[Cite as State v. Grimes, 2017-Ohio-25.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :   Appellate Case No. 26636
         Plaintiff-Appellee                      :
                                                 :   Trial Court Case No. 04-CR-237/1
 v.                                              :
                                                 :   (Criminal Appeal from
 MATTHEW GRIMES                                  :    Common Pleas Court)
                                                 :
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 6th day of January, 2017.

                                            ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                           .............

HALL, J.

        {¶ 1} Matthew Grimes appeals from the trial court’s February 27, 2015, decision,

order, and entry overruling his “Motion to overturn the conviction and set aside the
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sentence, and to provide court records.”

       {¶ 2} Grimes filed his pro se motion in August 2014, seeking to overturn his 2004

conviction and sentence following a guilty plea to numerous felony charges and

specifications that resulted in an aggregate 50-year prison sentence. The charges

stemmed from a crime spree that included Grimes shooting and wounding two police

officers. In his motion, he argued that his plea was invalid, that his speedy-trial rights were

violated, that he was tortured while in custody, that he received ineffective assistance of

counsel, and that the prosecutor engaged in misconduct. Grimes provided no affidavit,

transcripts, or any other evidentiary support along with his motion.

       {¶ 3} In its ruling, the trial court found Grimes’ motion untimely to the extent that it

was an R.C. 2953.21 post-conviction relief petition. To the extent that the motion was a

Crim.R. 32.1 plea-withdrawal motion, the trial court found no “manifest injustice” based

on Grimes’ allegations. Specifically, the trial court found no speedy-trial violation, no

evidence to support the torture claim, no evidence of coercion with regard to the guilty

plea, no evidence of prosecutorial misconduct, and no evidence of ineffective assistance

of counsel. Finally, insofar as Grimes’ motion included a public-records request, the trial

court concluded that he had not established the necessity of the records to support a

justiciable claim as required by R.C. 149.43.

       {¶ 4} Following the trial court’s ruling, Grimes filed a pro se notice of appeal. He

also filed in this court a “motion to request documents.” He sought an order requiring the

trial court “to turn over all documents, transcripts and evidence” related to his case. We

overruled the motion, finding the document request to be a “merits issue” because the

trial court had denied the same request below. Thereafter, the trial court appointed
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counsel to assist Grimes with his appeal. Counsel proceeded to file a February 5, 2016

motion in this court, seeking to withdraw from further representation. Counsel explained

that he could not obtain any relevant records, discovery, or transcripts to support the

claims in Grimes’ unsuccessful motion. According to counsel, Grimes’ trial attorney

permissibly long-since had discarded the discovery packet, a public-records request had

been denied, and the transcriptionist for the 2004 proceedings no longer possessed

complete notes and equipment to transcribe the plea and sentencing hearings. On

February 23, 2016, we overruled counsel’s motion to withdraw. Counsel subsequently

obtained a transcript of the plea and sentencing hearing, and we ordered the record to be

supplemented with it. Briefing then proceeded in accordance with the appellate rules.

         {¶ 5} Grimes now advances three assignments of error on appeal. First, he

contends the plea-hearing transcript reveals that his guilty plea was not entered knowingly

and intelligently. Second, he claims his statutory speedy-trial rights were violated and that

his attorney provided ineffective assistance by failing to raise the issue prior to his plea.

Third, he asserts that App.R. 9 may require the vacation of his plea and sentence based

on deficiencies in the uncertified plea and sentencing hearing transcripts.

         {¶ 6} Upon review, we see no error in the trial court’s ruling and no merit in Grimes’

arguments. As a threshold matter, we agree with the trial court that Grimes’ motion was

untimely insofar as it requested post-conviction relief under R.C. 2953.21. The trial court’s

termination entry in Grimes’ case was filed on November 1, 2004. His right to appeal

expired one month later on December 1, 2004. His statutory right to seek post-conviction

relief expired 180 days after that. See former R.C. 2953.21(A)(2).1 He did not file the


1   After the trial court’s ruling on Grimes’ motion, R.C. 2953.21(A)(2) was revised. It now
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motion at issue, however, until more than nine years later. The trial court also correctly

noted that Grimes had not made the showing required to file a petition beyond the 180-

day time limit. Among other things, he was required to show that he had been unavoidably

prevented from discovering the facts upon which his petition relied. See R.C.

