motions. The case was set for change of plea on May 11, 2012. On
Hocking App. No. 13CA18                                                                                3


that date, Appellant entered an “Alford Plea” to a reduced charge of criminal

damaging, a violation of R.C. 2909.06(A)(1) and a second-degree

misdemeanor. Appellant executed a waiver which advised her that by

entering the Alford Plea, she was waiving substantial constitutional,

statutory, and procedural rights. The trial court accepted the plea, found

Appellant guilty, and sentenced her to thirty (30) days in jail, all suspended.

She was also placed on non-reporting probation for eighteen (18) months,

ordered to make restitution of $1,300.00, and ordered to pay court costs. On

May 25, 2012, the trial court filed a nunc pro tunc entry of sentence.

        {¶5} On June 13, 2012, Appellant filed a Notice of Appeal in the

vandalism case, 12CR00038. The appellate case was 12CA12 and it was

later consolidated with several other pending appeals filed by Appellant.1

On July 3, 2012, Appellant filed a “Motion to Set Aside Judgment Entry of

Sentence and Indictment.” 2 On July 26, 2013, this court entered its

decision, affirming the trial court on the consolidated appeals in State v.

Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12,

12CA19, 2013-Ohio-3420.

        {¶6} On August 5, 2013, Appellant filed a “Motion to Withdraw

Alford Plea and Renewed Motion to Set Aside Judgment Entry of Sentence
1
 The cases were consolidated by Magistrate’s Order filed February 27, 2013.
2
 This motion was overruled, along with several other pending motions, by judgment entry dated August
22, 2013.
Hocking App. No. 13CA18                                                       4


and Dismiss Indictment.” On August 14, 2013, the trial court overruled

Appellant’s motion, finding that all issues raised by her had been or could

have been raised and decided in her previous appeal. This appeal followed.

                    ASSIGNMENTS OF ERROR

      I. THE TRIAL COURT ERRED TO THE PREJUDICE
      OF DEFENDANT-APPELLANT AND AS A MATTER
      OF LAW IN OVERRULING HER MOTION TO
      WITHDRAW ALFORD PLEA AND SET ASIDE
      JUDGMENT ENTRY OF SENTENCE AND DISMISS
      INDICTMENT.

      II. THE TRIAL COURT ERRED TO THE PREJUDICE
      OF DEFENDANT-APPELLANT AND AS A MATTER
      OF LAW IN FINDING THAT ALL ISSUES RAISED
      IN DEFENDANT-APPELLANT’S MOTION TO
      WITHDRAW ALFORD PLEA AND SET ASIDE
      JUDGMENT ENTRY OF SENTENCE AND DISMISS
      INDICTMENT HAVE BEEN OR COULD HAVE
      BEEN RAISED AND DECIDED IN THE DIRECT
      APPEAL.

                       A. STANDARD OF REVIEW

      {¶7} “[T]he decision to accept or refuse a guilty plea is within the

sound discretion of the trial court.” State v. McCann, 4th Dist. Lawrence

No. 10CA12, 2011-Ohio-3339, ¶8, quoting State v. Byrd, 4th Dist. Athens

No. 07CA229, 2008-Ohio-3909, at ¶4, citing State v. Bronaka, 11th Dist.

Lake No. 2007-L-095, 2008-Ohio-1334, at ¶ 20, Cleveland v. Curtis, 8th

Dist. Cuyahoga No. 89843, 2007-Ohio-5961, at ¶ 6. “As such, we will not

overrule a trial court’s judgment absent an abuse of discretion.” McCann,
Hocking App. No. 13CA18                                                          5


supra, quoting Byrd, supra, at ¶4. “‘The term “abuse of discretion” connotes

more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.’” (Citations omitted.)

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983),

quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

“Under this highly deferential standard of review, we may not simply

substitute our judgment for that of the trial court.” McCann, supra, quoting

Woody v. Woody, 4th Dist. Athens No. 09CA34, 2010-Ohio-6049, at ¶35,

citing In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181

(1991). “Rather, we are limited to determining whether considering the

totality of the circumstance, the trial court acted unreasonably, arbitrarily, or

unconscionably.” McCann, supra, quoting Woody, at ¶35, citing Briganti v.

Briganti, 9 Ohio St.3d 220, 222, 459 N.E.2d 896 (1984), citing Blakemore, 5

Ohio St.3d at 218-220.

      {¶8} Crim.R. 32.1 governs the withdrawal of pleas, stating as

follows: “A motion to withdraw a plea of guilty or no contest may be made

only before sentence is imposed or imposition of sentence is suspended; but

to correct manifest injustice the court after sentence may set aside the

judgment of conviction and permit the defendant to withdraw his plea.”

