      [Cite as State v. Johnson, 2020-Ohio-3892.]

                            COURT OF APPEALS OF OHIO

                           EIGHTH APPELLATE DISTRICT
                              COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

              Plaintiff-Appellee,                   :
                                                          No. 108937
              v.                                    :

MARVIN F. JOHNSON, SR.,                             :

              Defendant-Appellant.                  :


                             JOURNAL ENTRY AND OPINION

              JUDGMENT: AFFIRMED
              RELEASED AND JOURNALIZED: July 30, 2020


       Criminal Appeal from the Cuyahoga County Court of Common Pleas
                           Case No. CR-15-594187-B


                                           Appearances:

              Michael C. O’Malley, Cuyahoga County Prosecuting
              Attorney, and Patrick Lavelle, Assistant Prosecuting
              Attorney, for appellee.

              Marvin F. Johnson, Sr., pro se.


MICHELLE J. SHEEHAN, J.:

               Marvin Johnson appeals from a judgment of the trial court denying his

motion to withdraw his no-contest plea. After a review of the record and applicable

law, we affirm the judgment of the trial court.
Procedural Background

             Johnson was indicted in March 2015 for drug trafficking, drug

possession, and possession of criminal tools. Johnson filed a motion to suppress the

evidence. After a hearing, the trial court denied the motion. Subsequently, Johnson

pleaded no contest to the indictment.

             On May 26, 2016, the trial court sentenced Johnson to six years in

prison for drug trafficking, after finding drug possession to be an allied offense of

drug trafficking. The court also imposed a concurrent six-month prison term for

possessing criminal tools. The trial court then deferred execution of the sentence

and placed Johnson on supervised release and electronic home detention so that

Johnson could undergo a heart procedure on July 22, 2016. The trial court directed

Johnson to report to jail on August 1, 2016, and warned him that if he failed to

appear, the court would vacate his six-year sentence and impose a longer one.

Johnson failed to appear on August 1, 2016, and the trial court resentenced Johnson

on February 13, 2017, to eight years in prison.

Johnson I

             Johnson appealed from the trial court’s judgment. He argued that the

trial court erred in denying his motion to suppress evidence; his eight-year prison

term was not supported by the record; the trial court erred when it resentenced him

to an increased prison term of eight years after initially imposing a six-year term;

and that he was denied the effective assistance of counsel when his trial counsel

failed to object to the increased prison term of eight years and had also failed to
object to the issuance of a capias for Johnson's failure to appear in court due to

medical reasons.

              On appeal, this court held that the trial court lacked authority to

resentence Johnson to an eight-year term in February 2017 and the original

sentence was still in effect. This court remanded the case for the limited purpose of

executing the original sentence. State v. Johnson, 8th Dist. Cuyahoga No. 105560,

2018-Ohio-169, appeal not accepted, 152 Ohio St.3d 1484, 2018-Ohio-1990, 98

N.E.3d 296 (“Johnson I”). Johnson’s ineffective-assistance-of-counsel claim was

found moot.

Johnson II

              After Johnson filed the notice of appeal from the trial court’s

February 13, 2017 judgment, on March 24, 2017, he filed a “Petition to Vacate or Set

Aside Judgment of Conviction or Sentence.” He argued that his due process rights,

the right against cruel and unusual punishment, and the right to effective assistance

of counsel were violated. For the ineffective assistance of counsel claim, he alleged

that he was denied effective assistance of counsel from each of his trial attorneys at

various stages of the proceedings.

              The trial court construed his motion as a petition for postconviction

relief and found that the motion was barred by res judicata because the newly raised

claims could have been raised in his direct appeal and Johnson offered no evidence

outside the record for the claims. On appeal, this court affirmed the trial court’s

judgment, finding his claims could have been raised on direct appeal because the
claims did not rely on evidence outside of the record, and therefore, they were barred

by res judicata. State v. Johnson, 8th Dist. Cuyahoga No. 105855, 2018-Ohio-178

(“Johnson II”).

Johnson III

             On remand from Johnson I, the trial court held a hearing on March 29,

2018.   The trial court reinstated Johnson's original six-year prison sentence

pursuant to the directive given by the court in Johnson I.

             Johnson appealed from the decision. He argued that his no-contest

plea was not entered knowingly, intelligently, or voluntarily. This court found the

doctrine of res judicata barred his claim because he could have raised the argument

regarding his no-contest plea in his direct appeal but did not. State v. Johnson, 8th

Dist. Cuyahoga No. 107126, 2019-Ohio-632, appeal not accepted, 156 Ohio St.3d

1445, 2019-Ohio-2498, 125 N.E.3d 928 (“Johnson III”). Johnson also argued the

trial court sentenced him to six years in prison out of vindictiveness. The court

found his claim that the trial court was vindictive was also barred by res judicata.

             A day before that hearing, on March 28, 2018, Johnson filed a motion

to withdraw his no-contest plea. His motion was based on his claim that his plea

was not knowing, intelligent, or voluntary because the plea was “induced by an

implied statement by the Prosecutor during the plea bargaining process,” the trial

judge “interfered in the plea bargain discussions,” and his counsel failed “to meet a

valid legal standard during the plea bargaining process.” The trial court denied the

motion to withdraw as moot. On appeal, however, this court sustained Johnson’s
assignment of error regarding the trial court’s denial of his motion to withdraw on

the ground that the transcript of the March 29, 2018 hearing reflected that the trial

court had not yet seen his motion to withdraw before denying it as moot. This court

therefore remanded the case for the trial court to consider his March 28, 2018

motion to withdraw his plea.

