[Cite as State v. Pemberton, 2011-Ohio-373.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      GALLIA COUNTY

State of Ohio,                                 :                   Case No. 10CA4

        Plaintiff-Appellee,                    :

        v.                                     :                   DECISION AND
                                                                   JUDGMENT ENTRY
Daries D. Pemberton,                           :
                                                            RELEASED 1/20/11
     Defendant-Appellant.       :
______________________________________________________________________
                            APPEARANCES:

Daries D. Pemberton, Ross Correctional Institution, Chillicothe, Ohio, pro se.

C. Jeffrey Adkins, Gallia County Prosecuting Attorney, and Eric R. Mulford, Gallia
County Assistant Prosecuting Attorney, Gallipolis, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}     Daries Pemberton appeals the trial court’s judgment denying his Crim.R.

32.1 postsentence motion to withdraw his guilty pleas. Pemberton argues that a litany

of issues caused his guilty pleas to amount to a “manifest injustice.”

        {¶2}     First, he cites various instances of ineffective assistance by trial counsel.

We hold that Pemberton could have raised these claims on direct appeal, or in an

appeal from the denial of his postconviction relief motion. However, Pemberton did not,

therefore res judicata bars their review here.

        {¶3}     Second, Pemberton alleges conflicts of interest between the trial judge,

Pemberton’s victims, and his trial attorney. Pemberton apparently knew of the alleged

conflicts of interest between the trial judge and the victims in this case but did not assert

this argument before entering his pleas or on direct appeal. Nor did Pemberton pursue
Gallia App. No. 10CA4                                                                       2


the alleged conflict between trial judge and trial counsel in his appeal of the denial of his

postconviction relief motion. Thus, res judicata bars all these claims.

       {¶4}   Third, Pemberton alleges that the state failed to abide by an “oral plea

agreement” that differed from the negotiated plea agreement stated on the record at his

plea hearing. Again, Pemberton could have but did not assert this claim at the trial

stage and in his direct appeal. Thus, res judicata bars its review.

       {¶5}   Fourth, Pemberton asserts that the trial court abused its discretion by

failing to hold a hearing on his Crim.R. 32.1 motion. Because Pemberton’s motion was

premised upon claims of ineffective assistance of counsel and other allegations that are

barred by the doctrine of res judicata, the court was not required to hold a hearing.

                                     I. Summary of the Facts

       {¶6}   In February 2008, a Gallia County grand jury indicted Pemberton,

charging him with two counts of attempted aggravated murder, two counts of

aggravated burglary, two counts of felonious assault, and one count of abduction. After

Pemberton’s assigned counsel entered pleas of not guilty due to insanity, the court

ordered a psychiatric evaluation.

       {¶7}   In May 2008, Pemberton replaced assigned counsel with private counsel,

John Lentes. Later that month, the court received Pemberton’s mental evaluation,

which concluded that Pemberton was not suffering from a severe mental defect at the

time of the offense.

       {¶8}   In August 2008, Pemberton and the state agreed to a negotiated plea.

Pemberton agreed to plead guilty to two counts of felonious assault, each with a gun

specification, and one count of abduction. The state agreed to dismiss the remaining
Gallia App. No. 10CA4                                                                                  3


counts of the indictment and recommended that Pemberton receive a 23-year prison

sentence. On August 5, 2008, after a lengthy colloquy, the court accepted Pemberton’s

pleas, found him guilty, and sentenced him to an aggregate prison term of 23 years on

the three counts.

        {¶9}    Pemberton subsequently filed an untimely notice of appeal and a motion

to seek a delayed appeal. Later, he and the state filed a joint motion to dismiss this

direct appeal, which we granted.1 Pemberton later filed an untimely petition for

postconviction relief in the trial court. The court overruled this motion. Pemberton

appealed from the denial of his motion for postconviction relief to this court but then

subsequently failed to file a brief. After we provided Pemberton the opportunity to file

an untimely brief, he still failed to respond. We then dismissed his appeal.

Subsequently, Pemberton filed with the trial court a Crim.R. 32.1 postsentence motion

to withdraw his guilty pleas, the subject of this appeal.

        {¶10} In his motion, Pemberton argued that he received ineffective assistance of

counsel. Pemberton attached his affidavit to the motion as well as the sworn affidavits

of his sister and mother. The three affidavits claimed that: (1) Lentes told them that the

“first psychological evaluation was a joke” and that the “judge would not consider” a

second evaluation; (2) Lentes told Pemberton that if he agreed to plead guilty to the

charges “he would only receive seven (7) years for his plea”; and (3) the court did not

hold a competency hearing to determine if Pemberton was competent to stand trial.

        {¶11} In its journal entry overruling the motion, the court first noted that

Pemberton filed the motion over one year after he was sentenced and that he attached

1
  Pemberton alleges that he agreed to dismiss this appeal because his appellate attorney advised him
that the arguments he wanted to present were inappropriate for direct appeal because they were not
within the appellate record.
Gallia App. No. 10CA4                                                                      4


the same affidavits to this motion that were attached to his petition for postconviction

relief (none of which stated they were based on personal knowledge). The court found

that even if Lentes’ actions or inactions amounted to deficient performance, Pemberton

had not shown that he was prejudiced “because the Court knows very well the pain it

takes to make sure it complies with Crim.R. 11.” The court also found that an

evidentiary hearing was unnecessary because Pemberton failed to assert facts

establishing that his guilty pleas were a “manifest injustice.”

       {¶12} Pemberton filed a timely notice of appeal of the court’s decision to

overrule his Crim.R. 32.1 motion.

                                     II. Assignments of Error

       {¶13} Pemberton assigns four errors:

       FIRST ASSIGNMENT OF ERROR

       The Defendant’s Fourth (4th), Sixth (6th), Fourteenth (14th), Amendments

       of the United State [sic] Constitution and Article I: Section two (2), Ten

       (10), and Sixteen (16), of the Ohio Constitution were violated due to his

       trial counsel (John R Lentes) failing to provide effective Assistance of

       counsel[.]



       SECOND ASSIGNMENT OF ERROR

       Defendant’s Fifth (5th) and Fourteenth (14th) Amendment’s right’s [sic]

       under the United States Constitution and under Article I: Section two (2)

       and Sixteen (16) of the Ohio Constitution were violated due to Conflict of
Gallia App. No. 10CA4                                                                  5


      Interest between [sic] trial Judge Dean Evans, Defendant’s counsel John

      R Lentes and the people that got hurt in this particular case[.]



      THIRD ASSIGNMENT OF ERROR

      Defendant’s Fifth (5th) and Fourteenth (14th) Amendment’s right’s [sic]

      under the United States Constitution and under Article I: Section two (2)

      and Sixteen (16) of the Ohio Constitution were violated due to the

      prosecuting attorney (C. Jeffrey Adkins) who was on behalf of the State of

      Ohio not abiding by the oral plea agreement[.]



       FOURTH ASSIGNMENT OF ERROR

      The trial court abused it [sic] discretion by not holding a hearing on the

      Motion to withdraw plea of guilt and by not given [sic] a full and fair

      considertion [sic] to the plea withdrawal request.[.]

                                  III. Withdrawal of Guilty Plea

      {¶14} Pemberton’s assignments of error collectively argue that the trial court

abused its discretion by denying his motion to withdraw his guilty pleas.

      {¶15} 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.
Gallia App. No. 10CA4                                                                        6


       {¶16} Accordingly, a defendant who wishes to withdraw a plea of guilt after the

court has passed sentence must demonstrate a “manifest injustice.” State v. Smith

(1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, at paragraph one of the syllabus. 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, 1998-Ohio-271, 699 N.E.2d

83. “[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].

       {¶17} 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

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

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

       {¶18} Pemberton argues that his guilty pleas amounted to a manifest injustice

because of the existence of: (1) various instances of ineffective assistance of counsel

occurring before and after his plea; (2) a conflict of interest between the trial judge,

victims, and trial counsel; and (3) the prosecutor’s alleged failure to abide by an “oral

plea agreement.” Pemberton additionally contends that the trial court abused its

discretion by not holding a hearing on the motion to withdraw the guilty plea.
Gallia App. No. 10CA4                                                                          7


                              IV. Ineffective Assistance of Counsel

       {¶19} In his first assignment of error, Pemberton argues that manifest injustice

occurred because trial counsel provided him with constitutionally deficient

representation. Generally, the doctrine of res judicata bars from review claims of

ineffective assistance of counsel raised in a postsentence Crim.R. 32.1 motion to

withdraw a guilty plea if those claims were or could have been asserted on direct

appeal. State v. Vincent, Ross App. No. 03CA2713, 2003-Ohio-3998, at ¶11. “Under

the doctrine of res judicata, a final judgment of conviction bars a convicted defendant

who was represented by counsel 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. Perry (1967), 10

Ohio St.2d 175, 226 N.E.2d 104, at paragraph nine of the syllabus. Likewise, res

judicata bars Pemberton from raising issues of ineffective assistance of counsel that

could have been addressed in a motion for postconviction relief or in a subsequent

appeal from the denial of post-conviction relief. See State v. Lott, Cuyahoga App. Nos.

79790, 79791, 79792, 2002-Ohio-2752, at ¶41. In other words, res judicata bars

Pemberton from raising claims of ineffective assistance that occurred both “on-the-

record” (direct appeal) and “off-the-record” (postconviction relief) in his current Crim.R.

32.1 motion. Pemberton could have raised the claims of ineffective assistance he

raises in this motion either in his direct appeal, which he voluntarily dismissed, or in the

appeal of his postconviction relief petition, which we dismissed for failure to prosecute.
Gallia App. No. 10CA4                                                                          8


Accordingly Pemberton’s first assignment of error alleging ineffective assistance of

counsel as a basis for his Crim.R. 32.1 motion is meritless.

