[Cite as State v. Shine, 2019-Ohio-2916.]
                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 107685
                 v.                               :

MICHAEL L. SHINE,                                 :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: July 18, 2019


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CR-99-371342-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Anthony Thomas Miranda, Assistant
                 Prosecuting Attorney, for appellee.

                 Michael L. Shine, pro se.


LARRY A. JONES, SR., J.:

                   This is a murder case in which defendant-appellant Michael Shine

(“Shine”) pleaded guilty in 1999 to amended charges of the indictment, those being,

Count 2, murder, and Count 4, attempted murder, both felonies of the first degree.
The trial court sentenced Shine to concurrent sentences of 15 years to life on the

murder and ten years on the attempted murder. The trial court also imposed a

$40,000 fine, which consisted of $20,000 on each count. The sentencing entry did

not mention postrelease control. Shine did not file a direct appeal.

               There was no substantive activity on the case until July 2018, when

Shine, pro se, filed the following motions:         (1) “for sentencing (to correct a

fundamental miscarriage of justice)”; (2) “for preparation of complete transcript of

proceedings at state expense”; and (3) “to withdraw guilty plea.” In August 2018,

the trial court denied Shine’s motion to withdraw his plea; it did not rule on the other

motions. Shine has appealed the judgment denying his motion to withdraw his plea,

challenging the following: (1) the lack of notification regarding postrelease control

and the consequences for violating same; (2) the lack of a “mens rea component” for

the attempted murder conviction; (3) the voluntariness of his plea; and (4) the

imposition of the $40,000 fine.

               Generally, in a criminal case, the state must provide a defendant who

is indigent a transcript of prior proceedings when that transcript is needed for an

effective defense or appeal. State v. Arrington, 42 Ohio St.2d 114, 326 N.E.2d 667

(1975), paragraph one of the syllabus. The defendant receives the benefit of a

presumption of entitlement to the transcript without demonstrating need. Id. at

paragraph four of the syllabus; see also State v. Bayles, 8th Dist. Cuyahoga No.

88094, 2007-Ohio-1008, ¶ 9 (“An indigent defendant is entitled to relevant portions

of a transcript at public expense if he [or she] is entitled to a direct appeal of his [or
her] conviction or he [or she] has presently pending an appeal or some other

comparable postconviction action.”)

               The burden rests upon the state to demonstrate that the defendant

does not need the transcript. Arrington at paragraph two of the syllabus. The state

may meet its burden by showing that the transcript is not valuable to the defendant

or that the defendant possesses alternate devices that would fulfill the same function

as the transcript. Id. at paragraph three of the syllabus.

               The state filed a response to Shine’s request for the transcript,

acknowledging that Shine is generally entitled to it and stating that it did not oppose

his request. The state noted, however, that given the age of the case, it may be that

preparation of a transcript is not possible. Because the trial court never ruled on

Shine’s motion for the transcript, we remanded the case in May 2019 so that a

determination could be made as to whether the transcript of proceedings was

available; if so, we stated that Shine was entitled to it.

               In a judgment dated May 21, 2019, the trial court denied Shine’s

motion for the transcript, stating that it had contacted the court reporter’s office and

been advised that the transcript was unavailable. We now therefore proceed to

consider the merits of his appeal. He raises the following assignment of error for

our review:

       Where, as here, the trial court’s journal entry is patently devoid of any:
      (1) notification that a mandatory (5) five-year period of postrelease
      control was required to be imposed, O.R.C. Section 2967.28; (2) any of
      the consequences associated with a violation of a postrelease control
      sanction, O.R.C. Section 2943.032(E); and, Woods v. Telb (2000), 89
      Ohio St.3d 504, 511; and, O.R.C. Section 2929.141(A); and, (3) a patent
      absence of a “mens rea component” in association with an underlying
      offense alleging “attempted murder,” O.R.C. Section 2903.02(B); and,
      (4) any notification of the existence of any “appellate rights,”
      defendant’s guilty plea may not be reasonably deemed as intelligently,
      voluntarily, and knowingly made and a resultant motion to withdraw
      such plea must be deemed a “presentence” motion to withdraw guilty
      plea as defined in: State v. Boswell, 121 Ohio St.3d 575. See also:
      Crim.R. 11(C)(2)(a).

                The standard for reviewing a motion to withdraw a plea depends on

whether the motion was made before sentencing or after sentencing.

      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.

Crim.R. 32.1.

                Thus, a presentence motion to withdraw a plea should be “freely and

liberally granted.” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935

N.E.2d 9, ¶ 57. On the other hand, a postsentence motion to withdraw a plea should

be granted only to correct a manifest injustice. State v. Smith, 49 Ohio St.2d 261,

361 N.E.2d 1324 (1977), paragraph one of the syllabus.

      Manifest injustice is an extremely high standard which permits the
      court to allow plea withdrawal only in extraordinary cases. A manifest
      injustice is defined as a clear or openly unjust act. Other courts have
      referred to it as an extraordinary and fundamental flaw in the plea
      proceeding.

