[Cite as State v. Day, 2016-Ohio-36.]




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

STATE OF OHIO                                    :
                                                 :
        Plaintiff-Appellee                       :   Appellate Case No. 2015-CA-15
                                                 :
v.                                               :   Trial Court Case No. 2008-CR-271
                                                 :
CHAD L. DAY                                      :   (Criminal Appeal from
                                                 :   Common Pleas Court)
        Defendant-Appellant                      :
                                                 :

                                           ...........

                                           OPINION

                             Rendered on the 8th day of January, 2016.

                                           ...........

STEPHANIE R. HAYDEN, Atty. Reg. No. 0082881, Assistant Greene County
Prosecuting Attorney, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

CHAD L. DAY, Inmate No. 585-704, Chillicothe Correctional Institution, P.O. Box 5500,
Chillicothe, Ohio 45601
        Defendant-Appellant-Pro Se

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



WELBAUM, J.
                                                                                            -2-
        {¶ 1} In this case, Defendant-Appellant, Chad Day, appeals pro se from a trial

court decision denying his motion to withdraw his guilty plea. In support of his appeal,

Day contends that his trial counsel rendered ineffective assistance by influencing Day to

plead guilty to Aggravated Burglary.      Day also contends that his trial counsel was

ineffective because he failed to file a motion to dismiss the Aggravated Burglary charge.

        {¶ 2} We conclude that the trial court did not err in failing to provide Day with a

hearing prior to overruling Day’s motion to withdraw his guilty plea, because Day’s claim

is barred by res judicata. Accordingly, the judgment of the trial court will be affirmed.



                              I. Facts and Course of Proceedings

        {¶ 3} In April 2008, Day was indicted for Aggravated Burglary, Burglary, Domestic

Violence, and Abduction in Greene County Common Pleas Court Case No.

2008-CR-271. He was also subsequently indicted for Rape in Greene County Common

Pleas Court Case No. 2008-CR-370, and the actions were consolidated in June 2008.

        {¶ 4} In July 2008, Day pled guilty to the four charges in Case No. 2008-CR-271,

and the Rape charge was dismissed. The State and defense agreed upon a sentence of

12 years, and the trial court sentenced Day to a total of 12 years in prison on July 21,

2008.    The sentence consisted of 10 years for Aggravated Burglary, two years for

Domestic Violence, 18 months for Burglary, and two years for Abduction. The latter two

sentences were to be served concurrently to the sentences for Aggravated Burglary and

Domestic Violence, which were to be served consecutively to each other.

        {¶ 5} Day appealed from his conviction and sentence, and contended in a single

assignment of error that the Burglary and Aggravated Burglary offenses should have
                                                                                          -3-
been merged as allied offenses. See State v. Day, 2d Dist. Greene No. 2008-CA-70,

2009-Ohio-7046, 2009 WL 5198174, *1.1 We agreed with Day, merged the convictions,

and vacated the Burglary conviction. Id. at *2. We affirmed the judgment in all other

respects. We also noted that our decision would not shorten the amount of time Day

would have to serve, because the Burglary sentence was to have been served

concurrently with the other convictions that resulted in the 12-year sentence. Id.

       {¶ 6} The trial court filed a judgment entry in August 2010, resentencing Day, in

accordance with our opinion, to a total sentence of 12 years in prison for the Aggravated

Burglary, Domestic Violence, and Abduction convictions.          Subsequently, in January

2011, Day filed a petition for post-conviction relief. Day contended in the petition that his

trial counsel was ineffective because he had persuaded Day to plead guilty to Aggravated

Burglary, when Day could not have been found guilty of that crime. Specifically, Day

alleged that he was a resident of the premises in which he had been accused of

trespassing. Day attached various documents and affidavits to the petition to illustrate

that he resided at the premises at the time of the crimes. In late December 2011, the trial

court denied the petition for two reasons. First, the court concluded that it was untimely.

Second, the court held that the R.C. 2953.23(A)(1) excuse for untimeliness (unavoidable

prevention of discovery of facts) did not apply because Day’s residence would have been

known to Day from the time the case began. See Doc. #118, p. 5.

