[Cite as State v. Barnett, 2016-Ohio-8070.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       HOn. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. CT2016-0028
WILLIAM BARNETT                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Muskingum
                                                   County Court of Common Pleas, Case No.
                                                   CR20080210

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            December 5, 2016




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

D. MICHAEL HADDOX                                  WILLIAM J. BARNETT
PROSECUTING ATTORNEY                               #586573
BY GERALD ANDERSON II                              Marion Correctional Institution
ASSIST. PROSECUTING ATTORNEY                       Box 57
27 North Fifth St.                                 Marion, OH 43301
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2016-0028                                                    2

Gwin, P.J.

       {¶1}   Appellant William J. Barnett [“Barnett”] appeals from the May 26, 2016

Judgment Entry of the Muskingum County Court of Common Pleas denying his motions

which include a motion to withdraw his guilty plea; motion for a new trial; motion on

hearing for newly discovered evidence; and amended motion to suppress DNA evidence.

                                  Facts and Procedural History

       {¶2}   The change of plea transcript indicates that Barnett entered a plea of guilty

on April 9, 2009, to Rape in violation of R.C. 2907.02, a felony of the first degree, and

Aggravated Burglary in violation of R.C. 2911.11, a felony of the first degree. In exchange

for the plea, the state nolled Count 2 of the indictment alleging kidnapping in violation of

R.C. 2905.01(A)(4) , the sexually violent predator specification to Count 2, the repeat

violent offender specification to Count 2 and the sexually violent predator and repeat

violent offender specifications to Count 3. The state recommended a 10-year sentence

on Count 1 and Count 2 to be served consecutive to one another but concurrent with a

sentence Barnett was currently serving in the Franklin County Court of Common Pleas.

(T. at 3).

       {¶3}   The facts underlying the allegations were put on the record by the state,

              MR. SMITH: Thank you, Your Honor. If this matter had proceeded

       to trial, the State believes the evidence would have shown that between

       October 8th and October 9th, 2006, in Muskingum County, the defendant

       did, by force, stealth, or deception, knowingly trespass in an occupied

       structure located at 2926 Brookside Drive, Zanesville, Muskingum County,

       Ohio, with purpose to commit in that structure a criminal offense, that being
Muskingum County, Case No. CT2016-0028                                                    3


       kidnapping and/or rape, and that he did inflict, attempt to inflict, or threaten

       to inflict physical harm upon his victim identified as …., this in violation of

       Revised Code Section 2911.11(A)(1).

               With regard to Count 3, the State believes the evidence would have

       shown on the same date, time, and place the defendant did engage in

       sexual conduct with [the victim], who was not his spouse, and he compelled

       her to submit by force or threat of force, this in violation of Revised Code

       Section 2907.02(A)(2).

               These charges stem from a Muskingum County Sheriff's Department

       investigation into a complaint filed by [the victim].       That investigation

       revealed that the defendant did enter into her apartment while she was

       gone, laying in wait for her. When she did come home, he brandished a

       knife and did compel her to have sexual conduct with him and escaped.

       This investigation later was able to be solved through the use of forensic

       technology and DNA evidence.

T. at 11-12.

       {¶4}    The trial court sentenced Barnett to 10 years on each count consecutive to

each other but concurrent with the sentence Barnett was currently serving in the Franklin

County Court of Common Pleas. (Sent. Entry, filed May 12, 2009).

       {¶5}    Barnett appealed raising as his four assignments of error:

               I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS

       AND THE RIGHT TO A GRAND JURY INDICTMENT UNDER ARTICLE I,

       SECTION 10 TO THE OHIO CONSTITUTION AND THE FIFTH, SIXTH
Muskingum County, Case No. CT2016-0028                                            4


      AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

      CONSTITUTION       BY   A   PROSECUTIO      [SIC]    AND     RESULTING

      CONVICTION ON AN INSUFFICIENT INDICTMENT FOR AGGRAVATED

      BURGLARY WHICH DID NOT CONTAIN THE RECKLESS MENS REA

      ELEMENT AS REQUIRED BY LAW.

