[Cite as State v. Williams, 2016-Ohio-2629.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103144




                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                   ADRIAN WILLIAMS
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-576076-A

        BEFORE: S. Gallagher, J., Stewart, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: April 21, 2016
ATTORNEYS FOR APPELLANT

Michael J. Cheselka, Jr.
Sarah R. Cofta
Michael J. Cheselka, Jr., L.L.C.
75 Public Square
Suite 920
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary McGrath
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Adrian Williams appeals the trial court’s decision denying his postsentence

motion to withdraw a guilty plea. For the following reasons, we affirm.

       {¶2} Williams pleaded guilty to gross sexual imposition, a felony of the third

degree, and attempted kidnapping with a sexual motivation specification, a felony of the

second degree. The state agreed to a five-year aggregate sentence, as a product of the

plea negotiations, and conceded that the offenses were allied offenses of similar import.

The trial court acknowledged the plea agreement at the colloquy, but did not forewarn

Williams of the possibility of a longer prison term.        At sentencing, after Williams

claimed innocence, the trial court sentenced him to an aggregate eight-year term of

imprisonment because of his criminal history. Williams timely appealed his sentence in

8th Dist. Cuyahoga No. 101217; however, he successfully obtained dismissal of the

appeal pursuant to App.R. 28 after obtaining two extensions of time to file a merit brief.

       {¶3} Immediately after the dismissal entry, Williams filed a motion to withdraw

his plea with the trial court. The trial court did not rule upon that motion. Eight months

thereafter, Williams filed a renewed motion to withdraw his guilty plea. Both motions

were denied and are the subject of the current, timely appeal. We find no grounds to

reverse the trial court’s decision. The doctrine of res judicata precluded Williams from

seeking to withdraw his guilty plea.
      {¶4} 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.” The defendant has the burden of proof, and the postsentence withdrawal

of a guilty plea is only available in extraordinary cases to correct a manifest injustice.

State v. Dent, 8th Dist. Cuyahoga No. 100605, 2014-Ohio-3141, ¶ 3-4; State v. Smith, 49

Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977); State v. Sneed, 8th Dist. Cuyahoga No.

80902, 2002-Ohio-6502.      We review the trial court’s decision under an abuse of

discretion standard. Smith at 264; State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715

(1992).

      {¶5} However, the doctrine of res judicata precludes a defendant from raising

claims in a postsentence motion to withdraw a guilty plea that could have been raised on

direct appeal. Dent at ¶ 4; State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935

N.E.2d 9, ¶ 59; State v. Conner, 8th Dist. Cuyahoga No. 98084, 2012-Ohio-3579, ¶ 7.

This concept extends to situations involving defendants who failed to file the direct

appeal. Dent; State v. Aquino, 8th Dist. Cuyahoga No. 99971, 2014-Ohio-118, ¶ 12;

State v. Walters, 4th Dist. Scioto No. 12CA3482, 2013-Ohio-695, ¶ 14; State v.

Maggianetti, 7th Dist. Mahoning No. 10-MA-169, 2011-Ohio-6370, ¶ 15; State v. Wilson,

9th Dist. Summit No. 26511, 2013-Ohio-1529, ¶ 7; State v. Britford, 10th Dist. Franklin

No. 11AP-646, 2012-Ohio-1966, ¶ 13.

      {¶6} In Dent, the defendant appealed the trial court’s denial of a postsentence

motion to withdraw a plea, advancing an argument that the trial court sentenced him to a
prison term that was greater than the plea agreement set forth. Id. at ¶ 2. The defendant

had not filed a direct appeal of his conviction. Id. A panel from this court affirmed the

denial of the postsentence motion to withdraw the guilty plea, holding that because the

defendant’s claims were immediately apparent upon the pronouncement of his sentence

and could have been raised on a direct appeal, he was precluded from seeking to

withdraw the plea in the trial court. Id. at ¶ 5; see also State v. Jones, 8th Dist. Cuyahoga

No. 93478, 2010-Ohio-1985, ¶ 7.

       {¶7} The same result must follow in this case. Williams directly appealed his

conviction and could have included an assignment of error claiming the trial court erred

by imposing a prison term greater than the plea agreement provided, without first

notifying him of that possibility before accepting the guilty plea. See, e.g., State v.

Asberry, 173 Ohio App.3d 443, 449, 2007-Ohio-5436, 878 N.E.2d 1082 (8th Dist.) (the

failure to forewarn the defendant of the trial court’s obligation to independently consider

the appropriate prison term could be reversible error). Such an error, if indeed it was

reversible error in this case, was immediately apparent upon the trial court’s

pronouncement of Williams’s sentence.          Instead of prosecuting his direct appeal,

Williams successfully sought to have it dismissed. The doctrine of res judicata then

precludes him from advancing any arguments that could have been raised in that direct

appeal.

       {¶8} Against the doctrine of res judicata, Williams argues that the trial court

possessed jurisdiction to consider his motion because no panel from this district affirmed
his conviction, referring to the principle espoused in State ex rel. Special Prosecutors v.

Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978), and its

progeny. In Special Prosecutors, the Ohio Supreme Court held that once a conviction is

affirmed by an appellate court, the trial court lacks jurisdiction to consider a postsentence

motion to withdraw a plea. Id. Williams is confusing a trial court’s lack of jurisdiction

with its consideration of the affirmative defense of res judicata. Nothing from the record

supports Williams’s claim that the trial court denied his motion for lack of jurisdiction.

In fact, the state’s sole argument in the brief in opposition was entirely based on the

doctrine of res judicata.

       {¶9} In order to determine whether the doctrine of res judicata applies, a trial court

must have jurisdiction to consider the merits of the underlying motion. Res judicata is

not a jurisdictional concept. The doctrine is an affirmative defense to the merits of a

defendant’s motion that the state must timely raise. State v. Delgado, 8th Dist. Cuyahoga

No. 102653, 2015-Ohio-5256, ¶ 15 (res judicata is an affirmative defense), citing State v.

Walls, 8th Dist. Cuyahoga No. 79196, 2001 Ohio App. LEXIS 5188, *7 (Nov. 21, 2001),

and State v. Skoglund, 8th Dist. Cuyahoga No. 46988, 1983 Ohio App. LEXIS 15958, *4

(Nov. 3, 1983). For this reason, Williams’s attempt to distinguish his situation from that

presented in Dent, 8th Dist. Cuyahoga No. 100605, 2014-Ohio-3141, is misplaced.

       {¶10} We affirm the trial court’s denial of Williams’s postsentence motion to

withdraw his guilty plea.
       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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR
