[Cite as State v. Mackey, 2014-Ohio-5372.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

STATE OF OHIO,                                  :    Case No. 14CA3645

        Plaintiff-Appellee,                     :

        v.                                      :    DECISION AND
                                                     JUDGMENT ENTRY
RICKEY MACKEY,                                  :

        Defendant-Appellant.                    :    RELEASED: 11/26/2014

                                             APPEARANCES:

Rickey Mackey, Caldwell, Ohio, pro se appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County
Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Harsha, J.
        {¶1}    After Rickey Mackey pleaded guilty to possession of crack cocaine,

trafficking in drugs/crack cocaine, and conspiracy to traffic drugs, the Scioto County

Court of Common Pleas sentenced him to an agreed aggregate prison term of 18 years.

Mackey did not timely appeal, and we subsequently denied his motions for leave to file

a delayed appeal. More than four and a half years after the trial court imposed the

judgment of conviction and sentence, Mackey filed a postsentence motion to withdraw

his guilty plea. The trial court denied the motion.

        {¶2}    On appeal Mackey challenges the propriety of the trial court’s order

denying his motion to withdraw his guilty plea. He claims that his guilty plea was not

knowingly, intelligently, and voluntarily made because the trial court did not inform him

of the maximum penalties involved and that any prison sentence he would receive

would be mandatory time.
Scioto App. No. 14CA3645                                                                2


       {¶3}   Because Mackey either raised or could have raised his claims in a timely

direct appeal or in his motions for a delayed appeal from his judgment of conviction and

sentence, res judicata bars him from raising them in his postsentence motion to

withdraw his guilty plea. Consequently, we overrule his assignments of error and affirm

the judgment of the trial court.

                                         I. FACTS

       {¶4}   In September 2008, a Scioto County grand jury returned an indictment

charging Mackey with one count of possession of crack cocaine, one count of trafficking

in drugs/crack cocaine, and one count of conspiracy to traffic drugs. Mackey received

appointed counsel and entered a plea of not guilty to the charges. Mackey pled guilty to

the charges in September 2009 and the trial court sentenced Mackey to an aggregate

18-year prison term, which was agreed to by the parties. Mackey did not file a timely

appeal from his sentence.

       {¶5}   Instead, two and a half years later, in March 2012, he filed a pro se motion

for leave to file a delayed appeal in Case No. 12CA3475. Mackey claimed that neither

the trial court nor his counsel had informed him that his right to appeal must be pursued

within 30 days of the judgment. In April 2012, we denied the motion.

       {¶6}   In April 2014, over four and a half years after the trial court’s September

2009 final judgment of conviction, Mackey filed a second pro se motion for leave to file a

delayed appeal from that judgment. Mackey claimed that the trial court had failed to

inform him of his rights to appeal the sentence and have counsel appointed for him on

appeal, that the offenses he was convicted of were allied offenses of similar import that
Scioto App. No. 14CA3645                                                                   3


should have merged, and that his guilty plea was not made knowingly, intelligently, and

voluntarily because the trial court did not inform him of the maximum penalty involved.

       {¶7}   On the same date that he filed his second pro se motion for leave to file a

delayed appeal from his 2009 judgment of conviction, Mackey filed a pro se Crim.R.

32.1 motion to withdraw his guilty plea. Mackey again claimed that his guilty plea was

invalid because the trial court did not inform him of the maximum penalty involved for

the offenses. After the state filed a memorandum in opposition to the motion to

withdraw, the trial court issued an entry stating that it lacked jurisdiction to rule on the

motion while Mackey’s motion for leave to appeal was pending.

       {¶8}   In June 2014, in Case No. 14CA3622 we denied Mackey’s second motion

for leave to appeal his conviction and sentence. We held that res judicata barred his

successive motion for delayed appeal. Id. In July 2014, we dismissed Case No.

14CA3625 for lack of a final appealable order. This was Mackey’s appeal from the trial

court’s entry that it lacked jurisdiction to rule on his motion to withdraw his guilty plea

while his motion for leave to appeal remained pending.