            II.   THE    DEFENDANT-APPELLANT’S            PLEA    WAS     NOT

      KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED UNDER

      ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE

      FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

      STATES CONSTITUTION.

            III. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS

      AND WAS TWICE PLACED IN JEOPARDY IN VIOLATION OF ARTICLE I,

      SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND

      FOURTEENTH        AMENDMENTS         TO    THE      UNITED      STATES

      CONSTITUTION WHEN HE WAS SENTENCED TO CONSECUTIVE

      TERMS OF IMPRISONMENT FOR THE SAME OFFENSE.

            IV.   THE    DEFENDANT-APPELLANT           WAS       DENIED   THE

      EFFECTIVE ASSISTANCE OF COUNSEL UNDER ARTICLE I, SECTION

      10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND

      FOURTEENTH        AMENDMENTS         TO    THE      UNITED      STATES

      CONSTITUTION.

State v. Barnett, 5th Dist. Muskingum No. CT2009-0025, 2010-Ohio-1695, ¶5-¶8. This

court affirmed Barnett’s conviction and sentence. The Ohio Supreme Court declined to
Muskingum County, Case No. CT2016-0028                                                  5

exercise jurisdiction. State v. Barnett, 126 Ohio St.3d 1582, 2010-Ohio-4542, 934 N.E.

355(Table).

      {¶6}    On November 24, 2009, Barnett filed a petition for post-conviction relief to

vacate or set aside his conviction in the trial court pursuant to R.C. 2953.21, claiming

ineffective assistance of counsel alleging he was forced to accept the plea bargain due

to misrepresentations made by counsel, he was denied a right to a preliminary hearing

and his right to a speedy trial was violated. The trial court denied Barnett’s petition by

Judgment Entry filed November 24, 2009. No appeal was filed from the trial court’s

judgment entry denying Barnett’s petition.

      {¶7}    On October 23, 2015, Barnett filed: 1). Motion for Hearing on Newly

Discovered Evidence; 2). Crim.R. 33(A)(4)(6) Motion for a New Trial on Evidence Not

Available for Seven Years; 3). Crim.R. 32.1` Motion for Withdrawal of Guilty Plea- Hearing

Requested.    On October 30, 2015, Barnett filed a Motion to Dismiss Alleged DNA

Evidence. On November 18, 2015, Barnett filed an Amended Motion to Suppress Alleged

DNA Evidence. The state filed a response to each motion filed by Barnett. The trial court

denied all of Barnett’s motions by Judgment Entry filed May 26, 2016.

                                     Assignments of Error

      {¶8}    Barnett raises four assignments of error,

      { ¶ 9 } “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT IN DENYING HIS MOTION FOR WITHDRAWAL OF A GUILTY

PLEA, HEARING REQUESTED.                  THE TRIAL COURT ERRED IN NOT

GRANTING THE DEFENDANT A HEARING ON HIS MOTION. A COMPLAINT

THAT CONTAINS ENOUGH FACTUAL MATTER WHEN TAKEN AS TRUE
Muskingum County, Case No. CT2016-0028                                                    6


SHOULD N O T B E D I S M I S S E D . I N D I S M I S S I N G T H E C O M P L A I N T , T H E

COURT ERRS.

       {¶10} “II. IN A MOTION FOR NEW TRIAL ON EVIDENCE NOT AVAILABLE FOR

SEVEN YEARS; IN A MOTION FOR NEW TRIAL ON NEWLY DISCOVERED

EVIDENCE REQUIRED WHEN THAT EVIDENCE PROVES DEFENDANT NOT ONLY

INNOCENT OF THE ALLEGED CRIME, BUT NO PROOF EXISTS SUPPORTING THAT

CRIME OCCURRED. THE TRIAL COURT ERRS BY DISMISSING THE COMPLAINT

WITHOUT A HEARING.

