[Cite as State v. Taylor, 2020-Ohio-865.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


 STATE OF OHIO,                                      :       OPINION

                    Plaintiff-Appellee,              :
                                                             CASE NO. 2019-L-076
          - vs -                                     :

 CLIFFORD D. TAYLOR,                                 :

                    Defendant-Appellant.             :


 Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2014 CR
 000715.

 Judgment: Affirmed.


 Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
 Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
 Painesville, OH 44077 (For Plaintiff-Appellee).

 Clifford D. Taylor, pro se, PID# A662-816, North Central Correctional Complex, 670
 Marion-Williamsport Road, P.O. Box 1812, Marion, OH 43302 (Defendant-Appellant).


MATT LYNCH, J.

         {¶1}      Defendant-appellant, Clifford D. Taylor, appeals the denial of his motion to

withdraw a guilty plea. For the following reasons, we affirm the decision of the court

below.

         {¶2}      On October 15, 2014, Taylor entered a plea of “guilty” by way of information

to two counts of Rape, felonies of the first degree in violation of R.C. 2907.02(A)(2), in the

Lake County Court of Common Pleas.
       {¶3}   On November 12, 2014, a sentencing hearing was held. Taylor made an

oral motion to withdraw his guilty plea which the trial court denied. The court sentenced

Taylor to eleven years in prison for each count of Rape, to be served consecutively for an

aggregate prison term of twenty-two years.

       {¶4}   In State v. Taylor, 2015-Ohio-2080, 33 N.E.3d 123 (11th Dist.), this court

affirmed the denial of the oral motion to withdraw the guilty plea.

       {¶5}   On October 30, 2017, Taylor filed a Motion to Vacate Set Aside Illegal

Sentence/Invalid Indictment, on the grounds that his constitutional rights were violated by

post-indictment delay, denial of the right to counsel, denial of access to the law library,

and due process violations.

       {¶6}   On June 5, 2018, the trial court denied the Motion to Vacate.

       {¶7}   In State v. Taylor, 11th Dist. Lake No. 2018-L-091, 2019-Ohio-842, this

court affirmed the denial of the Motion to Vacate.

       {¶8}   On May 10, 2019, Taylor filed a Motion to Withdraw Guilty Plea based on

ineffective assistance of counsel, the post-indictment infringement of constitutional rights

(denied “access to legal material, forced into overly restrictive cell, and denied exercise”),

and the plea being coerced and involuntary.

       {¶9}   On June 3, 2019, the trial court entered an Order Denying the Motion to

Withdraw Guilty Plea:

              The court notes that the defendant appealed the court’s denial of his
              motion to withdraw his guilty plea made prior to his sentencing, and
              the court was affirmed by the court of appeals. Further, although the
              matters the defendant now complains of are based on allegations
              that the defendant would have been aware of prior to his plea and
              sentencing, the defendant did not mention these complaints at either
              hearing, which took place more than four years ago. Additionally,
              the court conducted a painstaking plea colloquy. The defendant



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               indicated that he had the opportunity to look at all the evidence in the
               case, and that he discussed the evidence with his attorney to his
               satisfaction. * * * He further indicated that his attorney did everything
               that the defendant asked him to do, and that he was completely
               satisfied with the legal representation provided to him.

       {¶10} On August 2, 2019, Taylor filed a Notice of Appeal. On appeal, he raises

the following assignments of error:

       {¶11} “[1.] Appellant was denied effective assistance of counsel prior to signing a

plea bargain.”

       {¶12} “[2.] Appellant was denied due process of the 14th amendment when

arbitrarily placed in punitive cell.”

       {¶13} “[3.] Appellant [was] denied [the] right to basic exercise while incarcerated

for six months.”

       {¶14} “[4.] Appellant was denied access to legal material during punitive lock up

for 130 days.”

       {¶15} “[5.] Appellant was subjected to trial court abuse of discretion which is on

record during change of plea hearing.”

       {¶16} Criminal Rule 32.1 provides that “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.” “A defendant who seeks to withdraw a plea of guilty after the imposition

of sentence has the burden of establishing the existence of manifest injustice.” State v.

Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. “This

term has been variously defined, but it is clear that under such standard, a postsentence

withdrawal motion is allowable only in extraordinary cases.” Id. at 264; State v. Straley,

__ Ohio St.3d __, 2019-Ohio-5206, __ N.E.3d __, ¶ 14 (“[a] ‘manifest injustice’ is a ‘clear




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or openly unjust act’”) (citation omitted).