The Instant Appeal

             On remand from Johnson III, on August 8, 2019, the trial court held a

hearing on Johnson’s motion to withdraw the no-contest plea. At the hearing,

Johnson stated his motion to withdraw was based on infective assistance of counsel

in the plea bargain stage: more specifically, counsel filed a motion to suppress,

which caused him to lose out on the opportunity of a plea bargain.

             The trial court noted that Johnson had already raised an ineffective-

assistance-of-counsel claim in his direct appeal, Appeal No. 105660 (Johnson I), and

he raised another ineffective-assistance-of-counsel claim in Appeal No. 105855

(Johnson II), which the Eighth District found to be barred by res judicata because

the claim could have been raised in his direct appeal. The trial court denied his

motion to withdraw on the ground of res judicata.

             Johnson appeals from the decision. His assignments of error state:

      The trial court abused its discretion by considering appellant’s
      Crim.R. 32.1 motion to withdraw no contest plea as a post-sentence
      motion instead of a pre-sentence motion, violating his rights under
      the Fourteenth Amendment of the United States Constitution, and
      Section 10 & 16, Article I, of the Ohio Constitution.
      The trial court abused its discretion by denying appellant’s
      Crim.R. 32.1 motion to withdraw no contest plea [to correct manifest
      injustice], violating his rights under the Fourteenth Amendment of
      the United States Constitution, and Section 10 & 16, Article I, of the
      Ohio Constitution.

             For ease of discussion, we address the two assignments together.

             Johnson argues his motion to withdraw should be treated as a

presentence motion to withdraw and considered under a more liberal standard.

Crim.R. 32.1 governs withdrawals of guilty pleas and provides that “[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.” In

contrast, a presentence motion to withdraw a guilty plea, generally, should be freely

and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

             We agree with the state, however, that Johnson’s March 28, 2018

motion to withdraw the no-contest plea is a postsentence motion. The record

reflects that the execution of Johnson’s original six-year term imposed by the trial

court was stayed to allow him to undergo a heart procedure. When he failed to

appear on the scheduled date to begin his sentence, a capias was issued for him and

the trial court increased his sentence to eight years. In Johnson I, this court held

that the trial court lacked authority to resentence him and the original six-year term

was still in effect. Johnson I at ¶ 46. As the original six-year term was imposed on

May 26, 2016, the March 28, 2018 motion to withdraw is a postsentence motion.
             More importantly, regardless of whether the motion is considered a

presentence or postsentence motion, we note that Johnson’s motion to withdraw

was based on a claim of ineffective assistance of counsel. This is the third occasion

where Johnson raised a claim of ineffective assistance of counsel.

             The Supreme Court of Ohio explained the application of res judicata in

criminal cases as follows:

      Under the doctrine of res judicata, a final judgment of conviction bars
      the convicted defendant from raising and litigating in any proceeding,
      except an appeal from that judgment, any defense or 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.

(Emphasis sic.) State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).

             In his direct appeal (Johnson I), Johnson raised the ineffective-

assistance-of-counsel claim in his fourth assignment of error alleging counsel

provided ineffective assistance at the February 13, 2017 sentencing hearing, when

the court imposed the eight-year sentence. He raised the ineffective-assistance-of-

counsel claim again in his “Petition to Vacate or Set Aside Judgment of Conviction

or Sentence,” alleging that each of his trial attorneys provided ineffective assistance

at different stages of the proceedings. In Johnson II, this court determined that the

ineffective-assistance-of-counsel claim was barred by res judicata because he could

have raised the claim in Johnson I. This court explained that the trial court may

dismiss a petition for postconviction relief based on res judicata if it finds that the

petitioner could have raised the issues on direct appeal without resorting to evidence
beyond the scope of the record. Johnson II at ¶ 16, citing State v. Abdussatar, 8th

Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 16, citing State v. Scudder, 131 Ohio

App.3d 470, 475, 722 N.E.2d 1054 (10th Dist.1998).

             Similarly, the latest ineffective assistance of counsel claim (that

counsel’s filing of the motion to suppress caused him to lose out on the opportunity

of a plea bargain), upon which his March 28, 2018 motion to withdraw was

predicated, could have been raised in his direct appeal but was not. “Res judicata

generally bars a defendant from raising claims in a Crim.R.32.1 post-sentencing

motion to withdraw a guilty plea that he raised or could have raised on direct

appeal.” State v. Straley, Slip Opinion No. 2019-Ohio-5206, ¶ 23, citing State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59. See also State

v. Cobb, 8th Dist. Cuyahoga No. 93404, 2010-Ohio-5118, ¶ 10, and State v.

Fountain, 8th Dist. Cuyahoga Nos. 92772 and 92874, 2010-Ohio-1202,

¶ 9 (“this court has consistently recognized that the doctrine of res judicata bars all

claims raised in a Crim.R. 32.1 motion that were raised or could have been raised in

a prior proceeding, including a direct appeal”). The trial court properly concluded

that Johnson’s claim was barred by res judicata and denied his motion to withdraw

the no-contest plea.

             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.

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

of the Rules of Appellate Procedure.



____________________________
MICHELLE J. SHEEHAN, JUDGE

SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR
