[Cite as State v. Harden, 2012-Ohio-1657.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24603

vs.                                               :    T.C. CASE NO. 95CR2190

CHARLES HARDEN                                     :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                      . . . . . . . . .

                                             O P I N I O N

                   Rendered on the 13th day of April, 2012.

                                      . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst.
Pros. Attorney, Atty. Reg. No. 0061560, P.O. Box 972, Dayton, OH
 45422
     Attorneys for Plaintiff-Appellee

Charles Harden, # 43563-061, USP-Beaumont,                          P.O.   Box     26030,
Beaumont, Texas 77720
     Defendant-Appellant, Pro Se

                                      . . . . . . . . .

GRADY, P.J.:

        {¶ 1}     Defendant,          Charles      Harden,    appeals   from   a    final

judgment denying his postsentence Crim.R. 32.1 motion to withdraw

his guilty plea.

        {¶ 2} Defendant            was       charged   with   aggravated   arson,   R.C.
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2909.02(A)(2),     after    setting    fire    to     his    cell   at   Dayton

Correctional Institution on December 14, 1995.              Defendant entered

a plea of guilty to the aggravated arson charge.              The trial court

convicted Defendant on his guilty plea and sentenced Defendant

to a prison term of from five to twenty-five years.                  Defendant

did not appeal from his conviction.

     {¶ 3} Defendant was subsequently released on parole.                   In

September 2003, Defendant was convicted of a federal firearm

offense and was sentenced to a prison term of one hundred and

eighty-eight months.       Defendant remains incarcerated in a federal

prison.

     {¶ 4} On August 3, 2004, Defendant filed a motion to withdraw

his guilty plea to the aggravated arson charge.             Defendant claimed

that his mental health problems and his attorney’s failure to

investigate his competence prevented him from entering a knowing,

intelligent and voluntary guilty plea.          The trial court overruled

Defendant’s motion on September 21, 2004.                   Defendant did not

appeal.

     {¶ 5} In November 2004, Defendant filed an untimely petition

for post-conviction relief.           As grounds for relief, Defendant

claimed that his trial counsel was ineffective because he failed

to investigate and present evidence of Defendant’s history of

mental    health   problems   and     the   effects    of    the    psychiatric

medications    Defendant     was   taking.      The    trial    court    denied
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Defendant’s post-conviction petition without a hearing on November

18, 2004, noting that it was based upon the same mental health

arguments Defendant previously raised and that had been rejected

in support of the motion to withdraw his guilty plea.    Defendant

appealed the trial court’s decision denying his petition for

post-conviction relief, and we affirmed the trial court’s judgment

because Defendant’s petition was untimely and failed to demonstrate

any of the exceptions for untimely petitions in R.C. 2953.23.

State v. Harden, 2d Dist. Montgomery No. 20803, 2005-Ohio-5580.

     {¶ 6} On March 11, 2008, Defendant filed his second motion

to withdraw his guilty plea.      Defendant claimed, among other

things, that his plea was not knowing, intelligent and voluntary

due to the effects of the psychiatric medications he was taking

at the time and his mental health problems.        The trial court

overruled Defendant’s motion on July 8, 2008.   Defendant appealed

to this court and we affirmed the trial court’s judgment.    State

v. Harden, 2d Dist. Montgomery No. 22839, 2009-Ohio-3431.

     {¶ 7} On October 23, 2009, Defendant filed his third motion

to withdraw his guilty plea.   Defendant claimed that his counsel

was not present at the time he entered his plea.   The trial court

overruled Defendant’s motion on November 3, 2009.        Defendant

appealed to this court and we again affirmed the trial court’s

judgment.   State v. Harden, 2d Dist. Montgomery No. 23742,

2010-Ohio-5282.
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        {¶ 8} On December 8, 2010, Defendant filed his fourth motion

to withdraw his guilty plea.     Defendant again claimed that he was

not competent to enter a knowing, intelligent and voluntary plea

due     to   his   mental   health   problems,   including   auditory

hallucinations, the effects of the psychiatric medications he was

taking, and his counsel’s failure to investigate his competency.

 The trial court overruled Defendant’s motion on April 6, 2011,

noting that Defendant’s latest claim which regarding his mental

health problems and the effects of the psychiatric medications

he was taking is barred by res judicata because those matters were

previously raised by Defendant in the trial court and rejected

by both the trial court and this court.

        {¶ 9} Defendant has once again appealed to this court from

the trial court’s judgment denying his motion to withdraw his guilty

plea.

      FIRST ASSIGNMENT OF ERROR

      {¶ 10} “THE TRIAL COURT RELIED ON INCORRECT FACT AND A DEFICIENT

MEMORANDUM IN OPPOSITION TO OVERRULE MY RULE 32.1 MOTION.”

      THIRD ASSIGNMENT OF ERROR

      {¶ 11} “THE TRIAL COURT ERRED BY NOT HOLDING AN EVIDENTIARY

HEARING TO DETERMINE THE EFFECTS THAT THE AUDIO HALLUCINATIONS

I SUFFER DURING THIS CASE HAD ON THE GUILTY PLEA.”

      {¶ 12} In his first and third assignments of error, Defendant

argues that the trial court erred by overruling his Crim.R. 32.1
                                                                    5

motion to withdraw his guilty plea without first holding a hearing.

     {¶ 13} In State v. Harden, 2d Dist. Montgomery No. 23742,

2010-Ohio-5282, at ¶ 18, we observed:

          A post-sentence motion to withdraw a guilty plea

     is allowed only to correct a manifest injustice. Crim.R.

     32.1; State v. Wright, supra. The burden to establish

     a manifest injustice is on the party seeking to withdraw

     the plea. Wright. An undue delay between the occurrence

     of the alleged cause of a withdrawal of a guilty plea

     and the filing of a Crim.R. 32 motion is a factor

     adversely affecting the credibility of the movant and

     militating against the granting of the motion. State

     v. Smith (1972), 49 Ohio St.2d 261, 361 N.E.2d 1324;

     State   v.   Harden,    Montgomery    App.    No.     22839,

     2009-Ohio-3431.

     {¶ 14} In State v. Grier, 2d Dist. Greene No. 2006CA61,

2007-Ohio-2597 at ¶ 6, we stated:

          “[A]n evidentiary hearing is not required on every

     post-sentence motion to withdraw a plea.” State v.

     Stewart, Greene App. No.2003-CA-28, 2004-Ohio-3574. In

     State   v.   Francis,   104    Ohio   St.3d    490,    500,

     2004-Ohio-6894, 820 N.E.2d 355, the Supreme Court stated

     that the court should hold a hearing on a motion to

     withdraw a plea “unless it is clear that denial of the
                                                                       6

     motion is warranted.”

     {¶ 15} “Under the doctrine of res judicata, a final judgment

of conviction bars a convicted defendant who was represented by

counsel from raising and litigating in any proceeding, except an

appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant

at the trial, which   resulted in that judgment of conviction, or

on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d

93, 671 N.E.2d 233, syllabus.

     {¶ 16} Defendant’s motion to withdraw his guilty plea filed

on December 8, 2010 is based upon claims that he was incompetent

to enter a knowing, intelligent and voluntary guilty plea due to

auditory   hallucinations   that   were   the   adverse   influence   of

psychiatric medications he was taking, and the fact that his trial

counsel failed to investigate his history of mental health problems

and his competency.   As the trial court properly noted, Defendant’s

claim is barred by res judicata because those claims were previously

raised by Defendant multiple times in the trial court vis-a-vis

the prior motions to withdraw his plea and post-conviction

petitions that he filed, and those claims were rejected by the

trial court and by this court.      See: Motion to Withdraw Guilty

Plea filed August 3, 2004; post-conviction petition filed November

4, 2004; Decision overruling petition for post-conviction relief

filed November 18, 2004; Motion to Withdraw Guilty Plea filed March
                                                                           7

11,    2008;   State   v.   Harden,   2d    Dist.   Montgomery   No. 22839,

2009-Ohio-3431 at ¶5-10; Szefcyk.

       {¶ 17} Defendant argues, however, that he has never before made

a claim that his guilty plea was not knowing, intelligent and

voluntary because of auditory hallucinations.            Defendant clearly

could have presented that particular claim in his prior motions

to withdraw his plea, but he did not.         That claim is likewise barred

by res judicata.       Szefcyk.   Furthermore, the fact that Defendant

waited thirteen years after entering his guilty plea before moving

to withdraw that plea on the claim that he was not competent to

enter his plea because at the time of his plea he was suffering

from    auditory   hallucinations,         adversely   affects   Defendant’s

credibility and militates against granting his motion to withdraw

his guilty plea.       State v. Harden, 2d Dist. Montgomery No. 23742,

2010-Ohio-5282; State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324

(1972).

       {¶ 18} Defendant has not demonstrated that a manifest injustice

exists in this case or that the trial court abused its discretion

by denying his motion to withdraw his plea without a hearing.

       {¶ 19} Defendant’s first and third assignments of error are

overruled.

       SECOND ASSIGNMENT OF ERROR

       {¶ 20} “THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MY

MOTION TO EXPAND THE RECORD TO INCLUDE MY INMATE MEDICAL AND MENTAL
                                                                     8

HEALTH RECORD RELATED TO THE OFFENSE CHARGED.”

     {¶ 21} On February 17, 2011, Defendant filed a motion asking

the trial court to expand the record in this case in connection

with his December 8, 2010 motion to withdraw his guilty plea, to

include his prison medical and mental health records, or in the

alternative, appoint counsel for the purpose of obtaining and

including those records in this case.       According to Defendant,

those prison mental health records would include a psychological

evaluation that was done after Defendant had set fire to his cell

at   D.C.I.,   during   which   Defendant   discussed   his   auditory

hallucinations.   The record before us fails to demonstrate that

the trial court addressed or ruled upon Defendant request.

     {¶ 22} When a motion to withdraw a guilty plea is not filed

until several years after a conviction and sentence has become

final, the movant is not entitled to appointed counsel for purposes

of assisting him with the post-sentence motion to withdraw the

plea, especially when no hearing is held on the motion. State v.

Meadows, 6th Dist. Lucas No. L-05-1321, 2006-Ohio-2622; State v.

McNeal, 8th Dist. Cuyahoga No. 82793, 2004-Ohio-50.

     {¶ 23} When a court fails to address a motion or application,

the court is presumed to have denied the relief requested.

However, a denial of Defendant’s motion concerning his prison

medical records presents no basis to reverse.       Defendant would

rely on those records to prove that he suffered from auditory
                                                                 9

hallucinations at the time he entered his guilty plea, and for

that reason his plea was not knowing, intelligent and voluntary.

 As we previously indicated above, Defendant could have presented

his auditory hallucination claim in his earlier motions to withdraw

his plea, but he did not, and that particular claim is now barred

by res judicata.    The bar likewise precludes consideration of

medical records Defendant would offer to prove the barred claim.

     {¶ 24} Defendant’s second assignment of error is overruled.

The judgment of the trial court will be affirmed.



FAIN, J., And FROELICH, J., concur.




Copies mailed to:

R. Lynn Nothstine, Esq.
Charles Harden
Hon. Michael L. Tucker