State v. Congrove, 5th Dist. Delaware No. 09CA090080, 2010-Ohio-2933,
Hocking App. No. 13CA18                                                           6


¶30, quoting State v. Copeland-Jackson, 5th Dist. Ashland No. 02COA018,

2003-Ohio-1043, ¶6. The standard upon which the trial court is to review a

request for a change of plea after sentence is whether there is a need to

correct a manifest injustice. Congrove, supra. The accused has the burden

of showing a manifest injustice warranting the withdrawal of a guilty plea.

Id.; State v. Rockwell, 5th Dist. Stark No. 2008CA00009, 2008-Ohio-2162,

¶40, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1234 (1977),

paragraph one of the syllabus. A manifest injustice has been defined as a

“clear or openly unjust act.” Congrove, supra, quoting State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 2983 (1998).

      {¶9} Our review of a trial court’s decision under Crim.R. 32.1 is

limited to a determination of whether the trial court abused its discretion.

Congrove, supra at ¶32, citing State v. Caraballo, 17 Ohio St.3d 66, 477

N.E.2d 627 (1985). “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.” Congrove, supra, quoting State v. Smith, 49 Ohio

St.2d 261, 361 N.E.2d 1324, (1977), paragraph two of the syllabus.

                           B. LEGAL ANALYSIS

      1. The Trial Court Erred to the Prejudice of Defendant-Appellant and
      as a Matter of Law in Overruling Her Motion to Withdraw Alford
Hocking App. No. 13CA18                                                         7


        Plea and Set Aside Judgment Entry of Sentence and Dismiss
        Indictment.

        II. The Trial Court Erred to the Prejudice of Defendant-Appellant and
        as a Matter of Law in Finding that All Issues Raised in Defendant-
        Appellant’s Motion to Withdraw Alford Plea and Set Aside Judgment
        Entry of Sentence and Dismiss Indictment Have Been or Could Have
        Been Raised and Decided in the Direct Appeal.

        {¶10} We consider Appellant’s assignments of error jointly.

Appellant essentially argues at the May 11, 2012 plea hearing, her attorney

was incompetent, the prosecutor deceived her, and as a result, she was

caused to have an erroneous understanding of her appeal rights. Appellant

contends she entered the Alford Plea with the understanding she did not

waive her appellate rights and therefore, her plea was not knowing,

intelligent, and voluntary. She asserts she told her attorney that waiving her

right to appeal was a “deal-breaker.” Appellee responds that Appellant is

attempting to “rehash” issues already decided by this court and the trial

court. Appellee further points out, what we previously found in State v.

Ogle, supra, at ¶93, that there was a factual basis for Appellant’s Alford Plea

and, therefore, the trial court did not abuse its discretion in accepting her

plea.

        {¶11} We construe Appellant’s motion pursuant to Crim.R. 32.1. We

find the trial court had discretion to deny Appellant’s motion. In State v.

Sterling, 11th Dist. Ashtabula No. 99-A-0056, 2000 WL 777862, the trial
Hocking App. No. 13CA18                                                         8


court had the discretion to deny appellant’s July 7, 1999 motion to withdraw

an Alford Plea on the grounds of res judicata. There, the appellate court

noted the defendant had filed a “ Petition to Vacate or Set Aside Sentence”

on September 11, 1996, in which he raised the same arguments he raised in a

motion to withdraw guilty plea. The trial court had previously overruled the

“petition” determining that the record refuted defendant’s claim of

ineffective assistance. The appellate court held “Appellant may not

relitigate issues that have already been decided.” Sterling, supra at *1,

citing State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus.

      {¶12} Here, Appellant does not raise the exact same issues as she did

in the consolidated appeal. In the prior consolidated appeal, Appellant

contended: (1) the trial court erred in accepting her plea when there was no

evidence the alleged victim did not consent to her actions; and (2) the trial

court abused its discretion when it failed to conduct an evidentiary hearing

pursuant to Crim.R. 32.1. However, we did make a finding the trial court

did not abuse its discretion in accepting her plea. We observed:

      “By entering a plea agreement, Appellant effectively waived
      her right to appeal, except as to issues of knowledge and
      voluntariness of the plea. Notably, herein the record herein
      reveals Appellant’s age, experience, background, and
      education, and along with the transcript, supports an
      interpretation that Appellant’s plea was intelligent and
      voluntary.” Ogle, supra, at ¶¶88-93.
Hocking App. No. 13CA18                                                          9


