[Cite as State v. Green, 2017-Ohio-2800.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :
                                                        CASE NO. CA2016-09-187
        Plaintiff-Appellee,                       :
                                                               OPINION
                                                  :             5/15/2017
    - vs -
                                                  :

DANNY M. GREEN,                                   :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-02-0196



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Danny M. Green, #A687591, Chillicothe Correctional Institution, 15802 State Route 104,
Chillicothe, Ohio 45601, defendant-appellant, pro se



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Danny M. Green, appeals a decision of the Butler County

Court of Common Pleas denying his motion to withdraw his guilty plea.

        {¶ 2} Appellant was indicted in March 2013 on five counts of rape, one count of gross

sexual imposition, and one count of attempted sexual battery. On April 24, 2013, appellant

entered a guilty plea to two amended charges of rape. During a Crim.R. 11 colloquy, the trial
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court misinformed appellant that he was eligible for community control after commencement

of his mandatory prison term and for earned credit against his prison term. Following the

Crim.R. 11 colloquy, the trial court accepted appellant's guilty plea, and on July 22, 2013,

sentenced him to an aggregate nine-year prison term. Appellant did not directly appeal his

conviction.

       {¶ 3} Nearly a year after he was sentenced, appellant moved to withdraw his guilty

plea pursuant to Crim.R. 32.1. Appellant argued his plea was invalid because (1) the rape

offenses he pled guilty to were not the same offenses charged in the indictment, (2) he was

never advised of the nature of the amended charges, (3) the indictment did not support the

elements of the amended charges to which he pled guilty, and (4) he entered the plea only

after receiving ineffective assistance of counsel. The trial court denied appellant's motion

and appellant appealed.

       {¶ 4} We affirmed the trial court's decision, stating, "[As] the record demonstrates

that he knowingly, voluntarily, and intelligently entered a guilty plea to amended counts one

and six of the indictment, we find no error in the trial court's denial of appellant's motion to

withdraw his guilty plea." State v. Green, 12th Dist. Butler No. CA2014-12-247, 2015-Ohio-

2576, ¶ 27.

       {¶ 5} In 2016, appellant once again moved to withdraw his guilty plea pursuant to

Crim.R. 32.1. Appellant argued his plea was void because the trial court failed to comply with

Crim.R. 11(C) during the plea hearing when it misinformed appellant regarding his eligibility

for community control and earned credit against his prison term. On September 1, 2016, the

trial court denied appellant's motion to withdraw his plea on the basis of the law-of-the-case

doctrine. Specifically, the trial court found that in light of this court's prior finding that

appellant knowingly, voluntarily, and intelligently entered his guilty plea and our upholding of

the trial court's denial of appellant's first motion to withdraw his plea, the trial court lacked
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jurisdiction to address appellant's second motion to withdraw his guilty plea.

       {¶ 6} Appellant now appeals, raising one assignment of error:

       {¶ 7} THE TRIAL COURT ERRED WHEN IT FAILED TO ADDRESS THE

VOIDNESS ARGUMENT AND DENIED APPELLANT'S MOTION TO WITHDRAW [HIS]

GUILTY PLEA.

       {¶ 8} Appellant argues that his guilty plea, and therefore his conviction and sentence,

are void because the trial court failed to comply with Crim.R. 11(C)(2)(a) during its plea

colloquy when it misinformed appellant he could be eligible for earned credit and could

receive community control, when, in fact, he was subject to a mandatory prison term.

Appellant asserts that because his guilty plea is void, the doctrine of res judicata is not

applicable. Appellant further asserts that because he did not directly appeal his conviction

and his motions to withdraw his plea raised different issues regarding the validity of his guilty

plea, the law-of-the-case doctrine is not applicable.

       {¶ 9} Crim.R. 11(C)(2)(a) provides that in felony cases

              The trial court shall not accept a plea of guilty * * * without first
              addressing the defendant personally and * * * [d]etermining that
              the defendant is making the plea voluntarily, with understanding
              of the nature of the charges and of the maximum penalty
              involved, and if applicable, that the defendant is not eligible for
              probation or for the imposition of community control sanctions at
              the sentencing hearing.

Crim.R. 11(C)(2)(a) thus requires a trial court to ascertain that a defendant understands "the

maximum penalty involved" when he enters a guilty plea. State v. Hendrix, 12th Dist. Butler

No. CA2012-12-265, 2013-Ohio-4978, ¶ 6. In addition, "when a defendant who is subject to

a mandatory prison sentence enters a guilty plea, Crim.R. 11(C)(2)(a) requires the trial court,

before accepting the plea, to determine that the defendant understands that the mandatory

sentence renders him ineligible for community control." Id.

