[Cite as State v. Spann, 2020-Ohio-272.]


                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                            No. 108483
                 v.                              :

ALBERT SPANN,                                   :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: January 30, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-08-513194-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Katherine Mullin, Assistant Prosecuting
                 Attorney, for appellee.

                 Albert Spann, pro se.


FRANK D. CELEBREZZE, JR., J.:

                Defendant-appellant, Albert Spann (“Spann”), brings the instant appeal

arguing that the trial court abused its discretion in denying his motion to withdraw

his guilty plea. Specifically, Spann argues that his guilty plea was invalid because it
was not entered before a three-judge panel. After a thorough review of the record

and law, this court affirms.

                         I. Factual and Procedural History

             Spann brings the instant appeal from Cuyahoga C.P. No. CR-08-

513194-A. On July 16, 2008, Spann was indicted on the following charges: Count 1,

aggravated murder in violation of R.C. 2903.01(A), with a felony murder

specification, a notice of prior conviction, and a repeat violent offender specification;

Count 2, aggravated robbery in violation of R.C. 2911.01(A)(1), with a notice of prior

conviction and a repeat violent offender specification; and Count 3, aggravated

robbery in violation of R.C. 2911.01(A)(3), with a notice of prior conviction and a

repeat violent offender specification. The aggravated murder count also contained

a death penalty specification. On July 21, 2008, Spann was arraigned and pled not

guilty. Thereafter, the matter proceeded through the pretrial process.

             The parties entered into a plea agreement.           As part of the plea

agreement, the state dismissed the death penalty specification associated with

Count 1, aggravated murder and dismissed Count 3, aggravated robbery. On

June 22, 2009, Spann pled guilty to aggravated murder in violation of R.C.

2903.01(A), with a notice of prior conviction and a repeat violent offender

specification, and aggravated robbery in violation of R.C. 2911.01(A)(1), with a

notice of prior conviction and a repeat violent offender specification. The trial court

sentenced Spann to a term of imprisonment of 25 years to life on the aggravated

murder count, and ten years on the aggravated robbery count to be served
concurrently to the indefinite life sentence. The court also imposed a five-year

mandatory term of postrelease control. Spann did not directly appeal his conviction

or sentence.

               On August 30, 2013, Spann filed a motion, pro se, to withdraw his guilty

plea pursuant to Crim.R. 32.1, and on June 16, 2014, the trial court issued a journal

entry denying his motion. Spann appealed, and presented five assignments of error.

State v. Spann, 8th Dist. Cuyahoga No. 101595, 2015-Ohio-1641 (“Spann I”). Spann

argued that the trial court erred in denying his motion to withdraw his plea based

on his claim that the trial court failed to consider his mental competency. Spann

further argued that the trial court erred by failing to transmit the trial transcript and

other records, and failing to appoint appellate counsel. This court found no merit to

these specific arguments and overruled these assignments of error. However, Spann

also argued that the trial court failed to advise him at the change-of-plea hearing of

any consequences of a violation of postrelease control. This court agreed and

sustained that assignment of error, and remanded for the limited purpose of a nunc

pro tunc journal entry correcting the error.

               Then on July 5, 2018, Spann filed a second motion, pro se, to withdraw

his guilty plea, and requested an evidentiary hearing on his motion. On July 16,

2018, the state filed a brief in opposition to Spann’s motion. On August 30, 2018,

Spann filed a reply brief. In his motion to withdraw his guilty plea, Spann argued

that the trial court lacked jurisdiction to accept his guilty plea because the plea was

entered before a single judge and not before a three-judge panel. On March 27,
2019, the trial court issued a journal entry denying his motion to withdraw his guilty

plea without an evidentiary hearing.

             On April 18, 2019, Spann filed the instant appeal, pro se, and assigns a

sole assignment of error for our review.

      I. A trial court lacks subject matter jurisdiction to accept a guilty plea
      in a capital case with a single judge, without the death penalty
      specification having been dismissed, on the record, and filed before the
      plea is entered.

                                 II. Law and Analysis

             In Spann’s sole assignment of error, he argues that the trial court

lacked subject matter jurisdiction to accept his guilty plea because his plea was not

entered before a three-judge panel.

             As an initial matter, we note that Spann filed two motions to withdraw

his guilty plea. On August 30, 2013, Spann filed a motion to withdraw his guilty plea

in which he argued that the trial court failed to consider his mental competency. The

trial court denied this motion and Spann appealed. Spann I. This court found no

merit to Spann’s argument and affirmed the trial court’s denial of his first motion to

withdraw his guilty plea. Spann failed to make any arguments in his first motion to

withdraw his guilty plea relative to the trial court lacking jurisdiction to hear his

guilty plea. As a result, Spann’s arguments in his second motion to withdraw his

guilty plea, the subject of the instant appeal, are barred by res judicata.

             Under the doctrine of res judicata,

      “a final judgment of conviction bars a convicted defendant who was
      represented by counsel from raising and litigating in any proceeding
      except an appeal from that judgment, any defense or any claimed lack
      of due process that was raised or could have been raised by the
      defendant at trial, which resulted in that judgment of conviction, or on
      an appeal from that judgment.”

(Emphasis deleted.) State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131

(1997), quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), syllabus.

“Res judicata prevents repeated attacks on a final judgment and [it] applies to all

issues that were or might have been litigated.” State v. Orr, 8th Dist. Cuyahoga No.

100841, 2014-Ohio-5274, ¶ 3. Moreover, and relevant to the instant matter, the

doctrine of res judicata is applicable to successive motions to withdraw a guilty plea.