                                       V. Conflicts of Interest

       {¶20} In his second assignment of error, Pemberton asserts that his guilty pleas

amount to a manifest injustice because of a conflict of interest between the trial judge,

Pemberton’s trial counsel, and the victims. First, Pemberton alleges that in 2005 he

took one victim, Hayslip, to the trial judge’s home. Pemberton offers no explanation as

to what occurred at this visit, the nature of his or Hayslip’s relationship with the trial

judge or how this alleged visit created a conflict of interest.

       {¶21} Because he was allegedly there, Pemberton would have known about the

visit to the trial judge’s home in 2005 and any related conflict of interest. Yet he failed to

assert this either at the trial stage or on direct appeal, or, to the extent this allegation

relies on evidence outside the record, in his petition for postconviction relief and its

appeal. Thus, res judicata bars this claim.

       {¶22} Next, Pemberton contends that in 2007 the trial judge filed a grievance

against his trial counsel, John Lentes, after the trial judge learned that trial counsel

forged his signature on a judgment entry that trial counsel prepared to deceive a client

in a separate and unrelated matter. See Disciplinary Counsel v. Lentes, 120 Ohio St.3d

431, 2008-Ohio-6355, 900 N.E.2d 167. It is not as clear whether Pemberton knew of or

could have asserted the grievance issue before sentencing or on direct appeal.

Regardless, Pemberton could have asserted this issue in the postconviction setting, but

did not. Therefore, this claim is barred by res judicata.

                      VI. Alleged Failure to Abide by “Oral Plea Agreement.”
Gallia App. No. 10CA4                                                                        9


       {¶23} In his third assignment of error, Pemberton contends that his guilty plea

was a manifest injustice because the state failed to abide by an “oral plea agreement”

allegedly negotiated the day before he entered his plea in open court. Pemberton offers

no details as to the nature of this “oral plea agreement” (Pemberton discusses an

alleged seven-year plea deal in his first assignment of error alleging ineffective

assistance of counsel, we presume it is the same). The state argues that Pemberton

has offered no evidence that such a plea deal existed. Additionally, the state argues

that Crim.R.11(F) mandates on-the-record pronouncement of negotiated plea deals.

The state contends that the only plea deal stated on the record was the 23-year prison

term discussed at the plea and sentencing hearing.

       {¶24} As with his other claims, res judicata bars Pemberton from asserting this

argument now. To the extent this issue relies on evidence outside the record,

Pemberton could have asserted this argument in his appeal of the denial of

postconviction relief but failed to do so. Therefore, res judicata bars our consideration.

                   VII. Failure to Hold Hearing on Crim.R. 32.1 Motion

       {¶25} In his final assignment of error, Pemberton contends that the trial court

abused its discretion by not holding a hearing on the motion. The state contends that

trial courts are only required to hold a hearing on Crim.R. 32.1 motions when the

allegations in the motion, if true, would amount to a “manifest injustice.” The state

argues that Pemberton based the arguments in the motion on instances of ineffective

assistance of counsel, and that res judicata bars their review. Therefore, Pemberton

was not entitled to a hearing.
Gallia App. No. 10CA4                                                                     10

       {¶26} As we held in Vincent, supra, “[a] trial court is not always required to

conduct an evidentiary hearing when presented with a post-sentence motion to

withdraw a guilty plea.” Id. at ¶10, citing State v. Nathan (1995), 99 Ohio App.3d 722,

651 N.E.2d 1044; State v. Woods, Cuyahoga App. No. 82120, 2003-Ohio-2475; State v.

Jacobson, Adams App. No. 01CA730, 2003-Ohio-1201; State v. Moore, Pike App. No.

01CA674, 2002-Ohio-5748. Rather, a trial court need only hold a hearing on a Crim.R.

32.1 motion if the “facts, as alleged by the defendant, indicate a manifest injustice would

occur if the plea was allowed to stand.” Id., citing Nathan and Jacobson.

       {¶27} The allegations Pemberton set forth in his motion and supporting affidavits

alleged manifest injustice as the result of various instances of ineffective assistance of

counsel and an off-the-record plea deal. Because we have already determined that res

judicata bars a consideration of the merits of those issues, the court was not required to

hold a hearing on them. Accordingly, this assignment of error is meritless.

                                     VIII. Conclusion

       {¶28} For the foregoing reasons, we hold that the trial court did not abuse its

discretion in overruling Pemberton’s Crim.R. 32.1 motion or by declining to hold a

hearing on the motion. We therefore affirm the judgment of the trial court.

                                                                 JUDGMENT AFFIRMED.
Gallia App. No. 10CA4                                                                       11


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Gallia
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: _______________________________
                                                William H. Harsha, Presiding Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