2953.23(A)(1). He made no such showing. Therefore, the trial court did not err in denying

statutory post-conviction relief.

       {¶ 7} With respect to Grimes’ specific assignments of error, he first argues that his

“plea could not have been entered knowingly and intelligently as required by law.” He

raises several arguments in support. He contends the trial court erred in denying his

motion without the benefit of a transcript. He also suggests the transcript he has provided

on appeal may be inaccurate, calling into question the viability of his plea. Finally, he

asserts that his responses to the trial court’s questions at the plea hearing are indicative

of a plea that was not entered knowingly and intelligently.

       {¶ 8} We find no merit in Grimes’ arguments. Any issues related to the knowing,

intelligent, and voluntary nature of his guilty plea could have been raised in a direct

appeal. Therefore, res judicata precludes him from raising those issues now.2 State v.


provides 365 days after expiration of the time for filing an appeal to seek post-conviction
relief.
2 Although our res judicata finding is dispositive, we note too that the trial court did not
review a plea transcript because Grimes did not file one. His concern that the current
transcript may be inaccurate also does not justify a finding that his plea was not knowing,
intelligent, and voluntary. The problems Grimes cites stem from the fact that a certifiable
transcript could not be produced given the state of the original transcriptionist’s 2004
notes due to the passage of time. But the State is not responsible for the consequences
of Grimes’ decision to wait so many years before challenging his plea. Finally, we have
reviewed the existing transcript and are unpersuaded that his complaints undermine the
validity of his plea. He complains about the trial court not inquiring enough about his
satisfaction with his attorney’s performance. He also notes that he once responded “I
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Havens, 2d Dist. Champaign No. 10CA0027, 2011-Ohio-5019, ¶ 9 (“Defendant’s claim

that his guilty pleas were not entered knowingly, intelligently and voluntarily clearly could

have been raised on direct appeal, but was not. Accordingly, that claim is now barred by

res judicata.”); State v. Kemp, 2d Dist. Clark No. 2014CA32, 2014-Ohio-4607, ¶ 12, 17

(concluding that res judicata barred the defendant from challenging the knowing,

intelligent, and voluntary nature of his guilty plea in a post-sentence plea-withdrawal

motion). Accordingly, his first assignment of error is overruled.

       {¶ 9} In his second assignment of error, Grimes asserts that his statutory speedy-

trial rights were violated and that his trial counsel provided ineffective assistance by failing

to raise the issue prior to his guilty plea. As a result, he contends the trial court erred in

refusing to allow him to vacate his plea.

       {¶ 10} Once again, we find Grimes’ argument to be without merit. This court has

recognized that “ ‘[i]neffective assistance of counsel can constitute manifest injustice

sufficient to allow the post-sentence withdrawal of a guilty plea.’ ” State v. Banks, 2d Dist.

Montgomery No. 25188, 2013-Ohio-2116, ¶ 9, quoting State v. Dalton, 153 Ohio App.3d

286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.). We also have recognized,

however, that “a plea of guilty waives the right to claim that the accused was prejudiced

by constitutionally ineffective assistance of counsel, except to the extent the defects



understand” to a question that more properly called for a “yes” or “no” answer. He then
notes his incorrect response about being on probation or parole while acknowledging that
the transcript appears to be incorrect in that regard and, in any event, that the trial court
was well aware of his status. He also notes that he once was not paying attention and
that the trial court told him to “look over here.” Finally, he points out that he twice nodded
his head up and down rather than providing an oral response. In our view, none of these
alleged defects were sufficient to undermine the knowing, intelligent, and voluntary nature
of Grimes’ plea.
                                                                                         -6-

complained of caused the plea to be less than knowing and voluntary.” State v. Bateman,

2d Dist. Clark No. 2012CA29, 2013-Ohio-4235, ¶ 7. In Bateman, we concluded that the

defendant’s guilty plea waived his claim of ineffective assistance of counsel based on

counsel’s failure to seek dismissal on statutory speedy-trial grounds. Id. at ¶ 8-9. This

was so because counsel’s failure to seek dismissal did not impair the knowing and

intelligent waiver of the defendant’s rights when he entered his plea. Id.