       {¶9}   Upon being notified of our judgment, the trial court denied Mackey’s

motion to withdraw his guilty plea. This appeal followed.

                              II. ASSIGNMENTS OF ERROR

       {¶10} Mackey assigns the following errors for our review:

        1. THE TRIAL COURT ERRED AND DID NOT INFORM APPELLANT
           OF THE MAXIMUM PENALTY INVOLVED AS REQUIRED BY OHIO
           CRIMINAL RULE 11(C)(2)(A) AT APPELLANT’S CHANGE OF PLEA
           HEARING BECAUSE THE COURT DID NOT CLEARLY INFORM
           APPELLANT THAT ANY PRISON SENTENCE HE MAY RECEIVE
           WOULD BE MANDATORY TIME.
Scioto App. No. 14CA3645                                                                    4


       2. THE TRIAL COURT VIOLATED CRIM.R. 11 WHEN IT COMPLETELY
          FAILED TO ADVISE DEFENDANT OF THE MAXIMUM POSSIBLE
          SENTENCE FOR COUNT 2. AS A RESULT, DEFENDANT DID NOT
          KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HIS
          CONSTITUTIONAL RIGHTS WITH RESPECT TO COUNTS 2. HIS
          CONVICTIONS AND SENTENCES FOR THOSE COUNTS VIOLATE
          HIS RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH
          AMENDMENTS TO THE U.S. CONSTITUTION AND SECTIONS 10
          AND 16 OF ARTICLE ONE OF THE OHIO CONSTITUTION.

                               III. STANDARD OF REVIEW

       {¶11} “A defendant who seeks to withdraw a plea of guilty after the imposition of

sentence has the burden of establishing the existence of manifest injustice.” State v.

Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus;

State v. Ogle, 4th Dist. Hocking No. 13CA18, 2014-Ohio-2251, ¶ 8. A manifest injustice

is a clear and openly unjust act; it relates to a fundamental flaw in the proceedings

resulting in a miscarriage of justice or a deprivation of due process. See State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998); Ogle at ¶ 8; Hall,

10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939, at ¶ 12. “This is an ‘extremely high

standard’ that permits a defendant to withdraw his plea ‘only in extraordinary cases.’ ”

State v. Walton, 4th Dist. Wash. No. 13CA9, 2014-Ohio-618, ¶ 10, quoting State v.

Darget, 4th Dist. Scioto No. 12CA3487, 2013-Ohio-603, ¶ 21.

       {¶12} The decision to grant or deny a Crim.R. 32.1 postsentence motion to

withdraw a guilty plea is committed to the sound discretion of the trial court, and

appellate review of the denial of the motion is thus limited to a determination of whether

the trial court abused its discretion. Walton at ¶ 11; see also Smith at paragraph two of

the syllabus (“A motion made pursuant to Crim.R. 32.1 is addressed to the sound

discretion of the trial court, and the good faith, credibility and weight of the movant’s
Scioto App. No. 14CA3645                                                                   5


assertions in support of the motion are matters to be resolved by that court”). “A trial

court abuses its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966,

986 N.E.2d 971, ¶ 34.

                                 IV. LAW AND ANALYSIS

       {¶13} Mackey asserts that the trial court erred in denying his Crim.R. 32.1

postsentence motion to withdraw his guilty plea. He claims that his plea is invalid

because it was not made knowingly, intelligently, and voluntarily because the trial court

failed to notify him of the maximum penalties for his offenses, including that his

sentence included mandatory time. See State v. Barker, 129 Ohio St.3d 472, 2011-

Ohio-4130, 953 N.E.2d 826, ¶ 9, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660

N.E.2d 450 (1996) (“ ‘When a defendant enters a plea in a criminal case, the plea must

be made knowingly, intelligently, and voluntarily. Failure on any of these points renders

enforcement of the plea unconstitutional under both the United States and Ohio

Constitutions’ ”); State v. Lamb, 4th Dist. Highland No. 14CA3, 2014-Ohio-2960, ¶ 12.

       {¶14} “It is well established law in Ohio that * * * ‘[u]nder 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. Seal, 4th Dist. Highland No.

