[Cite as State v. Scott, 2019-Ohio-1292.]




                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                            PREBLE COUNTY




 STATE OF OHIO,                                   :

        Appellee,                                 :         CASE NO. CA2018-10-015

                                                  :              OPINION
     - vs -                                                       4/8/2019
                                                  :

 CHRISTOPHER L. SCOTT,                            :

        Appellant.                                :




       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                           Case No. 12-CR-10970



Martin P. Votel, Preble County Prosecuting Attorney, Gractia S. Manning, 101 East Main
Street, Courthouse, First Floor, Eaton, Ohio 45320 for appellee

Christopher L. Scott, #A668-909, Chillicothe Correctional Institutional Institution, 15802
State Route 104 North, Chillicothe, Ohio 45601 pro se



        S. POWELL, J.

        {¶ 1} Appellant, Christopher L. Scott, appeals from the decision of the Preble

County Court of Common Pleas denying his motion to withdraw his guilty plea to one count

of rape, one count of sexual battery, two counts of gross sexual imposition, and one count

of importuning. For the reasons outlined below, we reverse in part and remand to the trial
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court for the limited purpose of issuing a nunc pro tunc sentencing entry to properly reflect

that Scott is subject to a mandatory five-year postrelease control term should he ever be

released from prison. In all other respects, the judgment of the trial court is affirmed.

                                           Indictment

       {¶ 2} On July 3, 2012, the Preble County Grand Jury returned an eight-count

indictment charging Scott with three counts of rape, one count of sexual battery, three

counts of gross sexual imposition, and one count of importuning. With the exception of the

lone importuning charge, each of the seven remaining charges included a violent sexual

predator specification. It is undisputed that the three counts charging Scott with rape were

all first-degree felonies.

                                       Bill of Particulars

       {¶ 3} Upon Scott's request, the state filed a bill of particulars detailing the specific

allegations giving rise to each of the eight charged offenses. The following is a recitation

of the facts as alleged in the bill of particulars.

       {¶ 4} On June 18, 2012, a deputy with the Preble County Sheriff's Office was

dispatched to the Scott residence to investigate a reported sexual assault of a child. Prior

to the deputy's arrival, the deputy was advised that the Sherriff's Office had received a

telephone call from Scott's wife, B.S., indicating she had discovered Scott engaging "in

inappropriate conduct with her daughter." At the time this report was made the child was

11 years old.

       {¶ 5} Upon the deputy's arrival, the deputy spoke with B.S. B.S. advised the deputy

that she had awoken to find Scott was not in bed with her. Seeing that Scott was not in

bed, B.S. informed the deputy that she got out of bed only to find Scott naked in her

daughter's bedroom. Shocked by what she had found, B.S. confronted Scott about him

inappropriately touching her daughter. Scott admitted to touching the child inappropriately.

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B.S. then ordered Scott out of the house and called the Sherriff's Office to report the sexual

assault.

        {¶ 6} The deputy then spoke with the child. The child advised the deputy that Scott

"had entered her bedroom, removed her shorts and panties off of her, and tried to place his

penis in her vagina[.]" The child also informed the deputy that Scott had engaged in similar

conduct since she was approximately six years old while the family was living in Indiana.

Giving further credence to the allegations levied against Scott, the deputy noted that the

child was in "obvious discomfort."

        {¶ 7} Unbeknownst to the deputy or B.S., Scott had since gone to the Sheriff's

Office to "turn [himself] in." Upon his arrival at the Sheriff's Office, Scott spoke with a

different deputy and admitted that he was there "because I was touching my daughter

inappropriately."1 Scott had also informed the deputy that "it had just happened in his

daughter's bedroom and that he was 'touching her vagina' with his hands after pulling her

bottoms off." Scott, however, "denied any sex, oral sex or intercourse/penetration of any

kind but admitted this had happened 'about seven times' since January 2012."

