[Cite as State v. Coley-Carr, 2014-Ohio-5556.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 101611



                                          STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     REZATA COLEY-CARR

                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                                 Case No. CR-13-572866-A

        BEFORE:            McCormack, J., Jones, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: December 18, 2014
FOR APPELLANT

Rezata Coley-Carr, pro se
Inmate No. A-643630
Belmont Correctional Institution
P.O. Box 540
Saint Clairsville, OH 43950


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Kevin R. Filiatraut
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

      {¶1} Defendant-appellant, Rezata Coley-Carr, appeals from a judgment of

the trial court denying his postsentence motion to withdraw his guilty plea.

Finding no merit to the appeal, we affirm the trial court’s judgment.

      {¶2} A grand jury returned a nine-count indictment against appellant for

rape, with a sexually violent predator specification, two counts of kidnapping, with

sexual motivation and sexually violent predator specifications, aggravated burglary,

attempted felonious assault, tampering with evidence, attempted burglary,

aggravated menacing, and menacing by stalking.

      {¶3} Appellant pleaded not guilty. On June 24, 2013, the day of trial,

appellant withdrew his plea of not guilty and pleaded guilty under a plea agreement.

 He pleaded guilty to rape, with the deletion of the sexually violent predator

specification, in exchange for the nolling of all remaining counts. The transcript

of the plea hearing is not in the record, but a review of the court’s journal entry

indicates that appellant was represented by counsel and was fully advised in open

court of his constitutional rights. After accepting his plea, the trial court ordered a

presentence report and scheduled the sentencing for August 5, 2013.

      {¶4} Within a week of his guilty plea, appellant filed a pro se motion to

withdraw his guilty plea. In the motion, he claimed he did not understand the

nature of the charge, the effect of the plea, or his rights as a criminal defendant.
       {¶5}    On August 6, 2013, the trial court held the sentencing hearing as

scheduled. The transcript of the sentencing proceeding is not part of the record

either. A review of the sentencing entry reflects that appellant was represented by

counsel, he personally addressed the court, and the trial court considered all

required factors before sentencing him to ten years in prison for his offense of rape.

 The court also imposed five years of postrelease control and found him to be a tier

III sex offender.    The journal entry made no mention of the motion to withdraw.1

       {¶6} Appellant did not file a direct appeal of his conviction. Five months

later, he filed a series of pro se motions: on March, 6, 2014, he filed three motions,

captioned as “Petition to vacate or set aside judgment of conviction or sentence,”

“Motion for expert assistance,” and “Motion for appointment of counsel.” On

March 12, 2014, the court granted his motion for counsel and assigned counsel to

represent him.

       {¶7} Despite being represented by counsel, on April 4, 2014, appellant filed

another pro se motion. The introductory paragraph of the uncaptioned motion

stated, incongruously, the following: “Defendant files that the current sentence of

ten years is a case of diligent prosecution and effective counsel presenting hearsay

evidence as the evidence of fact and supported by the law as to Civ. Proc. 16(6) and



       When the record indicates that the trial court never ruled on a motion, the motion is deemed
       1


denied. State v. Ogle, 2012-Ohio-3693, 975 N.E.2d 563 (8th Dist.), ¶ 15.
contention that the diligent prosecutor and effective counsel had sufficient evidence

to negotiate a plea of first degree felony for 2907.02 for the maximum sentence,

filed.”

          {¶8} The instant matter began when on May 21, 2014, appellant, through

his appointed counsel, filed a “Motion for leave to withdraw guilty plea and

alternative petition for post-conviction relief pursuant to 2953.21.”      Appellant

argued he should be permitted to withdraw his guilty plea because he thought he

was pleading guilty to a reduced charge of sexual battery. He also claimed that,

after his guilty plea and before sentencing, he told his counsel that he wanted to

withdraw his plea, but his counsel failed to notify the prosecution. Although the

brief attached to the motion referenced a sworn affidavit by appellant, the record

does not contain such an affidavit.

          {¶9} The trial court denied the motion. Appellant appealed pro se from

that judgment. In his brief, he argues something different from his motion before

the trial court. He argues he was innocent of rape because the victim had agreed

to engage in sex with him for money.     He claims he is only guilty of prostitution.



          {¶10} Under Crim.R. 32.1, “[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.” Whether the motion is filed

before or after the sentence, it is “addressed to the sound discretion of the trial

court, and the good faith, credibility and weight of the movant’s assertions in

support of the motion are matters to be resolved by that court.” State v. Smith, 49

Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus.

      {¶11} The instant motion is styled as a “motion for leave to withdraw guilty

plea and alternative petition for post-conviction relief.” Whether we construe it as

a postsentence motion to withdraw a guilty plea or a postconviction petition, the

doctrine of res judicata bars appellant’s claim.   See State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus (in a postconviction

proceeding, 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); State v.

Bryukhanova, 6th Dist. Fulton No. F-10-002, 2010-Ohio-5504, ¶ 12 (courts

repeatedly applied the doctrine of res judicata to postconviction Crim.R. 32.1

motions).

      {¶12} Appellant could have raised the claims regarding his guilty plea on

direct appeal. Therefore, his claim is now barred by res judicata.

      {¶13} Even if we were to review his motion to withdraw the guilty plea,

under the standard of Crim.R. 32.1, we would find no manifest injustice to be
corrected by the trial court. “Manifest injustice relates to some fundamental flaw

in the proceedings which result[s] in a miscarriage of justice or is inconsistent with

the demands of due process.”        State v. Ruby, 9th Dist. Summit No. 23219,

2007-Ohio-244, ¶ 11.      “Under the manifest injustice standard, a postsentence

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

Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 61 (8th Dist.), citing State v.

Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).

      {¶14} Here, appellant pleaded guilty when a jury trial was imminent. After

the imminence of a trial was passed, he sought to withdraw his plea, claiming his

plea was not knowing or intelligent.      However, he apparently did not raise the

issue at the subsequent sentencing hearing, because the sentencing entry recited the

fact that appellant pleaded guilty to rape. The sentencing entry also reflected that

appellant was represented by counsel and personally addressed the trial court. As

the sentencing transcript is not part of the record, we presume regularity of the

proceeding.    Notably, appellant did not file a direct appeal of his conviction. In

the instant postconviction proceeding, appellant presented no credible evidence,

other than a purported self-serving affidavit, that he was mistaken at the plea

hearing about the charge he pleaded to.
      {¶15} Under these circumstances, appellant fails to demonstrate manifest

injustice to be correct by the trial court. The trial court did not abuse its discretion

in denying appellant’s motion to withdraw his guilty plea.

      {¶16} Judgment affirmed.

      It is ordered that appellee recover of appellant 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

common pleas court 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.


______________________________________________
TIM McCORMACK, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
