[Cite as State v. Moore, 2016-Ohio-7380.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2016CA00094
CORVAWN MOORE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Case No. 2013CR1451


JUDGMENT:                                     Affirmed

DATE OF JUDGMENT ENTRY:                        October 17, 2016

APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOHN D. FERRERO                               CORVAWN MOORE, PRO SE
Prosecuting Attorney,                         Inmate No. A650-970
Stark County, Ohio                            Marion Correctional Institution
                                              P.O. Box 57
By: KRISTINE W. BEARD                         Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016CA00094                                                         2

Hoffman, J.


       {¶1}   Defendant-appellant Corvawn Moore appeals the April 20, 2016 Judgment

Entry entered by the Stark County Court of Common Pleas, which overruled his motion

to withdraw his guilty plea. Plaintiff-appellee is the state of Ohio.

                                  STATEMENT OF THE CASE1

       {¶2}   Appellant was charged by indictment with one count of aggravated robbery

and one count of felonious assault. Both counts carried attendant firearm specifications.

On December 10, 2013, Appellant entered pleas of guilty to the charges. The trial court

merged the firearms specifications for sentencing and sentenced Appellant to an

aggregate prison term of 10 years. Appellant did not appeal from his convictions and

sentences.

       {¶3}   On July 9, 2015, Appellant filed a “Motion for Sentencing; Motion for

Issuance of a Final Appealable Order; Motion for ‘Allied Offense Determination’”, which

the trial court overruled on July 17, 2015. Appellant appealed the July 17, 2015 Judgment

Entry, which this Court affirmed in State v. Moore, 5th Dist. Stark App. No. 2015CA00137,

2016-Ohio-1339.

       {¶4}   On April 14, 2016, Appellant filed a pro se motion to withdraw his guilty plea.

The state filed a response in opposition on April 15, 2015. Therein, the state argued

Appellant’s claims were barred by the doctrine of res judicata, and Appellant failed to

establish a manifest injustice. Via Judgment Entry filed April 20, 2016, the trial court

overruled Appellant’s motion for the reasons set forth in the state’s response. Appellant


1 A statement of the facts underlying Appellant's convictions and sentences is not
necessary for our resolution of this Appeal.
Stark County, Case No. 2016CA00094                                                     3


filed a Notice of Appeal from the April 20, 2016 Judgment Entry on May 9, 2016. Appellant

also filed with this Court a request to proceed informa pauperis and a request for the

appointment of appellate counsel. On May 23, 2016, this Court granted Appellant’s

request to proceed in forma pauperus, but denied his request for the appointment of

appellate counsel.

      {¶5}   It is from the April 20, 2016 Judgment Entry Appellant appeals, raising the

following assignments of error:

      {¶6}   “I. WHETHER AN APPELLATE COURT’S REPEATED DENIAL TO

ACKNOWLEDGE AND GRANT AN INDIGENT DEFENDANT’S ‘WRITTEN REQUESTS’

FOR PREPARATION OF THE TRANSCRIPT OF PROCEEDINGS (ON AN APPEAL AS

OF RIGHT), APP. R. 4(A); AND REQUEST FOR APPOINTED OF COUNSEL, CRIM. R.

44(A) IMPLICATES FUNDAMENTAL FAIRNESS, DUE PROCESS, THE RIGHT TO

COUNSEL AND THE RIGHT TO A MEANINGFUL APPEAL AS OTHERWISE

GUARANTEED BY THE FEDERAL CONSTITUTION’S SIXTH AND FOURTEENTH

AMENDMENTS.

