[Cite as State v. Strodes, 2011-Ohio-1828.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :   C.A. CASE NO. 10CA0051

vs.                                                :    T.C. CASE NO. 94CR0713

KEVIN T. STRODES                                    :   (Criminal Appeal from
                                                         Common Pleas Court)
        Defendant-Appellant                         :

                                        . . . . . . . . .

                                              O P I N I O N

                    Rendered on the 15th day of April, 2011.

                                        . . . . . . . . .

Andrew D. Wilson, Pros. Attorney; Atty, Reg. No. 0073767; Andrew
R. Picek, Asst. Pros. Attorney, Atty. Reg. No.0082121, P.O. Box
1608, 50 E. Columbia Street, Springfield, OH 45501
     Attorneys for Plaintiff-Appellee

George A. Katchmer, Atty. Reg. No.0005031, 115 Brookside Drive,
Yellow Springs, OH 45387
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Kevin Strodes, appeals from the trial court’s

denial of his Crim.R. 32.1 motion to withdraw his guilty plea to

the offense of murder, R.C. 2903.02(B).

        {¶ 2} Following his indictment on multiple charges, Strodes

entered a negotiated guilty plea to the offense of murder on May
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2, 2005.    The State dismissed the other charges.        Sentencing was

scheduled for May 13, 2005.

       {¶ 3} At the sentencing hearing, before his sentence was

imposed, Strodes moved pursuant to Crim.R. 32.1 to withdraw his

guilty plea.     The trial court heard evidence on the motion, which

included evidence that Strodes is afflicted with Attention Deficit

and Hyperactivity Disorder (“ADHD”) and as a result didn’t

understand the plea proceedings.       The trial court denied Strodes’

motion to withdraw.       The court entered its judgment of conviction

on May 16, 2005, sentencing Strodes to serve a term of incarceration

of from fifteen years to life.

       {¶ 4} Strodes filed a notice of appeal from his conviction.

    He argued that the trial court erred when it denied his motion

to withdraw, because his ADHD condition prevented him from entering

a    knowing,   intelligent,   and   voluntary   guilty   plea.   After

reviewing the record, we found that the record of the hearing on

his motion to withdraw refutes Strodes’ contention that he didn’t

understand what was going on when he entered his guilty plea.

State v. Strodes, Clark App. No. 05CA0070, 2006-Ohio-2335, ¶11.

 We therefore overruled the error Strodes assigned and affirmed

his conviction.     Id.

       {¶ 5} On March 18, 2010, Strodes filed a second Crim.R. 32.1

motion to withdraw his guilty plea.        The motion was predicated
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on a claim of ineffective assistance of counsel.      Strodes argued

that his trial counsel was ineffective for failing to review his

medical records, which would have informed counsel that Strodes

had not used medications necessary to manage his ADHD condition

before he entered his guilty plea.        Had counsel done that,

according to Strodes, his counsel would have better been able to

explain the plea proceedings to Strodes and better able to inform

the court about Strodes’ ADHD condition and its effect.

     {¶ 6} The trial court denied Strodes’ Crim.R. 32.1 condition,

without a hearing on April 14, 2010.     Strodes filed a notice of

appeal from that order.

     ASSIGNMENT OF ERROR

     {¶ 7} “THE COURT ERRED IN DENYING THE APPELLANT A HEARING IN

THIS MATTER.”

     {¶ 8} Counsel's performance will not be deemed ineffective

unless and until counsel's performance is proved to have fallen

below an objective standard of reasonable representation and, in

addition,   prejudice     arose   from    counsel's    performance.

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674.   To show that a defendant has been prejudiced by

counsel’s deficient performance, the defendant must affirmatively

demonstrate to a reasonable probability that were it not for

counsel’s errors, the result of the trial would have been different.
                                                                   4

 Id., State v. Bradley (1989), 42 Ohio St.3d 136.

     {¶ 9} Under the doctrine of res judicata, “[a] point or a fact

which was actually and directly in issue in a former action and

was there passed upon and determined by a court of competent

jurisdiction may not be drawn in question in any future action

between the same parties or their privies, whether the cause of

action in the two actions be identical or different.”       Norwood

v. McDonald (1943), 142 Ohio St.299, paragraph three of the Syllabus

by the Court.

     {¶ 10} In the prior appeal, we found that Strodes’ ADHD

condition did not prevent him from entering a knowing, intelligent,

and voluntary guilty plea.       Our finding concerning that fact

precludes a showing that Strodes was prejudiced by his counsel’s

alleged failure to obtain and review Strodes’ medical records

concerning his ADHD condition.    Absent a showing that the outcome

of the proceeding in which the defective performance by counsel

took place would have been different, but for the defect alleged,

a claim of ineffective assistance of counsel is not shown.

Strickland; Bradley.

     {¶ 11} The assignment of error is overruled.   The judgment of

the trial court will be affirmed.
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DONOVAN, J. And HALL, J., concur.




Copies mailed to:

Andrew R. Picek, Esq.
George A. Katchmer, Esq.
Hon. Douglas M. Rastatter
