[Cite as State v. McGee, 2015-Ohio-4908.]


                  Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102740



                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      BELVIN McGEE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-99-383003-A

        BEFORE:          McCormack, J., Celebrezze, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: November 25, 2015
FOR APPELLANT

Belvin McGee, pro se
Inmate No. A379-965
Grafton Correctional Institution
2500 South Avon-Belden Road
Grafton, OH 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Brett Hammond
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} In 1999, appellant-defendant, Belvin McGee, pleaded guilty to multiple

counts of sex offenses for sexually assaulting his own children. This court affirmed his

convictions and sentence in his direct appeal.             He has since instituted multiple

proceedings in repeated attempts to withdraw his guilty plea.               The instant appeal

stemmed from his latest attempt to withdraw his plea. After a review of the record, we

affirm the trial court’s judgment denying his motion.

       {¶2} Defendant was indicted on 53 counts of sexual offenses involving his five

biological children, all under the age of 13. He pleaded guilty to five counts. The trial

court sentenced him to a life term each for two counts of rape, five years each for two

counts of gross sexual imposition, and eight years for one count of attempted rape.

These terms were to run concurrently, except for the attempted rape count. This court

affirmed his convictions in State v. McGee, 8th Dist. Cuyahoga No. 77463, 2001 Ohio

App. LEXIS 5190 (Nov. 21, 2001).

       {¶3} Since his direct appeal, McGee filed several motions to withdraw his guilty

plea, without success. In February 2015, he filed his latest motion to withdraw his guilty

plea pursuant to Crim.R. 32.1. The trial court again denied his motion. On appeal from

that judgment, he presents two assignments for our review. We only review his first

assignment of error because the second assignment of error is not properly before us.1


       The second assignment of error raises a claim relating to a separate appeal (8th Dist.
       1


Cuyahoga No. 103036), also currently pending before this court. The claim concerns his sentencing,
which has a tortured history. In 2006, McGee filed a motion to correct his sentence, claiming he
        {¶4} The first assignment of error states:

        The trial court abused its discretion in denying appellant’s post-sentence
        motion to withdraw guilty plea, in order, to correct manifest injustice
        because the plea agreement, and appellant’s negotiated pleas was induced
        by state’s misrepresentation of statutory requirements to indict the sexually
        violent predator specifications found in R.C. 2971.01(H)(1). Therefore,
        appellant was deprived of his liberty without due process of state law in
        violation of the Fourteenth Amendment to the United States Constitution.


was not lawfully sentenced regarding his postrelease control. Finding merit to his claim, this court
vacated his sentence and remanded the matter for resentencing. State v. McGee, 8th Dist. Cuyahoga
No. 89133, 2007-Ohio-6655. On remand, the trial court held a resentencing hearing in May 2008,
imposing the same prison terms. Its journal entry stated: “postrelease control is part of this prison
sentence for 5 years for the above felony(s) under R.C. 2967.28. (Defendant advised of PRC for a
term of 5 years without reduction.).”

        McGee repeatedly challenged the 2008 judgment entry. The latest challenge regarding that
judgment was raised in 2014. McGee argued to this court that the trial court again failed to properly
sentence him to postrelease control at the 2008 resentencing hearing and also failed to include the
postrelease control notification in its journal entry. This court noted that McGee did not file a
transcript of the 2008 resentencing hearing and, therefore, a reviewing court must presume regularity
of the sentencing hearing. State v. McGee, 8th Dist. Cuyahoga No. 101307, 2014-Ohio-5289, ¶ 14.
  As to the sentencing journal entry, this court noted that the trial court indicated in its journal entry
that McGee was subject to a mandatory term of five years of postrelease control, but failed to provide
a full advisement including the consequences for violating the terms of postrelease control.
Applying State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, this court explained
that the remedy for the omission was a remand for the trial court to issue a nunc pro tunc entry to
include the consequences of violating the postrelease control.

         On remand, as instructed, the trial court entered a nunc pro tunc entry on February 6, 2015.
It notified McGee that a term of five years of postrelease control was part of his sentence and it
advised him the consequences of violations of his postrelease control. McGee appealed from that
nunc pro tunc judgment entry, in 8th Dist. Cuyahoga No. 103036. However, instead of raising
claims relating to the nunc pro tunc entry in 8th Dist. Cuyahoga No. 103036, he assigns an error
relating to the nunc pro tunc entry in the instant appeal, claiming the nunc pro tunc judgment entry
was void. We have no jurisdiction to review that claim in the instant appeal, because the instant
appeal (8th Dist. Cuyahoga No. 102740) was taken from the trial court’s denial of his motion to
withdraw his guilty plea.
       {¶5} McGee’s first assignment of error relates to his sex offender classification.

A number of the 53 counts of sex offenses he was indicted for contained the sexually

violent predator (“SVP”) specification. Pursuant to his plea agreement, McGee pleaded

guilty to two counts of rape, one count of attempted rape, and two counts of gross sexual

imposition; in exchange, the state nolled the remaining counts and deleted the SVP

specification, which would have subjected him to an enhanced punishment.

       {¶6} Fifteen years after his convictions, McGee again claims his guilty plea was

unknowing and involuntary. McGee had already litigated the voluntariness of his guilty

plea on several prior occasions.      State v. McGee, 8th Dist. Cuyahoga No. 82092,

2003-Ohio-1966; State v. McGee, 8th Dist. Cuyahoga No. 83613, 2004-Ohio-2856, State

v. McGee, No. 77463, 2005-Ohio-3553 (application to reopen denied); and State v.

McGee, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-3374.

       {¶7} In the latest motion to withdraw, McGee claims that the SVP specification

contained in his indictment could not have applied to him under the law at the time of his

offenses, and therefore, his plea was invalid.

       {¶8} The doctrine of res judicata is applicable to successive motions to withdraw

a guilty plea. State v. Sneed, 8th Dist. Cuyahoga No. 84964, 2005-Ohio-1865, ¶ 17.

A Crim.R. 32.1 motion to withdraw a plea should be denied when it asserts grounds for

relief that were or should have been asserted in a previous motion. Id., citing State v.

Brown, 8th Dist. Cuyahoga No. 84322, 2004-Ohio-6421. McGee was not precluded

from raising the issue relating to the SVP specification and guilty plea in his direct appeal
or any prior motions to withdraw his plea, and therefore, his claim is now barred by res

judicata. The trial court did not abuse its discretion in summarily denying McGee’s

motion to withdraw his guilty plea.

       {¶9} Even if the claim were not barred by res judicata, McGee fails to

demonstrate manifest injustice required by Crim.R. 32.1 for a postsentence motion to

withdraw a plea.

       {¶10} In support of the claim in his latest motion that his plea was invalid, McGee

relies exclusively on a 2004 case from the Supreme Court of Ohio, State v. Smith, 104

Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283. In that case, the court interpreted the

former SVP specification statute, R.C. 2971.01(H)(1), holding that a “[c]onviction of a

sexually violent offense cannot support the specification that the offender is a sexually

violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction

and the sexually violent predator specification are charged in the same indictment.” Id.

at syllabus. Smith required a sex offender to have a prior conviction of a sexually violent

offense for the SVP specification.      Citing Smith, McGee argues that the state had

improperly included the SVP specification in the indictment for the purpose of inducing

him to plead guilty in exchange for a deletion of the specification.

       {¶11} Smith, however, was decided after McGee’s guilty plea. Before the Smith

decision, there was a split among the appellate districts as to whether the former R.C.

2971.01(H)(1) required an offender to have a prior conviction of a sexually violent

offense to satisfy the SVP specification. See State v. Stansell, 8th Dist. Cuyahoga No.
100604, 2014-Ohio-1633.2 Because of the split of authority when McGee was indicted,

it cannot be said that the state included the SVP specification in contravention of the law

for the improper purpose of enticing McGee into accepting a plea deal. Therefore, even

if the claim raised by McGee in this appeal were not barred by res judicata, it lacks merit.

 The trial court properly denied his motion. The first assignment of error is overruled.

       {¶12} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
TIM McCORMACK, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
MARY J. BOYLE, J., CONCUR




         We observe that, in response to Smith, the General Assembly modified R.C. 2971.01(H)(1).
       2


It is now no longer necessary for a sex offender to have a prior conviction of a sexually violent
offense in order to satisfy the SVP specification. State v. Wooten, 9th Dist. Lorain No. 13CA010510,
2014-Ohio-3980; State v. Brown, 7th Dist. Mahoning No. 12 MA 118, 2014-Ohio-4158, ¶ 32; State
v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134, ¶ 66-67.
