[Cite as State v. Palmer, 2014-Ohio-5266.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                              :

        Plaintiff-Appellee                                 :        C.A. CASE NO.      26279

v.                                                         :        T.C. NO.   95 CR 1184

DAVID D. PALMER                               :                (Criminal appeal from
                                                                      Common Pleas Court)
        Defendant-Appellant                   :

                                                           :

                                             ..........

                                             OPINION

            Rendered on the          26th         day of          November        , 2014.

                                             ..........

TIFFANY C. ALLEN, Atty. Reg. No. 0089369, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

DAVID D. PALMER, Inmate #329-601, Richland Correctional Institution, P. O. Box 8107,
Mansfield, Ohio 44901
      Defendant-Appellant

                                             ..........




FROELICH, P.J.
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               {¶ 1} David D. Palmer appeals from a judgment of the Montgomery County

Court of Common Pleas, which denied his “Motion to Withdraw No Contest Plea and

Vacate Sentence Pursuant to Crim.R. 32.1, Crim.R. 5(A), Crim. R. 10(A), O.R.C.

2929.14(B)(E)(4) & O.R.C. 2929.19(B),” which it construed as a petition for post-conviction

relief. For the following reasons, the trial court’s judgment will be affirmed.

       {¶ 2}    On April 19, 1995, Palmer was indicted on seven counts of sexual abuse

regarding a child under the age of 13. Palmer requested a bill of particulars and filed a

motion to dismiss the indictment based upon the inexactitude in the dates for the offenses.

On June 16, 1995, a second 17-count indictment was filed against Palmer, raising sexual

abuse claims regarding the same child as in the April indictment, as well as charges

regarding a second child under the age of 13. The June indictment contained more specific

time frames for the alleged offenses against both children. The April 1995 indictment was

dismissed shortly thereafter, and the case proceeded under the June 1995 indictment.

       {¶ 3}    On April 29, 1996, the scheduled trial date, Palmer pled no contest to two

counts of rape of a child under the age of 13, in violation of R.C. 2907.02(A)(1)(B), an

unclassified felony (counts 3 and 5), as modified at the plea hearing. In exchange for the

plea, the remaining 15 counts were dismissed. The trial court sentenced Palmer to 7 to 25

years in prison on each count, to be served consecutively. In 2000, Palmer was designated a

sexual predator. We affirmed his conviction and sexual predator designation. State v.

Palmer, 2d Dist. Montgomery No. 16017, 1997 WL 452010 (July 25, 1997) (conviction);

State v. Palmer, 2d Dist. Montgomery No. 18259, 2001 WL 256303 (Mar. 16, 2001) (sexual

predator determination).
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         {¶ 4}   Palmer has filed several motions since his direct appeal, including petitions

for post-conviction relief filed on January 11, 2001 (Civ.R. 60(B) motion), November 4,

2004, and December 20, 2005, and motions under Crim.R. 32.1 on November 29, 2006, and

March 3, 2010, the second of which he subsequently withdrew.

         {¶ 5}   On February 25, 2014, Palmer filed another motion to withdraw his no

contest plea and to vacate sentence, asserting two arguments. First, he claimed that he did

not have a proper arraignment and that there were procedural errors when he entered no

contest pleas in April 1996, which created a manifest injustice. Specifically, Palmer argued

that he was not present when the facts underlying the plea were stated by the prosecutor.

(Palmer refers to the hearing at which he entered his plea as an arraignment.) Second, he

asserted that the trial court should have sentenced him to the minimum prison term allowed

under R.C. 2929.14 and that the court did not properly impose consecutive sentences.

         {¶ 6}   The trial court construed Palmer’s motion as a petition for post-conviction

relief and overruled it. The court first found that Palmer’s petition was untimely and that

the untimeliness was not excused. The trial court further stated that the record did not

reflect any error with respect to Palmer’s plea. The court stated that it had reviewed the

transcript of the plea hearing, that there was full compliance with Crim.R.11, and that the

record did not reflect that Palmer was not present during the recitation of the facts. The trial

court found that “consecutive sentences were imposed pursuant to the laws applicable at the

time.”

         {¶ 7}   Palmer appeals from the trial court’s judgment. His sole assignment of

error states:
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       The trial court erred in accepting a plea of no contest and making a finding of

       guilt when no recitation of any factual basis for the finding of guilt was given

       by the prosecutor in the presence of the Defendant. In violation of U.S.C.A.

       14 [sic] .

               {¶ 8} In his appellate brief, Palmer claims that the trial court erred in

construing his motion as a petition for post-conviction relief, and that there were procedural

errors when he entered his no contest pleas in April 1996, which created a manifest injustice.

 Palmer’s reply brief further asserts that he was not provided an arraignment on either

indictment, as required by R.C. 2937.02, and the trial court failed to follow local court rules

regarding pretrial conferences. On appeal, Palmer does not challenge the trial court’s ruling

with respect to the imposition of his sentence.

       {¶ 9}        Crim.R. 32.1 provides, “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.”

       {¶ 10} In contrast, petitions for post-conviction relief are governed by R.C. 2953.21

through R.C. 2953.23. Under these statutes, any defendant who has been convicted of a

criminal offense and who claims to have experienced a denial or infringement of his or her

constitutional rights (federal or Ohio) may petition the trial court to vacate or set aside the

judgment and sentence. R.C. 2953.21(A). A post-conviction proceeding is not an appeal

of a criminal conviction; it is a collateral civil attack on the judgment. State v. Gondor, 112

Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48, citing State v. Steffen, 70 Ohio St.3d
                                                                                               5

399, 410, 639 N.E.2d 67 (1994); R.C. 2953.21(J). For this reason, a defendant’s petition

for post-conviction relief is not a constitutional right; the only rights afforded to a defendant

in post-conviction proceedings are those specifically granted by the legislature. Steffen, 70

Ohio St.3d at 410; State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999).