        {¶ 8} Upon waiving his Miranda rights, Scott admitted significant detail regarding

his repeated sexual abuse of the now 11-year-old victim.                     Specifically, as the bill of

particulars states:2

                1. Scott initially admitted that he had gone into the child's
                bedroom that evening, picked the child up, and placed her on
                the floor. Scott admitted that he then removed the child's shorts
                and panties and began rubbing the child's clitoris and vaginal
                area.

                2. Scott also admitted that he began sexually abusing the child
                when she was just six years old. This abuse began while the

1. Although referring to the child as his daughter, the record indicates the child was actually Scott's
stepdaughter.

2. This court has reorganized the bill of particulars detailing Scott's admissions for purposes of clarity and
ease of readability.
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              family lived in Indiana between January of 2007 and March of
              2011. Scott admitted that the sexual abuse continued after
              moving to Preble County in January of 2012.

              3. Scott further admitted that he had previously and repeatedly
              touched the child's vagina and clitoris but "denied any orgasm
              by either." Scott instead claimed that "after touching the child,
              he would leave the room to masturbate and ejaculate."

              4. Scott claimed there were no other victims besides the child
              at issue and that the child "never spoke during these incidents
              and denied being told to 'stop.'"

              5. Scott next admitted that he had twice performed cunnilingus
              on the child while living in the family home in Preble County
              sometime after January of 2012.

              6. Scott additionally claimed that the child had touched his penis
              on at least one occasion.

              7. Scott explained his abhorrent behavior away by claiming he
              had started sexually abusing the child because "his wife's sex
              life was very poor and infrequent and/or that the child had come
              onto him."

                                    Plea and Sentencing

       {¶ 9} On September 14, 2012, Scott entered into a plea agreement and agreed to

plead guilty to one count of rape, one count of sexual battery, two counts of gross sexual

imposition, and one count of importuning. In exchange for Scott's guilty plea, the state

agreed to dismiss the remaining charges and accompanying violent sexual predator

specifications. The parties also entered an agreement as to sentencing; specifically, ten

years to life in prison for rape, eight years for sexual battery, and five years each for the two

gross sexual imposition and importuning offenses. The parties further agreed that the

various sentences imposed by the trial court would be served concurrently.

       {¶ 10} After engaging Scott in a Crim.R. 11(C) plea colloquy, the trial court accepted

Scott's guilty plea upon finding the plea was knowingly, intelligently, and voluntarily entered.

The matter then proceeded immediately to sentencing, wherein Scott stated in allocution:


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              My actions were selfish, disgusting, beyond carnal what I did. I
              ruined more than two families by the stupidity of what I have
              done.

              Again, selfishness. I've hurt more people than I ever thought I
              could by my actions. I wish I could say I was sorry and make it
              all better, but I can't.

              I've hurt so many people, I don't know if even this is enough.

       {¶ 11} After hearing from Scott in allocution, the trial court approved and imposed

the parties' agreed upon sentence. The trial court also notified Scott that he would be

classified as a Tier III sex offender and that he would be subject to a mandatory five-year

postrelease control term if he was ever released from prison. The trial court's sentencing

entry, however, indicates Scott's mandatory postrelease control term should he ever be

released from prison was "mandatory in this case up to a maximum of five years."

(Emphasis added.)

                               Postconviction Proceedings

       {¶ 12} Scott did not file a direct appeal from his conviction or sentence. Rather, over

three years later, Scott filed a pro se motion to correct void sentence. Scott also filed a pro

se motion for judgment on the pleadings. As part of these motions, and as relevant here,

Scott argued that his conviction and sentence were void since he was not advised of his

appellate rights during the joint plea and sentencing hearing.

