[Cite as State v. Brody, 2013-Ohio-340.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NOS. 2012-L-050,
        - vs -                                      :                2012-L-051,
                                                                 and 2012-L-052
DAVID E. BRODY,                                     :

                 Defendant-Appellant.               :


Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 10 CR
000026, 10 CR 000029, and 10 CR 000366.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).

David E. Brody, pro se, PID: A591175, Grafton Correctional Institution, 2500 South
Avon Belden Road, Grafton, OH 44044 (Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, David E. Brody, appeals the judgments of the Lake County

Court of Common Pleas, denying his post-sentence motions to withdraw his guilty pleas

in three separate cases. At issue is whether the trial court abused its discretion in

finding a lack of manifest injustice to support a withdrawal of the pleas. For the reasons

that follow, the judgments are affirmed.
       {¶2}   Appellant was charged on an 11-count indictment (case No. 10 CR

000026), a 17-count indictment (case No. 10 CR 00029), and a one-count information

(case No. 10 CR 000366).

       {¶3}   On June 23, 2010, appellant entered into a plea bargain with the state

pursuant to which he entered a guilty plea in each of his three cases. In case No. 10

CR 000026, appellant pled guilty to misuse of credit cards, a fifth-degree felony in

violation of R.C. 2913.21(B)(2); grand theft of a firearm, a third-degree felony in violation

of R.C. 2913.02(A)(1); and burglary, a second-degree felony in violation of R.C.

2911.12(A)(2), with a firearm specification, in violation of R.C. 2941.141.

       {¶4}   In case No. 10 CR 000029, appellant pled guilty to breaking and entering,

a fifth-degree felony in violation of R.C. 2911.13(A); receiving stolen property involving a

motor vehicle, a fourth-degree felony in violation of R.C. 2913.51(A); grand theft of

another motor vehicle, a fourth-degree felony in violation of R.C. 2913.02(A)(1); and

vandalism, a fourth-degree felony in violation of R.C. 2909.05(A).

       {¶5}   Finally, in case No. 10 CR 000366, appellant pled guilty to burglary, a

second-degree felony in violation of R.C. 2911.12(A)(2).

       {¶6}   Pursuant to the plea bargain, in exchange for appellant’s guilty pleas, the

trial court dismissed the multiple remaining counts in the indictments.

       {¶7}   The trial court found appellant’s guilty pleas were made knowingly,

intelligently, and voluntarily; accepted the guilty pleas; and found appellant guilty. On

July 29, 2010, the court sentenced appellant consecutively in each of his cases for an

aggregate of 18 years in prison.




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       {¶8}   Appellant initiated direct appeals, claiming the trial court erred by imposing

consecutive sentences. This court affirmed the judgments. State v. Brody, 11th Dist.

Nos. 2010-L-095, 2010-L-096, & 2010-L-097, 2011-Ohio-4884.

       {¶9}   Shortly thereafter, appellant filed a motion to withdraw his guilty plea in

each of his respective cases, arguing ineffective assistance of counsel during the plea

bargain stage. Upon consideration, the court denied the motions. Appellant, pro se,

now appeals. This court, sua sponte, consolidated the cases for purposes of appeal.

Appellant raises two assignments of error which, as they are interrelated, will be

considered together:

       {¶10} “[1.] The trial court abused its discretion by denying Defendant-Appellant’s

motion to withdraw his guilty plea.

       {¶11} “[2.] Defendant-Appellant was not provided his Sixth Amendment right to

Effective Assistance of Counsel during the plea bargain stage.”

       {¶12} Appellant argues his pleas were not entered knowingly, intelligently, or

voluntarily because his counsel was ineffective in counseling him during the plea

bargain stage. Appellant explains his counsel’s performance was deficient in that he

received erroneous advice on the nature of his sentence.            Appellant additionally

charges his attorney with coercing him into a plea bargain even though no discovery

had been conducted. As such, appellant contends the trial court abused its discretion in

denying his motions to withdraw his pleas as his allegations are tantamount to manifest

injustice.

       {¶13} An appellate court analyzes a trial court’s decision regarding a motion to

withdraw a guilty plea based on an abuse of discretion standard of review. State v.




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Gibbs, 11th Dist. No. 98-T-0190, 2000 Ohio App. LEXIS 2526 (June 9, 2000), *6-7. An

abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal

decision-making.’” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62,

quoting Black’s Law Dictionary 11 (8th Ed.2004).

      {¶14} Crim.R. 32.1 provides for a withdrawal of a guilty plea, stating “[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.”

      {¶15} Here, appellant filed his motion to withdraw his plea after his sentencing.

Thus, pursuant to Crim.R. 32.1, appellant must have demonstrated manifest injustice to

be entitled to relief. “Under this higher standard [of manifest injustice], a defendant is

entitled to prevail on the motion only if the existence of extraordinary circumstances has

been established.” State v. Combs, 11th Dist. No. 2007-P-0075, 2008-Ohio-4158, ¶34.

“The reason for such a high standard for granting a post-sentence motion to withdraw a

guilty plea ‘is to discourage a defendant from pleading guilty to test the weight of

potential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.’”

State v. Clark, 11th Dist. No. 2009-A-0038, 2010-Ohio-1491, ¶13, quoting State v.

Caraballo, 17 Ohio St.3d 66, 67 (1985).

      {¶16} However, claims raised in a post-sentence motion to withdraw a guilty

plea which were raised or could have been raised in a direct appeal are barred by res

judicata. State v. Lorenzo, 11th Dist. No. 2007-L-085, 2008-Ohio-1333, ¶21; State v.