       {¶11}         “III. A MOTION FOR NEW TRIAL ON EVIDENCE NOT

AVAILABLE FOR SEVEN YEARS. WHEN EVIDENCE KNOWN TO THE STATE

WAS WITHHELD FROM DEFENDANT FOR SEVEN YEARS THAT PREVIOUSLY

UNAVAILABLE EVIDENCE RENDERS THE INDICTMENT INSUFFICIENT, AND A

VERDICT THAT'S NOT SUSTAINED BY SUFFICIENT EVIDENCE IN THE

PRESENCE OF THE PREVIOUSLY UNAVAILABLE, INCLUDING AFFIDAVITS,

REQUIRES DISMISSAL OR GRANTING OF A NEW TRIAL.                                THE TRIAL

COURT ERRED W HEN IT FAILED TO HOLD A H E A R I N G O N E A C H I S S U E

INSTEAD OF DISMISSING THE MOTIONS.

       {¶12}         “IV. ALTHOUGH DNA IS CONSIDERED THE SAME

AS    FINGERPRINT           W HEN       IT   COMES       TO    EVIDENCE,          CROSS

EXAMINATION           IS   NOT      A    PROBLEM         W ITH     A   FINGERPRINT;

HOW EVER, THE MINUTE AMOUNT OF DNA REQUIRED TO BE

USED        IN      TESTING             INCREASES           DRAMATICALLY               ITS

SUSCEPTIBILITY TO CONTAMINATION FROM OTHER SOURCES
Muskingum County, Case No. CT2016-0028                                                   7


— PARTICULARLY FORM THE SAMPLE THAT IS BEING RUN IN

COMPARISON TO.              THE TRIAL COURT ERRED WHEN IT FAILED

TO HOLD A HEARING ON EACH ISSUE INSTEAD OF DISMISSING

THE MOTIONS.”

                                     Pro se appellants

       {¶13} We understand that Barnett has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

       {¶14} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),

the Supreme Court noted, “a reviewing court cannot add matter to the record before it

that was not a part of the trial court's proceedings, and then decide the appeal on the

basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”

It is also a longstanding rule "that the record cannot be enlarged by factual assertions in

the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),

citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d

227(1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858

N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843
Muskingum County, Case No. CT2016-0028                                                         8


N.E.2d 1202, ¶16. In the interests of justice, we shall attempt to consider Barnett’s

assignments of error.

                                                   I.

       {¶15} After reviewing Barnett’s brief including his contentions, we have interpreted

Barnett’s first assignment of error in the following manner: The trial court erred in denying

his post-sentence motion to withdraw his guilty plea without a hearing.

       {¶16} The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise difficult

process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,

368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete

admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not

simply stating that he did the discreet acts described in the indictment; he is admitting

guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102

L.Ed.2d 927(1989).

       {¶17} Crim.R. 32.1 provides that a trial court may grant a defendant’s post

sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore,

“[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. Although no precise

definition of “manifest injustice” exists, in general, “‘manifest injustice relates to some

fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is

inconsistent with the demands of due process.’” State v. Wooden, 10th Dist. Franklin No.

03AP–368, 2004–Ohio–588, ¶ 10, quoting State v. Hall, 10th Dist. Franklin No. 03AP–
Muskingum County, Case No. CT2016-0028                                                      9

433, 2003–Ohio–6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP–708,

2005–Ohio–4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699

N.E.2d 83(1998) (“[a] manifest injustice has been defined as a ‘clear or openly unjust

act’”) Under this standard, a post-sentence withdrawal motion is allowable only in

extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.

       {¶18} “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. Thus, we review a trial court’s denial of a motion to

withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that denial

only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005–Ohio–4926.

