[Cite as State v. Keeton, 2020-Ohio-247.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                     Hon. Patricia A. Delaney, J.
                                                Hon. Earle E. Wise, Jr., J.
 -vs-
                                                Case No. 19-CA-000026
 JAMES KEETON

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Guernsey County Court
                                                of Common Pleas, Case No. 18CR13


 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        January 27, 2020


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 MELISSA R. BRIGHT                              JAMES KEETON
 Assistant Guernsey County Prosecutor           Inmate #748-250
 627 Wheeling Avenue                            15708 McConnelsville Road
 Cambridge, Ohio 43725                          Caldwell, Ohio 43724
Guernsey County, Case No. 19-CA-000026                                                          2


Hoffman, P.J.
          {¶1}     Appellant James Keeton appeals the judgment entered by the Guernsey

County Common Pleas Court overruling his motion to withdraw his guilty plea. Appellee

is the state of Ohio.

                                          STATEMENT OF THE CASE1

          {¶2}     On October 10, 2018, Appellant entered pleas of guilty to having weapons

while under disability (R.C. 2923.13(A)(2)) and aggravated trafficking in drugs (R.C.

2925.03(C)(1)(d)).          The court sentenced him to an aggregate term of five years

incarceration.

          {¶3}     Appellant filed a motion to withdraw his plea of guilty to the charge of having

weapons under disability on March 4, 2019, arguing the prior conviction set forth in the

indictment, upon which his disability to having a weapon was based, was not his

conviction but rather a conviction of another person with the same name. In response,

the State set forth several prior convictions which it alleged were Appellant’s convictions,

and not the convictions of a different person with the same name. The trial court overruled

the motion, finding the indictment incorrectly listed the case number of the prior conviction

and the James Keeton in such conviction was not Appellant. However, the court took

judicial notice of Appellant’s conviction of robbery in January of 1980.

          {¶4}     Appellant filed a second motion to withdraw his guilty plea on July 12, 2019,

again arguing mistaken identity in the prior convictions the State alleged constituted his

disability to having a weapon, and arguing the court improperly considered such prior




1   A rendition of the facts is unnecessary for our resolution of the issue raised on appeal.
Guernsey County, Case No. 19-CA-000026                                                   3


convictions in his sentence. The trial court overruled the motion on the basis of res

judicata.

       {¶5}   It is from the August 2, 2019 judgment of the court denying his motion to

withdraw his plea Appellant prosecutes this appeal.

       {¶6}   App. R. 16(A) provides:

              (A) Brief of the Appellant. The appellant shall include in its brief,

       under the headings and in the order indicated, all of the following:




              (1) A table of contents, with page references.

              (2) A table of cases alphabetically arranged, statutes, and other

       authorities cited, with references to the pages of the brief where cited.

              (3) A statement of the assignments of error presented for review, with

       reference to the place in the record where each error is reflected.

              (4) A statement of the issues presented for review, with references

       to the assignments of error to which each issue relates.

              (5) A statement of the case briefly describing the nature of the case,

       the course of proceedings, and the disposition in the court below.

              (6) A statement of facts relevant to the assignments of error

       presented for review, with appropriate references to the record in

       accordance with division (D) of this rule.

              (7) An argument containing the contentions of the appellant with

       respect to each assignment of error presented for review and the reasons

       in support of the contentions, with citations to the authorities, statutes, and
Guernsey County, Case No. 19-CA-000026                                                      4


       parts of the record on which appellant relies. The argument may be

       preceded by a summary.

              (8) A conclusion briefly stating the precise relief sought.



       {¶7}   Appellant’s brief does not comply with App. R. 16(1)-(7). Compliance with

the above-stated rule is mandatory. Zanesville v. Robinson, 5th Dist. Muskingum No. 09-

CA-39, 2010-Ohio-4843, ¶ 26. This Court observed in Musleve v. Musleve, 5th Dist. Stark

No. 2007CA00314, 2008-Ohio-3961, ¶ 21, “It is not the function of this court to construct

a foundation for [an appellant's] claims; failure to comply with the rules governing practice

in the appellate court is a tactic which is ordinarily fatal.” Such failure warrants dismissal

for want of prosecution.

       {¶8}   However, considering the merits of Appellant’s appeal, we find the trial court

did not err in overruling Appellant’s second motion to withdraw his guilty plea on the basis

of res judicata. While Appellant argues the court improperly considered convictions

belonging to another James Keeton in sentencing, the instant case is not before this Court

on direct appeal from his original conviction and sentence nor on appeal from the denial

of his first motion to withdraw his plea, but rather on his second motion to withdraw his

guilty plea. Res judicata bars a motion to withdraw a plea when it raises issues which

were raised or could have been raised in a prior motion to withdraw a plea. See, e. g.,

State v. Gallegos-Martinez, 5th Dist. Delaware No. 10-CAA-06-0043, 2010-Ohio-6463, ¶

12. As Appellant raised issues in his second motion which he raised or could have raised

on direct appeal or in his first motion to withdraw his plea, his second motion to withdraw

his plea is barred by res judicata.
Guernsey County, Case No. 19-CA-000026                                             5


      {¶9}   The judgment of the Guernsey County Common Pleas Court is affirmed.




By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur
