[Cite as State v. Mills, 2012-Ohio-438.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :    JUDGES:
                                              :    Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                    :    Hon. Sheila G. Farmer, J.
                                              :    Hon. Julie A. Edwards, J.
-vs-                                          :
                                              :
CHRISTIE I. MILLS                             :    Case No. 11CA39
                                              :
        Defendant-Appellant                   :    OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 09CR550H



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  February 2, 2012




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JILL M. COCHRAN                                    CHRISTIE I. MILLS, PRO SE
38 South Park Street                               Inmate No. 76671
Mansfield, OH 44902                                Northeast Pre-Release Center
                                                   2675 East 30th Street
                                                   Cleveland, OH 44115
Farmer, J.

       {¶1}   On August 10, 2009, the Richland County Grand Jury indicted appellant,

Christie Mills, on eight counts of receiving stolen property in violation of R.C. 2913.51.

On October 15, 2009, appellant pled guilty to four of the counts. The remaining four

counts were dismissed. By sentencing entry filed same date, the trial court sentenced

appellant to an aggregate term of thirty-two months in prison. On November 3, 2009,

the trial court filed a restitution statement ordering appellant to pay restitution to Sandra

Azbell in the amount of $510.00. Appellant did not file an appeal.

       {¶2}   On March 31, 2010, appellant filed a motion objecting to the restitution

order. By judgment entry filed April 16, 2010, the trial court denied the motion.

       {¶3}   On May 5, 2010, appellant filed a motion for judicial release. By judgment

entry filed August 25, 2010, the trial court denied the motion.

       {¶4}   On February 17, 2011, appellant filed a motion to withdraw plea and a

motion to vacate the restitution order and sentence. By judgment entries filed March

21, 2011, the trial court denied both motions.

       {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶6}   "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DENIED THE DEFENDANT-APPELLANT'S MOTION TO VACATE RESTITUTION

ORDER AS VOID DUE TO THE TRIAL COURT ENTERING A RESTITUTION ORDER

SUBSEQUENT TO THE SENTENCING AND FOR A DISMISSED COUNT, AND

FAILING TO HOLD A REQUIRED HEARING TO ESTABLISH PROOF OF THE
ACTUAL ECONOMIC LOSS TO THE VICTIM, IF ANY, AND THE DEFENDANT-

APPELLANT'S ABILITY TO PAY THE RESTITUTION, WHICH WAS CONTRARY TO

LAW."

                                     II

        {¶7}   "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DENIED THE DEFENDANT-APPELLANT'S MOTION TO VACATE RESTITUTION

ORDER AND SENTENCE AS VOID AND FOR IMMEDIATE RELEASE AND MOTION

TO WITHDRAW PLEA, PRE-SENTENCING WHEN THE RECEIVING STOLEN

PROPERTY COUNTS SHOULD HAVE BEEN MERGED AND THEREAFTER

DISMISSED FOR INSUFFICIENT EVIDENCE OF THE VALUE OF THE LOSS, AN

ESSENTIAL ELEMENT OF THEFT-RELATED OFFENSES AND DETERMINES THE

LEVEL OF OFFENSE."

                                     III

        {¶8}   "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DENIED THE DEFENDANT-APPELLANT'S MOTION TO VACATE RESTITUTION

ORDER AND SENTENCE AS VOID AND FOR IMMEDIATE RELEASE AND MOTION

TO WITHDRAW PLEA, PRE-SENTENCING, WHICH VIOLATED THE DEFENDANT-

APPELLANT'S CONSTITUTIONAL AND STATUTORY RIGHTS, WHEN THERE WERE

SUBSTANTIAL GROUNDS TO WITHDRAW DEFENDANT-APPELLANT'S PLEA,

INCLUDING THAT THE PLEA AGREEMENT WAS CLEARLY BREACHED BY THE

STATE, AND THEREFORE, THE CONVICTION AND SENTENCE ARE VOID."
                                           IV

       {¶9}    "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

VIOLATION OF THE DEFENDANT-APPELLANT'S STAUTORY RIGHTS WHEN IT

FAILED TO VACATE THE RESTITUTION ORDER, SENTENCE, AND CONVICTION

AS VOID, AND FAILED TO ORDER THE IMMEDIATE RELEASE OF THE

DEFENDANT-APPELLANT."

                                            I

       {¶10} Appellant claims the trial court erred in denying her motion to vacate the

restitution order as the order was void. Appellee, the state of Ohio, claims the issue is

res judicata because appellant never timely appealed the restitution order and never

timely appealed the trial court's April 16, 2010 denial of her objections to the order. We

agree with appellee.

       {¶11} On October 15, 2009, appellant pled guilty to Counts I, II, III, and IV in

exchange for a dismissal of Counts V, VI, VII, and VIII.         The indictment did not

specifically state the victims' names for each count, nor did it list a specific victim.

Appellant was sentenced on October 15, 2009. On November 3, 2009, the trial court

filed a restitution statement ordering appellant to pay Sandra Azbell $510.00 in

restitution.

       {¶12} In its October 15, 2009 sentencing entry, the trial court noted, "[t]he

defendant shall pay any restitution, all costs of prosecution, court appointed counsel

costs and any fees permitted pursuant to R.C. 2929.18."
       {¶13} A transcript of the plea and sentence was not filed in order for this court to

review if any discussion on restitution was held. In Knapp v. Edwards Laboratories

(1980), 61 Ohio St.2d 197, 199, the Supreme Court of Ohio held the following:

       {¶14} "The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing

error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d

162. This principle is recognized in App.R. 9(B), which provides, in part, that '***the

appellant shall in writing order from the reporter a complete transcript or a transcript of

such parts of the proceedings not already on file as he deems necessary for inclusion in

the record.***.' When portions of the transcript necessary for resolution of assigned

errors are omitted from the record, the reviewing court has nothing to pass upon and

thus, as to those assigned errors, the court has no choice but to presume the validity of

the lower court's proceedings, and affirm." (Footnote omitted.)

       {¶15} Appellant did not appeal the October 15, 2009 sentence, the November 3,

2009 restitution order, or the April 16, 2010 denial of her objections to the restitution

order. In Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus, the

Supreme Court of Ohio explained res judicata as "[a] valid, final judgment rendered

upon the merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject matter of the previous action." We

concur with appellee that res judicata bars litigation of the restitution issue in this case.

       {¶16} Assignment of Error I is denied.
                                            II, III, IV

       {¶17} Appellant claims the trial court erred in denying her motion to withdraw her

plea and her motion to vacate the restitution order and sentence. Appellant claims her

sentence was void based upon the restitution order, and she should have been

permitted to withdraw her plea based upon merger and the failure to abide by the plea

agreement. We disagree.

       {¶18} Crim.R. 32.1 governs withdrawal of guilty plea and states "[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." The right to withdraw

a plea is not absolute and a trial court's decision on the issue is governed by the abuse

of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261. In order to find an

abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217.

       {¶19} Appellant argues she should have been permitted to withdraw her plea

because appellee breached the plea agreement and the trial court failed to merge the

four counts of receiving stolen property.

       {¶20} As correctly argued by appellee, the merger issue was subject to direct

appeal and was not appealed; therefore, res judicata applies. In addition, all four counts

to which appellant pled occurred on separate days and would not qualify as the same

conduct. See, State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
       {¶21} Appellant also claims appellee violated the plea agreement.                 The

agreement stated appellee would not oppose judicial release after six months. After

appellant applied for judicial release on May 5, 2010, appellee filed a memorandum on

June 1, 2010 stating, "[t]he State, at this time takes no position on the matter of judicial

release. Therefore, the State leaves the matter of judicial release in this matter in the

sound discretion of the Court." By judgment entry filed August 25, 2010, the trial court

denied appellant's request for judicial release. The record only reveals that in the plea,

appellee agreed not to oppose judicial release. It is silent as to any other promises.

       {¶22} We find the plea agreement was not breached and appellant's request to

withdraw her plea was not based upon any justifiable grounds.

       {¶23} Assignments of Error II, III, and IV are denied.

       {¶24} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Edwards, J. concur.


                                             s/ Sheila G. Farmer______________



                                             s/ Patricia A. Delaney_____________



                                             s/ Julie A. Edwards_______________

                                                            JUDGES

                IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
CHRISTIE I. MILLS                        :
                                         :
       Defendant-Appellant               :         CASE NO. 11CA39




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                         s/ Sheila G. Farmer______________



                                         s/ Patricia A. Delaney_____________



                                         s/ Julie A. Edwards_______________

                                                       JUDGES
