[Cite as State v. Bendson, 2013-Ohio-5157.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :     JUDGES:
                                              :
                                              :     Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :     Hon. Patricia A. Delaney, J.
                                              :     Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
MARCUS D. BENDSON                             :     Case No. 2013CA00147
                                              :
                                              :
        Defendant - Appellant                 :     OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court
                                                    of Common Pleas, Case No.
                                                    2012CR1143



JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   November 18, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     MARCUS BENDSON, PRO SE
Prosecuting Attorney                                Inmate 633-750
                                                    Lorain Correctional Institution
BY: KATHLEEN O. TATARSKY                            2075 South Avon-Beldon Road
Assistant Prosecuting Attorney                      Grafton, OH 44044
110 Central Plaza South, Suite 510
Canton, OH 44702
Stark County, Case No. 2012CA00147                                                         2

Baldwin, J.

      {¶1}    Appellant Marcus D. Bendson appeals a judgment of the Stark County

Common Pleas Court overruling his motion to withdraw his guilty plea to aggravated

burglary (R.C. 2911.11(A)(1),(2)) with a repeat violent offender specification and firearm

specification, aggravated robbery (R.C. 2911.01(A)(1),(3)) with a repeat violent offender

specification and firearm specification, felonious assault (R.C. 2903.11(A)(1),(2)) with a

repeat violent offender specification and firearm specification, and having weapons

under disability (R.C. 2923.13(A)(2),(3)). Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

      {¶2}    On November 21, 2012, appellant was charged by a superseding

indictment with aggravated robbery, aggravated burglary, kidnapping, felonious assault

and having weapons under disability. All of the counts except having weapons under

disability included firearm specifications and repeat violent offender specifications.

      {¶3}    Appellant’s trial was scheduled for November 27, 2012. On that day, he

entered a plea of guilty to all charges except kidnapping pursuant to a negotiated plea

agreement. The prosecutor dismissed the kidnapping charge. The trial court informed

appellant of his constitutional rights to trial by jury or by a judge, to confront witnesses,

to subpoena witnesses, and to require the state to prove his guilt beyond a reasonable

doubt.   The trial court explained his right against self-incrimination. The trial court

reviewed the charges and potential penalties. Appellant indicated that he understood all

of his rights, as well as the charges and possible penalties.    Appellant entered a guilty

plea as negotiated and the trial court sentenced him to fifteen years incarceration.

Appellant did not file an appeal, and his delayed appeal was dismissed by this Court.
Stark County, Case No. 2012CA00147                                                    3


     {¶4}     On May 29, 2013, appellant filed a motion to withdraw his guilty plea on

the grounds of manifest injustice. He argued that the plea form he signed had the

wrong judge’s name printed on the top, his original attorney’s name was crossed out

and the name of his attorney at the plea hearing was handwritten in its place, there was

a handwritten notation of the sentence in the corner, and the plea form does not have a

time stamp.   The trial court overruled the motion.    Appellant assigns one error on

appeal:

     {¶5}     “TRIAL COURT ERRED IN DENYING APPELLANT’S RULE OF

CRIMINAL PROCEDURE, RULE 32.1 MOTION TO WITHDRAW HIS GUILTY PLEA:

UNDER THE MANIFEST INJUSTICE CLAUSE.”

     {¶6}     The instant case comes to us on the accelerated calendar. App.R. 11.1

governs accelerated-calendar cases and states in pertinent part:

     {¶7}     “(E) Determination and judgment on appeal.           The appeal will be

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court's decision as to each error to be in

brief and conclusionary form.”

     {¶8}     One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than in

a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463

N.E.2d 655 (1983).

     {¶9}     The doctrine of res judicata bars a defendant from making claims in a

motion to withdraw a guilty plea which he could have raised on direct appeal. See State
Stark County, Case No. 2012CA00147                                                        4

v. Walters, 4th Dist. Scioto No. 12CA3482, 2013-Ohio-695, ¶12. In the instant case,

appellant could have raised his claims of irregularities in the plea form on direct appeal.

He failed to do so, and his claims are therefore barred by res judicata.

      {¶10}   Further, Crim.R. 32.1, which governs motions to withdraw guilty pleas,

provides: “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.”

      {¶11}   Thus, a defendant who wishes to withdraw a plea of guilt after the court

has passed sentence must demonstrate a “manifest injustice.” State v. Smith, 49 Ohio

St.2d 261, 361 N.E.2d 1324, at paragraph one of the syllabus (1977). The Supreme

Court of Ohio has defined “manifest injustice” 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). “[U]nder such

standard, a postsentence withdrawal motion is allowable only in extraordinary cases.”

Smith at 264; citing United States v. Semel (C.A.4, 1965), 347 F.2d 228 [subsequent

history omitted].

      {¶12}   The movant bears the burden of establishing a manifest injustice. Id. The

decision of whether to grant or deny a motion to withdraw a guilty plea is addressed “to

the sound discretion of the trial court, and the good faith, credibility and weight of the

movant's assertions in support of the motion are matters to be resolved by that court.”

Id., citing United States v. Washington (C.A.3, 1965), 341 F.2d 277 [subsequent history

omitted]. Thus, we will not reverse a trial court's decision to grant or deny a

postsentence motion to withdraw a guilty plea unless the trial court abused its
Stark County, Case No. 2012CA00147                                                        5


discretion, i.e., the court's decision was “unreasonable, arbitrary or unconscionable.”

State v. Adams, 62 Ohio St.2d 151, 157–158, 404 N.E.2d 144 (1980).

      {¶13}   Appellant did not make any claim that his plea was not knowing, voluntary,

and intelligent. The record reflects that appellant was informed of the rights he was

waiving and of the charges and potential penalties. He did not indicate at the time of

the plea that he did not understand his rights or the charges and possible penalties, nor

did he file an affidavit or other evidence to support his claim of manifest justice. Despite

the minor irregularities in the plea form, the judgment reflecting appellant’s guilty plea,

the judgment of sentence and the transcript of the plea hearing do not reflect any error

in the plea proceedings. The trial court did not abuse its discretion in overruling his

motion to withdraw his guilty plea.

      {¶14}   The assignment of error is overruled. The judgment of the Stark County

Common Pleas Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.



                                         HON. CRAIG R. BALDWIN



                                         HON. WILLIAM B. HOFFMAN



                                         HON. PATRICIA A. DELANEY


CRB/rad
[Cite as State v. Bendson, 2013-Ohio-5157.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
        Plaintiff - Appellee                     :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
MARCUS D. BENDSON                                :
                                                 :
        Defendant – Appellant                    :       CASE NO. 2013CA00147


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs

assessed to appellant.




                                              HON. CRAIG R. BALDWIN



                                              HON. WILLIAM B. HOFFMAN



                                              HON. PATRICIA A. DELANEY
