[Cite as State v. Nooks, 2014-Ohio-4828.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                   No. 14AP-344
v.                                                :            (C.P.C. No. 98CR-6443)

Jonathan W. Nooks, Jr.,                           :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :




                                            D E C I S I O N

                                    Rendered on October 30, 2014



                 Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond,
                 for appellee.

                 Jonathan W. Nooks, Jr., pro se.

                   APPEAL from the Franklin County Court of Common Pleas

O'GRADY, J.

        {¶ 1} Defendant-appellant, Jonathan W. Nooks, Jr., appeals from a judgment of
the Franklin County Court of Common Pleas denying his motion to withdraw his guilty
plea. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} In 1998, appellant was indicted on two counts of aggravated murder with
death penalty specifications, one count of aggravated robbery, and one count of having a
weapon while under disability. He initially entered a plea of not guilty, and two attorneys
were appointed to represent him. A plea agreement was reached pursuant to which
appellant pled guilty to one count of aggravated murder with a firearm specification and
to the aggravated robbery charge. The trial court accepted appellant's guilty plea and
No. 14AP-344                                                                              2


sentenced him to an aggregate prison sentence of 28 years to life. By pleading guilty,
appellant avoided the possibility of being executed.
       {¶ 3} In 1999, appellant pursued his direct appeal. His sole assignment of error
alleged that the trial court erred by entering judgment of conviction based on a guilty plea
that was not knowingly, intelligently, and voluntarily entered. In overruling appellant's
assignment of error, we rejected notions that appellant received ineffective assistance of
counsel and that the trial court did not comply with Crim.R. 11. In affirming appellant's
conviction and sentence, we found "[t]he record before us indicates that [appellant]
knowingly, intelligently and voluntarily entered guilty pleas to the two charges." State v.
Nooks, 10th Dist. No. 99AP-760 (Mar. 21, 2000) ("Nooks 1"), motion for delayed appeal
denied, 95 Ohio St.3d 1435, 2002-Ohio-2084.
       {¶ 4} In 2008, appellant filed a motion seeking to have the judgment of his
conviction voided pursuant to Civ.R. 60(B) and State v. Colon, 118 Ohio St.3d 26, 2008-
Ohio-1624. Appellant argued his indictment was defective because it did not specify a
mens rea element pertaining to aggravated robbery. The trial court denied the motion
and we affirmed.       State v. Nooks, 10th Dist. No. 08AP-717 (Mar. 24, 2009)
(memorandum decision) ("Nooks 2"), appeal not accepted, 122 Ohio St.3d 1457, 2009-
Ohio-3131.
       {¶ 5} In 2009, appellant filed his first motion to withdraw his guilty plea pursuant
to Crim.R. 32.1. Appellant argued withdrawing his guilty plea would correct a manifest
injustice because the trial judge lacked jurisdiction to accept his guilty plea as a three-
judge panel was required, his indictment was defective, and his sentences were
purportedly void. The trial court denied appellant's motion based on the doctrine of res
judicata and we affirmed. State v. Nooks, 10th Dist. No. 10AP-108, 2010-Ohio-2982
("Nooks 3").
       {¶ 6} In 2010, appellant filed a motion for a de novo sentencing hearing. He
argued that the postrelease control portion of his sentence was void because it was not
properly imposed. The trial court denied the motion and we affirmed. State v. Nooks,
10th Dist. No. 10AP-1033, 2011-Ohio-4104 ("Nooks 4").
       {¶ 7} On November 8, 2013, appellant filed the instant motion to withdraw his
guilty plea. He argued his plea was not entered knowingly, intelligently, and voluntarily;
No. 14AP-344                                                                               3


thus, his plea was accepted in violation of Crim.R. 11. Underlying appellant's motion were
allegations that his indictment was defective, and the trial court imposed consecutive
sentences based, in part, on a mistaken understanding that appellant was on parole at the
time he was indicted. Appellant argued he received ineffective assistance of counsel
because his trial attorneys did not object to the indictment and they did not correct the
trial court regarding his parole status. Appellant requested a hearing on the matter.
       {¶ 8} On April 8, 2014, the trial court denied appellant's motion and request for a
hearing. The trial court found, "[t]his Court and the Court of Appeals have addressed all
of these issues at one time or another * * *. Further consideration is barred by the
doctrine of res judicata." (R. 359.) The trial court also found appellant failed to establish
that permitting him to withdraw his guilty plea would correct a manifest injustice.
Appellant timely appealed from the trial court's judgment.
II. ASSIGNMENTS OF ERROR
       {¶ 9} Appellant presents us with three assignments of error for review:
              [I.] Trial counsel rendered ineffective assistance of Counsel.

