[Cite as State v. Phillips, 2019-Ohio-3707.]




                              IN THE COURT OF APPEALS OF OHIO
                                  SIXTH APPELLATE DISTRICT
                                       LUCAS COUNTY


State of Ohio                                             Court of Appeals No. L-18-1145

        Appellee                                          Trial Court No. CR0200203200

v.

Devian Phillips                                           DECISION AND JUDGMENT

        Appellant                                         Decided: September 13, 2019

                                                    *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assisting Prosecuting Attorney for appellee.

        Devian Phillips, pro se.

                                                    *****
        SINGER, J.

                                               I.   Introduction

        {¶ 1} Appellant, Devian Phillips, appeals the October 24, 2017 judgment of the

Lucas County Court of Common Pleas, denying his motion to withdraw his guilty plea.

As appellant’s motion is barred by res judicata, we affirm the trial court’s judgment.
                         A.     Facts and Procedural Background

         {¶ 2} On November 1, 2002, appellant was indicted with one count of murder in

violation of R.C. 2903.02(A), with a firearm specification attached in violation of R.C.

2941.145(A). Appellant entered a not guilty plea on March 25, 2003. On July 21, 2003,

appellant withdrew his previously filed motion to suppress and entered a guilty plea to

the murder charge. Pursuant to a plea agreement, prosecutors entered a nolle prosequei

as to the firearm specification.

         {¶ 3} Appellant was sentenced on the same day to a prison term of fifteen years to

life. No good time credit would be awarded and his sentence was mandatory. The plea

agreement states: “I understand the MAXIMUM penalty COULD be: a maximum basic

prison term of life of which 15 years – life is mandatory, during which I am NOT eligible

for judicial release or community control.” The word “NOT” was scribbled through on

the plea agreement. Appellant did not file a direct appeal of his conviction.

         {¶ 4} On March 11, 2009, appellant filed his first motion to withdraw his guilty

plea. In this motion, appellant argued that he should be permitted to withdraw his guilty

plea based on ineffective assistance of counsel. This motion was denied by the trial court

on March 26, 2009. Appellant appealed that decision to this Court, but that appeal was

later dismissed because appellant failed to file his assignments of error and his appellate

brief.




2.
       {¶ 5} On February 22, 2017, appellant filed a motion for judicial release which

was denied the following day. On July 26, 2017, appellant filed his second motion to

withdraw his guilty plea. Appellant argued that he did not enter his plea knowingly,

intelligently, and voluntarily because he assumed that he would be eligible for judicial

release rather than parole at the end of his fifteen year mandatory sentence. Appellant

argued that he was misinformed by his trial counsel that he would be eligible for judicial

release.

       {¶ 6} Appellant filed an affidavit in support of his motion. The affidavit asserts

that appellant was not fully informed of the terms of his plea agreement. He avers that “I

was under the assumption that I would be on post-relief control, but in actuality I would

be under APA [parole] for a lifetime of parole.” He also avers that his “judgment of

conviction is a miscarriage of justice.”

       {¶ 7} The trial court found that appellant’s motion was barred by res judicata due

to his earlier filing of a motion to withdraw his plea. The trial court also found that

appellant had failed to demonstrate a manifest injustice because appellant failed to

demonstrate that there was an affirmative representation of eligibility, or that there was a

mutual mistake between himself and the prosecutor. This timely appeal ensued.




3.
                              B.      Assignments of Error

              Assignment of Error One: Whether Appellant’s plea was

       knowingly, intelligently, and voluntarily made, in violation of due process

       and Article I, Section 16 of the Ohio Constitution?

              Assignment of Error Two: Whether a criminal defendant’s plea

       agreement in binding and contractual in nature? Whether the guilty plea

       satisfied constitutional due process?

              Assignment of Error Three: Whether Appellant’s conviction for

       Murder, in violation of R.C. 2903.02(A), an unclassified felony, renders

       the sentence void?

                                      II.      Analysis

       {¶ 8} The crux of appellant’s three assignments of error is that his plea was not

knowingly, voluntarily, or intelligently entered. He argues that because he was

misinformed by the plea agreement and his trial counsel that he would be eligible for

judicial release following his mandatory prison term, the trial court abused its discretion

when it denied his second motion to withdraw his guilty plea. Appellant argues the

motion should have been granted because the word “NOT” was crossed out on the plea

agreement which led him to believe that he would be eligible for judicial release

following his mandatory prison term.




4.
       {¶ 9} Appellee, the state of Ohio, argues that appellant’s motion to withdraw his

guilty plea was barred by the doctrine of res judicata and that appellant has failed to

demonstrate any manifest injustice. Appellee argues that the sentencing entry in this

matter does not contain any information about appellant’s eligibility for judicial release,

but does state that he will not be eligible for parole until the expiration of his mandatory

prison term.

       {¶ 10} “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.” Crim.R. 32.1. As appellant’s motion to withdraw his plea was filed more than a

decade after his conviction, the manifest injustice standard applies.

