[Cite as State v. Davis, 2017-Ohio-8740.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105920



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                       REIVENE DAVIS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-566859-A

        BEFORE:           McCormack, P.J., Stewart, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: November 30, 2017
FOR APPELLANT

Reivene Davis, pro se
Inmate No. 662130
Lake Erie Correctional Institution
501 Thompson Road
Conneaut, OH 44030


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Anthony Thomas Miranda
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:

       {¶1} Defendant-appellant Reivene Davis appeals from the trial court’s judgment

denying Davis’s motion to withdraw his guilty plea. For the reasons that follow, we

affirm the trial court.

       {¶2} In September 2006, Davis pleaded guilty to, and was convicted of, sexual

battery in Cuyahoga C.P. No. CR-05-468386, and the court determined he was a sexually

oriented offender under R.C. Chapter 2950.         As a result, Davis was required to register

with the Cuyahoga County Sheriff and provide notification of any change of address,

pursuant to R.C. 2950.04 and 2950.05.

       {¶3} In October 2012, in Cuyahoga C.P. No. CR-12-566859, Davis was indicted

for failure to provide a notice of change of address in violation of R.C. 2950.05(F)(1).

The indictment contained a furthermore clause that Davis had previously been convicted

of failure to notify of a change of address in Cuyahoga C.P. No. CR-10-535273. The

state amended the indictment to delete the furthermore clause, and Davis pleaded guilty to

the amended charge, a third-degree felony.       In May 2013, the trial court sentenced Davis

to three years community control sanctions on the amended charge.               Then in October

2014, the trial court found Davis to be in violation of community control sanctions and

sentenced Davis to three years in prison.1


           The record in CR-12-566859 indicates a capias was issued for Davis on two occasions.
       1


The first capias issued prior to his sentencing hearing, on November 28, 2012. Davis was in custody
on April 18, 2013, and he was sentenced shortly thereafter, where he received community control.
The second capias was issued on May 7, 2014, and Davis was returned to custody one day later.
       {¶4} In June 2016, Davis filed a motion to withdraw his guilty plea, or in the

alternative, a motion for judicial release, in CR-12-566859, claiming his guilty plea

entered in October 2012 was not made “willingly, intelligently, or voluntarily.” He

stated that he “thought he was pleading to an amended indictment of a fourth degree

felony,” and the journal entry does not include the language referring to the deletion of

the furthermore clause.   The trial court denied Davis’s motion.

       {¶5} In May 2017, Davis filed a second motion to withdraw his guilty plea.

This time, Davis argued that a manifest injustice occurred because his conviction for

failure to provide notice of change of address in CR-12-566859 “was premised on an

invalid postrelease control [in CR-05-468386] that did not comply with the statutory

mandates regarding the imposition of postrelease control.”     The trial court denied the

motion.    Davis now appeals from this denial, claiming the trial court abused its

discretion when it denied his motion to withdraw his guilty plea because he was not

properly placed on postrelease control in CR-05-468386.

       {¶6} We find that Davis’s argument is 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.

State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997), citing 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. The

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

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

32.1 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. Id., citing State v. Brown,

8th Dist. Cuyahoga No. 84322, 2004-Ohio-6421.

       {¶7} Here, Davis filed a motion to withdraw his guilty plea in June 2016,

alleging that his guilty plea was not made “willingly, intelligently, or voluntarily” because

he thought he was pleading to an amended indictment of a fourth-degree felony and

because the journal entry did not include the language referring to the deletion of the

furthermore clause. The trial court denied this motion. Davis did not raise, in this first

motion to withdraw, any arguments concerning the postrelease control imposed in the

prior case and how it allegedly affected his plea in this case.   Nor did he appeal the trial

court’s denial of the first motion to withdraw. His claim raised in his May 2017 motion

to withdraw is therefore barred by res judicata.
       {¶8} Even if Davis’s claim was not barred by res judicata, Davis fails to

demonstrate a manifest injustice required by Crim.R. 32.1.

       {¶9} Under 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 seeks 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.

       {¶10} “Manifest injustice relates to some fundamental flaw in the proceedings

which result[s] in a miscarriage of justice or is inconsistent with the demands of due

process.” State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 5.

Manifest injustice has been defined as a “clear or openly unjust act.” State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998).               Under the

manifest injustice standard, a postsentence motion to withdraw a plea is permitted “only

in extraordinary cases.”     State v. Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 61

(8th Dist.), citing Smith at 264.

       {¶11} The determination of whether the defendant has met his or her burden of

establishing “a manifest injustice” is within the sound discretion of the trial court. State

v. Vinson, 8th Dist. Cuyahoga No. 103329, 2016-Ohio-7604, ¶ 42, citing Smith at

paragraph two of the syllabus.      We therefore will not reverse a trial court’s decision to

deny a defendant’s postsentence motion to withdraw a guilty plea absent an abuse of the
court’s discretion.   Id. An abuse of discretion occurs where the trial court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶12} Here, Davis contends that a manifest injustice occurred in this case because

the trial court did not properly impose postrelease control in CR-05-468386, the original

conviction for sexual battery that precipitated the duty to provide notice of a change of

address.   He contends that the trial court in the underlying sexual battery case failed to

include the consequences of violating postrelease control in its journal entry and

postrelease control in that case is therefore void.   Davis argues that because postrelease

control in the prior case is void, it “cannot be used to substantiate a charge of notice of

change of address” in this case. We find no merit to Davis’s argument.

       {¶13} In CR-05-468386, the court determined that Davis, after having been

convicted of a sexually oriented offense, was a sexually oriented offender under R.C.

Chapter 2950.     Davis was therefore required to register with the Cuyahoga County

Sheriff and provide notification of any change of address, pursuant to R.C. 2950.04 and

2950.05. When Davis failed to provide the sheriff his new address, he was separately

charged in the current case with a new offense, pursuant to R.C. 2950.05(F)(1). This

duty to register his address resulted from his conviction of a sexually oriented offense,

and his new charge is based solely on his failure to provide notification of a change in

address and is wholly unrelated to any postrelease control imposed on the original

conviction.
       {¶14} In light of the foregoing, Davis has failed to demonstrate a manifest

injustice.   We therefore do not find the trial court abused its discretion in denying

Davis’s second postsentence motion to withdraw his guilty plea.

       {¶15} Davis’s sole assignment of error is overruled.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover of 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. 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.



__________________________________________
TIM McCORMACK, PRESIDING JUDGE

MELODY J. STEWART, J., and
PATRICIA ANN BLACKMON, J., CONCUR
