[Cite as State v. Ytuarte, 2020-Ohio-1434.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




 STATE OF OHIO,                                     :

        Appellee,                                   :         CASE NO. CA2019-10-177

                                                    :              OPINION
     - vs -                                                         4/13/2020
                                                    :

 BRANDON M. YTUARTE,                                :

        Appellant.                                  :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2015-09-1466


Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Brandon M. Ytuarte, #A725776, London Correctional Institution, P.O. Box 69, London, Ohio
43140, pro se



        HENDRICKSON, P.J.

        {¶ 1} Appellant, Brandon Ytuarte, appeals a decision of the Butler County Court of

Common Pleas denying his postsentence motion to withdraw his guilty plea.

        {¶ 2} In October 2015, Ytuarte was charged with two felony offenses: first-degree

aggravated robbery and second-degree felonious assault with both charges including

firearm specifications. As part of a plea bargain, in 2016, Ytuarte pled guilty to the felonious
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assault charge. The aggravated robbery charge and both firearm specifications were

dismissed and Ytuarte was sentenced to a six-year prison term.1

       {¶ 3} On direct appeal, Ytuarte argued that his plea was not knowing, voluntary or

intelligent because the trial court failed to inquire into his mental state when it took his guilty

plea. This court determined that the trial court followed the proper procedures to determine

Ytuarte's plea was knowingly, voluntarily and intelligently made, and therefore affirmed

Ytuarte's conviction on direct appeal. State v. Ytuarte, Butler No. CA2016-06-112, 2017-

Ohio-683.

       {¶ 4} On September 17, 2019, Ytuarte filed a pro se motion to withdraw his guilty

plea. The motion alleged that Ytuarte received ineffective assistance of counsel during his

plea because testimony at the preliminary hearing established that the state could only

prove aggravated assault, but not felonious assault. He requested an order reducing his

conviction from felonious assault to aggravated assault. The trial court denied the motion.

       {¶ 5} Ytuarte now appeals the denial of his motion to withdraw his guilty plea and,

in a pro se brief, raises four assignments of error for our review.

       {¶ 6} I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

IN GRANTING THE APPELLEE A SUMMARY JUDGMENT IN VIOLATION OF HIS

ABSOLUTE RIGHT TO A PROCEDURAL DUE PROCESS OF LAW AS GU[A]RANTEED

BY THE U.S. AND OHIO CONSTITUTION[S].

       {¶ 7} II. IT WAS PREJUDICIAL ERROR IN VIOLATION OF THE APPELLANT'S

ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS OF LAW FOR THE TRIAL

COURT TO GRANT THE STATE OF OHIO A SUMMARY JUDGMENT.



1. Ytuarte was originally sentenced to a mandatory six-year prison term, but was resentenced in 2019 to a
non-mandatory six-year prison term based on the Ohio Supreme Court's determination that a juvenile offense
cannot be used to enhance a penalty for a later crime. See State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-
5504.

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       {¶ 8} III. IT WAS PREJUDICIAL ERROR IN VIOLATION OF THE APPELLANT'S

ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS AS GUARANTEED BY THE

OHIO AND U.S. CONSTITUTION[S] FOR THE TRIAL COURT NOT TO ORDER AND

CONDUCT AN EVIDENTIARY HEARING BEFORE RENDERING JUDGMENT IN THIS

CASE.

       {¶ 9} IV. IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT NOT TO

REDUCE THE APPELLANT'S CONVICTION FOR FELONIOUS ASSAULT TO ONE OF

AGGRAVATED ASSAULT AND RENDER JUDGMENT ACCORDINGLY.

       {¶ 10} Because Ytuarte's assignments of error are interrelated and each involve the

trial court's decision to deny his motion to withdraw his guilty plea, we will address them

together. We begin by noting that although Ytuarte argues the court erred in granting the

state "a summary judgment," our review of the record shows that the trial court did not grant

such a motion from the state. Instead, the court simply denied Yuarte's motion to withdraw

his guilty plea.

       {¶ 11} Pursuant to Crim.R. 32.1, "a defendant who seeks to withdraw a guilty plea

after the imposition of the sentence has the burden of establishing the existence of a

manifest injustice." State v. Reeder, 12th Dist. Butler Case Nos. CA2013-05-075 and

CA2013-07-126, 2014-Ohio-2233, ¶ 23. Manifest injustice relates to a fundamental flaw in

the proceedings that results in a miscarriage of justice or is inconsistent with the

requirements of due process. State v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-

Ohio-5610, ¶ 13. "This sets forth an extremely high standard that is allowable only in

extraordinary cases." State v. Tringelof, 12th Dist. Clermont Nos. CA2017-03-015 and

CA2017-03-016, 2017-Ohio-7657, ¶ 10. On appeal, a trial court's decision regarding a

postsentence motion to withdraw a guilty plea is reviewed under an abuse of discretion

standard. State v. Rose, 12th Dist. Butler No. CA2010-03-059, 2010-Ohio-5669, ¶ 15.

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       {¶ 12} However, we note that absent a remand from a higher court, a trial court is

without jurisdiction to decide a motion to withdraw a plea once an appellate court has

affirmed the appellant's conviction on direct appeal. State ex rel. Special Prosecutors v.

Judges, Court of Common Pleas, 55 Ohio St.2d 94,97-98 (1978); State v. Kwambana, 12th

Dist. Clermont No. CA2016-08-060, 2017-Ohio-1406, ¶ 6; State v. Johnson, 12th Dist.

Butler No. CA2016-07-128, 2017-Ohio-4116, ¶ 15; State v. Asher, 12th Dist. Butler No.

CA2013-12-234, 2015-Ohio-724, ¶ 7. As the Ohio Supreme Court has stated, Crim.R. 32.1

"does not confer upon the trial court the power to vacate a judgment which has been

affirmed by the appellate court, for this action would affect the decision of the reviewing

court, which is not within the power of the trial court to do." Special Prosecutors at 98.

       {¶ 13} We further find that to the extent that Ytuarte's motion relied on evidence

outside the record, or could be construed as a motion for postconviction relief, the claims

are barred by res judicata. The doctrine of res judicata bars claims raised in a Crim.R. 32.1

postsentence motion to withdraw a guilty plea that were raised or could have been raised

in a prior proceeding. State v. Rose, 2010-Ohio-5669, at ¶ 18. The information in the

preliminary hearing that Ytuarte relies on to support his motion to withdraw his guilty plea

existed at the time of his direct appeal and any claim regarding the validity of his plea could

have been raised at that time.

       {¶ 14} Moreover, we note that contrary to his argument on appeal, the record of the

preliminary hearing, when read in context, does not support Yuarte's arguments that the

facts supported only a conviction of aggravated assault. Therefore, he cannot establish

that his trial counsel was ineffective and that a manifest injustice occurred. In addition, a

trial court need not hold an evidentiary hearing on a postsentence motion to withdraw a

guilty plea where the record indicates the movant is not entitled to relief. State v. Degaro,

12th Dist. Butler No. CA2008-09-227, 2009-Ohio-2966, ¶ 13

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      {¶ 15} Accordingly, we find no merit to any of Yuarte's arguments on appeal and his

assignments of error are overruled.

      {¶ 16} Judgment affirmed.


      S. POWELL and RINGLAND, JJ., concur.




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