               A defendant who seeks to withdraw a guilty plea after the

       imposition of sentence carries the burden of establishing the existence of

       manifest injustice. A manifest injustice is defined as a ‘clear or openly

       unjust act.’ Manifest injustice is an extremely high standard, and a

       defendant may only withdraw his guilty plea in extraordinary cases.

               The decision to grant or deny a Crim.R. 32.1 motion to withdraw a

       guilty plea is reviewed on appeal under an abuse of discretion standard.

       Accordingly we will not reverse the trial court’s denial of that motion

       unless we find that the court’s attitude in ruling on the motion was




5.
       unreasonable, arbitrary or unconscionable. State v. Favre, 6th Dist. Erie

       Nos. E-10-051, E-10-052, 2012-Ohio-4187, ¶ 13-14 (citations omitted).

                                   A.     Res Judicata


       {¶ 11} “Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal.” State v. Green,

5th Dist. Stark No. 2011 CA 00127, 2011-Ohio-5611, ¶ 24, citing State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Res judicata serves as

a bar for successive motions to withdraw guilty pleas under Crim.R. 32.1, when the

grounds to withdraw the plea were raised or could have been raised in the initial motion

to withdraw. State v. Kelm, 6th Dist. Wood No. WD-11-024, 2013-Ohio-202, citing

Green, ¶ 24.

       {¶ 12} We find that the trial court did not abuse its discretion when it found that

appellant’s second motion to withdraw his guilty plea is barred by res judicata.

Appellant’s motion was the second motion he filed seeking to withdraw his guilty plea.

The arguments appellant makes in his second motion to withdraw his plea could have and

should have been included in his first motion to withdraw his plea. Further, this issue

could have been raised on a direct appeal of his conviction or on appeal of the denial of

his first motion to withdraw his guilty plea. Appellant failed to file either appeal. The

issue is thus precluded from again being litigated. Accordingly, appellant’s first, second,

and third assignments of error are not well-taken.




6.
                                 B.      Manifest Injustice

       {¶ 13} A plea agreement should generally be rescinded if the parties as well as the

trial court made a mutual mistake in regards to the terms of the plea agreement. State v.

Thurman, 4th Dist. Meigs No. 15CA4, 2016-Ohio-7254, ¶ 16, quoting State v. Moore,

4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 16. “‘When a defendant’s guilty plea

is induced by erroneous representations as to the applicable law * * * the plea is not

knowingly, intelligently, and voluntarily made.’” Id., quoting State v. Bryant, 4th Dist.

Meigs No. 11CA19, 2012-Ohio-3189, ¶ 8. Misinformation or other incorrect affirmative

representations surrounding eligibility for judicial release may render a plea not

knowingly, intelligently, or voluntarily made. See State v. Williams, 10th Dist. Franklin

No. 03AP-1214, 2004-Ohio-6123, ¶ 9-10. “‘[A] defendant’s own self-serving allegations

are insufficient to rebut a record demonstrating that the plea was properly made.’” State

v. Johnson, 6th Dist. Lucas No. L-16-1280, 2018-Ohio-1656, ¶ 14, quoting State v.

Whiteman, 11th Dist. Portage No. 2001-P-0096, 2003-Ohio-2229, ¶ 20.

       {¶ 14} We further find that the trial court did not abuse its discretion when it

determined appellant failed to demonstrate a manifest injustice would occur if he was not

permitted to withdraw his guilty plea.

       {¶ 15} Appellant does assert a mutual mistake between the trial court and the

parties. There is no indication that there was any conflict in understanding between the

parties at the time of sentencing. Further, appellant fails to assert that anyone




7.
affirmatively represented that he would be eligible for judicial release following his

prison term. He asserts that he “assumed” as such due to the scribbled out “NOT” on the

plea agreement. Appellant merely asserts that a manifest injustice existed based on this

assumption, with no supporting information in regards to a mutual mistake of law or an

affirmative misrepresentation of the law by either his counsel or the trial court. A

mistaken assumption does not rise to a manifest injustice.

       {¶ 16} Despite the small indication that the word “NOT” is scribbled out, the trial

court’s sentencing entry clearly states that appellant was eligible to be released through

parole after fifteen years. This clearly provided appellant notice he would be subject to

the requirements of parole rather than judicial release. Therefore, appellant’s first,

second, and third assignments of error are not well-taken.

                                     III.   Conclusion

       {¶ 17} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. It is ordered that appellant pay the court costs of this appeal

pursuant to App.R. 24.




                                                                        Judgement affirmed.




8.
                                                                              State of Ohio
                                                                          v. Devian Phillips
                                                                        C.A. No. L-18-1145




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                                ____________________________
                                                         JUDGE
Thomas J. Osowik, J.
                                                 ____________________________
Christine E. Mayle, P.J.                                 JUDGE
CONCUR.
                                                 ____________________________
                                                         JUDGE




          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                   http://www.supremecourt.ohio.gov/ROD/docs/.




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