           {¶13} We further observe the court engaged in discussion with

Appellant about the specific Alford requirements, the plea arrangement, the

allegations against Appellant, her constitutional rights, Appellant’s

satisfaction with her legal counsel, and the penalties involved for the lesser

charge to which she was pleading. The underlying facts of the case were

recited and neither Appellant nor her counsel made any objection or

comment. This court further found:

           “Appellant entered her plea pursuant to a negotiated agreement.
           As such, Appellant essentially waived any arguments regarding
           her Alford plea, but for knowledge and voluntariness. We note,
           however, the State read the factual basis into the record and
           Appellant did not object to the recitation of facts. Appellant
           was questioned at length as to her understanding of the plea, her
           constitutional rights, and the process. Specifically she was
           asked if she had discussed any defenses with her counsel. She
           was also asked about her reasons for entering the plea. The trial
           court also asked numerous questions which indicated her
           knowledge and voluntariness. We find the trial court did not
           abuse its discretion in accepting her plea and overrule this
           assignment of error.” Ogle, supra, at ¶93.

           {¶14} As to Appellant’s second assignment of error in her previous

consolidated appeal, we noted a trial court need only conduct an evidentiary

hearing where the facts, as alleged by the defendant, would indicate a

manifest injustice would occur by allowing a plea to stand.3 We further

noted a hearing is not required if a defendant’s allegations are “conclusively


3
    Appellant had not requested an evidentiary hearing.
Hocking App. No. 13CA18                                                         10


and irrefutably contradicted by the record.” Ogle, supra, at ¶97, quoting

State v. Moore, 4th Dist. Pike No. 01CA674, 2002-Ohio-5748, at ¶17. We

concluded no manifest injustice occurred by allowing her plea to stand and,

therefore, the trial court did not abuse its discretion by failing to conduct an

evidentiary hearing.

       {¶15} Appellant now claims she was unaware she was waiving

appeal rights, her plea was not knowing and voluntary, and the first notice

she had of this was in our decision in the consolidated appeal. Her

arguments, however, are not persuasive. Appellant has had her day in court.

      {¶16} We recently discussed the doctrines of res judicata and law of

the case in Quality Car & Truck Leasing, Inc., v. Pertuset, 4th Dist. Scioto

No. 13CA3565, 2014-Ohio-1291. There, we held because this Court had

already affirmed the trial court’s grant of judgment on the pleadings in favor

of Appellees, and because Appellant’s current argument could and should

have been raised as part of the direct appeal, Appellants’ arguments were

barred. We discussed the “law of the case” doctrine which provides: “ * * *

that the decision of a reviewing court in a case remains the law of that case

on the legal questions involved for all subsequent proceedings in the case at

both the trial and reviewing levels.” (internal citations omitted.) Nolan v.

Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984).
Hocking App. No. 13CA18                                                        11


      {¶17} We also cited State ex rel. Petro v. Marshall, 4th Dist. Scioto

No. 05CA3004, 2006-Ohio-5357 at ¶27, wherein this Court reasoned:

“[O]nce a party undertakes an appeal and absent a remand, the trial court is

divested of jurisdiction to take any action that is inconsistent with the

appellate court’s exercise of jurisdiction. Post v. Post, 66 Ohio App.3d 765,

769, 586 N.E.2d 185 (2nd Dist.1990); State ex rel. Special Prosecutors [v.

Judges, 55 Ohio St.2d 94,], 97, 378 N.E.2d 162, [(1978)].”

       {¶18} The Special Prosecutors case actually involved a trial court’s

subsequent grant of a motion to withdraw a guilty plea when the defendant

“lost the appeal of a conviction based upon the guilty plea.” Id. at 28. The

Supreme Court of Ohio reasoned: “[A]llowing the trial court to consider a

Crim.R. 32.1 motion to withdraw a guilty plea subsequent to an appeal and

affirmance by the appellate court ‘would affect the decision of the reviewing

court, which is not within the power of the trial court to do.’” Id. at ¶29,

quoting Special Prosecutors at 97-98.

      {¶19} Based on the case law set forth above, we find the trial court

did not err or abuse its discretion by overruling Appellant’s Motion to

Withdraw Alford Plea and Set Aside Judgment Entry of Sentence and

Dismiss Indictment. This court had already affirmed the trial court’s

judgment accepting Appellant’s Alford Plea. Appellant’s additional
Hocking App. No. 13CA18                                                  12


arguments regarding her Alford Plea should have been made in her

consolidated appeal. Appellant’s assignments of error have no merit and are

hereby overruled.

                                               JUDGMENT AFFIRMED.
Hocking App. No. 13CA18                                                        13


                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.

                                 For the Court,

                          BY: _____________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
