[Cite as State v. Carnail, 2011-Ohio-3464.]




               Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 95580



                                         STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      EYEN T. CARNAIL

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED
                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-372072

       BEFORE: Stewart, J., Blackmon, P.J., and Celebrezze, J.

       RELEASED AND JOURNALIZED: July 14, 2011

ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY:   John T. Martin
          Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Thorin O. Freeman
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, J.:

       Appellant, Eyen T. Carnail, appeals from the court’s denial of his successive motions

to withdraw guilty plea, originally made in November 1999, to two counts of rape in violation
of R.C. 2907.02.       Appellant filed this motion   in the trial court after a writ of mandamus

was granted by the Ohio Supreme Court to compel the trial judge to resentence appellant

concerning postrelease control.     Appellant sought to withdraw his plea at resentencing on the

grounds that the court failed to advise him that he would be subject to a mandatory term of

postrelease control, and thereby failed to meet the requirements of Crim.R. 11. Appellant

insists that this inaccuracy prevented his guilty plea from being knowingly, intelligently, and

voluntarily entered.

       Appellant additionally claims that he was not informed of potential fines and also

contends that misinformation from counsel was the catalyst for entering the guilty plea, and

alternatively asserts that an evidentiary hearing should have been held.    The trial court denied

the motion to withdraw guilty plea after finding the arguments and evidence before it to be not

well founded.     For the reasons that follow, we affirm.

       This case has a protracted procedural history that we address as needed for resolution

of this appeal.

       As an initial matter, Carnail successfully moved to withdraw his guilty plea in the trial

court prior to his earliest sentencing.    Thereafter, he subsequently pled guilty after several

pending motions to suppress were denied, and was consequently sentenced to two concurrent

terms of ten years to life.    Although Carnail was advised of postrelease control after the first
and before the second plea colloquy, the trial judge failed to include postrelease control

requirements in the sentencing entry.

       Afterward, appellant filed a motion to vacate sentence in the trial court due to

ineffective assistance of counsel; this motion was denied by the trial court and affirmed by this

court on appeal. State v. Carnail (Feb. 15, 2001), 8th Dist. No. 78143.      Appellant then filed

a direct appeal and in this instance asserted that his guilty pleas were involuntary because he

did not understand the full implication of stipulating to the sexual predator classification, and

also that the trial court did not have a factual basis for accepting the stipulation.   This court

again rejected appellant’s claims and affirmed the trial court’s judgment. State v. Carnail

(Nov. 8, 2001), 8th Dist. No. 78921.    Next, appellant filed in the trial court another motion to

vacate sentence with an assignment of error claiming that, in accordance with Blakely v.

Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, a jury, rather than the

trial court, should have decided his punishment.    That motion was denied and an appeal was

taken. This court found the motion to be untimely and the trial court without jurisdiction to

rule on the motion and we therefore affirmed.          State v. Carnail, 8th Dist. No. 86539,

2006-Ohio-1246.

       Appellant subsequently filed in this court a complaint in mandamus requesting an order

requiring a new sentencing hearing or, in the alternative, to add postrelease control

requirements to his sentence.     State ex rel. Carnail v. McCormick, 8th Dist. No. 93524,
2009-Ohio-3884.     After we dismissed the complaint, Carnail appealed and the Ohio Supreme

Court granted the writ of mandamus to compel the trial court to “issue a sentencing entry that

complies with the postrelease-control provisions of R.C. 2967.28.”      State ex rel. Carnail v.

McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110.

       At the succeeding resentencing hearing and prior to resentencing, counsel for appellant

advanced an oral motion to withdraw guilty plea.        Counsel articulated that the reasons in

support of the motion were that appellant would not have pled guilty had he been informed of

the mandatory nature of five years postrelease control and therefore the plea was not made

knowingly, voluntarily, or intelligently.   Counsel further argued that incorrect instructions

from previous counsel had resulted in the unavailability of material witnesses.    With this, the

trial court delayed resentencing for two weeks to allow for a written motion to be filed.

       At the ensuing hearing, the trial court heard arguments concerning the motion to

withdraw guilty plea prior to imposition of the new sentence.     Appellant’s counsel requested

that the motion to vacate sentence be considered a presentence motion and that the sentencing

proceed de novo under Crim.R. 32.1.     The trial court then received testimony from appellant,

who declared that he was in possession of written affidavits from family and witnesses that

would establish that previous counsel had erroneously advised his witnesses concerning times

to be available for testimony, and that their unavailability was the motivation for his guilty
plea.   Appellant did not submit any evidentiary documents or any other tangible evidence to

supplement his testimony.

        The trial court concluded that the arguments in support of the successive motion to

withdraw were not well founded and denied the motion.           Appellant was then resentenced

after being duly advised of postrelease control.

        Carnail’s primary arguments on appeal are that his guilty pleas were not voluntarily,

knowingly, and intelligently entered since the trial court’s plea colloquy failed to adequately

advise about postrelease control and also insufficiently discussed applicable fines.

Additionally, Carnail asserts that he should be permitted to withdraw his guilty plea because it

was based on misinformation from counsel and, in the alternative, an evidentiary hearing

should have been conducted in conjunction with the motion.

        Conversely, the state primarily argues that res judicata bars appellant from raising the

legitimacy of his guilty plea in a successor motion to vacate the plea, or alternatively, that

appellant cannot show prejudice and/or his claims lack candor.

        Procedural mandates pertaining to motions to withdraw guilty pleas are unequivocal.