See State v. Sneed, 8th Dist. Cuyahoga No. 84964, 2005-Ohio-1865, ¶ 17. Thus, a

motion to withdraw a guilty plea should be denied when it asserts grounds for relief

that were or should have been asserted in a previous motion to withdraw a guilty

plea. Id., citing State v. Brown, 8th Dist. Cuyahoga No. 84322, 2004-Ohio-6421.

              Even if Spann’s claim were not barred by res judicata, Spann fails to

demonstrate a manifest injustice as required by Crim.R. 32.1.            Pursuant to

Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest may be made

only before sentence is imposed; but 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.” A defendant who attempts to withdraw a plea of guilty

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

manifest injustice. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),

paragraph one of the syllabus.
               A manifest injustice has been characterized as a fundamental flaw in

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

requirements of due process. State v. Colon, 2017-Ohio-8478, 99 N.E.3d 1197, ¶ 7

(8th Dist.), citing State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502,

¶ 13. Manifest injustice is a heightened standard and ‘“is in place because ‘a

defendant should not be encouraged to plead to test the potential punishment and

withdraw the plea if the sentence is unexpectedly severe.’”’ State v. Thomas, 2018-

Ohio-1081, 109 N.E.3d 616, ¶ 39 (8th Dist.), quoting Colon at ¶ 7, quoting Cleveland

v. Jaber, 8th Dist. Cuyahoga Nos. 103194 and 103195, 2016-Ohio-1542, ¶ 18. The

determination of whether a defendant has demonstrated a manifest injustice is left

to the sound discretion of the trial court. Colon at ¶ 9.

               In the instant matter, Spann appears to argue that he pled guilty to the

aggravated murder count as indicted, with the death penalty specification. Spann

also argues that because he pled guilty to the aggravated murder count with the

death penalty specification, a single trial judge lacked jurisdiction to accept his guilty

plea.

               In our review of the trial proceedings, we find Spann’s arguments to

be completely without merit.       Undeniably, Spann pled guilty to an amended

indictment that included the dismissal of the death penalty specification. Pursuant

to R.C. 2945.06,

        In any case in which a defendant waives his right to trial by jury and
        elects to be tried by the court under section 2945.05 of the Revised
        Code, any judge of the court in which the cause is pending shall proceed
      to hear, try, and determine the cause in accordance with the rules and
      in like manner as if the cause were being tried before a jury. If the
      accused is charged with an offense punishable with death, he shall be
      tried by a court to be composed of three judges.

(Emphasis added.) In addition, Crim.R. 11(C)(3) provides:

      If the indictment contains one or more specifications that are not
      dismissed upon acceptance of a plea of guilty or no contest to the
      charge, or if pleas of guilty or no contest to both the charge and one or
      more specifications are accepted, a court composed of three judges
      shall: (a) determine whether the offense was aggravated murder or a
      lesser offense; and (b) if the offense is determined to have been a lesser
      offense, impose sentence accordingly; or (c) if the offense is determined
      to have been aggravated murder, proceed as provided by law to
      determine the presence or absence of the specified aggravating
      circumstances and of mitigating circumstances, and impose sentence
      accordingly.

(Emphasis added.)

              Moreover, the Ohio Supreme Court in State v. Parker, 95 Ohio St.3d

524, 2002-Ohio-2833, 769 N.E.2d 846, ¶ 11, articulated that when a defendant

pleads guilty to an offense with a death penalty specification, a defendant is still

charged with an offense punishable with death. Thus, pursuant to R.C. 2945.06 and

Crim.R. 11(C)(3), a defendant must have his or her case heard and decided by a

three-judge panel even if the state agrees that it will not seek the death penalty. Id.

              In the instant matter, because the state dismissed the death penalty

specification prior to Spann entering his plea, R.C. 2945.06 was inapplicable and the

single judge had jurisdiction to take Spann’s plea. See State v. Jones, 6th Dist.

Williams No. WM-02-012, 2003-Ohio-1037.

              Indeed, the Ohio Supreme Court has previously rejected the exact

arguments that Spann now presents in the instant appeal. In State ex rel. Henry v.
McMonagle, 87 Ohio St.3d 543, 721 N.E.2d 1051 (2000), Henry was indicted for

aggravated murder with a death penalty specification. Henry pled guilty to an

amended indictment that did not include the death penalty specification. The court

found that R.C. 2945.06 was only applicable when a defendant is charged with an

offense punishable by death. Id. at 544-545. As such, when Henry’s indictment was

amended to dismiss any death penalty specification, Henry was no longer charged

with an offense punishable by death, and therefore, R.C. 2945.06 no longer had any

application. Id.

              Spann also appears to argue that even if the prosecutor did in fact

dismiss the death penalty specification, the prosecutor failed to amend the

indictment in the appropriate manner. Spann argues that the prosecutor was

required to file the amended indictment dismissing the death penalty specification

with the clerk of courts. To this end, Spann argues that the Ohio Supreme Court, in

Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846, set a standard

requiring this specific procedure.

              Spann’s reliance on Parker in this regard is inaccurate. Parker simply

does not stand for the proposition that a prosecutor is required to file the amended

indictment with the clerk of courts after dismissing a death penalty specification and

prior to a single judge accepting a defendant’s guilty plea.

              In the instant matter, when Spann entered his guilty plea, he was no

longer pleading to an offense punishable by death. As a result, R.C. 2945.06 was not

applicable, and the single judge had jurisdiction to accept Spann’s guilty plea.
Accordingly, the trial court did not abuse its discretion in denying Spann’s motion

to withdraw his guilty plea, and Spann’s sole assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

SEAN C. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR
