[Cite as State v. Tinney, 2012-Ohio-72.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                        Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 2011 CA 41
GLENN TINNEY

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 92 CR 239


JUDGMENT:                                      Affirmed in Part; Reversed in Part and
                                               Remanded


DATE OF JUDGMENT ENTRY:                         January 9, 2012



APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

JAMES J. MAYER, JR.                            KARLA MARKLEY HALL
PROSECUTING ATTORNEY                           OHIO INNOCENCE PROJECT
BAMBI COUCH PAGE                               UNIVERSITY OF CINCINNATI
ASSISTANT PROSECUTOR                           COLLEGE OF LAW
38 South Park Street                           Post Office Box 21040
Mansfield, Ohio 44902                          Cincinnati, Ohio 45221-0040
Richland County, Case No. 2011 CA 41                                                     2

Wise, J.

      {¶1}    Appellant State of Ohio appeals the decision of the Court of Common

Pleas, Richland County, which granted Appellee Glenn Tinney’s post-sentence motion

to withdraw his 1992 pleas of guilty for the murder of Ted White and a related

aggravated robbery charge. The relevant facts leading to this appeal are as follows.

       {¶2}   In 1988, Ted White, the owner of a Mansfield waterbed business was

struck in the head and robbed while inside his store. He died approximately two days

after the attack. Appellee Glenn Tinney had formerly worked for Ted White. No one was

immediately charged with any crimes related to the 1988 incident.

       {¶3}   In July 1990, Ashland County and Richland County law enforcement

officials were investigating the unsolved killing of Gurcia Johnson, which had occurred

in 1985. During that investigation, the Richland County Prosecutor’s Office received a

tip that Matt Mason, who was later convicted of aggravated murder of Johnson, may

have been involved in assaulting a man at a waterbed store. The lead on Mason

eventually led to an interview of appellee by a prosecutor’s office investigator, Joe Masi.

Appellee was incarcerated for other crimes at the time of this interview, which was

conducted on March 31, 1992 at the Lebanon Correctional Institution.

       {¶4}   Although Masi advised appellee that he was considered merely as a

witness at that time, and not a suspect, appellee voluntarily admitted to Masi that he

was with Mason during the 1988 killing of Ted White. Appellee also said during the

interview that at the time they entered the store, he was carrying a 9mm pistol and the

“murder weapon”, which he claimed to have handed to Mason, who then struck White in

the head. According to appellee, he and Mason proceeded to rummage through the
Richland County, Case No. 2011 CA 0041                                                3


store, stealing money and drugs on the premises. Appellee insisted to Masi that he and

Mason, as they headed to the store, did not intend to kill White.

      {¶5}   On April 1, 1992, appellee told three Lebanon Correctional prison

employees that he killed a former employer at a waterbed store. Appellee also

requested that Masi come back and meet with him again.

      {¶6}   Appellee also gave a tape-recorded confession to Masi and Assistant

Prosecutor David Mesaros on April 2, 1992. At that time, however, appellee would not

implicate Mason, only himself.

      {¶7}   On June 17, 1992, during an interview with a Mansfield newspaper

reporter, appellee implicated himself and an undisclosed individual known to appellee

as the person who had fatally assaulted and robbed Ted White.

      {¶8}   Also, on June 24, 1992, appellee told Masi and Mansfield Police Captain

John Arcudi that he and Mason were responsible for the murder and robbery of White.

      {¶9}   Upon further investigation, appellee was presented a plea deal, which he

accepted, wherein he would plead guilty to White’s murder (a reduction from potential

aggravated murder and/or a death penalty specification) and one count of aggravated

robbery, with the sentences to run concurrently. Appellee, with the assistance of

counsel, entered said pleas to murder and aggravated robbery in the Richland County

Court of Common Pleas on May 6, 1992.

      {¶10} Appellee was sentenced on the same day to fifteen years to life for

murder, ten to twenty-five years for aggravated robbery, concurrent to each other, but

consecutive to a sentence appellee was then serving for burglary (case no. 89-CR-212).

He took no direct appeal of his conviction and sentence.
Richland County, Case No. 2011 CA 0041                                                     4


       {¶11} On July 22, 1992, appellee, with the assistance of counsel, filed a “Motion

to Evaluate and Withdraw Plea,” alleging issues with the appellee's competency. His

counsel requested an opportunity to supplement his motion on October 13, 1992. On

September 14, 1994, the trial court overruled said motion, finding that on May 6, 1992,

appellee had been fully advised of his rights, both orally and in writing, and did

knowingly, voluntarily and intelligently waive his rights and enter a plea of guilty.

Appellee filed no direct appeal of the trial court’s ruling and judgment on said motion.

       {¶12} About twelve years later, on August 16, 2004, appellee, proceeding pro

se, filed a second motion to withdraw his guilty plea. Appellee therein relied on, inter

alia, a claim of actual innocence, opinions expressed by police detectives in a

newspaper article and elsewhere, a claim that appellee was on psychotropic medication

at the time of the confession, an assertion that police officers had offered him a radio

and money for his confession, and a claim that appellee was not afforded "competent

counsel.” On February 22, 2005, the trial court overruled that motion to withdraw plea,

finding appellee's plea had been voluntarily made.

       {¶13} Appellee filed an appeal of the trial court’s second ruling on March 23,

2005, along with a motion to proceed in forma pauperis. On August 30, 2005, we

dismissed the appeal for want of prosecution.

       {¶14} On August 17, 2005, appellee, proceeding pro se, filed a motion to vacate

his sentence. Appellee based his request on Blakely v. Washington (2004), 542 U.S.

296, 124 S. Ct. 2541, 159 L. Ed. 2d 403. A review of the docket and the court file does

not indicate a judgment entry was issued by the trial court addressing this motion.

Appellee's motion was apparently not further pursued.
Richland County, Case No. 2011 CA 0041                                                   5


      {¶15} On October 29, 2009, appellee filed the current petition for post-conviction

relief and renewed motion to withdraw his guilty plea. The petition/motion included a

psychological report on appellee, prepared with the assistance of the Ohio Innocence

Project. Some of appellee’s previous arguments and assertions were also contained

within the petition. On November 30, 2009, the State filed its first response to said

petition after being granted an extension to file same. On January 8, 2010, appellee

filed a reply to the State's response. A transcript of the 1992 change of plea and

sentencing was filed with the court on June 9, 2010.

      {¶16} The matter was ultimately assigned to Judge James DeWeese, after

Judge Henson voluntarily recused himself.

      {¶17} Judge DeWeese held one pre-trial, and pursuant to the trial court’s orders,

the State and appellee filed additional supplemental pleadings with exhibits attached.

      {¶18} The trial court issued a sixteen-page decision on March 25, 2011, denying

appellee’s petition for postconviction relief, but granting his motion to withdraw plea. It

was from this decision that the State requested leave to appeal. This Court granted the

State's request for leave on May 25, 2011.

      {¶19} The State of Ohio herein raises the following four Assignments of Error:

      {¶20} “I. THE TRIAL COURT ACTED CONTRARY TO LAW AND ABUSED ITS

DISCRETION BY FAILING TO ADDRESS THE APPELLANT'S ARGUMENT THAT

THE APPELLEE'S PETITION FOR POSTCONVICTION RELIEF AND MOTION TO

WITHDRAW HIS GUILTY PLEA WAS BARRED BY THE DOCTRINE OF RES

JUDICATA.
Richland County, Case No. 2011 CA 0041                                                 6


      {¶21} “II. THE TRIAL COURT ACTED CONTRARY TO LAW AND ABUSED ITS

DISCRETION WHEN IT IMPROPERLY OVERRULED THE APPELLANT'S MOTION

TO DISMISS FOR LACK OF JURISDICTION AND IMPROPERLY GRANTING THE

APPELLEE'S MOTION TO WITHDRAW HIS GUILTY PLEA.

      {¶22} “III. THE TRIAL COURT ACTED CONTRARY TO LAW AND ABUSED

ITS DISCRETION WHEN IT FAILED TO HOLD A HEARING ON THE APPELLEE'S

MOTION TO WITHDRAW HIS GUILTY PLEA AS REQUIRED BY LAW.

      {¶23} “IV. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PREJUDICIAL ERROR WHEN IT FOUND THAT THE APPELLEE'S MOTION TO

WITHDRAW HIS GUILTY PLEA SHOULD BE GRANTED TO CORRECT A MANIFEST

INJUSTICE.”

                     General Standard of Review Re: Crim.R. 32.1

      {¶24} Crim.R. 32.1 reads as follows: “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.”

      {¶25} Appellate review of a trial court's decision under Crim.R. 32.1 is limited to

a determination of whether the trial court abused its discretion. See State v. Caraballo

(1985), 17 Ohio St.3d 66, 477 N.E.2d 627. Under the manifest injustice standard, a

post-sentence withdrawal motion is allowable only in extraordinary cases. State v.

Aleshire, Licking App.No. 09-CA-132, 2010-Ohio-2566, ¶ 60, citing State v. Smith

(1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. The length of passage of time

between the entry of a plea and a defendant's filing of a Crim.R. 32.1 motion is a valid
Richland County, Case No. 2011 CA 0041                                                     7

factor in determining whether a “manifest injustice” has occurred. See State v.

Copeland–Jackson, Ashland App. No. 02COA018, 2003–Ohio–1043, ¶ 7.

                                            I., II.

       {¶26} In its First and Second Assignments of Error, the State contends the trial

court erred in failing to consider or apply the doctrine of res judicata to appellee’s motion

to withdraw plea. We disagree.

       {¶27} The doctrine of res judicata is applicable to successive motions to

withdraw a guilty plea under Crim.R. 32.1. See, e.g., State v. McLeod, Tuscarawas App.

No. 2004 AP 03 0017, 2004-Ohio-6199, ¶ 12. “Res judicata applies to bar raising

piecemeal claims in successive postconviction relief petitions or motions to withdraw a

guilty plea that could have been raised, but were not, in the first postconviction relief

petition or motion to withdraw a guilty plea.” State v. Kent, Jackson App.No. 02CA21,

2003-Ohio-6156, ¶ 6. The applicability of res judicata is a question of law, which an

appellate court reviews de novo. EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240,

249, 841 N.E.2d 855, 2005-Ohio-5799.

       {¶28} In the case sub judice, we find appellee has essentially presented two

main bases for a claim of manifest injustice pursuant to his motion to withdraw plea. The

first focuses on the inconsistencies within his five separate confessions in 1992 of

involvement in the killing of Ted White in 1988. As well summarized in the chart the trial

court prepared and included in the judgment entry under appeal, there were numerous

instances of varying details given by appellee in his confessions of 3-31-92, 4-1-92, 4-2-

92, 6-17-92, and 6-24-92. These included issues of the time of the attack on White, the

location thereof in the store, the events leading up to and following the attack on White,
Richland County, Case No. 2011 CA 0041                                                   8


the method of transportation appellee used to get to the scene, the prior relationship or

acquaintanceship between appellee and White, appellee’s motive for wanting to rob or

attack White, the mechanics of how White was struck with a weapon, what was actually

stolen, and appellee’s ability to recall details about White. Appellee has also presented,

inter alia, the affidavit of Lieutenant John Wendling, a veteran Mansfield police detective

who worked on the case in the late eighties and early nineties, who opines that appellee

had nothing to do with White’s murder, and that the main person of interest should be

Matt Mason. See Appellee’s Exhibit 3.

       {¶29} The second basis for a claim of manifest injustice has to do with

appellee’s mental competency. Following the involvement in this case of the Ohio

Innocence Project, appellee’s mental health status and history was assessed by Todd

Polumbo, M.D. and Scott Bresler, Ph.D. In their fifteen-page report, they conclude that

appellee has major depressive disorder and borderline and antisocial personality traits.

They further conclude, in part: “[Appellee’s] mental illness appears to be persistent and

has a chronic course that will manifest itself throughout his life. Based upon what we

know about his diagnosis, it is certainly plausible that he might engage in impulsive

masochistic acts such as falsely confessing to a crime while experiencing symptoms of

an actively decompensated depressed (and possibly psychotic) state.” Appellee’s

Exhibit 16, at 14-15.

       {¶30} Appellee    has   thus   presently   obtained   a   much    more    extensive

psychological evaluation than what was apparently available to him previously. We

recognize the issue of his mental competency clearly was raised both in his 1992 and

2004/2005 motions to withdraw pleas. For example, in rejecting appellee’s Crim.R. 32.1
Richland County, Case No. 2011 CA 0041                                                     9


motion in 2005, the trial court concluded in pertinent part: “ *** There was no indication

[during the plea proceedings] by defendant or by his conduct that he was in any way

impaired by psychotropic drugs. He was lucid, oriented as to time and place[,] and his

conduct and demeanor gave no indication that his plea was other than voluntary. It

seems to be instructive that defendant apparently didn’t remember until 2004 that he

may have been taking psychotropic drugs and then only after reading that certain

people were not convinced of his guilt. ***.” Judgment Entry, February 22, 2005, at 2.

       {¶31} However, we have previously held that the doctrine of res judicata “* * * is

not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.”

Washburn v. Senff, Stark App.No. 2002CA00393, 2003-Ohio-4379, ¶16, quoting Bauer

v. Huntington Nat. Bank (Feb. 10, 2000), Franklin App.No. 99AP-347 (citations omitted).

The confluence in this case of lingering concerns by some police officials of appellee’s

actual guilt and the issue of appellee’s mental competency has, in our minds, at least

heightened the possibility of an injustice done to appellee nearly twenty years ago.

       {¶32} Accordingly, upon review, we find res judicata does not bar appellee’s

Crim.R. 32.1 motion. We further find the issue of res judicata as to the petition for post-

conviction relief under R.C. 2953.21 to be moot, as the trial court denied same and

appellee has not filed a cross-appeal herein.

       {¶33} The State’s First and Second Assignments of Error are overruled.
Richland County, Case No. 2011 CA 0041                                                   10


                                             III.

         {¶34} In its Third Assignment of Error, the State argues that the trial court erred

in failing to conduct an evidentiary hearing on appellee’s motion to withdraw plea. We

agree.

         {¶35} We have recognized that where a defendant, in a motion to withdraw plea,

raises matters that are outside the trial court record, the only way such matters can be

presented to the trial court to determine the existence of a manifest injustice is with a

hearing. State v. Boylen, Stark App.No. 2002CA00179, 2002-Ohio-6983, ¶8, citing

State v. Watkins (August 24, 1995), Richland App. No. 94CA20, 1995 WL 557012.

         {¶36} Appellee, in response, does not dispute the existence of such case law,

but he asserts that there is no precedent in Ohio for requiring a hearing before granting

a Crim.R. 32.1 motion in favor of a defendant. See Appellee’s Brief at 20.

         {¶37} In the case sub judice, a significant amount of documentary evidence was

presented by each side in their memoranda supporting or arguing against appellant’s

motion to withdraw plea. This included police and other reports from 1988 and 1992,

many of which have never been formally presented to a court previously. Furthermore,

recent affidavits from police officers and other interested persons have been prepared

and presented. And most notably, the fifteen-page psychological profile of appellee,

prepared with the assistance of the Ohio Innocence Project, was provided to the court,

even though it was not made under oath and does not indicate the conclusions therein

were made to a reasonable degree of scientific certainty.

         {¶38} Under these circumstances and given the passage of nearly twenty years

since appellee pled guilty in this case, we conclude justice requires affording the State
Richland County, Case No. 2011 CA 0041                                              11


an evidentiary hearing to allow full presentation as to whether appellee’s plea in 1992

created a manifest injustice.

       {¶39} The State’s Third Assignment of Error is sustained.

                                           IV.

       {¶40} Based on the foregoing determinations, we find the arguments in the

State’s remaining assigned error to be moot or premature.

       {¶41} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed in part, reversed in part,

and remanded for an evidentiary hearing.

By: Wise, J.

Hoffman, P. J., and

Edwards, J. concur.



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                                            ___________________________________

                                                               JUDGES
Richland County, Case No. 2011 CA 41                                                12


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




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellant                  :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
GLENN TINNEY                                :
                                            :
       Defendant-Appellee                   :         Case No. 2011 CA 41




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

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed in part,

reversed in part and remanded.

       Costs to be split evenly between the Appellant State of Ohio and Appellee.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