       {¶19} Barnett has failed to demonstrate that the evidence he presented to the trial

court in the form of a test result from Ohio Bureau of Criminal Identification and

Investigation [“BCI & I”] was “newly discovered.”

       {¶20} A review of the court’s files reveals that trial counsel filed a motion to obtain

a DNA expert, naming Genetic Technologies, Inc. on September 30, 2008. The grounds

for the motion as described by counsel was discovery had indicated DNA testing was

performed in Barnett’s case. The trial court granted defense counsel’s motion on October

3, 2008.

       {¶21} On October 15, 2008, defense counsel filed a demand for specific

discovery, including all lab reports, DNA test results, protocols, manuals and procedures

utilized by the state’s experts.
Muskingum County, Case No. CT2016-0028                                              10


       {¶22}     On December 22, 2008, defense counsel filed a motion to compel

discovery.     In addition, defense counsel filed his response to discovery identifying

Stephanie Beine of Genetic Technologies as a witness at trial. In his motion to compel,

defense counsel informed the trial court of the following,

               On January 12, 2009, the undersigned counsel received some of the

       specific DNA evidence that was requested on October 15, 2008. The

       undersigned counsel forwarded the evidence received to Defendant's

       expert on January 14, 2009. Once Defendant's expert received the specific

       DNA evidence produced by the State of Ohio, she immediately notified the

       undersigned counsel that it was not complete and that she needed the

       Procedure Manuals for both labs, the Quality Assurance Manuals for both

       labs, and the electronic data for both labs.

                                            ***

               On February 19, 2009, the undersigned counsel received the

       additional BCI information that was requested but to date has not received

       the LabCorp information. On February 19, 2009, the undersigned counsel

       forwarded the additional BCI information to Defendant's expert for her

       review.

       {¶23} The trial court granted defense counsel’s motion to compel on March 4,

2009, ordering the state to provide specific discovery within five days.

       {¶24} On March 31, 2009, the trial court approved payment to Genetic

Technologies, Inc. for services performed for the defense from October 31, 2008 through

March 27, 2009.
Muskingum County, Case No. CT2016-0028                                                  11


       {¶25} Barnett plead guilty on April 9, 2009.

       {¶26} Barnett produced no evidence that the state failed to comply with the trial

court’s March 4, 2009 order. No affidavit was presented from either counsel or Genetic

Technologies, Inc. that the reports Barnett submitted with his motion were not produced

and reviewed by the defense and the defense expert prior to the date on which he entered

his negotiated guilty plea.

       {¶27} Further, Barnett submitted in support of his motions a letter from his trial

attorney dated September 30, 2014, in which counsel inform Barnett,

              Once Genetics Technologies completed their review and analysis,

       they called me with their opinion. Since their opinion was not favorable to

       you, they did not send me a written report nor did they feel it was necessary

       to perform their own DNA test.

       {¶28} Accordingly, Barnett did not establish that the evidence was “newly

discovered.” The trial court did not abuse its discretion in denying Barnett’s motion to

withdraw his guilty plea without a hearing.

       {¶29} Barnett’s first assignment of error is overruled.

                                              II. & III.

       {¶30} After reviewing Barnett’s brief including his contentions, we have interpreted

Barnett’s second and third assignments of error in the following manner: the trial court

erred in overruling his motion for a new trial.

       {¶31} In State v. Aleshire, this court observed,

              Pleas of guilty that are knowingly, voluntarily, and intelligently

       entered waive the defendant’s right to trial on the criminal charge or charges
Muskingum County, Case No. CT2016-0028                                                      12


      involved. It necessarily follows, therefore, that “[a] plea of guilty in a criminal

      case precludes the defendant from thereafter making a motion for a new

      trial.” State v. Frohner (1948), 150 Ohio St. 53, 80 N.E.2d 868, paragraph

      thirteen of the syllabus; State, ex rel. Batten v. Reece, 70 Ohio St.2d 246,

      436 N.E.2d 1027; State v. Franklin, Greene App. No.2002-CA-7, 2003-

      Ohio-3831 at ¶ 10.