13CA10, 2014-Ohio-4168, ¶ 12, quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d

104 (1967), paragraph nine of the syllabus. Therefore, “[i]f a party fails to timely appeal
Scioto App. No. 14CA3645                                                                 6


a final order, matters that could have been reviewed on appeal become res judicata and

cannot be reviewed in related or subsequent proceedings or appeals.” State v.

Swayne, 4th Dist. Adams Nos. 12CA952, 12CA953, and 12CA954, 2013-Ohio-3747, ¶

24. The applicability of res judicata is a question of law, which we determine de novo.

State v. Tolliver, 4th Dist. Athens No. 12CA36, 2013-Ohio-3861, ¶ 12.

       {¶15} Courts, including this one, have applied res judicata to bar defendants

from raising claims in a Crim.R. 32.1 postsentence motion to withdraw that they either

raised or could have raised in a direct appeal from their judgment of conviction and

sentence. See, e.g., State v. Ketterer, 126 Ohio St.3d 448, 2919-Ohio-3831, 935

N.E.3d 9, ¶ 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”); State v. Dent, 8th Dist. Cuyahoga No. 100605, 2014-Ohio-3141, ¶ 4

(“The doctrine of res judicata, however, prohibits 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”); State v. Muhumed, 10th Dist. Franklin No. 2012-Ohio-6155, ¶

15 (“res judicata applies * * * to issues raised in a post-sentencing Crim.R. 32.1 motion

that were or could have been raised in direct appeal”); State v. Vincent, 4th Dist. Ross

No. 03CA2713, 2003-Ohio-3998, ¶ 11 (“The doctrine of res judicata bars claims raised

in a Crim.R. 32.1 post-sentence motion to withdraw a guilty plea that were raised or

could have been raised in prior proceedings”).

       {¶16} “This concept extends to situations involving defendants who failed to file

the direct appeal.” Dent at ¶ 4, citing State v. Walters, 4th Dist. Scioto No. 12CA3482,

2013-Ohio-695, ¶ 14. It also applies to claims that the plea is invalid because it was not
Scioto App. No. 14CA3645                                                                     7

knowingly, intelligently, and voluntarily made. See, e.g., State v. Jones, 8th Dist.

Cuyahoga No. 93478, 2010-Ohio-1985, ¶ 8 (“Because Jones could have raised the

issues concerning the voluntariness of her plea * * * in a direct appeal, she is precluded

by res judicata from raising the issues herein” in an appeal from the denial of her

postsentence motion to withdraw her guilty plea); State v. Kitzler, 3rd Dist. Wyandot No.

16-04-13, 2005-Ohio-425, ¶ 9 (“Kitzler could have raised the issue of the voluntariness

of his guilty plea on direct appeal * * * [and] is barred by res judicata from raising the

issue in this appeal” from the denial of his postsentence motion to withdraw his guilty

plea); see Katz, Martin, Lipton, Giannelli, and Crocker, Baldwin’s Ohio Practice Criminal

Law, Section 80:20 (3d Ed.2013) (“A defendant can also appeal from the denial of a

motion to withdraw a guilty plea under Criminal Rule 32.1, although issues that could

have been raised on direct appeal from judgment of conviction are barred by the

doctrine of res judicata”).

       {¶17} Mackey could have raised his claims that his guilty plea was invalid in a

timely direct appeal or in his delayed appeals. Therefore, res judicata barred him from

raising these claims in his belated postsentence motion to withdraw his guilty plea. The

trial court did not abuse its discretion in denying his motion. We overrule Mackey’s

assignments of error.

                                     V. CONCLUSION

       {¶18} The trial court did not abuse its discretion in denying Mackey’s Crim.R.

32.1 postsentence motion to withdraw because res judicata barred him from raising

claims in the motion that he raised or could have raised in a timely direct appeal from
Scioto App. No. 14CA3645                                                        8


his judgment of conviction and sentence. Having overruled Mackey’s assignments of

error, we affirm the judgment of the trial court.

                                                           JUDGMENT AFFIRMED.
Scioto App. No. 14CA3645                                                                   9


                                    JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
