[Cite as State v. Bridges, 2018-Ohio-4325.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106652



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                         ANDREY L. BRIDGES

                                                         DEFENDANT-APPELLANT



                                               JUDGMENT:
                                                AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-11-552512-A

        BEFORE: S. Gallagher, J., McCormack, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: October 25, 2018
FOR APPELLANT

Andrey L. Bridges, pro se
Inmate No. 650493
B.E.C.I., P.O. Box 540
68518 Bannock Road, S.R. 331
St. Clairsville, Ohio 43950


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anthony Thomas Miranda
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




SEAN C. GALLAGHER, J.:

       {¶1} Andrey Bridges appeals the denial of his postsentence motion to withdraw his

guilty plea, which was filed more than five years after his sentence was imposed.    We affirm.

       {¶2} “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.

A manifest injustice is defined as “‘a fundamental flaw in the path of justice so extraordinary that

the defendant could not have sought redress from the resulting prejudice through another form of

application reasonably available to him or her.’” State v. Cottrell, 8th Dist. Cuyahoga No.

95053, 2010-Ohio-5254, ¶ 15, quoting State v. Sneed, 8th Dist. Cuyahoga No. 80902,
2002-Ohio-6502, ¶ 13. The defendant bears the burden of establishing the existence of a

manifest injustice. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

        {¶3} However, 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.”   Id. at

paragraph three of the syllabus. We review a trial court’s denial of a postsentence motion to

withdraw a guilty plea under an abuse of discretion standard. Cottrell at ¶ 16.

        {¶4} In this case, Bridges was sentenced to community control in April 2012 and he

waited more than five years (November 2017) to file a motion to withdraw his plea, after he had

already violated the terms of the community control in 2013 and was sentenced to serve 17

months consecutive to the 15 years to life sentence imposed in another case. Such a delay

undermines Bridges’s credibility in pursuing his claim under Crim.R. 32.1. State v. Trem, 8th

Dist. Cuyahoga No. 101265, 2014-Ohio-4934, ¶ 12 (trial court did not abuse its discretion based

on the four-year delay in filing a motion to withdraw a plea under Crim.R. 32.1).

        {¶5} Under Crim.R. 32.1, a defendant must demonstrate the existence of a manifest

injustice.   “‘Manifest injustice relates to some fundamental flaw in the proceedings which

results in a miscarriage of justice or is inconsistent with the demands of due process.’” State v.

Coley-Carr, 8th Dist. Cuyahoga No. 101611, 2014-Ohio-5556, ¶ 13, quoting State v. Ruby, 9th

Dist. Summit No. 23219, 2007-Ohio-244, ¶ 11.            A “postsentence withdrawal motion is

allowable only in extraordinary cases.” Id., citing State v. Montgomery, 2013-Ohio-4193, 997

N.E.2d 579, ¶ 61 (8th Dist.), and Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324. The trial court

did not abuse its discretion in denying Bridges’s motion.
       {¶6} Nevertheless, Bridges’s sole, preserved argument in support of his burden to

demonstrate a manifest injustice is founded upon R.C. 2941.401, which imposes a 180-day

speedy-trial limit when an offender has been indicted while serving a term of imprisonment in

another, unrelated case. Bridges claims to have been serving a term of incarceration when he

was indicted in the underlying case and had he known that the speedy-trial limitation under R.C.

2941.401 applied, he would not have pleaded guilty.        Although it was well within the trial

court’s discretion to deny the postsentence motion to withdraw as being belated, there is no

factual basis supporting Bridges’s argument either. R.C. 2941.401 does not apply in this case

because Bridges was not indicted for the underlying crime while he was imprisoned for another

case; he had been released from the term of imprisonment before the state indicted him in the

underlying matter. Bridges’s reliance on the statutory limitation as a basis to withdraw his plea

is misplaced. He abandoned a motion to dismiss premised on those speedy-trial concerns

before pleading guilty.

       {¶7} Although Bridges claims in this appeal that his statutory speedy-trial rights under

R.C. 2945.71 were violated, that was not an argument advanced for the trial court’s

consideration. New issues cannot be raised and argued for the first time on appeal. State v.

Anderson, 151 Ohio St.3d 212, 2017-Ohio-5656, 87 N.E.3d 1203, ¶ 4. Our review of the denial

of a postsentence motion to withdraw a guilty plea is for an abuse of discretion. It cannot be

concluded that a trial court abused its discretion in overruling an argument if that argument was

never presented for the trial court’s consideration in the first instance. State v. D.K., 8th Dist.

Cuyahoga No. 106539, 2018-Ohio-2522, ¶ 17. It bears noting, however, that in the underlying

case, Bridges requested several continuances of the pretrial conferences and failed to respond to
the state’s request for discovery that are considered tolling events.1               Even if the argument had

been properly preserved, it appears from the record that no violation of R.C. 2945.71 occurred.

        {¶8} In the alternative, in light of the fact that Bridges had filed and abandoned a motion

to dismiss based on the speedy-trial concerns, the arguments presented in the current motion to

withdraw his plea could have been raised in a direct appeal. The doctrine of res judicata

prohibits Bridges from litigating those issues anew in a postsentence motion to withdraw his

guilty plea under Crim.R. 32.1.         Coley-Carr, 8th Dist. Cuyahoga No. 101611, 2014-Ohio-5556,

at ¶ 11, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the

syllabus; see also State v. Jenkins, 10th Dist. Franklin No. 16AP-105, 2016-Ohio-5533, ¶ 19;

State v. Tran, 10th Dist. Franklin No. 11AP-146, 2012-Ohio-1072, ¶ 11.

        {¶9} We affirm.

        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 issue out of this court directing the common pleas

court to carry this judgment into execution. 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.




1
  Bridges, who posted bond on September 2, 2011, was indicted on July 26, 2011, and pleaded guilty on March 22,
2012. Thus, the total speedy-trial time that elapsed without considering tolling events was 320 days. Bridges
failed to respond to the state’s discovery demand made on August 5, 2011, and Bridges sought to continue the
pretrial conference set for October 12, 2011, until November 14, 2011, which tolled the speedy-trial time for over 60
days even if only 30 days are attributed to the failure to respond to discovery — bringing the speedy-trial clock
below the 270-day threshold. State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011, ¶ 23. Even
if no other tolling event is considered, no violation of R.C. 2945.71 occurred.
SEAN C. GALLAGHER, JUDGE

TIM McCORMACK, P.J., CONCURS;
PATRICIA ANN BLACKMON, J., CONCURS IN JUDGMENT ONLY
