[Cite as State v. Mulkey, 2020-Ohio-3531.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       29380

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRIAN MULKEY                                          AKRON MUNICIPAL COURT
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   93 CRB 4472

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2020



        CALLAHAN, Presiding Judge.

        {¶1}     Appellant, Brian Mulkey, appeals an order of the Akron Municipal Court that

denied his post-sentence motion to withdraw a no-contest plea. This Court affirms.

                                                 I.

        {¶2}     Mr. Mulkey pleaded no contest to a domestic violence charge in 1993, and the trial

court sentenced him to six months of probation. Mr. Mulkey did not file an appeal. Twenty-six

years later, Mr. Mulkey moved the trial court to withdraw that plea, arguing, in part, that he “did

not understand the nature of the disabling and [enhanceability] [e]ffect of a Guilty finding in a

Domestic Violence case.” The only evidence that Mr. Mulkey submitted in support of his motion

was his own one-page affidavit. The trial court denied the motion without a hearing, concluding

that Mr. Mulkey’s arguments were barred by application of res judicata and, in the alternative, that

he had not demonstrated that he suffered a manifest injustice. Mr. Mulkey appealed.
                                                 2


                                                 II.

                                ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
       REVERSIBLE ERROR BY DENYING DEFENDANT’S MOTION TO
       WITHDRAW HIS PLEA OF NO CONTEST[.]

       {¶3}    Mr. Mulkey’s first assignment of error is that the trial court abused its discretion by

denying his post-sentence motion to withdraw his no-contest plea. This Court does not agree.

       {¶4}    “A motion to withdraw a plea of * * * 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.” Crim.R. 32.1. Post-sentence

relief under Crim.R. 32.1 is only available in extraordinary cases characterized by “a fundamental

flaw in the plea proceedings resulting in a miscarriage of justice.” State v. Straley, Slip Opinion

No. 2019-Ohio-5206, ¶ 14. Res judicata bars the assertion of claims against a judgment of

conviction in a motion under Crim.R. 32.1 when those claims were or could have been raised on

direct appeal. Straley at ¶ 15, 23; State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59.

This Court reviews a decision to grant or deny a motion to withdraw a plea for an abuse of

discretion. See State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus.

       {¶5}    In support of his motion to withdraw his no-contest plea, Mr. Mulkey argued that

his plea was not knowingly, voluntarily, and intelligently made because the trial court did not

comply with Crim.R. 11(D). Mr. Mulkey could have raised this argument in a direct appeal. See

Straley at ¶ 23, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, paragraph one of the

syllabus; Ketterer at ¶ 59-60. See also State v. Cagle, 9th Dist. Medina No. 19CA0058-M, 2020-

Ohio-316, ¶ 5. Accordingly, the trial court did not abuse its discretion by denying his motion to

withdraw his no-contest plea.
                                                3


       {¶6}    Mr. Mulkey’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO HOLD A
       HEARING[.]

       {¶7}    In his second assignment of error, Mr. Mulkey argues that the trial court erred by

failing to hold a hearing on his motion to withdraw his no-contest plea. This Court disagrees.

       {¶8}    When a defendant moves to withdraw a plea before sentencing, the trial court must

conduct a hearing in order to determine whether there is “a reasonable and legitimate basis” for

the motion. State v. Xie, 62 Ohio St.3d 521 (1992), paragraph one of the syllabus. On the other

hand, when a defendant moves to withdraw a plea after sentencing, a hearing is not required when

the record indicates that the defendant is not entitled to relief and the defendant fails to submit

evidentiary materials demonstrating a manifest injustice. State v. Razo, 9th Dist. Lorain No.

05CA008639, 2005-Ohio-3793, ¶ 20, citing State v. Russ, 8th Dist. Cuyahoga No. 81580, 2003-

Ohio-1001, ¶ 15.     A trial court need not conduct an evidentiary hearing when the record

demonstrates that arguments in support of a post-sentence motion to withdraw a plea are barred

by application of res judicata. See State v. Brown, 9th Dist. Summit No. 27749, 2016-Ohio-1066,

¶ 9; State v. Sebestyen, 9th Dist. Medina No. 12CA0055–M, 2013-Ohio-2606, ¶ 10.

       {¶9}    The record in this case demonstrated that Mr. Mulkey’s claims were barred by

application of res judicata, and the trial court did not err by denying his motion to withdraw his

no-contest plea without a hearing. Mr. Mulkey’s second assignment of error is, therefore,

overruled.

                                               III.

       {¶10} Mr. Mulkey’s assignments of error are overruled. The judgment of the Akron

Municipal Court is affirmed.
                                                 4


                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

CHARLES W. OLMINSKY, Attorney at Law, for Appellant.

EVE V. BELFANCE, Director of Law, and GERTRUDE E. WILMS, Assistant Director of Law,
for Appellee.
