[Cite as State v. Hagerman, 2019-Ohio-5170.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 4-19-12

        v.

CARL M. HAGERMAN,                                        OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 4-19-13

        v.

CARL M. HAGERMAN,                                        OPINION

        DEFENDANT-APPELLANT.


               Appeals from Defiance County Common Pleas Court
                 Trial Court Nos. 18-CR-13026 and 18-CR-13111

                                    Judgments Affirmed

                         Date of Decision: December 16, 2019


APPEARANCES:

        Timothy C. Holtsberry for Appellant

        Russell R. Herman for Appellee
Case Nos. 4-19-12, 4-19-13


SHAW, J.

       {¶1} Defendant-appellant, Carl Hagerman (“Hagerman”), brings these

appeals from the July 8, 2019, judgments of the Defiance County Common Pleas

Court denying Hagerman’s post-sentence motions to withdraw his guilty pleas in

trial court case numbers 18CR13026 and 18CR13111. On appeal, Hagerman argues

that the trial court erred in denying his motions to withdraw his guilty pleas because

he claims there was a violation of his statutory speedy trial rights.

                                     Background

       {¶2} On January 26, 2018, Hagerman was indicted in trial court case

18CR13026       for    Trafficking     in     Cocaine    in    violation   of    R.C.

2925.03(A)(1)/(C)(4)(c), a felony of the fourth degree, and Trafficking in Cocaine

in violation of R.C. 2925.03(A)(1)/(C)(4)(d), a felony of the third degree. The first

count alleged that Hagerman sold 6.11 grams of cocaine to a confidential informant

(“CI”) on Nov 30, 2017, and the second count alleged that Hagerman then sold

11.32 grams of cocaine to a CI on December 7, 2017. After an attorney was

appointed for him, Hagerman proceeded to arraignment wherein he pled not guilty

to the charges. At that time, he was released on his own recognizance. A pretrial

hearing was scheduled for March 15, 2018.

       {¶3} Hagerman failed to appear for the March 15, 2018, pretrial hearing and

a bench warrant was issued for his arrest. Hagerman was then indicted in trial court


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Case Nos. 4-19-12, 4-19-13


case 18CR13111 for Failure to Appear in violation of R.C. 2937.99(A), a felony of

the fourth degree.

        {¶4} After Hagerman was located, on June 11, 2018, Hagerman made an

initial appearance on the newly filed 18CR13111 case. The same attorney that

represented Hagerman in trial court case 18CR13026 was appointed to represent

him. Hagerman pled not guilty to the Failure to Appear charge. The court set bond

and another pretrial hearing was scheduled on both cases.1

        {¶5} On July 2, 2018, a pretrial hearing was held wherein Hagerman

requested on the record to have a new attorney appointed for him. He stated that he

was unsatisfied with his attorney for not being able to secure electronic home

monitoring and for failing to get the State to change its plea offer. The trial court

then attempted to appoint an attorney who was next on the court’s appointment list,

but Hagerman rejected the attorney, stating that the proposed attorney was not a

good lawyer and that the proposed attorney had failed to catch a statutory speedy

trial issue in one of Hagerman’s prior cases. The trial court then went to the next

person on the list and appointed Hagerman a new attorney.

        {¶6} After being appointed, Hagerman’s new attorney filed inter alia, a

discovery demand; however, upon receiving discovery, the attorney filed a motion



1
  On June 28, 2018, the State filed a “Notice to the Court and Motion for Imposition of PRC time” arguing
that Hagerman was on post-release control at the time of the commission of the offenses in these matters.
The State requested that maximum prison terms be imposed under R.C. 2929.141.

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Case Nos. 4-19-12, 4-19-13


to withdraw as counsel because she realized she represented the CI. The trial court

granted the motion to withdraw and appointed another new attorney.

       {¶7} On September 5, 2018, a hearing was held on both indictments. At the

hearing, the parties advised the trial court that a plea agreement had been reached.

Pursuant to the agreement, Hagerman would plead guilty to all three counts against

him in both pending indictments. In exchange, the State agreed to a joint sentencing

recommendation of an aggregate forty-eight month prison term. In addition, the

State agreed not to oppose an “OR” bond while a presentence investigation was

prepared for sentencing.

       {¶8} A Criminal Rule 11 dialogue was conducted, and the trial court

determined that Hagerman was entering knowing, intelligent, and voluntary pleas.

Hagerman expressly stated that he was satisfied with his attorney, and that no

promises had been made to him other than those that were recited on the record. A

factual basis for the charges was read into the record, Hagerman admitted that the

facts were true when asked by the trial court, and the trial court then found him

guilty. The trial court set sentencing for a later date and ordered a presentence

investigation, though the trial court cautioned Hagerman that he had a history of

failing to appear for hearings and that if he did not attend his sentencing hearing, he

could face a harsher sentence and/or additional charges. Hagerman stated that he




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Case Nos. 4-19-12, 4-19-13


understood. Sentencing was set for October 30, 2018, and Hagerman was released

on his own recognizance.

