[Cite as State v. Hopkins, 2013-Ohio-3674.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee                          :     CASE NO. CA2012-12-246

                                                    :          OPINION
   - vs -                                                       8/26/2013
                                                    :

CARLOS A. HOPKINS,                                  :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2004-01-0162



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Carlos A. Hopkins, #A465-965, London Correctional Institution, P.O. Box 69, London, Ohio
43140, defendant-appellant, pro se



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Carlos A. Hopkins, appeals pro se from a decision of the

Butler County Court of Common Pleas denying his "Motion to Withdraw Plea and/or Relief

from Judgment." For the reasons set forth below, we affirm the decision of the trial court.

        {¶ 2} In 2004, appellant was arrested and charged by way of a bill of information with

one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and one
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count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third

degree. The rape charge involved appellant's act of having vaginal intercourse with his

seven-year-old daughter. The gross sexual imposition charge involved appellant's action of

causing his seven-year-old daughter to masturbate his penis with her hands after the vaginal

intercourse was completed. A plea agreement was reached between the state and appellant

wherein the parties jointly recommended that appellant receive a ten-year sentence on the

rape charge to run consecutive to a five-year sentence on the gross sexual imposition

charge. Therefore, in February 2004, appellant pled guilty to the charges against him and

was sentenced to serve a total of 15 years in prison.

       {¶ 3} Appellant did not directly appeal his convictions and sentence. Rather, eight

years later, on October 2, 2012, appellant filed a motion to withdraw his guilty pleas and/or be

granted relief from judgment on the basis that appellant's two convictions should have been

merged. Essentially, appellant argued that the rape and gross sexual imposition charges

were allied offenses of similar import which should have been merged, providing appellant

with only a ten-year prison sentence.

       {¶ 4} On November 6, 2012, the trial court denied appellant's motion to withdraw his

guilty pleas and/or be granted relief from judgment. The trial court found that appellant's

argument was barred by the doctrine of res judicata and that appellant's convictions did not

constitute allied offenses of similar import.

       {¶ 5} Appellant now appeals from the trial court's decision, raising as his sole

assignment of error, the following:

       {¶ 6} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO

GRANT LEAVE TO WITHDRAW THE GUILTY PLEA[S] IN THIS CASE, OR IN THE

ALTERNATIVE, TO CORRECT THE SENTENCE.

       {¶ 7} In his sole assignment of error, appellant argues the trial court erred to his
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prejudice in sentencing him on both the rape charge and the gross sexual imposition charge,

claiming that the two are allied offenses of similar import pursuant to R.C. 2941.25.

Appellant does not seek to disturb the underlying pleas of guilty, but rather challenges the

sentencing of the trial court.

       {¶ 8} "Crim.R. 32.1 provides that a trial court may grant a defendant's postsentence

motion to withdraw a guilty plea only to correct manifest injustice, and a defendant seeking to

withdraw a plea after the imposition of sentence has the burden of establishing the existence

of manifest injustice." State v. Carter, 12th Dist. Clinton Nos. CA2010-07-012, CA2010-08-

016, 2011-Ohio-414, ¶ 115, citing Crim.R. 32.1; State v. Smith, 49 Ohio St.2d 261 (1977),

paragraph one of the syllabus.

       {¶ 9} In general, "manifest injustice relates to a 'fundamental flaw in the proceedings'

that results in a miscarriage of justice or is inconsistent with the demands of due process."

