[Cite as State v. Price, 2012-Ohio-3068.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 5-11-45

        v.

ARMOND PRICE,                                              OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2009 CR 230

                                       Judgment Affirmed

                               Date of Decision: July 2, 2012




APPEARANCES:

        Armond Price, Appellant

        Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-11-45


WILLAMOWSKI, J.

      {¶1} Defendant-Appellant, Armond Price (“Price”), pro se, appeals the

judgment entry of the Hancock County Court of Common Pleas denying his

motion to withdraw his guilty plea. The motion was made nearly a year after his

sentencing. On appeal, Price contends that the trial court erred in denying his

motion because his conviction violated his due process rights, because he claims it

was based upon a substance that was not listed within the schedule of controlled

substances. He further asserts that he was denied effective assistance of counsel.

For the reasons set forth below, the judgment is affirmed.

      {¶2} On November 17, 2009, Price was indicted for knowingly possessing

a Schedule I controlled substance in an amount equal to or exceeding five times

the bulk amount but less than fifty times the bulk amount, a violation of R.C.

2925.11(A), a felony of the second degree. The indictment listed the drugs as

(MDMA -- Methylenedioxymethamphetamine). Price and a co-defendant, Mack

Rodgers, were charged when the drugs (199 pills) were discovered after a traffic

stop on I-75. A plea agreement was eventually reached with Price, resulting in

him pleading guilty to a lesser included offense for a smaller amount of drugs and

thereby reducing the offense to a third degree felony. After entering his guilty

plea, the matter proceeded to sentencing on October 27, 2010. The trial court




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adopted the joint recommendation of the parties and sentenced Price to four years

in prison. (See Oct. 28, 2010 J.E)

        {¶3} Price’s co-defendant, Rodgers, was found guilty after a jury trial and

he was sentenced to seven years in prison. See State v. Rodgers, 3d Dist. No. 5-

10-35, 2011-Ohio-3003 (affirming Rodgers’ conviction). Prior to Rodger’s trial,

the State learned that the substance found in the vehicle was not MDMA, but

actually N–Benzylpiperazine (otherwise known as “BZP”). The State notified

Rodgers' trial counsel and amended the indictment. The amendment did not

change the identity of the offense (it was still an aggravated possession of drugs),

nor did it change the level of offense (since both MDMA and BZP are Schedule I

drugs). See State v. Rodgers at ¶ 42.

        {¶4} On July 27, 2011, Price filed a motion for judicial release. This was

opposed by the State, and on August 23, 2011, the trial court denied his motion.

        {¶5} On September 23, 2011, Price filed a “Motion to Withdraw No

Contest Plea”1 pursuant to Crim.R. 32.1. Price claimed his plea was not knowing

and voluntary, as required by Crim.R. 11, and that his constitutional rights were

violated because of ineffective assistance of counsel. Price argued that the trial

court should allow Price to withdraw his plea to correct a “manifest injustice”

because the drug he possessed was not MDMA, as listed on the indictment, but

1
 The record indicates that Price entered a plea of guilty according to the plea agreement, signed August 30,
2010, and the Judgment Entry from the change of plea hearing, stating that he entered a plea of guilty. (See
Sept. 10, 2010 J.E.) Price did not provide a transcript of the change of plea hearing for our review.

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Case No. 5-11-45


rather BZP, as determined by the laboratory report in his co-defendant’s case.

Price further argued that BZP was not a Schedule I controlled substance listed

under R.C. 3719.41 and, therefore, he could not have possibly committed the

crime to which he pled guilty. He also contended that the amount of BZP listed in

the lab report was insufficient to support the indictment for the offense to which he

pled guilty.   Related to this, he asserted that his counsel was ineffective for

allowing him to plead guilty to possession of a substance that was not specified in

the indictment and was not listed as a Schedule I controlled substance.

       {¶6} On November 17, 2011, without holding a hearing, the trial court

denied Price’s motion to withdraw his plea. The trial court held that Price had

failed to set forth any facts that would justify the court setting an evidentiary

hearing and that he had failed to establish that a manifest injustice had occurred.