       {¶ 10} Appellant is correct that his conviction for rape carried a mandatory prison
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sentence under R.C. 2929.13(F)(2) and that he was not eligible for community control,

judicial release, or earned credit. See State v. Silvers, 181 Ohio App.3d 26, 2009-Ohio-687

(2d Dist.).   Appellant is also correct that the trial court failed to comply with Crim.R.

11(C)(2)(a) during its plea colloquy when it misinformed appellant he could be eligible for

earned credit and could receive community control. However, contrary to appellant's

assertion, the trial court's failure to comply with Crim.R. 11(C)(2)(a) did not result in his guilty

plea being void.

       {¶ 11} The Ohio Supreme Court has held that a sentence is void when a trial court

fails to impose a statutorily mandated term of postrelease control, fails to include a

mandatory driver's license suspension in the offender's sentence, and fails to include a

mandatory fine in the sentence. State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶

21. In a recent opinion, the supreme court held that "[n]otwithstanding this court's recent

exception for sentencing errors, * * * this court has traditionally held that a judgment is void

ab initio only when a court acts without subject-matter jurisdiction." Dunbar v. State, 136

Ohio St.3d 181, 2013-Ohio-2163, ¶ 15. The supreme court then held that a guilty plea is

voidable, and not void, when a trial court has subject-matter jurisdiction but errs in the

exercise of that jurisdiction. Id. In that case, the appellate court had vacated the defendant's

guilty plea because during the plea hearing, the trial court had failed to advise the defendant

it could deviate from a recommended sentence of community control and impose a prison

term. Id.

       {¶ 12} Because the error resulted from the trial court's failure to comply with the

Crim.R. 11(C)(2)(a) requirements for accepting a plea, rather than as a result of ignoring or

failing to comply with a mandatory sentencing statute, we conclude that appellant's guilty plea

was merely voidable and not void. State v. Floyd, 12th Dist. Warren No. CA2016-09-077,

2017-Ohio-687, ¶ 18; State v. Gannon, 4th Dist. Lawrence No. 15CA16, 2016-Ohio-1007, ¶
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17. Consequently, the doctrine of res judicata applies. See Gannon at ¶ 19.

        {¶ 13} This court has recognized that res judicata bars claims raised in a Crim.R. 32.1

post-sentence motion to withdraw a guilty plea that were raised or could have been raised in

a prior proceeding such as a direct appeal or a prior motion to withdraw a guilty plea. State

v. Jordan, 12th Dist. Warren No. CA2014-04-051, 2015-Ohio-575, ¶ 14; State v. Swinson,

12th Dist. Clermont No. CA2016-05-024, 2017-Ohio-150, ¶ 12. Thus, res judicata will apply

when a defendant raises piecemeal claims in successive Crim.R. 32.1 post-sentence motions

to withdraw a guilty plea that could have been raised on direct appeal or in a previous

Crim.R. 32.1 motion. State v. Colvin, 7th Dist. Mahoning No. 15 MA 0162, 2016-Ohio-5644,

¶ 47; State v. Hughes, 8th Dist. Cuyahoga No. 97311, 2012-Ohio-706, ¶ 9.

        {¶ 14} Appellant did not file a direct appeal of his conviction and sentence. He filed

his first Crim.R. 32.1 motion to withdraw his guilty plea in 2014. The trial court denied the

motion and we affirmed the denial. Appellant then filed another Crim.R. 32.1 motion to

withdraw his plea on the ground the trial court failed to comply with Crim.R. 11(C)(2)(a).

Because the trial court's failure to comply with Crim.R. 11 was apparent from the record,

appellant could have raised the issue on direct appeal, but did not. Therefore, his arguments

are barred by res judicata. Jordan at ¶ 14. Likewise, because appellant could have raised

the issue relating to the trial court's failure to comply with Crim.R. 11(C)(2)(a) in his first

Crim.R. 32.1 motion to withdraw his guilty plea, but did not, his arguments are now barred by

res judicata. State v. Muhumed, 10th Dist. Mahoning No. 11AP-1001, 2012-Ohio-6155, ¶ 15.

Having so found, we decline to address appellant's argument regarding the law-of-the-case

doctrine.1



1. We note that we affirm the trial court's denial of appellant's successive motion to withdraw his plea, but for
different reasons than those set forth in the trial court's September 1, 2016 decision and entry. A reviewing court
passes only upon the correctness of the judgment, not the reasons therefor. State v. Horton, 12th Dist. Clermont
No. CA2000-04-024, 2000 Ohio App. LEXIS 6098, *10, fn. 1 (Dec. 26, 2000), citing Joyce v. General Motors
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        {¶ 15} Appellant's assignment of error is overruled.

        {¶ 16} Judgment affirmed.


        HENDRICKSON, P.J., and RINGLAND, J., concur.




Corp., 49 Ohio St.3d 93 (1990). Thus, an appellate court must affirm a trial court's judgment if upon review any
valid grounds are found to support it. Horton.
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