       {¶ 13} Upon receiving Scott's pro se motions, the trial court reclassified and

consolidated the motions as a petition for postconviction relief. Denying Scott's petition as

untimely and otherwise lacking all merit, the trial court held:

              The Defendant freely and voluntarily entered pleas of guilty and
              was sentenced according to the terms negotiated between the
              Defendant (via his counsel) and the State. He was properly
              advised by the Court regarding the effect of a guilty plea, his
              Constitutional rights and the waiver therefore, the nature of the
              charges, and the maximum penalty for each offense. Therefore,
              he was sentenced to the agreed terms of imprisonment.

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       {¶ 14} Scott appealed the trial court's decision denying his petition for postconviction

relief. Scott also moved this court for leave to file a delayed appeal from his original

conviction and sentence. This court denied Scott's motion for leave and dismissed his

appeal in State v. Scott, 12th Dist. Preble Case No. CA2016-08-008 (September 21, 2016)

(entry denying motion for leave to file delayed appeal).

                              Motion to Withdraw Guilty Plea

       {¶ 15} Two years after this court dismissed his appeal, Scott filed a pro se motion to

withdraw his guilty plea. In support of this motion, Scott alleged his guilty plea was not

knowingly, intelligently, and voluntarily entered due to the trial court's failure to comply with

Crim.R. 11(C). Scott based his argument on a number of issues he claimed rendered his

conviction and sentence void; namely, the trial court's failure to advise him of his appellate

rights as part of the joint plea and sentencing hearing and allegations that the trial court

improperly advised him of his registration requirements as a Tier III sex offender. Scott

brought this motion pursuant to Crim.R. 32.1.

       {¶ 16} On October 5, 2018, the trial court denied Scott's motion to withdraw his guilty

plea upon finding the motion was barred by the doctrine of res judicata. But, although

finding the doctrine of res judicata applied, the trial court also denied Scott's motion on the

merits based on its finding Scott had failed to establish a manifest injustice as required by

Crim.R. 32.1. Specifically, as the trial court stated:

              The Court finds no manifest injustice. Even if the Court were to
              assume that Defendant was not properly advised under
              Criminal Rule 11 and/or of his registration requirements [as a
              Tier III sex offender] and the results of a failure to comply with
              the registration requirements, there is no showing of manifest
              injustice.    The Defendant, with assistance of counsel,
              negotiated a plea arrangement that allowed Defendant to avoid
              a possible life sentence because the State agreed to dismiss
              the sexually violent predator specifications.          An agreed
              sentence was imposed by the Court. The Defendant did not

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             claim innocence, rather he essentially confessed at sentenc[ing]
             when given an opportunity to speak.

                               Assignment of Error No. 1:

      {¶ 17} Scott now appeals, raising two assignments of error for review. In his first

assignment of error, Scott argues the trial court erred by denying his motion to withdraw his

guilty plea. We disagree.

                            Standard of Review: Crim.R. 32.1

      {¶ 18} Pursuant to Crim.R. 32.1, "a defendant who seeks to withdraw a guilty plea

after the imposition of the sentence has the burden of establishing the existence of a

manifest injustice." State v. Reeder, 12th Dist. Butler Case Nos. CA2013-05-075 and

CA2013-07-126, 2014-Ohio-2233, ¶ 23. Manifest injustice relates to a fundamental flaw in

the proceedings that results in a miscarriage of justice or is inconsistent with the demands

of due process. State v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610,

¶ 13. "This sets forth an extremely high standard that is allowable only in extraordinary

cases." State v. Tringelof, 12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016,

2017-Ohio-7657, ¶ 10, citing State v. Sturgill, 12th Dist. Clermont No. CA2014-09-066,

2015-Ohio-1933, ¶ 9.

      {¶ 19} "A trial court's decision regarding a post-sentence motion to withdraw a guilty

plea is reviewed on appeal under an abuse of discretion standard." State v. Rose, 12th

Dist. Butler No. CA2010-03-059, 2010-Ohio-5669, ¶ 15. An abuse of discretion is more

than an error of law or judgment. State v. Miller, 12th Dist. Butler No. CA2016-01-007,

2016-Ohio-7360, ¶ 7. Rather, it suggests the "trial court's decision was unreasonable,

arbitrary or unconscionable." State v. Perkins, 12th Dist. Clinton No. CA2005-01-002, 2005-

Ohio-6557, ¶ 8. A decision is unreasonable when it is "unsupported by a sound reasoning

process." State v. Abdullah, 10th Dist. Franklin No. 07AP-427, 2007-Ohio-7010, ¶ 16, citing


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AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161 (1990).