       {¶7} The trial court found that his motion was barred by res judicata

because he had brought the motion after the time for direct appeal and post-

conviction relief had passed.      Therefore, res judicata barred any subsequent

attempts that could have been raised. (Nov. 17, 2011 J.E.) Furthermore, the trial

court found that even if Price’s motion had not been barred by res judicata, it still

would have been denied because there was no basis for any of his claims that a

manifest injustice had occurred.




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        {¶8} First, the trial court explained that BZP was a Schedule I controlled

substance, even if was not listed under R.C. 3719.41.

        Ohio’s list of Schedule I controlled substances is automatically
        altered when the federal government adds a particular drug on its list
        of controlled substances. R.C. 3719.41. BZP (N-Benzylpiperazine)
        is a Schedule I controlled substance under 21 C.F.R. Sec.
        1308.11(f)(2). Furthermore BZP has been on the Schedule I list, on
        a permanent basis, since March 18, 2004.2

(Nov. 17, 2011 J.E., p. 4) And, the trial court further explained that the amount of

the drug was sufficient to satisfy the quantity requirements for the offense, either

as listed in the indictment or for the offense to which he pled.                            At his co-

defendant’s trial, a criminalist testified as to the laboratory report’s accuracy and

further testified that the bulk amount for this particular drug was ten pills. This

testimony corresponded with R.C. 2925.01(D)(1)(C), which states that the bulk

amount for a Schedule I stimulant (such as BZP) is “thirty grams or ten unit

doses.” (J.E., p. 5) The lab report and testimony indicated that at least 199 pills –

or unit doses – of BZP were found in the vehicle.

        {¶9} The trial court also explained that Price’s claim of ineffective

assistance of counsel failed because he could not show that he suffered any

prejudice. As the trial court stated above, BZP was a prohibited Schedule I

substance. See Rodgers, 2011-Ohio-3003, at ¶ 24. If the issue had been raised,

the trial court would have allowed for amendment of the indictment either prior to
2
  See State v. Rodgers, Case No. 05-10-35, which issued a Judgment Entry on November 3, 2011, holding
that BZP is in fact listed as a Schedule I drug in the Controlled Substance Schedule in R.C. 3719.41(E)(2).

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Case No. 5-11-45


the plea or to a trial, just as was done in the case of his co-defendant. See

Rodgers, supra.

       {¶10} The trial court did note that the laboratory report, listing the correct

substance, was provided to Price’s counsel on June 23, 2010, well before the plea

hearing, and that Price should have been informed of the discrepancy between the

controlled substance actually found in the vehicle and the controlled substance

listed in the indictment. However, because a motion to amend the indictment

would have been granted had the matter been raised, the outcome would have been

no different. (J.E., p. 7)

       {¶11} Price now appeals the denial of his motion to withdraw his plea,

raising the following two assignments of error for our review.

                              First Assignment of Error

       The trial court erred when it denied [Price’s] motion to
       withdraw his guilty plea based upon the conviction being based
       on a drug substance that was not listed within the schedule of
       controlled substances pursuant to R.C. 3719.41(E)(2) thereby
       violating his due process rights pursuant to the Sixth and
       Fourteenth Amendments of the United States Constitution, and
       Sections Five and Sixteen, Article One and Section Four, Article
       IV of the Ohio Constitution.

                             Second Assignment of Error

       The trial court erred when it denied [Price’s] motion to
       withdraw his guilty plea based upon ineffective assistance of
       counsel, thereby violating [Price’s] constitutional right to the
       effective assistance of counsel pursuant to the United States


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       Constitution Sixth Amendment, and the Ohio Constitution,
       Article I, Section 10.

       {¶12} Because both of Price’s assignments of error are closely related, we

shall address them together. They both allege that the trial court erred when it

denied his motion to withdraw his guilty plea.

       {¶13} Appellate review of a trial court’s denial of a motion to withdraw

guilty pleas pursuant to Crim.R. 32.1 is for an abuse of discretion. State v. Nathan,

99 Ohio App.3d 722, 725 (3d Dist. 1995), citing State v. Smith, 49 Ohio St.2d 261

(1977). A trial court will be found to have abused its discretion when its decision

is contrary to law, unreasonable, not supported by the evidence, or grossly

unsound. See State v. Boles, 2d Dist. No. 23037, 2010–Ohio–278, ¶¶ 17–18,

citing Black’s Law Dictionary (8 Ed.Rev .2004) 11.