      {¶9} On October 30, 2018, the matter proceeded to sentencing but Hagerman

did not appear. A bench warrant was issued for his arrest. Although unrelated to

the appeals before us, Hagerman was indicted in trial court case 18CR13372 for two

counts of Failure to Appear, both fourth degree felonies.

      {¶10} On January 23, 2019, Hagerman’s then-current attorney filed a motion

to withdraw as counsel indicating that Hagerman failed to appear for the sentencing

hearing and the attorney had been unable to contact Hagerman despite numerous

attempts. The motion to withdraw was granted.

      {¶11} The record indicates that Hagerman was located and served with the

outstanding arrest warrant on February 6, 2019.

      {¶12} On February 11, 2019, a hearing was held wherein Hagerman was

informed of the charges against him in the newly filed trial court case 18CR13372.

An attorney was appointed for Hagerman and the matter was continued for

arraignment until Hagerman could speak with his appointed counsel. Prior to the

conclusion of the February 11, 2019, hearing, Hagerman stated that he had not

shown up previously to the sentencing hearing because his attorney had lied to him

and because Hagerman found out that his “rights were violated.” Hagerman claimed

that he was “Way over [his] ninety day mark” for statutory speedy trial purposes.


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Case Nos. 4-19-12, 4-19-13


Hagerman asked if there was any way he could withdraw his pleas, and the trial

court told Hagerman to talk to his newly appointed attorney about doing that and it

would then be addressed.

       {¶13} On February 21, 2019, another hearing was held, which began with

Hagerman’s arraignment on the newest case against him, 18CR13372. Regarding

that case, Hagerman pled not guilty and a pretrial hearing was set for a later date.

       {¶14} The trial court then asked if there was any reason not to proceed to

sentencing in the other cases, and defense counsel formally requested that

Hagerman be allowed to withdraw his guilty pleas. Hagerman’s attorney stated that

Hagerman was under the impression that his attorney would attempt to renegotiate

the State’s sentencing recommendation prior to sentencing but the attorney did not.

Hagerman’s attorney also argued that Hagerman felt there was a “time issue that his

lawyer didn’t look into.”

       {¶15} After Hagerman’s attorney made the request, the trial court stated that

it had conducted a full and complete Criminal Rule 11 inquiry, which included

asking whether any promises were made other than what had been stated on the

record. The trial court emphasized that Hagerman expressly denied that there was

any inducement other than what had been stated on the record. Having denied

Hagerman’s motion, the trial court proceeded to sentencing.




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Case Nos. 4-19-12, 4-19-13


         {¶16} Despite Hagerman’s failure to appear at sentencing, and the

subsequent charges that had been filed, the State maintained its sentencing

recommendation. Hagerman made a statement on his own behalf indicating that he

now had a second degree felony pending in the Tipp City area. The trial court

recited Hagerman’s lengthy criminal history and stated that the forty-eight months

was a low recommendation given that Hagerman was facing a potential ninety-nine

months when factoring in PRC time. Nevertheless, the trial court indicated it would

give Hagerman the “benefit of [his] negotiated resolution.” (Tr. at 12). The trial

court then imposed the forty-eight month prison term the parties had previously

recommended.2

         {¶17} Judgment entries memorializing Hagerman’s convictions and

sentence were filed February 26, 2019. Importantly, Hagerman did not file direct

appeals from the trial court’s judgments.

         {¶18} On April 3, 2019, Hagerman, proceeding pro se, filed motions to

withdraw his guilty pleas in trial court cases 18CR13026 and 18CR13111.

Hagerman argued that he received inadequate representation because his attorney

did not have the purity of the cocaine tested, because his attorney did not investigate




2
  That sentence consisted of twelve months in prison on the fourth degree felony Trafficking charge, twenty-
four months in prison on the third degree felony trafficking charge, and twelve months in prison on the Failure
to Appear charge, all to be served consecutive to each other, for an aggregate forty-eight months in prison.

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Case Nos. 4-19-12, 4-19-13


“lies” that the CI made to law enforcement, and because his attorney did not press

his statutory speedy trial rights.

        {¶19} On July 8, 2019, the trial court held a hearing wherein it first dealt with

Hagerman’s post-sentence motions to withdraw his guilty pleas. The trial court

indicated that it had reviewed the motions and determined that no “manifest

injustice” existed in this matter, so the motions to withdraw were denied.3

        {¶20} On July 9, 2019, the trial court filed judgment entries memorializing

the denials of Hagerman’s post-sentence motions to withdraw his pleas. Hagerman

filed appeals from the trial court’s entries denying his post-sentence motions to

withdraw his guilty pleas, asserting the following assignments of error for our

review.

                            Assignment of Error No. 1
        Trial Court violated the constitutional and statutory speedy trial
        rights of the appellant.

                           Assignment of Error No. 2
        The trial court erred in denying appellant’s motion to withdraw
        his guilty plea.