       {¶17} “A motion made pursuant to Crim.R. 32.1 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.” Smith at

paragraph two of the syllabus.

       {¶18} Taylor’s arguments are barred by res judicata. “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 the

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, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph nine of the syllabus.

       {¶19} “Ohio courts of appeals have applied res judicata to bar the assertion of

claims in a motion to withdraw a guilty plea that were or could have been raised at trial or

on appeal.” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59;

Straley at ¶ 23 (“[r]es judicata generally bars a defendant from raising claims in a Crim.R.

32.1 postsentencing motion to withdraw a guilty plea that he raised or could have raised

on a direct appeal”); State v. Rock, 11th Dist. Lake No. 2018-L-135, 2019-Ohio-2796, ¶

10.

       {¶20} In his direct appeal, Taylor challenged trial counsel’s representation and the

denial of his original motion to withdraw his guilty plea.       Taylor argued his actual

innocence and claimed that trial counsel urged him to lie to the trial court in order to have

his plea accepted. Taylor, 2015-Ohio-2080, 33 N.E.3d 123, at ¶ 34. In the present Motion




                                              4
to Withdraw, the same issues are raised albeit under different facts: trial counsel was

ineffective because he opposed having the minor victim testify; and Taylor’s plea was

involuntary on account of the circumstances of his post-indictment detention. As noted

by the trial court, nothing prevented Taylor from raising these specific arguments either

at the time of his oral motion to withdraw his guilty plea or in his direct appeal. As these

arguments were raised or could have been raised before the trial court and on appeal,

Taylor is barred from raising them in his successive Motion to Withdraw.

       {¶21} Taylor counters that “Res Judicata does not bar post-conviction petitions

supported by evidence that is outside the record.” State v. Watson, 126 Ohio App.3d

316, 324-325, 710 N.E.2d 340 (3d Dist.1998) (“[a]n exception to the res judicata bar is

when the petitioner presents competent, relevant, and material evidence outside the

record that was not in existence and available to the petitioner in time to support the direct

appeal”). The authority cited by Taylor applies to petitions for postconviction relief rather

than Criminal Rule 32.1 motions. We note that a postconviction motion was the subject

of the 2018 appeal the denial of which was affirmed for being untimely. Taylor, 2019-

Ohio-842, at ¶ 13. Timeliness is also relevant to the consideration of whether a defendant

should be allowed to withdraw a guilty plea. “Although the rule itself does not provide for

a time limit after the imposition of sentence, during which a motion to withdraw a plea of

guilty must be made, it has been held that an 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 granting of the motion.” Smith, 49 Ohio

St.2d at 264, 361 N.E.2d 1324. In the present case, over four years elapsed between

Taylor’s plea and the filing of his Motion to Withdraw.




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       {¶22} Ultimately, the standard for the postconviction motion to withdraw Taylor’s

plea remains that of manifest injustice. The trial court did not abuse its discretion finding

that Taylor failed to satisfy that standard in light of his statements made at the time he

entered his pleas:

              The court: And you have been able to discuss all of the evidence
              that the State has in this case against you?

              Taylor:       Yeah.

              The court: And you’ve discussed it with your attorney to your
              satisfaction?

              Taylor:       Yes, I did.

              The court:    And you’ve had enough time to do this?

              Taylor:       Yeah.

              The court: Although this may be your attorney’s recommendation
              for you to plea guilty by way of information to these two counts of
              felony one rape, is this your own decision and voluntary act to do so?

              Taylor:       Yeah.

              The court: Has your attorney done everything you’ve asked him to
              do for you in this case?

              Taylor:       Yeah.

              The court: Can you think of anything that your attorney has failed
              or neglected to do that you think he should have done?

              Taylor:       No, sir.

              The court: Are you completely satisfied              with   the   legal
              representation provided by * * * your attorney?

              Taylor:       Yes, sir.

       {¶23} The assignments of error are without merit.

       {¶24} For the foregoing reasons, the denial of Taylor’s Motion to Withdraw Guilty



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Plea is affirmed. Costs to be taxed against appellant.



TIMOTHY P. CANNON, P.J.,

MARY JANE TRAPP, J.,

concur.




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