       {¶14} Price’s motion to withdraw his plea was filed more than a year after

he originally entered his guilty plea, and nearly eleven months after he was

sentenced, so it is considered a “postsentence” motion. Crim.R. 32.1 provides that

“[a] motion to withdraw a plea of guilty* * * 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.”

A manifest injustice is an exceptional defect in the plea proceedings, State v.

Vogelsong, 3d Dist. No. 5–06–60, 2007–Ohio–4935, ¶ 12, or a “‘clear or openly

unjust act.’” State v. Walling, 3d Dist. No. 17–04–12, 2005–Ohio–428, ¶ 6,

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quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998–Ohio–

271. Additionally, under the manifest injustice standard, “a postsentence

withdrawal motion is allowable only in extraordinary cases.” State v. Smith, 49

Ohio St.2d at 264. Crim.R. 32.1 requires a defendant making a postsentence

motion to withdraw a plea to demonstrate manifest injustice because it is designed

“to discourage a defendant from pleading guilty to test the weight of potential

reprisal, and later withdraw the plea if the sentence was unexpectedly severe.”

State v. Caraballo, 17 Ohio St.3d 66, 67 (1985).

       {¶15} This Court has previously stated that “[t]rial courts and thereafter

reviewing courts, when presented with a motion to withdraw a guilty plea brought

after the time for direct appeal or post-conviction relief, should consider first

whether the claims raised in the motion are barred by res judicata. If the claim is

not barred, the court should then apply the manifest injustice standard in

accordance with Crim. R. 32.1.” State v. Reynolds, 3d Dist. No. 12-01-11, 2002-

Ohio-2823, ¶ 27. Res judicata bars the assertion of claims against a valid, final

judgment of conviction that have been raised or could have been raised on appeal.

(Emphasis added.) State v. Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831, ¶ 59.

“Ohio courts of appeals have applied res judicata to bar the assertion of claims in a

motion to withdraw a guilty plea that were or could have been raised at trial or on

appeal.” Id., citing to State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374, ¶ 9;


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State v. Totten, 10th App. No. 05AP-278 and 05AP-508, 2005-Ohio-6210, , ¶ 7

(collecting cases).

       {¶16} Price did not file an appeal or motion for post-relief conviction

within the mandated time frames, even though all of the information that he claims

was the basis for his motion for withdrawal was available at those times and he

could have raised these issues then.      Therefore, his motion is barred by res

judicata. The trial court did not abuse its discretion in denying Price’s motion.

       {¶17} And further, as explained by the trial court, even if his plea

withdrawal would not have been barred by res judicata, Price failed to demonstrate

a manifest injustice.   The BZP found in Price’s possession was a controlled

substance. See Rodgers, 2011-Ohio-3003, at ¶ 24. This information was a part of

the record long before Price entered his guilty plea. Price’s signed plea agreement

did not specify the type of controlled substance, but stated merely that he was

entering “a plea of GUILTY to a violation of Ohio Revised code, Section

2925.11(A), Aggravated Possession of Drugs, a felony of the third degree, and a

lesser included offense contained within the Indictment, charging a violation of

Ohio Revised code, Section 2925.11(A), Aggravated Possession of Drugs, a

felony of the second degree.” (Aug. 30, 2011 Plea of Guilty). R.C. 2925.11(A)

states, “No person shall knowingly obtain, possess, or use a controlled substance.”

The complained of error which Price alleges invalidated his guilty plea could have


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been easily resolved by the trial court and would not have affected the outcome of

his case.

       {¶18} Price never asserts that he would not have pled guilty if the

indictment had been amended, as it was in his co-defendant’s case. Price pled

guilty to a lesser included offense and received a four-year sentence compared to

his co-defendant, who received a seven-year sentence after a jury returned a guilty

verdict to the amended charge. Price has not suffered any prejudice that would

have rendered his guilty plea invalid, or that would have constituted ineffective

assistance of counsel. Both of Price’s assignments of error are overruled.

       {¶19} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr




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