Green, 11th Dist. Nos. 2005-A-0069 & 2005-A-0070, 2006-Ohio-6695, ¶13; and State v.

McDonald, 11th Dist. No. 2003-L-155, 2004-Ohio-6332, ¶22.             See also State v.




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Thomas, 3d Dist. No. 10-10-17, 2011-Ohio-4337, ¶18; and State v. Rose, 12th Dist. No.

CA2010-03-059, 2010-Ohio-5669, ¶18.

       {¶17} For instance, in State v. Johnson, 6th Dist. No. OT-11-101, 2012-Ohio-

1400, the defendant filed a post-sentence motion to withdraw his guilty plea based on

ineffective assistance of trial counsel during plea bargaining.        The Sixth Appellate

District concluded that, as appellant was able to, but failed to, raise the claims during his

direct appeal, res judicata barred him “from raising those claims in his motion to

withdraw his guilty plea.”    Id. at ¶10.    See also State v. LaPlante, 4th Dist. No.

11CA3215, 2011-Ohio-6675, ¶8 (finding res judicata to bar ineffective assistance of

counsel claims found in defendant’s post-sentence Crim.R. 32.1 motion when those

claims were based upon information available to him at the time of direct appeal).

       {¶18} Here, the arguments appellant asserts in his Crim.R. 32.1 motions were

based on ineffective assistance of trial counsel during plea bargaining. Each assertion

(e.g., erroneous advice, no discovery) was based upon information available to

appellant at the time of his direct appeal. Appellant’s arguments are therefore barred by

res judicata.   If appellant genuinely believed he suffered ineffective assistance of

counsel that resulted in involuntary pleas, the time to assert such a claim would have

been during his direct appeals. Rather than attack the validity of his pleas during his

direct appeals, however, appellant elected to attack the trial court’s sentence, arguing it

was improper to issue consecutive terms. We note appellant’s motions to withdraw his

pleas were filed approximately five months after the notices of appeal were filed.

       {¶19} Appellant explains, in a response brief, that he tried to raise this matter in

his direct appeals, but his attorney explained issues regarding his plea would best be




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contained in a Crim.R. 32.1 motion. There is no evidence to support this contention in

the record. Though appellant attached to his response brief a letter purporting to be

from his attorney, it cannot be considered, pursuant to App.R. 9(A)(1), as it is not part of

the record. See generally State v. Ott, 11th Dist. No. 2012-P-0010, 2012-Ohio-4471, ¶7

(“[a]ppellant attached multiple exhibits to his merit brief which cannot be considered

because they are not part of the record”).

       {¶20} In the alternative, appellant contends that, if res judicata bars his claims,

then, by the same token, he received ineffective assistance of appellate counsel

because the matter of an involuntary plea was not assigned as error in his direct appeal.

However, an application for reopening is the proper procedural mechanism by which to

raise a claim of ineffective assistance of appellate counsel, pursuant to App.R. 26(B).

       {¶21} It is also worth noting that post-conviction relief petitions were not filed in

these cases; thus, any conversation between appellant and his attorney that may

support his claims of erroneous advice is simply not part of the record. See, e.g., State

v. Bond, 2d Dist. No. 20674, 2005-Ohio-3665, ¶10 (“[i]t is well settled, however, that

when an alleged error requires the presentation of evidence outside the record, it must

be raised in a petition for post-conviction relief rather than on direct appeal”).

       {¶22} Nonetheless, the contentions set forth in appellant’s Crim.R. 32.1 motions

also fail on their merits as there is no indication appellant received ineffective assistance

of counsel at the plea bargain stage. Indeed, nothing in the record suggests the advice

appellant received from his attorney was questionable “or inconsistent with counsel’s

duty to zealously represent” appellant. See State v. Corradetti, 11th Dist. No. 2012-L-

006, 2012-Ohio-5225, ¶13.       Additionally, nothing in the record suggests appellant’s




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pleas were somehow coerced. Rather, as indicated by the record of the plea-hearing

colloquy, the pleas were entered knowingly, intelligently, and voluntarily. Specifically,

the court advised appellant of the rights he would waive by entering guilty pleas and

explained the nature of the charges and the maximum penalties appellant could face.

Appellant stated he understood the rights he was waiving and the prospective nature of

his sentence.     Appellant also affirmed he was satisfied with his trial counsel’s

representation.   Further, the state recited the factual basis for the charges, which

appellant did not deny or refute after given the opportunity to do so.

       {¶23} As a final matter, though not framed as an individual assignment of error,

appellant additionally contends the trial court should have held a hearing on his

motions. We take notice that appellant attempted to compel the trial court to hold an

evidentiary hearing on his motions to withdraw his pleas via writ of procedendo, which

was dismissed on procedural grounds by this court, sua sponte, in Brody v. Lucci, 11th

Dist. No. 2011-L-139, 2012-Ohio-1132. However, a motion to withdraw a guilty plea

made after sentencing does not require a hearing unless “the facts alleged by the

defendant and accepted as true would require the trial court to permit withdrawal of the

plea.” State v. Whiteman, 11th Dist. No. 2001-P-0096, 2003-Ohio-2229, ¶19. As set

forth above, appellant’s contentions are barred by res judicata, and further, appellant

has failed to assert any facts that establish manifest injustice would occur if he were not

permitted to withdraw his plea.

       {¶24} Thus, the trial court did not abuse its discretion in denying appellant’s

motions to withdraw his guilty pleas.

       {¶25} Appellant’s first and second assignments of error are without merit.




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      {¶26} The judgments of the Lake County Court of Common Pleas are affirmed.



MARY JANE TRAPP, J.,

THOMAS R. WRIGHT, J.,

concur.




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