                     The Doctrine of Res Judicata and Crim.R. 32.1

       {¶ 20} Scott initially argues the trial court erred by finding his motion to withdraw his

guilty plea was barred by the doctrine of res judicata. In support, Scott argues that because

the trial court did not advise him of his appellate rights at the joint plea and sentencing

hearing that his conviction and sentence are void. Therefore, because the doctrine of res

judicata does not apply to a void sentence, Scott argues the trial court was required to grant

his motion and vacate his guilty plea. Scott's claim lacks merit.

       {¶ 21} While it is true that the doctrine of res judicata does not apply to a void

sentence, the trial court's failure to advise Scott that he had a right to appeal does not render

his conviction or sentence void. See State v. Barnes, 12th Dist. Warren No. CA2014-03-

049, 2015-Ohio-651, ¶ 27 (trial court's failure to advise appellant of his right to appeal did

not render appellant's conviction void); see also State v. Cuthbert, 5th Dist. Fairfield No. 18-

CA-33, 2019-Ohio-96, ¶ 10 ("[a] trial court's failure to notify a defendant concerning appeal

rights, however, does not render a sentence void"); State v. Smotherman, 10th Dist.

Franklin No. 16AP-471, 2016-Ohio-8133, ¶ 13 (a trial court's failure to inform a defendant

regarding his or her appellate rights does not render a sentence void).

       {¶ 22} The doctrine of res judicata applies and bars claims raised in a Crim.R. 32.1

postsentence motion to withdraw a guilty plea that were either raised or could have been

raised in a prior proceeding. State v. Rose, 12th Dist. Butler No. CA2010-03-059, 2010-

Ohio-5669, ¶ 18; State v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610,

¶ 11 (claims raised in support of a Crim.R. 32.1 postsentence motion to withdraw a plea

that could have been raised on direct appeal, but were not, are barred by res judicata).

       {¶ 23} Here, as noted above, Scott argues his conviction and sentence are void

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because the trial court did not advise him of his appellate rights at the joint plea and

sentencing hearing. But, as the record indicates, Scott raised this same argument as part

of his petition for postconviction relief. The trial court denied Scott's petition as untimely

and otherwise lacking all merit. Scott then appealed. This court dismissed Scott's appeal

and further denied Scott's motion for leave to file a delayed appeal. Because Scott has

previously raised this same issue with both the trial court and this court, the doctrine of res

judicata clearly applies to bar Scott's claim. Scott's claim to the contrary lacks merit.

                       Mandatory Five-Year Postrelease Control Term

       {¶ 24} Scott also argues the trial court erred by denying his motion to withdraw his

guilty plea because the trial court misinformed him that he would be subject to a mandatory

five-year postrelease control term should he ever be released from prison. However,

contrary to Scott's claim, the plain and unambiguous language found in R.C. 2967.28(B)(1)

mandates the exact opposite holding. That statute specifically states that a mandatory five-

year postrelease control term is required for an offender convicted of "a felony of the first

degree or for a felony sex offense[.]"       This, as the record indicates, includes Scott's

conviction for rape.

       {¶ 25} This court's holding is confirmed by the Ohio Supreme Court's decision in

State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671. As the Ohio

Supreme Court held in that case:

              After applying the rules of grammar and common usage to R.C.
              2967.28(B)(1), we find that the statute's plain, unambiguous
              language expressly requires the inclusion of a mandatory
              postrelease-control term of five years for each prison sentence
              for felonies of the first degree and felony sex offenses.
              [Appellant] was convicted of rape in violation of R.C. 2907.02,
              which is both a felony of the first degree and a felony sex
              offense. Therefore, R.C. 2967.28(B) required that a five-year
              term of postrelease control be included in his sentence.