       {¶ 11} Grimes’ speedy-trial argument also is precluded by res judicata. Although

ineffective assistance of counsel can constitute a manifest injustice, the particular

ineffective assistance Grimes alleges—counsel’s failure to seek dismissal on speedy-trial

grounds—could have been raised on direct appeal. Therefore, res judicata bars him from

raising the issue in a post-conviction motion to withdraw his plea. State v. Owens, 4th

Dist. Scioto No. 14CA3641, 2015-Ohio-1509, ¶ 15, citing State v. Lofton, 4th Dist.

Pickaway No. 12CA21, 2013-Ohio-1121, ¶ 8 (“We further point out that the ineffective

assistance from trial counsel issue and the speedy trial rights issue are matters that could

have been raised in a first appeal of right. However, they were not raised and appellant

is barred from raising them here by the doctrine of res judicata.”); State v. Ketterer, 126

Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 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.”).

       {¶ 12} Finally, this court has recognized that no “manifest injustice” exists, as

required for relief under Crim.R. 32.1, when the argument upon which the defendant’s

plea-withdrawal motion relies could have been raised on direct appeal. State v.

McCommons, 2d Dist. Montgomery No. 26372, 2015-Ohio-1583, ¶ 9-10; see also State
                                                                                         -7-

v. Kendrick, 2d Dist. Montgomery No. 25100, 2012-Ohio-5795, ¶ 17 (“Claims that could

have been addressed on direct appeal or in a post-conviction relief motion in support of

post-sentence motion to withdraw are insufficient to demonstrate the manifest injustice

required by Crim. R. 32.1 in order to vacate a plea.”).3 Grimes’ speedy trial argument fails

for this reason as well. Accordingly, his second assignment of error is overruled.

       {¶ 13} In his third assignment of error, Grimes contends “Appellate Rule 9 may

require that [his] pleas and sentence be vacated.” In support, he cites two places in the

plea and sentencing hearing transcripts where the notation “(indecipherable)” appears.

He also notes that trial counsel’s 2004 discovery packet is now unavailable as it was only

required to be retained for five years. In addition, he points out that he made a public

records request, which was denied. He also complains about the absence of any

evidentiary support for his assertion that he was tortured while in custody. He reasons

that any or all of these issues “may invoke Ohio Appellate Rule 9.”

       {¶ 14} Upon review, we see nothing in the record or in App.R. 9 that requires

Grimes’ plea and sentence to be vacated. Among other things, App.R. 9 provides a

procedure for filing a statement of the evidence in lieu of a transcript or an agreed

statement of the record. It also provides a procedure for correcting or modifying an

inaccurate record. It does not appear that Grimes utilized any of these procedures. In any

event, nothing in App.R. 9 mandates vacating a plea or sentence if the record is

incomplete.



3 In any event, although we need not reach the issue, Grimes’ speedy-trial rights were
not violated. The trial court addressed that issue and provided supporting time
computations establishing no violation in its decision, order, and entry overruling Grimes’
motion. (See Doc. #84 at 6-7).
                                                                                        -8-




       {¶ 15} We note too that the issues about which Grimes complains do not warrant

vacating his plea or sentence. As set forth above, he ultimately did obtain what appears

to be a relatively accurate and complete transcript of his 2004 plea and sentencing

hearings. The two instances where the notation “(indecipherable)” appears are

inconsequential. (Plea Tr. at 6; Sentencing Tr. at 12). The first occurred during the trial

court’s overview of the firearm specifications, an issue it later addressed again for each

offense. The second occurred after Grimes was sentenced when defense counsel was

thanking someone for working on the presentence investigation. The current unavailability

of the 2004 discovery packet also cannot be blamed on, or held against, the State. In his

appellate brief, Grimes himself acknowledges that the packet only was required to be

retained for five years. Finally, Grimes has not raised as an issue on appeal the merits of

the denial of his public-records request. Therefore, we have no occasion to consider

whether the denial was proper or whether any records he sought would have had

relevance to any still-justiciable claim. Accordingly, the third assignment of error is

overruled.

       {¶ 16} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                     .............



DONOVAN, P.J., and WELBAUM, J., concur.


Copies mailed to:

Mathias H. Heck
Heather N. Jans
Brock A. Schoenlein
                         -9-


Hon. Barbara J. Gorman