       {¶ 11} In State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, the

Supreme Court of Ohio made clear that post-conviction motions to withdraw a plea and

petitions for post-conviction relief were distinct remedies.

       [W]e hold that R.C. 2953.21 and 2953.23 do not govern a Crim.R. 32.1

       postsentence motion to withdraw a guilty plea. Postsentence motions to

       withdraw guilty or no contest pleas and postconviction relief petitions exist

       independently.     A criminal defendant can seek under Crim.R. 32.1 to

       withdraw a plea after the imposition of sentence. R.C. 2953.21 and 2953.23

       do not govern the timeliness of such a motion. And Crim.R. 32.1 itself does

       not prescribe a time limitation. This is not to say that timeliness is not a

       consideration, however, as an “undue delay between the occurrence of the

       alleged cause for withdrawal of a guilty plea and the filing of a motion under

       Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and

       militating against the granting of the motion.”

Bush at ¶ 14, quoting State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph

three of the syllabus.

       {¶ 12} “Courts may recast irregular motions into whatever category necessary to

identify and establish the criteria by which the motion should be judged.” State v. Schlee,
                                                                                                6

117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. For example, a motion to

correct or vacate a sentence may be properly treated as petition for post-conviction relief.

Id., citing State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997). However, a

Crim.R. 32.1 motion to withdraw a guilty plea cannot be recast by a trial court. Id. at ¶ 13.

       {¶ 13} Palmer’s motion sought to withdraw his plea and to vacate his sentence.

On its face, the portion of Palmer’s motion related to his sentence was not brought under

Crim.R. 32.1, and the trial court did not err in construing that portion of his argument as a

petition for post-conviction relief. The portion of the motion related to his arraignment and

plea was nominally brought under Crim.R. 32.1 and alleged that a manifest injustice

occurred.   Accordingly, the trial court should have addressed those arguments under

Crim.R. 32.1.

       {¶ 14} Turning to the merits of Palmer’s claims, Palmer asserts that the trial court

erred in accepting his no contest plea prior to hearing the factual basis for the plea, and that

he was not present in the courtroom when the factual basis for the plea was provided to the

court. These assertions are not supported by the record.

       {¶ 15}    The record of April 29, 1996, plea hearing reflects that, during the hearing,

the court asked the prosecutor to “give the Court a statement of the facts based upon – as a

result of the no contest plea.” The prosecutor described count 3, indicating that Palmer had

made two girls perform fellatio on him and that he had licked and penetrated their vaginas at

a residence in Montgomery County in the fall of 1991. Count 5 involved the same two girls

and occurred at a different Montgomery County address in December 1992; Palmer forced

the girls to perform fellatio. After hearing these facts, the trial court found Palmer to be
                                                                                           7

guilty of counts 3 and 5, as amended at the hearing. The record reflects that Palmer was

present with his attorneys when the prosecutor stated the factual bases for the two charges

and when the court made its finding of guilt. There were no objections. Accordingly, the

trial court did not err in concluding that the record did not reflect the error that Palmer

alleged, and we conclude that Palmer has not demonstrated that he suffered a manifest

injustice at his plea hearing.

        {¶ 16} Palmer’s motion and arguments on appeal appear to also claim that he was

denied an arraignment on the June 1995 indictment. Palmer’s argument could have been

raised on direct appeal, and it is now barred by res judicata.

        {¶ 17} Moreover, we have held that “[a] challenge regarding improper arraignment

is waived if the defendant fails to object to the defect prior to appeal.” State v. Cruea, 2d

Dist. Miami No. 2012 CA 2, 2012-Ohio-5209, ¶ 12, citing State v. Boone, 9th Dist. Summit

No. 26104, 2012-Ohio-3142; see Garland v. Washington, 232 U.S. 642, 646, 32 S.Ct. 456,

58 L.Ed.2d 772 (1914) (“A waiver ought to be conclusively implied where the parties had

proceeded as if defendant had been duly arraigned and a formal plea of not guilty had been

interposed, and where there was no objection made on account of its absence until, as in this

case, the record was brought to this court for review.”); King v. United States, 25 F.2d 242,

243-44 (6th Cir.1928) (“[E]ven though the defendant had not been formally arraigned, or

had not pleaded to the indictment, his proceeding to trial without raising this objection

would imply a waiver, or at least the formal defect would not be prejudicial.”).

        {¶ 18} Palmer was arraigned in April 1995, and a not guilty plea was entered; he

was reindicted in June 1995.       The handwritten docket attached to Palmer’s motion is
                                                                                           8

difficult to read, but it appears to show that Palmer was served with the new indictment, and

that on June 28, 1995, the court filed an entry reducing Palmer’s bond to $100,000.

Palmer’s case proceeded, as if he had been duly arraigned (and the record before the trial

court does not show otherwise), for ten months prior to the entry of his no contest pleas.

Palmer has not demonstrated that any alleged failure to provide an arraignment on the June

1995 indictment created a manifest injustice warranting the withdrawal of his plea.

       {¶ 19} Palmer’s assignment of error is overruled.

       {¶ 20} The trial court’s judgment will be affirmed.

                                        ..........

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Tiffany C. Allen
David D. Palmer
Hon. Timothy N. O’Connell
