[Cite as State v. Owens, 2011-Ohio-1175.]

                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )
                                              )   CASE NO. 10 JE 5
        PLAINTIFF-APPELLEE,                   )
                                              )
        - VS -                                )         OPINION
                                              )
JEMAR OWENS,                                  )
                                              )
        DEFENDANT-APPELLANT.                  )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
                                                  Court, Case No. 06 CR 12.

JUDGMENT:                                         Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                           Attorney Thomas Straus
                                                  Prosecuting Attorney
                                                  Jefferson County Justice Center
                                                  16001 State Route 7
                                                  Steubenville, OH 43952

For Defendant-Appellant:                          Jemar Owens, Pro-se
                                                  #A502-702
                                                  Ross Correctional Institution
                                                  16149 State Route 104
                                                  P.O. Box 7010
                                                  Chillicothe, OH 45601


JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Gene Donofrio

                                                  Dated: February 17, 2011
                                                                                       -2-


DeGenaro, J.
      {¶1}      Pro-se appellant, Jemar Owens, appeals the February 12, 2010 decision of
the Jefferson County Court of Common Pleas that overruled Owens's January 28, 2010
motion for post-conviction relief and/or motion to withdraw guilty plea. On appeal, Owens
argues that his March 23, 2006 guilty plea and/or his sentence, imposed on March 28,
2006, should have been vacated because the State lost or destroyed a recording
containing exculpatory evidence.
      {¶2}      The recording did not contain any evidence exculpating Owens from any of
the charged offenses, as it was merely a discussion between Owens and his trial counsel,
allegedly regarding counsel's failure to have used certain already known evidence to
negotiate a more favorable plea agreement. Further, all other claims raised by Owens in
this motion were already raised and rejected in Owens's September 11, 2006 motion to
withdraw guilty plea, and are thus barred by res judicata. Accordingly, the trial court's
decision to overrule Owens's motion is affirmed.
                              Facts and Procedural History
      {¶3}      On March 23, 2006 Owens pleaded guilty to one count of drug trafficking
one count of possession of drugs; one count of tampering with evidence; two counts of
drug trafficking with a school specification; forfeiture and gun specifications; and two
counts of having a weapon while under a disability.           The State proposed a joint
sentencing recommendation of twelve years, defense counsel affirmed the accuracy of
the State's proposal, and Owens stated that he understood and agreed to the joint
sentencing recommendation.
      {¶4}      Before the trial court accepted Owens's plea, the trial court entered into a
lengthy colloquy with Owens. During the colloquy, Owens confirmed that he was not
promised anything other than the agreed recommendation in exchange for his plea.
Owens confirmed the following regarding defense counsel:
      {¶5}      "THE COURT: * * * Has your attorney done all the things that you asked him
to do so far?
      {¶6}      "THE DEFENDANT: Yes, sir.
                                                                                    -3-


       {¶7}     "THE COURT: Is there anything that you would like him to do or you think
ought to be done that's not yet done like talk to a witness, file some motion, make some
argument, anything at all?
       {¶8}     "THE DEFENDANT: No, sir.
       {¶9}     "THE COURT: Is there anything he's done that you wish he'd done
differently?
       {¶10} "THE DEFENDANT: No, sir.
       {¶11} "THE COURT: Is it fair to say that you are satisfied with the representation
so far?
       {¶12} "THE DEFENDANT: Yes, sir.
       {¶13} "THE COURT: Are there any questions that you have about anything we're
doing here?
       {¶14} "THE DEFENDANT: No, sir."
       {¶15} Upon accepting Owens's guilty plea, the trial court proceeded to sentencing.
During the forfeiture portion of the sentencing discussion, Owens confirmed that Dejuan
Kaufman was his girlfriend, that they lived together, that he had purchased a particular
vehicle in Kaufman's name, and that Kaufman was not aware that Owens had used that
vehicle to commit his offenses. On March 28, 2006, the trial court followed the parties'
agreed recommendation of sentence, and imposed the jointly-recommended sentence of
twelve years.
       {¶16} On September 11, 2006, Owens filed a pro-se motion to withdraw his plea,
in which he argued that counsel was ineffective, failed to tell Owens that Dejuan Kaufman
had made a statement exculpating Owens from the offenses, and tricked Owens into
pleading guilty. Owens further alleged that counsel did not file a motion to suppress, as
requested by Owens, when certain DNA testing results for the weapons did not positively
identify Owens. Owens attached an affidavit from Dejuan Kaufman, who averred that she
had submitted an affidavit to Owens's attorney in February or March of 2006, averring
that she had been responsible for all of the crimes charged against Owens, and that she
had provided the same information to the prosecution.
                                                                                        -4-


       {¶17} Owens briefly retained counsel, who withdrew prior to the hearing on the
motion. Owens appeared pro-se at the November 6, 2006 hearing. Owens claimed that
trial counsel had concealed the original Kaufman affidavit from Owens, and that Owens
only recently became aware of it through current counsel. The State presented a letter
from Owens to Kaufman, postmarked July 3, 2006, requesting that Kaufman retrieve a
copy of her March 2006 affidavit from trial counsel. Kaufman testified that she had
communicated with Owens on the telephone approximately 30 times since March of
2006, and that she had helped retain and pay for counsel's services.
       {¶18} Owens otherwise argued that trial counsel forced him to plead guilty by
stating that his sentence would be at least 30 years if the case went to trial. Owens
claimed that the State prosecutor directly told him that they knew someone else
committed the crime, and that the State continued with the case because the detective on
the case was the prosecutor's boyfriend. On November 8, 2006, the trial court overruled
Owens's motion to withdraw his plea, finding that all of Owens's factual claims lacked
credibility, and that Owens's plea was not the result of counsel's deception or coercion.
       {¶19} On January 5, 2007 and again on March 26, 2007, Owens filed a Motion to
Preserve Evidence, requesting a copy of the recorded December 6, 2006 telephone
conversation between Owens and his then attorney. On April 19, 2007, the trial court
sustained Owens's motion, and ordered the Trumbull Correctional Institution to preserve
the recording, and to deliver a copy of the recording to Owens.
       {¶20} This Court accepted Owens's delayed appeal of the November 8, 2006
judgment entry. State v. Owens, 7th Dist. No. 06 JE 50, 2008-Ohio-3071. Although the
trial court's November 8 judgment entry only overruled Owens's motion to withdraw his
plea, this Court also allowed Owen to address the March 28, 2006 sentencing decision of
the trial court, as Owens's only assignment of error raised a Foster argument. This Court
affirmed, concluding that Owens's sentence was jointly recommended and not contrary to
law.
       {¶21} On January 28, 2010, Owens filed a motion entitled Post-Conviction Relief,
alternatively seeking resentencing or withdrawal of his guilty plea. In his brief in support,
                                                                                       -5-


Owens argued that his trial counsel was ineffective and unprepared, coerced Owens's
plea despite his innocence, caused his guilty plea to be less than knowing, voluntary and
intelligent, and failed to present mitigation evidence at sentencing.
          {¶22} Owens attached a letter, personally addressing the trial court, wherein he
claims that counsel failed to make use of crucial evidence, namely the inconclusive DNA
results from the weapons, and the affidavit by Dejuan Kaufman claiming that Owen had
no knowledge of or association with the drugs or weapons at issue in the offenses
charged. Owens claims that counsel failed to make Owens aware of the Kaufman
affidavit. Owens's letter further claims that the December 6, 2006 phone recording of the
telephone conversation between Owens and counsel would have revealed that counsel
stated that he had never agreed to the supposed twelve-year plea agreement, and that
he had failed to show the State the DNA evidence or the Kaufman affidavit in order to
negotiate a lower sentence for a plea deal. Owens goes on to claim that the trial court
lost the copy of the telephone recording, and that the original recording had been
discarded.
          {¶23} Owens also attached a copy of Kaufman's March 9, 2006 affidavit, which
averred that she had handled and transported all of the weapons and drugs at issue in
Owens's case, and that Owens had not been involved. Finally, Owens also attached a
copy of a June 26, 2007 letter from the Ohio Department of Rehabilitation and Correction,
informing Owens that they had forwarded two copies of the recording to the trial court's
office.
          {¶24} On February 12, 2010, the trial court overruled Owens's motion, finding that
the record did not reflect that the recordings had been received or lost by the trial court.
The trial court further noted that Owens's allegations of counsel's misfeasance or
malfeasance were, as before, unfounded. Owens filed a pro-se notice of appeal. The
State did not file an appellate brief. Therefore, pursuant to App.R. 18(C), "this court may
accept the appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain such action."
                                                                                       -6-


              Successive Motion to Vacate Guilty Plea and Sentence
       {¶25} Owens does not appear to have identified any assignments of error in his
appeal. The overall error alleged appears to be that the trial court erroneously overruled
Owens's request to vacate his plea and sentence.
       {¶26} Because Owens argued that his plea was not voluntary, knowing or
intelligent, and requested that the trial court vacate his plea, his January 28, 2010 motion
comes closest to constituting a post-sentence motion to withdraw a guilty plea.
Subsequent to the imposition of a sentence, a trial court will only permit a defendant to
withdraw his guilty plea in order to correct a manifest injustice. Crim.R. 32.1. A defendant
bears the burden of proving a manifest injustice warranting the withdrawal of his guilty
plea. State v. Smith (1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324,
paragraph one of the syllabus. Consideration of the motion is "addressed to the sound
discretion of the trial court." Id. at paragraph two of the syllabus. Thus, an appellate
court reviews the trial court's denial of a post-sentence motion to withdraw a plea under
an abuse of discretion standard. Id. An abuse of discretion is more than error of law or
judgment; "it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." State v. Adams (1980), 62 Ohio St .2d 151, 157, 16 O.O.3d 169, 404
N.E.2d 144.
       {¶27} In support of his contention that his guilty plea should have been vacated,
Owens's main argument seems to focus on the alleged unavailability of the telephone
recording of the conversation between Owens and trial counsel. Owens appears to argue
that the State had the burden of proving that the recording, requested by Owens on
January 5, 2007, did not contain exculpatory evidence, because the State was
responsible for the loss or destruction of the recording. Owens further claims that his
averments as to the contents of that recording must be accepted as true, again due to the
State's loss or destruction of the recording. In support, Owens cites State v. Benton
(2000), 136 Ohio App.3d 801, 737 N.E.2d 1046.
       {¶28} In Benton, during the pretrial portion of the appellant's DUI proceedings, he
requested a copy of a recording of the traffic stop, which was in the State's possession.
                                                                                         -7-


Id. at 804. The State, not acting in good faith, failed to respond to the appellant's request,
and destroyed the recording. Id. at 806. The Sixth District held that the State failed to
demonstrate that the evidence was not exculpatory, that the recording was the only
possible objective evidence of the traffic stop, and thus the appellant's due process rights
were violated. Id. The court explained that the Due Process Clause protects a defendant
from being convicted of an offense where the State destroys or fails to preserve materially
exculpatory evidence in bad faith. Id. at 805, following Columbus v. Forest (1987) 36
Ohio App.3d 169, 522 N.E.2d 52. However, this Court has stressed that the onus is on
the State to prove the exculpatory value of certain evidence if and only if the defendant
demonstrates that the State acted in bad faith in losing or destroying the evidence. State
v. Wolf, 154 Ohio App.3d 293, 2003-Ohio-4885, 797 N.E.2d 109, at ¶12-15.
       {¶29} Because Owens made no claim of bad faith in any of his motions, for this
reason alone Owens's argument must fail. Further, Benton and similar cases do not
apply here. The recording requested by Owens was of a conversation between Owens
and his attorney that occurred months after his change of plea and the trial court's
judgment entry of sentence. The evidence alleged by Owens to be in the recording is a
statement by his trial counsel that counsel did not take certain actions to negotiate a more
favorable plea agreement, and that counsel had not agreed to a twelve-year sentencing
recommendation. None of this information constitutes evidence that would exculpate
Owens from any of the drug and firearm offenses that were charged against him.
Because the recording alleged to have been lost or destroyed does not constitute
evidence that would have been materially exculpatory to Owens's case, Owens has not
demonstrated a due process violation.
       {¶30} Moreover, even taking Owens's allegations regarding counsel's recorded
statements to be true, all of the underlying facts and content of Owens's argument,
regarding the ineffective assistance of counsel and resulting invalid plea, had already
been raised in Owens's September 11, 2006 Motion to Withdraw Plea, and rejected by
the trial court and this court on appeal. The doctrine of res judicata applies to successive
post-sentence motions to withdraw a plea under Crim.R. 32.1. State v. Burnside, 7th
                                                                                    -8-


Dist. No. 09 MA 179, 2010-Ohio-3158, at ¶5. Accordingly, Owens's current argument that
counsel undermined the validity of Owens's plea by withholding information and not taking
certain actions during plea negotiations is barred by res judicata.
       {¶31} Owens did not demonstrate a manifest injustice necessitating the vacation
of his March 23, 2006 guilty plea. Further, Owens's argument is barred by res judicata.
Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Vukovich, J., concurs.