Crim.R. 32.1 governs the withdrawal of guilty pleas and declares: “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.”        In order for a plea to be made knowingly and
voluntarily, a trial court must adhere to the mandates of Crim.R. 11, which provides that a

court must determine: “(C)(2)(a) *** that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved, and, if

applicable, that the defendant is not eligible for probation or for the imposition of community

control sanctions at the sentencing hearing.”

       Ample compliance with Crim.R. 11 by a trial court ensures that a defendant enters a

guilty plea knowingly, intelligently, and voluntarily.     “With respect to nonconstitutional

rights, a guilty plea will be considered knowing, intelligent, and voluntary if, before accepting

the plea, the trial court substantially complied with the procedures set forth in Crim.R. 11.”

State v. Nero (1990), 56 Ohio St.3d 106, 564 N.E.2d 474. “Substantial compliance means

that under the totality of the circumstances the defendant subjectively understands the

implications of his plea and the rights he is waiving.” Id. “Furthermore, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily

made must show a prejudicial effect.” State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d

1163. “The test is whether the plea would have otherwise been made.”             Id.   “If a trial

court fails during a plea colloquy to advise a defendant that the sentence will include a

mandatory term of postrelease control, the defendant may dispute the knowing, intelligent, and

voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct

appeal.” State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224.
       Prior to July 11, 2006, when a trial court failed to properly impose postrelease control

in a criminal sentence, the trial court was required to vacate the sentence and conduct a de

novo sentencing hearing. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920

N.E.2d 958.      However, the supreme court in State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, has since decided that only the offending part of the

sentence be set aside. “When a defendant receives a sentence that does not properly include

postrelease control, the defendant’s entire sentence is no longer vacated; rather, just the

‘offending portion of the sentence is subject to review and correction.’”       Id. at ¶27.   The

defendant does not have to be put in the same “position [he or she] would have been in had

there been no sentence.” State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,

at ¶13.   It rationally follows then that a defendant’s entire sentence is not null and void, only

the offending part. State v. Bell, 8th Dist. No. 95719, 2011-Ohio-1965.       Hence, “a Crim.R.

32.1 motion to withdraw a plea filed after a defendant has been sentenced — without the

proper postrelease control — is a postsentence motion that must meet the stricter manifest

injustice standard.”   Id.

       Consequently, Carnail’s assertion that his guilty plea should be treated as a presentence

motion and therefore be liberally granted is contrary to applicable case law.    In this instance,

the trial court’s partial, as opposed to de novo, resentencing was proper since appellant’s

motion to withdraw was properly construed as a postsentence motion that, if not barred by the
doctrine of res judicata, must meet a strict manifest injustice standard.     Our reading of the

record supports the conclusion that appellant does not arrive at this lofty bar.    The record, as

well as the totality of the circumstances, indicates that appellant’s plea bargain was voluntarily

made to avoid going to trial on additional charges.     Moreover, appellant makes no showing

that he was prejudicially affected by the trial court’s failure to precisely comply with Crim.R.

11.   In fact, the trial court substantially complied with Crim.R. 11 when accepting appellant’s

second guilty plea because appellant had actual notice, given at the initial plea colloquy,     that

postrelease control was a mandatory part of his sentence.

       Furthermore, the wording in the writ of mandamus was unequivocal when it compelled

the trial court judge “to issue a sentencing entry that complies with the postrelease-control

provisions of R.C. 2967.28.”     State ex rel. Carnail, at ¶39.    The explicit language utilized

by the court in the writ indicates that the singular purpose of the issuance of the writ was for

resentencing to impose a postrelease control term of five years.     The trial court’s subsequent

sentencing hearing in turn properly conformed with the mandates of the writ.

       Moreover, since appellant previously raised in a direct appeal the issues presented in

his motion to withdraw sentence, the doctrine of res judicata precludes him from again raising

the same issues.   As a result, the trial court was without jurisdiction to grant the motion.

        “[T]his court has consistently recognized that the doctrine of res judicata bars all

claims raised in a Crim.R. 32.1 postsentence motion to withdraw a guilty plea that were raised
or could have been raised on direct appeal.”      See, e.g., State v. Johns, 8th Dist. No. 92627,

2010-Ohio-68; State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374.                 “Although the

doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to

other aspects of the merits of a conviction, including the determination of guilt and the lawful

elements of the ensuing sentence.”     State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868

N.E.2d 961.

       Additionally, “Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and

determine a motion to withdraw the guilty plea subsequent to an appeal and an affirmance by

the appellate court.   While Crim.R. 32.1 apparently enlarges the power of the trial court over

its judgments without respect to the running of the court term, it does not confer upon the trial

court the power to vacate a judgment which has been affirmed by the appellate court, for this

action would affect the decision of the reviewing court, which is not within the power of the

trial court to do.”    State ex rel. Special Prosecutors v. Judges, Court of Common Pleas

(1978), 55 Ohio St.2d 94, 378 N.E.2d 162.

       In this instance, the trial court’s rejection of Carnail’s first motion to withdraw his

guilty plea was an adjudication on the merits of his claim and operated as res judicata to bar

the succeeding motions.    Thereafter, an appeal from the original judgment was taken and this

court affirmed the judgment of the trial court.      Subsequent motions filed by Carnail were
largely redundant, based upon the same nexus of facts, and sought the same relief as the initial

motion to withdraw plea.

       The complaint by appellant that an evidentiary hearing should have been conducted is

furthermore without merit.    Appellant, prior to resentencing, proffered only oral testimony to

demonstrate that the guilty plea was made based on erroneous advice from counsel.           No

evidentiary documents or affidavits to bolster his claims were presented.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.         A certified copy of

this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate

Procedure.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