(Internal citations omitted.) Id. at ¶ 14.

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       {¶ 26} Relying on the Ohio Supreme Court's holding in McCormick, this court in State

v. Miller, 12th Dist. Clermont No. CA2011-04-028, 2012-Ohio-995, found "the trial court

erred in its sentencing of appellant when it failed to impose a mandatory five-year term of

postrelease control for each of appellant's three rape convictions because rape is both a

felony of the first degree and a felony sex offense." Id. at ¶ 36; see also State v. Peace,

11th Dist. Portage No. 2017-P-0037, 2018-Ohio-3742, ¶ 32 ("[u]pon sentencing a

defendant, a court must impose post-release control for first-degree felonies and felony sex

offenses even when the sentence is life in prison without parole"). Therefore, because Scott

will be subject to a mandatory five-year postrelease control term should he ever be released

from prison, the trial court did not err by advising him of his postrelease control obligations

at the joint plea and sentencing hearing. Scott's claim to the contrary again lacks merit.

          Mandatory Postrelease Control "Up To" a Maximum of Five Years

       {¶ 27} Scott next argues the trial court erred by denying his motion to withdraw his

guilty plea because the trial court's sentencing entry erroneously stated that his postrelease

control term was "mandatory in this case up to a maximum of five years." (Emphasis

added.) Due to the mandatory nature of Scott's five-year postrelease control term, we agree

that the trial court improperly stated in its sentencing entry that his postrelease control term

was "up to" a maximum of five years.

       {¶ 28} This confusion is further exacerbated by the fact that the trial court's

sentencing entry also stated in the following sentence that Scott "shall serve a mandatory

period of post release control of five years[.]" Due to this confusion, we find the portion of

the trial court's sentencing entry failing to properly notify Scott of postrelease control

obligations is void. See State v. Bregen, 12th Dist. Clermont No. CA2010-06-039, 2011-

Ohio-1872, ¶ 25, citing State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, paragraph

one of the syllabus.

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       {¶ 29} But, rather than rendering Scott's entire conviction and sentence void, it is

well-established that "the imperfect sentencing entry can be corrected through a nunc pro

tunc entry." State v. Williams, 12th Dist. Butler No. CA2018-03-055, 2018-Ohio-3990, ¶ 18.

Therefore, because this error may be corrected through a nunc pro tunc sentencing entry,

we set aside the trial court's sentencing entry as it relates to its imposition of postrelease

control only and remand this matter to the trial court. Upon remand, the trial court shall

issue a nunc pro tunc sentencing entry to properly reflect that Scott is subject to a

mandatory five-year postrelease control term should he ever be released from prison.

       {¶ 30} The error in the trial court's sentencing entry does not render his guilty plea

anything less than knowingly, intelligently, and voluntarily entered. Scott was properly

advised at the joint plea and sentencing hearing that he would be subject to a mandatory

five-year postrelease control term. As the trial court stated:

              THE COURT: There are several offenses. The first is entitled
              Rape, an alleged violation of Section 2907.02(A)(1)(b), it is a
              felony of the first degree. The maximum penalty is ten years to
              life. You would be required to serve at least ten years. You
              could be required to serve the rest of your life. You would be
              eligible for parole, but not until you have at least served the ten
              years.

              The maximum fine is $20,000. When you are released from
              prison, you will be released on a mandatory period of
              postrelease control of five years, and that means that during five
              years after your release you must comply with the conditions of
              postrelease control, and if you don't you can be sent back to
              prison to serve additional time up to a maximum of one-half of
              whatever the original sentence was that was issued by the
              Court.

