[Cite as State v. Lofton, 2015-Ohio-4641.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2015-T-0035
        - vs -                                  :

GERALD LOFTON,                                  :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 92 CR
387.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Gerald Lofton, Pro Se, PID# 31627-160, Federal Correctional Institution, Elkton, P.O.
Box 10, Lisbon, OH 44432 (Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Gerald Lofton, appeals the denial of his Motion to

Find Guilty Plea and Judgment Entry “Void” by the Trumbull County Court of Common

Pleas. The issue before this court is whether an offender may void, twenty years after

the fact, a conviction based on the trial court’s failure to advise him of a possible license

suspension during the plea colloquy. For the following reasons, we affirm the decision

of the court below.
      {¶2}   On July 2, 1992, the Trumbull County Grand Jury indicted Lofton for

Aggravated Trafficking, a felony of the third degree in violation of R.C. 2925.03(A)(1),

arising out of the alleged sale of cocaine on or about June 10, 1992.

      {¶3}   On December 9, 1992, Lofton entered a plea of guilty to Attempted

Aggravated Trafficking, a felony of the fourth degree in violation of R.C. 2923.02 and

2925.03(A)(1), carrying a potential penalty of: “1/2, 1, 1 1/2 years [in the appropriate

penal institution] and up to $2,500.00 fine; $1,500.00 mandatory fine.”

      {¶4}   On January 8, 1993, Lofton was sentenced to imprisonment “for the

determinate period of six (6) months” and to “pay the cost of prosecution,” while the

mandatory fine was “waived due to indigency.”

      {¶5}   On December 16, 2014, Lofton filed a Motion to Find Guilty Plea and

Judgment Entry “Void” based on the Trial Court’s Failure to “Notify and Impose” the

Mandatory Driver’s License Suspension upon the Defendant. Lofton contended that the

trial court erred in accepting his guilty plea by failing to advise him of a mandatory

license suspension and erred in imposing sentence by failing to include the mandatory

license suspension.   In light of these errors, Lofton sought “to have his guilty plea

voided and/or have his judgment found void in part.”

      {¶6}   On March 12, 2015, the State of Ohio filed an Answer in Opposition, to

which Lofton filed a Reply on March 23, 2015.

      {¶7}   On March 30, 2015, the trial court issued a Judgment Entry denying

Lofton’s Motion. With respect to the sentence, the court found that, at the time Lofton

committed the offense, R.C. 2925.03 “included only a discretionary driver’s license

suspension,” not a mandatory one.        Thus, “the court had discretion to impose a




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suspension but chose not to.” With respect to the validity of the guilty plea, the court

found that Lofton “has not shown and cannot show any prejudicial effect” from the

failure of the court to advise him of a possible license suspension during the plea

colloquy.

       {¶8}    On April 13, 2015, Lofton filed a Notice of Appeal. On appeal, he raises

the following assignment of error:

       {¶9}    “[1.] The Trial Court erred in not finding the guilty plea void, where the

court failed to inform the Appellant during the plea hearing pursuant to Crim.R. 11(C)(2)

that there was a ‘possibility’ of a driver’s license suspension.”

       {¶10} Lofton’s position is that “there has been a complete disregard of a

statutory requirement, where the Trial Court failed to notify or mention the possibility of

a driver’s license suspension and this violation of Crim.R. 11(C)(2)(a) render[s] the

guilty plea void.” Appellant’s brief at 4.

       {¶11} The Ohio Supreme Court has recognized that, “on timely application, the

court will vacate a plea of guilty shown to have been unfairly obtained or given through

ignorance, fear or inadvertence.” State v. Bowen, 52 Ohio St.2d 27, 28, 368 N.E.2d 843

(1977), quoting Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed.

1009 (1927).

       {¶12} It is difficult to discern whether Lofton’s Motion is properly characterized as

a motion for postconviction relief or as a postsentence motion to withdraw a guilty plea.

State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 (“[c]ourts

may recast irregular motions into whatever category necessary to identify and establish

the criteria by which the motion should be judged”); State v. Bush, 96 Ohio St.3d 235,




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2002-Ohio-3993, 773 N.E.2d 522, ¶ 14 (“[p]ostsentence motions to withdraw guilty or no

contest pleas and postconviction relief petitions exist independently”). While Lofton

alleges a distinct constitutional violation, the authority cited in support of his Motion

generally involves motions to withdraw a guilty plea. E.g. State v. Sarkozy, 117 Ohio

St.3d 86, 2008-Ohio-509.

       {¶13} Construed as either type of motion, Lofton’s Motion was properly denied.

       {¶14} As a motion for postconviction relief, Lofton’s Motion was untimely by over

twenty years. R.C. 2953.21(A)(2) (“the petition shall be filed no later than three hundred

sixty-five days after the expiration of the time for filing the appeal”). As a postconviction

motion, Lofton’s Motion also fails under principles of res judicata, inasmuch as the

license suspension issue could have been raised on direct appeal. State v. Reynolds,

79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997) (“pursuant to res judicata, a defendant

cannot raise an issue in a motion for postconviction relief if he or she could have raised

the issue on direct appeal”).

       {¶15} We note that the Ohio Supreme Court has held that “void sentences are

not precluded from appellate review by principles of res judicata and may be reviewed

at any time, on direct appeal or by collateral attack,” although “res judicata still applies

to other aspects of the merits of a conviction, including the determination of guilt and the

lawful elements of the ensuing sentence.” State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶ 40. Lofton seeks to render his guilty plea void and,

therefore, res judicata is applicable.

       {¶16} Construed as a postsentence motion to withdraw a guilty plea, Lofton

must demonstrate a “manifest injustice” in order to obtain relief.        Crim.R. 32.1 (“to




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correct manifest injustice the court after sentence may set aside the judgment of

conviction and permit the defendant to withdraw his or her plea”). In the present case,

the trial court did not impose a license suspension. Thus, Lofton cannot claim that the

court’s failure to advise him of a possible license suspension resulted in any injustice.

       {¶17} The sole assignment of error is without merit.

       {¶18} For the foregoing reasons, the Judgment Entry of the Trumbull County

Court of Common Pleas, denying Lofton’s Motion to Find Guilty Plea and Judgment

Entry “Void,” is affirmed. Costs to be taxed against appellant.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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