        {¶21} Due to the nature of the discussion, we elect to address the assignments

of error together.




3
 The trial court then proceeded to a hearing on multiple other cases against Hagerman, which were disposed
of, specifically 18CR13372, and 19CR13500. Those cases are not subject to this appeal and we will not
further address them.

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Case Nos. 4-19-12, 4-19-13




                      First and Second Assignments of Error

       {¶22} In Hagerman’s assignments of error, he argues that the trial court erred

by denying his post-sentence motions to withdraw his guilty pleas. Specifically he

contends that his statutory speedy trial rights were violated.

                                Standard of Review

       {¶23} Criminal Rule 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.” A defendant seeking to withdraw a guilty

plea after sentencing has the burden of establishing a manifest injustice. State v.

Smith, 49 OhioSt.2d 261 (1977) at paragraph 1 of the syllabus. A trial court’s

decision on a post-sentence motion to withdraw a guilty plea is reviewed under an

abuse of discretion standard. Id. at paragraph 2 of the syllabus. An abuse of

discretion is a decision that is unreasonable, arbitrary, or capricious. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

                                      Analysis

       {¶24} At the outset of our analysis, we emphasize that Hagerman did not file

timely direct appeals from his convictions and sentence. Rather, after his time for

filing a direct appeal had passed, he filed post-sentence motions to withdraw his

guilty pleas. All of Hagerman’s claims in these appeals, and those he made in his


                                         -9-
Case Nos. 4-19-12, 4-19-13


motions to withdraw his guilty pleas, could have been raised in timely direct appeals

but they were not, therefore they are barred by the doctrine of res judicata. State v.

Grimes, 2d Dist. Montgomery No. 26636, 2017-Ohio-25, ¶ 11, citing State v.

Owens, 4th Dist. Scioto No. 14CA3641, 2015–Ohio–1509, ¶ 15, citing State v.

Lofton, 4th Dist. Pickaway No. 12CA21, 2013–Ohio–1121, ¶ 8 (“We further point

out that the ineffective assistance from trial counsel issue and the speedy trial rights

issue are matters that could have been raised in a first appeal of right. However, they

were not raised and appellant is barred from raising them here by the doctrine

of res judicata.”); State v. Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831, ¶ 59

(“Ohio courts of appeals have applied res judicata to bar the assertion of claims in a

motion to withdraw a guilty plea that were or could have been raised at trial or on

appeal.”).

       {¶25} Notwithstanding the application of res judicata to Hagerman’s

arguments, Hagerman waived his right to contest his convictions on statutory

speedy trial grounds when he entered guilty pleas in this matter. Montpelier v.

Greeno, 25 Ohio St.3d 170, 171 (1986) (“We are in agreement with the legion view

that generally a guilty plea waives a defendant’s right to raise the statutory right to

a speedy trial on appeal.”); State v. Robertson, 5th Dist. Stark No. 2002CA00156,

2002-Ohio-4272, ¶ 12; State v. Johnson, 10th Dist. Franklin No. 16AP-134, 2016-

Ohio-5904, ¶ 18; see also State v. Spates, 64 Ohio St.3d 269, 1992-Ohio-130 (1992)


                                         -10-
Case Nos. 4-19-12, 4-19-13


(“When a criminal defendant has solemnly admitted in open court that he is in fact

guilty of the offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred

prior to the entry of the guilty plea.”). Thus Hagerman’s guilty pleas waived his

ability to challenge his convictions under statutory speedy trial grounds.

        {¶26} We note that in his brief, Hagerman devotes a significant amount of

space to argument regarding the denial of his presentence motions to withdraw his

guilty pleas; however, these issues are also barred by res judicata as they were not

appealed. Even if they were not barred by res judicata, the record merely reflects a

change of heart on Hagerman’s part. Hagerman’s claim that his attorney promised

to negotiate down the “jointly recommended sentence” that had been presented at

the plea hearing is wildly spurious and directly contrary to statements made by

Hagerman at the plea hearing.

        {¶27} Finally, it is Hagerman’s burden to establish a manifest injustice and

he has not done so based on the briefs and the record here. There were numerous

tolling events and numerous cases pending against Hagerman for which he was

being held, including a post-release control holder at one point.4




4
 Hagerman also argues summarily that the cocaine’s purity had not been tested and if it had he could not
have been convicted of the level of offenses that he was. Even ignoring that this could have been raised on
direct appeals, the purity argument was flatly rejected in State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-
777.

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Case Nos. 4-19-12, 4-19-13


       {¶28} In sum, there are numerous reasons why Hagerman has failed to

demonstrate a manifest injustice in these matters. Therefore, his first and second

assignments of error are overruled.

                                      Conclusion

       {¶29} For the foregoing reasons, Hagerman’s assignments of error are

overruled and the judgments of the Defiance County Common Pleas Court are

affirmed.

                                                             Judgments Affirmed

ZIMMERMAN, P.J. and PRESTON, J., concur.

/jlr




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