State v. Hamilton, 8th Dist. Cuyahoga No. 90141, 2008-Ohio-455, ¶ 8 (internal

citations omitted). Regardless of whether a motion to withdraw a plea was made

presentence or postsentence, it is left to the sound discretion of the trial court and
our review of the trial court’s decision is for abuse of discretion. See id. at ¶ 9; State

v. Brown, 4th Dist. Ross No. 16CA3544, 2017-Ohio-2647, ¶ 11.

               Shine contends that because the trial court failed to impose

postrelease control on Count 4, attempted murder, his sentence is void and

therefore his motion to withdraw his plea was made presentence; he cites State v.

Boswell, 122 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, in support of his

contention.

               It is true that in Boswell, the Ohio Supreme Court held that “a

defendant’s motion to withdraw a guilty plea following the imposition of a void

sentence must be considered as a presentence motion and be freely and liberally

granted.” Id. at ¶ 13. However, the court modified its decision in State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. In Fischer, the court clarified

that if a judge “fails to impose statutorily mandated postrelease control as part of a

defendant’s sentence [only] that part of the sentence is void.” Id. at ¶ 26. This court

has recognized that Fischer calls into question the holding in Boswell. See State v.

Alford, 8th Dist. Cuyahoga No. 95946, 2011-Ohio-4811, ¶ 11.

               Thus, the failure to advise on postrelease control renders only that

portion of the sentence void. Shine’s motion to withdraw his plea was therefore a

postsentence motion, and he needed to demonstrate a manifest injustice.

               The record demonstrates that the claims Shine raised in his motion

to withdraw his plea could have been raised in 1999. “An undue delay between the

occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a
motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the

movant and militating against the granting of the motion.” Smith, 49 Ohio St.2d

261, 361 N.E.2d 1324, paragraph three of the syllabus. This court has previously

rejected a five-year delay. See State v. Ladson, 8th Dist. Cuyahoga No. 102914,

2015-Ohio-5266.     Shine’s 17-year delay here undermines a claim of manifest

injustice.

               Further, Shine’s claims are barred under the doctrine of res judicata.

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. Fountain, 8th Dist. Cuyahoga Nos.

92772 and 92874, 2010-Ohio-1202; State v. McGee, 8th Dist. Cuyahoga No. 91638,

2009-Ohio-3374; State v. Pickens, 8th Dist. Cuyahoga No. 91924, 2009-Ohio-1791;

State v. Gaston, 8th Dist. Cuyahoga No. 82628, 2003- Ohio-5825. Shine could have

raised his claims on direct appeal, but failed to do so; they are now barred under res

judicata.

               Notwithstanding that Shine’s claims are barred by res judicata, they

are without merit. Because of the lack of transcript, we must presume the regularity

of the proceeding. Thus, we presume that the plea colloquy complied with Crim.R.

11, that he was advised that postrelease control was mandatory and there would be

consequences for violating it, and that he was advised of his appellate rights.

               Moreover, in regard to Shine’s contention that the trial court failed to

advise him about postrelease control on the attempted murder count, he has failed
to demonstrate that it affected his decision to enter a plea. We note that Shine also

pleaded guilty to murder, which carries lifetime parole. Thus, any imposition of

postrelease control on the attempted murder would have merged with postrelease

control for the murder count. See R.C. 2967.28(F)(4).

               Shine further contends that the trial court failed to make factual

findings under R.C. 2929.11 and 2929.12. Those statutes are not fact-finding

statutes, however. See State v. Johnson, 8th Dist. Cuyahoga No. 100719, 2014-Ohio-

3722, ¶ 12. In regard to Shine’s contention that there was a “patent absence of a

‘mens rea component’” in association with the attempted murder count, we note that

under Crim.R. 11, a plea of guilty is a complete admission of guilt.

               Finally, Shine contends that the trial court impermissibly imposed a

$40,000 fine on him. We initially note that this was not raised in his motion in the

trial court; it is well established that issues not raised in the trial court will not be

considered for the first time on appeal. See State v. Anderson, 151 Ohio St.3d 212,

2017-Ohio-5656, 87 N.E.3d 1202, ¶ 14. Regardless of Shine’s failure to raise this

issue below, we further note that his plea was to two first-degree felonies, and that

at the time of his plea, R.C. 2929.18(A)(3)(a) governed and provided that a first-

degree felony could be punished by a fine of up to $20,000.

               In light of the above, Shine’s assignment of error is without merit.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said 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.



LARRY A. JONES, SR., JUDGE

MARY EILEEN KILBANE, A.J., and
ANITA LASTER MAYS, J., CONCUR