       {¶ 31} The trial court then asked Scott if he understood the nature of the charge and

maximum penalty he faced by pleading guilty. Scott responded by stating "Yes, sir." The

fact that the trial court's sentencing entry created some confusion as to the mandatory

nature of Scott's five-year postrelease control term falls well short of what could be


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considered a manifest injustice at such a late stage in the proceedings. This is certainly the

case here when considering the trial court issued its sentencing entry after Scott had

already entered his guilty plea. Scott's claim otherwise lacks merit.

                Requirements and Restrictions of a Tier III Sex Offender

       {¶ 32} Scott finally argues the trial court erred by denying his motion to withdraw his

guilty plea because the trial court incorrectly advised him, as a Tier III sex offender, that the

various requirements and restrictions found in R.C. Chapter 2950 were "not necessarily a

penalty." Scott properly notes that the Ohio Supreme Court has found those requirements

and restrictions are punitive and not remedial. State v. Williams, 129 Ohio St.3d 344, 2011-

Ohio-3374, ¶ 16 ("[f]ollowing the enactment of S.B. 10, all doubt has been removed: R.C.

Chapter 2950 is punitive"). But, despite the trial court's misstatement, there is nothing in

the record to indicate the punitive nature of R.C. Chapter 2950 played any part in Scott's

decision to plead guilty.

       {¶ 33} Given the serious nature of the charges, it is clear that Scott accepted the

state's plea agreement to avoid the possibility of being sentenced to life in prison without

the possibility of parole. The punitive or remedial nature of R.C. Chapter 2950 had little, if

any, impact on Scott's decision on whether to plead guilty. This is undoubtedly the case

here when considering the trial court specifically advised Scott that by pleading guilty he

may never be released from prison. As the trial court stated, "none of this will apply until

you are released from prison, if you are ever released from prison." Scott's release from

prison was, and presumably still is, a necessary condition for the various requirements and

restrictions found in R.C. Chapter 2950 to apply. This too falls well short of what could be

considered a manifest injustice.

       {¶ 34} In light of the foregoing, we find the trial court did not abuse its discretion by

denying Scott's motion to withdraw his guilty plea. This is because, as addressed more

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fully above, Scott failed to establish the existence of a manifest injustice. Regardless of

any error in the trial court's plea colloquy, or in the trial court's sentencing entry, the record

is clear that Scott's plea was knowingly, intelligently, and voluntarily entered. But, although

the trial court did not err by denying Scott's motion to withdraw his guilty plea, this matter

must nevertheless be reversed, in part, and remanded to the trial court to issue a nunc pro

tunc sentencing entry to properly reflect that Scott is subject to a mandatory five-year

postrelease control term should he ever be released from prison.

                                 Assignment of Error No. 2:

       {¶ 35} In his second assignment of error, Scott argues he received ineffective

assistance of counsel. In support, Scott claims the record is "obvious" that his trial counsel

had a "complete ignorance of the law." Scott also claims his trial counsel improperly

advised him that he "had no choice but to plead" guilty and egregiously informed him that

"he had no right to appeal." We again disagree.

                 Standard of Review: Ineffective Assistance of Counsel

       {¶ 36} "Ineffective assistance of counsel is a proper basis for seeking a post-

sentence withdrawal of a guilty plea." State v. Worthington, 12th Dist. Brown No. CA2014-

12-022, 2015-Ohio-3173, ¶ 16. To establish ineffective assistance of counsel, appellant

must show that counsel's actions fell below an objective standard of reasonableness and

that appellant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-88,

693, 104 S.Ct. 2052 (1984). Prejudice exists where there is a reasonable probability that,

but for counsel's errors, the result of the trial would have been different. State v. Robinson,

12th Dist. Butler No. CA2014-12-256, 2015-Ohio-4649, ¶ 48.               The proponent of an

ineffective assistance claim must establish both elements to warrant relief.             State v.

Knowlton, 4th Dist. Washington No. 10CA31, 2012-Ohio-2350, ¶ 35. Failure to satisfy one

prong of the ineffective assistance test renders review of the other prong unnecessary.