      {¶7}   “II. WHETHER THE TRIAL COURT’S DENIAL OF APPELLANT’S

MOTION(S) FOR LEAVE TO WITHDRAW GUILTY PLEA ON THE BASIS OF (3)

INDEPENDENT          PROPOSITIONS,     I.E.,   (1)   BREACH   OF    AN    UNDERLYING

CONTRACTUAL PLEA AGREEMENT; (2) AS A PRE-SENTENCE MOTION TO

WITHDRAW, STATE V. BOSWELL, 121 Ohio St.3d 575; and STATE V. SARKOZY, 117

Ohio St.3d 86; AND A POST-SENTENCE MOTION [TO CORRECT A RESULTING

MANIFEST INJUSTICE] IMPLICATES DUE PROCESS AND FUNDAMENTAL

FAIRNESS AND CONSTITUTES A CLEAR AND COMPELLING ABUSE OF
Stark County, Case No. 2016CA00094                                                         4


DISCRETION. SEE ALSO: SANTOBELLO V. NEW YORK, 404 U.S. 257; STATE V.

ADAMS, 2014 Ohio 724, at HN: 2.”

                                                 I

       {¶8}   In his first assignment of error, Appellant maintains this Court erred in

denying his “repeated written requests” for the preparation of the transcript of the

proceedings and for the appointment of counsel.

       {¶9}   An appellate court is generally bound by its own prior rulings. Abroms v.

Synergy Bldg. Sys., 2d Dist. Montgomery No. 23944, 2011–Ohio–2180, ¶ 30.

       {¶10} Assuming a reviewing court makes an error, such error in the appellate

decision may be appealed to the Ohio Supreme Court.

       {¶11} Appellant’s first assignment of error is overruled.

                                                 II

       {¶12} In his second assignment of error, Appellant contends the trial court erred

and abused its discretion in denying his motion for leave to withdraw guilty plea. We

disagree.

       {¶13} Although captioned a “Motion for Leave to Withdraw Guilty Plea”, the motion

is, in substance, a petition for post-conviction relief based upon Appellant’s alleged denial

of his constitutional right to the effective assistance of counsel.      “Where a criminal

defendant, subsequent to his or her direct appeal, files a motion seeking vacation or

correction of his or her sentence on the basis that his or her constitutional rights have

been violated, such a motion is a petition for postconviction relief as defined in R.C.

2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 1997 -Ohio- 304, syllabus.
Stark County, Case No. 2016CA00094                                                           5


       {¶14} An appellate court reviews a ruling on a post-conviction petition for an abuse

of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679. An abuse of

discretion is found only when it is determined that a trial court's attitude in reaching its

judgment was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219.

       {¶15} Appellant asserts his trial counsel provided ineffective assistance by failing

to advise him of a favorable plea bargain. Specifically, Appellant explains although the

state offered him an aggregate sentence of five years in exchange for his pleading guilty

to all the charges contained in the indictment, trial counsel did not communicate this plea

bargain to him.

       {¶16} The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the effective assistance of counsel. McMann v. Richardson (1970),

397 U.S. 759, 771, 90 S.Ct. 1441, 1449. Courts employ a two-step process to determine

whether the right to effective assistance of counsel has been violated. Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064. First, the defendant must

show that counsel's performance was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id.

       {¶17} An attorney properly licensed in the state of Ohio is presumed competent.

State v. Lott (1990), 51 Ohio St.3d 160, 174. The defendant has the burden of proof and

must overcome the strong presumption that counsel's performance was adequate or that
Stark County, Case No. 2016CA00094                                                         6

counsel's action might be sound trial strategy. State v. Smith (1985), 17 Ohio St.3d 98,

100. In demonstrating prejudice, the defendant must prove that there exists a reasonable

probability that, were it not for counsel's errors, the result of the trial would have been

different. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus.

       {¶18} Appellant has failed to provide this Court with a transcript of his change of

plea hearing.     Such transcript may have revealed the plea offer was, in fact,

communicated to Appellant. When portions of the transcript necessary for resolution of

assigned errors are omitted from the record, the reviewing court has nothing to pass upon

and thus, as to those assigned errors, the court has no choice but to presume the validity

of the lower court's proceedings, and affirm. Knapp v. Edwards Lab ., 61 Ohio St.2d 197,

400 N.E.2d 384 (1980).

       {¶19} Assuming, arguendo, a copy of the transcript is not necessary for our

resolution of this portion of Appellant’s assignment of error, we, nonetheless, find

Appellant cannot establish his right to effective assistance of counsel was violated.

