[Cite as State v. Grady, 2011-Ohio-5503.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                Nos. 96523, 96524, and 96525




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 DEMETRIUS GRADY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                       Case Nos. CR-378708, CR-363870, and CR-378707

        BEFORE: E. Gallagher, J., S. Gallagher, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: October 27, 2011
                                            2


 ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



EILEEN A. GALLAGHER, J.:

       {¶ 1} This is an accelerated appeal brought pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

       {¶ 2} Demetrius Grady appeals from the trial court’s denial of his motion to

withdraw his guilty pleas. Grady argues that the trial court erred in denying his motion

to withdraw his guilty pleas because he was not informed of the postrelease control

requirements and the potential penalties for violating postrelease control.     For the

following reasons, we affirm the decision of the trial court.

       {¶ 3} Cuyahoga County grand juries indicted Grady on several criminal cases in
                                              3

1998 and 1999. As part of a plea agreement with the state, Grady pleaded guilty to

felonious assault with a gun specification (CR-363870); drug possession and failure to

comply with the order of a police officer (CR-364232); drug possession (CR-377606);

felonious assault with peace officer and firearm specifications (CR-378707); and

felonious assault (CR-378708). The trial court sentenced Grady to a total of 15 years of

incarceration.1 Grady did not appeal his conviction or sentence.

          {¶ 4} The sentencing entries neglected to impose any period of postrelease

control.     After learning that he would be resentenced to correct this error, Grady filed a

motion to withdraw his guilty pleas in all five cases on April 23, 2009. At the May 27,

2009 resentencing hearing, the trial court imposed Grady’s original sentence and added

five years of postrelease control in all five cases. The court orally denied Grady’s

motion to withdraw his pleas, finding it to be untimely. See State v. Grady, Cuyahoga

App. No. 93548, 2010-Ohio-4667.

          {¶ 5} Grady appealed, challenging the denial of his motion to withdraw his

guilty pleas and the imposition of five years of postrelease control on each of his cases.

This court could not address any assigned error relating to Grady’s motion to withdraw

his guilty pleas because it determined that there was no final, appealable order that

      1
       Grady’s prison sentence consisted of four years in CR-363870; one year in
CR-364232; one year in CR-377606; eight years in CR-378707; and three years in
CR-378708. The four, eight, and three-year sentences were imposed consecutively
to each other, but concurrently to the remaining terms of incarceration. The
sentences in case numbers CR-364232 and CR-377606 have long ago been
completed and are not part of this appeal.
                                           4

denied his motion. See Grady. More specifically, because no journal entry reflected

the denial of Grady’s motion to withdraw his guilty pleas, there was no final appealable

order. Id. Additionally, this court found error with the trial court’s imposition of five

years of postrelease control on all but case CR-378707, finding the sentences contrary to

law. Id. As such, this court dismissed in part, reversed in part, and remanded the

matter for further proceedings. Id.

       {¶ 6} On remand, the trial court correctly advised Grady of the following terms

of postrelease control: CR-363870 and CR-378708: mandatory postrelease control of

three years; CR-364232 and CR-377606: discretionary postrelease control of three years,

sentence has been served, sentence expired. Additionally, on February 10, 2011, the

trial court denied Grady’s motion to withdraw his guilty pleas, finding that his motion

was barred by the doctrine of res judicata and that Grady failed to show prejudice.

       {¶ 7} Grady appeals, raising a single assignment of error:

       “The trial court erred, in violation of Defendant’s right to Due Process of Law
       under the 14th Amendment to the United States Constitution, in denying
       Defendant’s Motion to Withdraw his plea.”

       {¶ 8} “In State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d

422, the Ohio Supreme Court held that a motion to withdraw a guilty plea filed after the

imposition of a void sentence must be considered as a presentence motion under Crim.R.

32.1 and be freely and liberally granted. [In Boswell,] the court remanded the matter to

the trial court to ensure the consideration of the motion to withdraw as a presentence
                                            5

motion. However, the court did not address the impact of res judicata on issues raised

in such a motion.”      State v. Fountain, Cuyahoga App. Nos. 92772 and 92874,

2010-Ohio-1202.

       {¶ 9} In Fountain, this court determined that a defendant’s failure to raise the

issue of postrelease control on direct appeal barred the raising of the issue in a

subsequent motion to withdraw a guilty plea. In determining that the doctrine of res

judicata applied, the court explained:

       “It is well recognized that the doctrine of res judicata bars claims that were raised
       or could have been raised on direct appeal. State v. Davis, 119 Ohio St.3d 422,
       2008-Ohio-4608, 894 N.E.2d 1221. Consistent therewith, this court has
       consistently recognized that the doctrine of res judicata bars all claims raised in a
       Crim.R. 32.1 motion that were raised or could have been raised in a prior
       proceeding, including a direct appeal. State v. McGee, Cuyahoga App. No.
       91638, 2009-Ohio-3374; State v. Pickens, Cuyahoga App. No. 91924,
       2009-Ohio-1791; State v. Gaston, Cuyahoga App. No. 82628, 2003-Ohio-5825;
       see, also, State v. Coats, Mercer App. Nos. 10-09-04 and 10-09-05,
       2009-Ohio-3534. Indeed, the right to withdraw a plea is not absolute. Coats,
       supra. Applying these same principles, we find that the application of res
       judicata to a motion to withdraw is not impacted by a void sentence. Coats,
       supra; McGee, supra.”

See, also, State v. Bell, Cuyahoga App. No. 95719, 2011-Ohio-1965.

       {¶ 10} In this matter, Grady contends that his plea was not voluntary because the

trial court failed to inform him of postrelease control requirements and potential

penalties for violations of postrelease control. However, Grady could have raised that

issue on direct appeal; an action he chose not to undertake. Grady first raised this issue

years after the imposition of his sentence and well after the time for a direct appeal had
                                            6

expired. Therefore, in accordance with Bell, and Fountain, Grady’s motion is barred by

res judicata and we overrule his sole assignment of error.

       {¶ 11} The judgment of the trial court is 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