       {¶ 7} In October 2012, we affirmed the trial court’s decision. See State v. Day, 2d

Dist. Greene No. 2012-CA-0011, 2012-Ohio-4620. We noted that the 180-day time

requirement in R.C. 2953.21(A)(2) had not been met, since the transcript for Day’s direct

1 For some reason, our opinion does not have paragraph numbers. As a result, we will
refer to the Westlaw citation.
                                                                                       -4-
appeal had been filed in our court on October 13, 2008, more than three years before the

petition for post-conviction relief was filed. Id. at ¶ 9-11. We also agreed that Day was

not “unavoidably prevented” from discovering the facts upon which his petition relied,

because Day was aware of his own residence before entering his guilty plea. Id. at ¶ 15.

      {¶ 8} On March 26, 2013, Day filed a pro se motion in the trial court, seeking to

withdraw his guilty plea. The motion was based on alleged ineffective assistance of

counsel. Specifically, Day alleged that he told trial counsel that he lived at the address

where the burglary was committed.       However, trial counsel never investigated, and

never informed Day that he could not be convicted of Aggravated Burglary under the

circumstances.

      {¶ 9} In February 2015, the trial court overruled the motion to withdraw the plea,

without holding a hearing.    The court concluded that there had been no manifest

injustice. The court observed that Day’s address was known from the beginning of the

proceedings, and the issue had been previously raised.

      {¶ 10} Day now appeals from the judgment of the trial court.



                         II. Alleged Ineffective Assistance of Counsel

      {¶ 11} Day’s First Assignment of Error states that:

             Trial Counsel Produced Ineffective Assistance When He Influenced

      Mr. Day to Plead Guilty to the Crime of Aggravated Burglary Regarding Mr.

      Day’s Place of Residence.

      {¶ 12} Day’s Second Assignment of Error states that:

             Trial Counsel Produced Ineffective Assistance When He Failed to
                                                                                        -5-
       File a Motion to Dismiss the Aggravated Burglary Charge on Mr. Day’s

       Behalf After He Was Informed that the 616 South Stadium Drive, Xenia,

       Ohio Address Was Mr. Day’s Place of Residence.

       {¶ 13} We will address these assignments of error together because the analysis

applies to both.

       {¶ 14} Under his assignments of error, Day contends that trial counsel was

ineffective for two reasons. First, counsel was informed of Day’s address prior to the plea

and failed to conduct an investigation, during which he would have discovered that Day

was privileged to be on the property at the time of the alleged trespass. Second, with this

knowledge his trial counsel failed to file a motion to dismiss the Aggravated Burglary

charge.

       {¶ 15} Ohio Crim.R. 32.1 provides that:

              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.

       {¶ 16} We review trial court decisions on motions to withdraw pleas for abuse of

discretion. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of

the syllabus. An abuse of discretion “implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.” (Citations omitted.) State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980).

       {¶ 17} We have stressed that “[t]he distinction between presentence and

post-sentence motions to withdraw pleas of guilty or no contest indulges a presumption
                                                                                               -6-
that post-sentence motions may be motivated by a desire to obtain relief from a sentence

the movant believes is unduly harsh and was unexpected.                    The presumption is

nevertheless rebuttable by showing of a manifest injustice affecting the plea.” State v.

Brooks, 2d Dist. Montgomery No. 23385, 2010-Ohio-1682, ¶ 8.

         {¶ 18} The defendant “has the burden of establishing the existence of manifest

injustice.” Smith at 261, paragraph one of the syllabus. Under the standard of manifest

injustice, “a postsentence withdrawal motion is allowable only in extraordinary cases.”

(Citation omitted.) Id. at 264. “A ‘manifest injustice’ comprehends 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. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746, *2 (Aug. 20,

1999).

         {¶ 19} In responding to Day’s brief, the State argues that Day’s claims are barred

by res judicata because his contention about his residence was raised in the petition for

post-conviction relief, which was rejected by the trial court. In addition, the State notes

that we affirmed the trial court’s decision to deny relief.

         {¶ 20} The trial court did not discuss res judicata specifically in its decision, but did

note that Day’s residential status had been known throughout the case, and had been

found insufficient to justify the late filing of the petition for post-conviction relief. The

court also discussed Day’s two prior appeals, one of which was a direct appeal, and the

other of which appealed the dismissal of his petition for post-conviction relief.