              [II.] Trial Court abused its discretion in imposing consecutive
              sentences based upon nonfactual and unsupported reasons.

              [III.] Trial Court abused its discretion when denying the
              motion to withdraw former plea of guilty.

III. DISCUSSION
       {¶ 10} We will address appellant's assignments of error together because they are
interrelated. Collectively, appellant's assignments of error allege the trial court erred in
denying his successive motion to withdraw his guilty plea. We disagree.
       {¶ 11} Appellant did not expressly bring his latest motion pursuant to Crim.R.
32.1; however, considering the content, we construe it as such. As we noted in Nooks 3:
              A criminal defendant can file a Crim.R. 32.1 motion to
              withdraw a guilty plea after the imposition of a sentence in
              order to correct "manifest injustice." See State v. Smith, 49
              Ohio St.2d 261 (1977), paragraph one of the syllabus.
              Accordingly, where a criminal defendant, subsequent to the
              imposition of sentence, files a motion to withdraw a guilty
              plea on the basis of a manifest injustice, including a
              constitutional violation, such a motion is a Crim.R. 32.1
No. 14AP-344                                                                          4


             motion. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-
             3993.

             Crim.R. 32.1 provides that "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." What
             constitutes "manifest injustice" has been variously defined,
             but such a standard allows a post-sentence motion to
             withdraw only in extraordinary cases. Id. Although Crim.R.
             32.1 does not prescribe a time limitation, an "undue delay
             between the occurrence of the alleged cause for withdrawal of
             a guilty plea and the filing of a motion under Crim.R. 32.1 is a
             factor adversely affecting the credibility of the movant and
             militating against the granting of the motion." Smith, at
             paragraph three of the syllabus. Further, whether a movant
             has demonstrated a manifest injustice is addressed to the
             sound discretion of the trial court, and the court's denial of a
             motion to withdraw a guilty plea will not be reversed absent
             an abuse of discretion. State v. Glass, 10th Dist. No. 04AP-
             967, 2006-Ohio-229, ¶ 18.

Id. at ¶ 5-6. An abuse of discretion connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v.
Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155, ¶ 8, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
      {¶ 12} We find our pronouncements in Muhumed pertaining to res judicata and
Crim.R. 32.1 motions instructive and applicable here. We stated:
             [B]ecause res judicata applies to successive motions to
             withdraw a guilty plea under Crim.R. 32.1 and to issues raised
             in a post-sentencing Crim.R. 32.1 motion that were or could
             have been raised in a direct appeal, and because appellant
             either did raise or could have raised the present issues
             regarding the ineffective assistance of counsel and the
             knowing, intelligent, and voluntary nature of his plea in his
             first motion to withdraw guilty plea pursuant to Crim.R. 32.1,
             we find the trial court did not err in finding these claims to be
             barred and in denying the motion to withdraw on the basis
             of res judicata to the extent it asserted successive claims
             under Crim.R. 32.1.

Id. at ¶ 15. We further noted that "our court has ' "consistently concluded that res
judicata bars a party from raising issues in a post-sentencing Crim.R. 32.1 motion that
No. 14AP-344                                                                               5


were or could have been raised in a direct appeal." ' " Id. at ¶ 15, fn. 1, quoting State v.
Tran, 10th Dist. No. 11AP-146, 2012-Ohio-1072, ¶ 11, quoting State v. Ikharo, 10th Dist.
No. 10AP-967, 2011-Ohio-2746, ¶ 11. See also State v. Hagler, 10th Dist. No. 10AP-291,
2010-Ohio-6123, ¶ 12; State v. Hazel, 10th Dist. No. 08AP-1002, 2009-Ohio-2144, ¶ 10;
and State v. Conteh, 10th Dist. No. 09AP-490, 2009-Ohio-6780, ¶ 6.
       {¶ 13} All of the issues raised in appellant's second motion to withdraw his guilty
plea were raised on direct appeal or in his first motion to withdraw his guilty plea, or they
could have been raised in either of those proceedings. The trial court was correct that the
doctrine of res judicata bars appellant from raising the issues that appear in his successive
motion to withdraw his guilty plea. The trial court did not abuse its discretion in denying
the motion. Accordingly, appellant's assignments of error are overruled.
IV. CONCLUSION
       {¶ 14} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                       TYACK and LUPER SCHUSTER, JJ., concur.