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State v. Napier, 12th Dist. Clermont Nos. CA2014-06-039 and CA2014-06-046, 2015-Ohio-

1413, ¶ 12.

         The Doctrine of Res Judicata and Ineffective Assistance of Counsel

       {¶ 37} Scott's claim that he received ineffective assistance of counsel is barred by

the doctrine of res judicata. "Res judicata bars a petitioner from 're-packaging' evidence or

issues that either were or could have been raised in trial or on direct appeal." State v.

Casey, 12th Dist. Clinton No. CA2017-08-013, 2018-Ohio-2084, ¶ 15, citing State v. Rose,

12th Dist. Butler No. CA2012-03-050, 2012-Ohio-5957, ¶ 20. Scott's ineffective assistance

of counsel claim could have been raised on direct appeal. Scott, however, did not file a

direct appeal from his conviction or sentence. The doctrine of res judicata therefore clearly

applies to bar Scott's ineffective assistance of counsel claim raised herein.

       {¶ 38} But, even if Scott's claim was not barred, Scott can point to nothing in the

record to indicate his trial counsel provided him with anything approaching ineffective

assistance of counsel. The record instead indicates Scott's trial counsel worked diligently

to obtain a favorable plea agreement that removed the potential for Scott to be sentenced

to life in prison without the possibility of parole. This is true despite the extremely serious

and disturbing charges that Scott faced after admitting to sexually abusing the 11-year-old

victim beginning when the child was just six years old. This includes Scott admitting to

twice raping the child by performing cunnilingus on the child victim.

       {¶ 39} In so holding, we note that Scott specifically admitted to sexually abusing the

child as part of his allocution. Again, as Scott stated in allocution:

              My actions were selfish, disgusting, beyond carnal what I did. I
              ruined more than two families by the stupidity of what I have
              done.

              Again, selfishness. I've hurt more people than I ever thought I
              could by my actions. I wish I could say I was sorry and make it
              all better, but I can't.

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              I've hurt so many people, I don't know if even this is enough.

We agree with Scott's sentiments and reiterate that Scott's conduct was undoubtedly

selfish, disgusting, shortsighted, and beyond carnal.

       {¶ 40} In light of the foregoing, we find the trial court did not err by denying Scott's

motion to withdraw his guilty plea based on his trial counsel's alleged ineffective assistance.

"The attorney is there to give informed advice, to relate worse case scenarios to his client,

and to make a recommendation regardless of whether it makes the client upset." State v.

Shugart, 7th Dist. Mahoning No. 08 MA 238, 2009-Ohio-6807, ¶ 37. The record indicates

Scott's trial counsel did just that. Therefore, because his ineffective assistance of counsel

claim is barred by the doctrine of res judicata, and because the record is devoid of any

evidence that Scott was provided with any other than sound advice in light of the

overwhelming evidence against him, Scott's second assignment of error lacks merit and is

overruled.

                                         Conclusion

       {¶ 41} The trial court did not abuse its discretion by denying Scott's motion to

withdraw his guilty plea. Despite Scott's claims to the contrary, the record fully supports the

trial court's decision finding Scott failed to establish a manifest injustice. Therefore, finding

no merit to any of the arguments raised herein, the trial court's decision denying Scott's

motion is affirmed. But, due to some confusion in the trial court's sentencing entry as it

relates to the imposition of postrelease control, this case must nevertheless be reversed, in

part, and remanded to the trial court to issue a nunc pro tunc sentencing entry to properly

reflect that Scott is subject to a mandatory five-year postrelease control term should he ever

be released from prison.

       {¶ 42} Judgment reversed in part and remanded to the trial court for the limited


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purpose of issuing a nunc pro tunc sentencing entry to correct its imposition of a mandatory

five-year postrelease control term. In all other respects, the judgment of the trial court is

affirmed.


      HENDRICKSON, P.J., and PIPER, J., concur.




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