         {¶ 21} “Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal.”                  State v.
                                                                                        -7-
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citing State v. Perry,

10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. “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.” (Citations

omitted.) Id.

      {¶ 22} We have previously noted that the application of res judicata is well-settled

where claims are presented in motions to withdraw pleas that could have been or were

presented on direct appeal of the conviction. See, e.g., State v. Ulery, 2d Dist. Clark No.

2010-CA-89, 2011-Ohio-4549, ¶ 10, citing State v. Madrigal, 6th Dist. Lucas Nos.

L-10-1142, L-10-1143, 2011-Ohio-798, ¶ 16.        “The doctrine operates to preclude a

subsequent action both on claims that were actually litigated and also those that could

have been litigated in a previous action.” State v. Davie, 9th Dist. Summit No. 21708,

2004-Ohio-1068, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d

226 (1995).

       {¶ 23} We have also previously noted that “[a] claim of ineffective assistance of

counsel could not have been asserted before [on direct appeal] if it relies on matters

outside the record.”     (Citations omitted.)   State v. Curtis, 2d Dist. Greene No.

2011-CA-56, 2013-Ohio-1690, ¶ 12.        Since Day’s claim of ineffective assistance of

counsel in connection with his plea relies on matters outside the record, his direct appeal

would not be res judicata to a subsequent proceeding.

       {¶ 24} After the trial court rejected Day’s petition for post-conviction relief, we

agreed that the court lacked jurisdiction over the petition because it was untimely. Day,

2d Dist. Greene No. 2012-CA-0011, 2012-Ohio-4620 at ¶ 17. We also noted that Day
                                                                                           -8-
failed to demonstrate that he had been “ ‘unavoidably prevented’ ” from discovering the

facts upon which his petition was based, because he knew of his residence before

entering his plea. Id. at ¶ 15.

       {¶ 25} “ ‘The phrase “unavoidably prevented” means that a defendant was

unaware of those facts and was unable to learn of them through reasonable diligence.’ ”

State v. Sansom, 2d Dist. Champaign No. 2009 CA 38, 2010-Ohio-1918, ¶ 9, quoting

State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 19.              Under this

standard, Day was clearly not unavoidably prevented from knowing where he lived at the

time of the alleged crimes.

       {¶ 26} The Supreme Court of Ohio has held that post-sentence motions to

withdraw pleas and petitions for post-conviction relief are independent remedies. State

v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 14. A post-sentence

motion to withdraw a plea is part of the underlying criminal case and does not collaterally

attack the conviction. In contrast, a post-conviction petition is a civil collateral attack on

the judgment or conviction. Id. at ¶ 13. Unlike R.C. 2953.21 and 2953.23, Crim.R. 32.1,

which governs withdrawal of pleas, does not have time limits, although timeliness may be

a factor in ruling on the credibility of the movant and on granting the motion. Id. at ¶ 14.

       {¶ 27} The issue then becomes whether Day’s claims are barred by res judicata in

view of the fact that he previously filed an untimely post-conviction petition for relief,

based on the same arguments that he is now asserting. It is of no consequence here

that Day’s petition for post-conviction relief and motion to withdraw his guilty plea are

independent remedies.

       {¶ 28} We noted in Hartzell, that the analysis of whether manifest injustice exists
                                                                                        -9-
contemplates evaluating whether the defendant could have sought redress from the

alleged prejudice through another form of remedy that was reasonably available to him.

Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746 at *2. Since Day was aware

of the facts supporting his claims at the time he changed his plea to guilty, and asserted

the claims he is now raising in an untimely post-conviction petition, which was denied by

the trial court and affirmed by this court, Day previously sought redress from another form

of remedy that was available to him. Accordingly, we overrule Day’s assignments of

error for two reasons. First, there is no manifest injustice shown. Second, res judicata

bars relitigation of Day’s claims.

                                           III. Conclusion

       {¶ 29} Day’s First and Second Assignments of Error having been overruled, the

judgment of the trial court is affirmed.




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



FAIN, J. and HALL, J., concur.



Copies mailed to:

Stephanie R. Hayden
Chad L. Day
Hon. Michael A. Buckwalter