              Moreover, allowing a defendant to file a motion for new trial instead

      of a motion to withdraw the plea permits the defendant to circumvent the

      more stringent standard set forth in seeking a withdrawal of a plea. State

      v. Frohner, supra. See, also State v. Woodley, Cuyahoga App. No. 83104

      at n. 2. (Citing State v. Burke (Mar. 9, 2001), 2nd Dist. No. 17955; State v.

      Vincent, 4th Dist. No. 02CA2654, 2003-Ohio-473, at ¶ 20; State v. Franklin,

      2nd Dist. No. 2002 CA 77, 2003-Ohio-3831).

             Accordingly, because appellant entered guilty pleas to all the

      charges and waived his right to have a jury determine his guilt or innocence,

      the trial court correctly determined that it did not have jurisdiction to rule

      upon appellant’s motion for a new trial. Therefore, we affirm the trial court’s

      decision dismissing his motion for a new trial and overrule the appellant’s

      assignment of error related to his filing of a motion for a new trial.

5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, ¶54-55; Accord, State v. Armstrong,

8th Dist., Cuyahoga No. 103088, 2016-Ohio-2627, ¶63; State v. Temaj-Felix, 1st Dist.,

Hamilton No. C-140138, 2015-Ohio-3967, ¶7.
Muskingum County, Case No. CT2016-0028                                                     13


       {¶32} Accordingly, because Barnett entered guilty pleas to all the charges and

waived his right to have a jury determine his guilt or innocence, the trial court did not have

jurisdiction to rule upon his motion for a new trial. Barnett filed a separate motion to

withdraw his guilty plea, which the trial court addressed.

       {¶33} To the extent Barnett argues his plea was not knowing, intelligent and

voluntary, Barnett was represented by different counsel on his direct appeal. Barnett did

raise an assignment of error concerning whether his plea was knowing, intelligent and

voluntary and an assignment of error concerning whether he was denied the effective

assistance of counsel.       Barnett did further raise these issues based upon similar

arguments in his petition for post-conviction relief; however, he did not appeal the trial

court’s denial of his petition. Accordingly, the issues are barred by res judicata.

       {¶34} Therefore, we affirm the trial court’s decision dismissing his motion for a

new trial and overrule the Barnett’s second and third assignments of error related to his

filing of a motion for a new trial.

                                                 IV.

       {¶35} After reviewing Barnett’s brief including his contentions, we have interpreted

Barnett’s fourth assignment of error in the following manner: The trial court erred in not

conducting a hearing on Barnett’s claim of contamination of the DNA evidence in his case.

       {¶36} “The possibility of contamination goes to the weight of the evidence, not its

admissibility.” State v. Richey, 64 Ohio St.3d 353, 360, 595 N.E.2d 915 (1992), overruled

on other grounds, State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997). In other

words, Barnett could have, but did not, chose to go to trial and argue that the DNA

evidence was flawed. All of the evidence that Barnett cites to in his brief was available at
Muskingum County, Case No. CT2016-0028                                                   14


the time he entered his negotiated guilty plea. Hence, the argument and the evidence

were available to him before his plea, direct appeal and his petition for post-conviction

relief.

          {¶37} “Under the doctrine of res judicata, a final judgment of conviction bars the

defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that the defendant raised or

could have raised at the trial which resulted in that judgment of conviction or on appeal

from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Res

judicata also implicitly prohibits a defendant from “re-packaging” evidence or issues that

either were, or could have been, raised in the context of the petitioner's trial or direct

appeal. State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362(12th Dist. 1995).

          {¶38} Barnett’s arguments do not raise any issues that are dependent upon

evidence outside the trial court record.
Muskingum County, Case No. CT2016-0028                                15


      {¶39} Barnett’s fourth assignment of error is overruled.

      {¶40} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur
