[Cite as State v. Bene, 2020-Ohio-1560.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


 STATE OF OHIO,                                     :       OPINION

                   Plaintiff-Appellee,              :
                                                            CASE NOS. 2019-L-070
         - vs -                                     :                 2019-L-071
                                                                      2019-L-072
 JOSEPH P. BENE,                                    :

                   Defendant-Appellant.             :


 Criminal Appeals from the Lake County Court of Common Pleas, Case No. 2016 CR
 001197, 2016 CR 001198 and 2017 CR 000168.

 Judgment: Affirmed.


 Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
 Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
 Painesville, Ohio 44077 (For Plaintiff-Appellee).

 Joseph P. Bene, pro se, A694-687, Mansfield Correctional Institution, 1150 North Main
 Street, P.O. Box 788, Mansfield, Ohio 44901 (Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}      Appellant, Joseph P. Bene, appeals the denial of his motion to withdraw his

guilty pleas. We affirm.

        {¶2}      In February 2017, appellant was charged with five felonies and one

misdemeanor in three separate cases. He ultimately reached a global resolution.

        {¶3}      In return for dismissal of two charges and a jointly recommended aggregate

sentence of 60 months, appellant pleaded guilty to: (1) burglary, a third-degree felony
under R.C. 2911.12(A)(3); (2) attempted abduction, a fourth-degree felony under R.C.

2923.02(A) and 2905.02(A)(1); (3) theft, a fifth-degree felony under R.C. 2913.02(A)(2);

and (4) inducing panic, a fourth-degree felony under R.C. 2917.31(A)(2).

       {¶4}   The trial court accepted appellant’s guilty pleas and found him guilty of the

four charges. At sentencing, the court was informed of the jointly recommended sentence

but did not follow it. Instead, the court imposed prison terms of 36 months for burglary,

18 months for attempted abduction, 12 months for theft, and 18 months for inducing panic,

for an aggregate term of 84 months. Appellant did not appeal.

       {¶5}   However, he filed identical petitions for postconviction relief in all three

cases arguing that his 84-month sentence constitutes cruel and unusual punishment. The

trial court denied the petitions for multiple reasons, including res judicata since appellant’s

challenge could have been raised on direct appeal. Appellant did not appeal.

       {¶6}   Two years later, appellant filed identical motions to withdraw his guilty pleas

in all three cases arguing ineffective assistance of trial counsel. Appellant claimed

counsel was ineffective because he assured appellant that the aggregate sentence would

not exceed five years and failed to adequately investigate possible defenses.

       {¶7}   The trial court issued identical judgments in all three cases, denying the

motions to withdraw.

       {¶8}   Appellant appeals the denial of his motions to withdraw in all three cases

asserting two assignments of error:

       {¶9}   “[1.] The trial court abused its discretion when it denied Bene’s motion to

withdraw his guilty plea.

       {¶10} “[2.] Bene received ineffective assistance of counsel during Bene’s plea




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bargain phase that included being coerced with legal misadvisement [sic] to induce

Bene’s guilty plea, making his plea not knowingly, voluntarily, and intelligently given.”

       {¶11} Res judicata precludes appellant’s ineffective assistance claim based on

counsel’s alleged assurance that the aggregate sentence would not exceed five years.

       {¶12} “[U]under the doctrine of res judicata, ‘“[a] valid, final judgment rendered

upon the merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject matter of the previous action.” Grava v.

Parkman Twp. (1995), 73 Ohio St.3d 379, 1995-Ohio-331, 653 N.E.2d 226, syllabus. Res

judicata promotes the principle of finality of judgments by requiring plaintiffs to present

every possible ground for relief in the first action.         Natl. Amusements, Inc. v.

Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178.’ Kirkhart v. Keiper, 101 Ohio

St.3d 377, 378, 805 N.E.2d 1089, 2004-Ohio-1496. Moreover, res judicata prevents

repeated attacks on a final judgment and applies to issues that were or might have been

previously litigated. State v. Brown, Cuyahoga App. No. 84322, 2004-Ohio-6421.” State

v. Sneed, 8th Dist. Cuyahoga No. 84964, 2005-Ohio-1865, ¶ 16.

       {¶13} “‘Res judicata does not, however, apply only to direct appeals, but to all

postconviction proceedings in which an issue was or could have been raised.’ See State

v. Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 42 (8th Dist.); State v. Ketterer, 126

Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 (res judicata bars the assertion of

claims in a motion to withdraw a guilty plea that were, or could have been, raised in a

prior proceeding).” State v. Heid, 4th Dist. Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 18.

       {¶14} “Res judicata [bars] piecemeal claims in successive postconviction relief

petitions or motions to withdraw guilty plea[s] that could have been raised, but were not,




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in the first postconviction relief petition or motion to withdraw a guilty plea.’” State v. Kent,

4th Dist. Jackson No. 02CA21, 2003-Ohio-6156, ¶ 6.

       {¶15} Any alleged assurance that his sentence would not exceed five years would

have been known to appellant when he was sentenced to seven years. Accordingly, this

ineffective assistance claim could have been advanced in his postconviction relief motion

but was not. It is therefore barred by res judicata.

       {¶16} Appellant’s ineffective assistance claim based on his attorney’s failure to

investigate likewise fails. A post sentencing motion to withdraw a guilty plea may be

granted to correct a manifest injustice. Crim.R. 32.1. Appellant’s allegations, however,

do not allege that any failure to investigate resulted in manifest injustice.

       {¶17} “‘Ineffective assistance of counsel is a proper basis for seeking post-

sentence withdrawal of a guilty plea.’ * * * ‘In order to prevail on an ineffective assistance

of counsel claim, a petitioner must satisfy the two-prong test set forth in Strickland v.

Washington (1984), 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674.’ * * * ‘Thus,

appellant must show that counsel's performance was deficient and “must also show

prejudice resulting from the deficient performance.”’ * * *

       {¶18} “Further, ‘[w]e need not address the two prongs of appellant's ineffective

assistance of claim in the order set forth in Strickland.’ * * * ‘[A] court need not determine

whether counsel's performance was deficient before examining the prejudice suffered by

the defendant as a result of the alleged deficiencies. The object of an ineffectiveness

claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.’ * * *.” State v. Ober, 11th Dist. Portage Nos. 2018-P-0034,




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2018-P-0035, 2019-Ohio-843. ¶ 20-21.

      {¶19} Here, even assuming his counsel was deficient, appellant fails to identify

favorable evidence or law that would have been discovered with proper investigation.

Thus, appellant fails to allege anything amounting to manifest injustice.

      {¶20} The assignments of error are without merit, and the trial court’s judgment is

affirmed.



CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.




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