       {¶20} A defense attorney's failure to notify his client of a prosecutor's plea offer

constitutes ineffective assistance of counsel under the Sixth Amendment and satisfies the

deficient performance prong of the Strickland test. Griffin v. United States (C.A.6, 2003),

330 F.3d 733, 737. See, also, Williams v. Arn (N.D.Ohio1986), 654 F.Supp. 226 (a trial

attorney performs deficiently when he or she does not disclose to the client that the state

has made a plea offer); Johnson v. Duckworth (C.A.7, 1986), 793 F.2d 898, certiorari

denied (1986), 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (criminal defense attorneys

have a duty to inform their clients of plea bargains proffered by the prosecution; failure to

do so constitutes ineffective assistance under the Sixth and Fourteenth Amendments).
Stark County, Case No. 2016CA00094                                                         7


However, even if Appellant's trial counsel's performance was deficient, Appellant failed to

show he was prejudiced as a result. To establish prejudice, Appellant must show he would

have accepted the plea offer had it been communicated to him. See, Haley v. United

States (C.A.6, 2001), 3 Fed. Appx. 426, 2001 WL 133131, certiorari denied, 534 U.S.

1031, 122 S.Ct. 568, 151 L.Ed.2d 441. Appellant did not include an affidavit with his

motion indicating had he been informed of the plea offer, he would have accepted it.

       {¶21} Furthermore, it is well settled a trial court enjoys wide discretion in deciding

whether to accept or reject a negotiated plea agreement. Santobello v. New York, 404

U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Akron v. Ragsdale, 61 Ohio App.2d

107, 109–10, 399 N.E.2d 119 (9th Dist.1978). Indeed, a defendant has no absolute right

to have a guilty plea accepted. Santobello at 262, 92 S.Ct. 495, 30 L.Ed.2d 427; Lafler v.

Cooper, 556 U.S. ––––, 132 S.Ct. 1376, 1395, 182 L.Ed.2d 398 (2012). Appellant has

failed to present any evidence the trial court would have accepted the plea bargain.

Therefore, he cannot establish he was prejudiced by trial counsel’s failure to advise him

of the plea offer.

       {¶22} Within this assignment of error, Appellant also argues his post-release

control sanctions were void because the trial court failed to incorporate language into the

sentencing entry advising violation time would be imposed in nine month increments. We

find this argument in barred by the law of the case doctrine.

       {¶23} The doctrine of the law of the case provides a decision of a reviewing court

remains the law for that case as to all relevant legal questions in subsequent proceedings

both at trial and appellate levels unless that rule of practice achieves an unjust result.

Weir v. Kebe (1985), 29 Ohio App.3d 53, 29 OBR 62, 503 N.E.2d 177. The rule ensures
Stark County, Case No. 2016CA00094                                                       8


consistency in the results of the case, avoids excessive litigation, and preserves the

structure of superior and inferior courts as designed by the Ohio Constitution. Nolan v.

Nolan (1984), 11 Ohio St.3d 1, 3, 11 OBR 1, 2, 462 N.E.2d 410, 412. The rule was created

because of the necessity of a trial court to obey the mandate of a reviewing court upon a

retrial of a case. Gohman v. St. Bernard (1924), 111 Ohio St. 726, 731, 146 N.E. 291,

292. It applies upon remand from a reviewing court, when a trial court is confronted with

substantially the same facts and issues as were involved in the prior appeal. Hawley v.

Ritley (1988), 35 Ohio St.3d 157, 519 N.E.2d 390.



         {¶24} In his appeal from the trial court’s July 17, 2015 Judgment Entry denying

his “Motion for Sentencing; Motion for Issuance of a Final Appealable Order; Motion for

‘Allied Offense Determination’”, Appellant challenged the trial court’s imposition of post-

release control sanctions. State v. Moore, supra. Because this argument was raised and

addressed in that appeal, Appellant is barred from reasserting it.

         {¶25} Based upon the foregoing, we overrule Appellant’s second assignment of

error.
Stark County, Case No. 2016CA00094                                                9


      {¶26} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Farmer, P.J. and

Delaney, J. concur