State v. Williams, 12th Dist. Warren No. CA2009-03-032, 2009-Ohio-6240, ¶ 11, quoting

State v. Taylor, 12th Dist. Madison No. CA2007-12-037, 2009-Ohio-924, ¶ 12. "'Manifest

injustice' is an extremely high standard, which permits a defendant to withdraw his guilty plea

only in extraordinary cases." State v. Layne, 4th Dist. Highland No. 11CA17, 2012-Ohio-

1627, ¶ 4, citing Smith at 264; Williams at ¶ 11. "The requirement of demonstrating a

manifest injustice is designed to discourage a defendant from pleading guilty to test the

weight of the potential reprisal, and later attempting to withdraw the plea if the sentence was

unexpectedly severe." Williams at ¶ 12. "[A]n undue delay between the occurrence of the

alleged cause for withdrawal and the filing of the motion is a factor adversely affecting the

credibility of the movant and militating against the grant of the motion." Smith at paragraph

three of the syllabus.

       {¶ 10} The decision to grant or deny a Crim.R. 32.1 motion is within the trial court's

discretion. Carter at ¶ 16. Therefore, we will not reverse the trial court's decision absent an
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abuse of discretion. Layne at ¶ 4. Furthermore, "the good faith, credibility and weight of the

defendant's assertions in support of the motion are matters to be resolved by [the trial] court."

Carter at ¶ 16, citing Smith at paragraph two of the syllabus; Williams at ¶ 13.

       {¶ 11} Here, appellant filed a postsentence motion to withdraw his guilty pleas

asserting that the trial court must permit him to withdraw his guilty pleas in order to correct a

manifest injustice, namely that his sentence was contrary to law in that he was ordered to

serve consecutive sentences for allied offenses of similar import. Specifically, appellant

argues that his charges for rape and gross sexual imposition should have been merged by

the trial court and that trial counsel "should have objected" to the imposition of consecutive

sentences and was ineffective in failing to do so. The motion was not filed until eight years

after appellant entered his guilty pleas based upon a plea agreement which included a

recommendation that appellant be sentenced to 15 years in prison. The state asserts that

appellant's argument is barred by the doctrine of res judicata.

       {¶ 12} Under the doctrine of res judicata, "a final judgment of conviction bars the

convicted defendant 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 the trial which resulted in that judgment of conviction or on

an appeal from that judgment." State v. Dodson, 12th Dist. Butler No. CA2011-02-034,

2011-Ohio-6347, ¶ 9, citing Carter, 2011-Ohio-414 at ¶ 7 and State v. Perry, 10 Ohio St.2d

175 (1967), paragraph nine of the syllabus. "In turn, the time to challenge a conviction based

on allied offenses is through a direct appeal." Id., citing State v. Woods, 8th Dist. Cuyahoga

No. 96487, 2011-Ohio-5825, ¶ 21.

       {¶ 13} Accordingly, because appellant did not raise the issue of whether rape and

gross sexual imposition are allied offenses of similar import in a timely direct appeal, his

challenge is barred by the doctrine of res judicata. See id.; State v. Jackson, 12th Dist.
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Butler No. CA2011-08-154, 2012-Ohio-993, ¶ 8.

        {¶ 14} Furthermore, even if res judicata did not apply to bar appellant's allied offense

contention, the argument would still fail as, under a pre-Johnson analysis, rape and gross

sexual imposition are not allied offenses of similar import.1 See State v. Thomas, 12th Dist.

Brown No. CA2002-01-001, 2003-Ohio-74, ¶ 14-15 ("Clearly, the commission of the crime of

gross sexual imposition will not necessarily result in the commission of a rape").

        {¶ 15} Based upon the foregoing, we find that the trial court did not err in denying

appellant's motion to withdraw his guilty pleas, as appellant failed to demonstrate the

existence of a manifest injustice due to the imposition of separate sentences. Therefore,

appellant's sole assignment of error is overruled.

        {¶ 16} Judgment affirmed.


        HENDRICKSON, P.J., and S. POWELL, J., concur.




1. As appellant's underlying case was closed and there was nothing pending at the time State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, was released by the Ohio Supreme Court, this court must apply the pre-
Johnson allied offense analysis set forth in State v. Nicholas, 66 Ohio St.3d 431, 434 (1993). See Layne, 2012-
Ohio-1627 at ¶ 9.
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