[Cite as State v. Hill, 2014-Ohio-4865.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                   Court of Appeals No. L-14-1088

        Appellee                                Trial Court No. CR0200402741

v.

Tyrice Hill                                     DECISION AND JUDGMENT

        Appellant                                Decided: October 31, 2014

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Tyrice Hill, pro se.

                                           *****

        OSOWIK, J.

        {¶ 1} This is an accelerated appeal from an April 3, 2014 judgment of the Lucas

County Court of Common Pleas, which denied appellant’s seventh motion to withdraw

his January 10, 2005 guilty pleas to three counts of aggravated robbery. Appellant’s

pleas were entered pursuant to a voluntarily negotiated plea agreement pursuant to which
three of the six felony charges pending against appellant were dismissed. For the reasons

set forth below, this court affirms the judgment of the trial court.

         {¶ 2} Pro se appellant, Tyrice Hill, sets forth the following three assignments of

error:

                  First assignment of error; it is a constituted [sic] error to deny

         appellant[’s] petition on res judicata grounds when sentence is void.

                  Second assignment of error; Trial court erred in not finding that

         HILL sustain[ed] his burden of demonstrating the existence of manifest

         [in]justice.

                  Third assignment of error; HILL’S judgment entry still has a clerical

         error.

         {¶ 3} The following undisputed facts are relevant to this appeal. During the

summer of 2004, appellant committed a series of armed robberies against both businesses

and pedestrians throughout the city of Toledo. On August 30, 2004, appellant was

indicted on six counts of aggravated robbery, in violation of R.C. 2911.01, all felonies of

the first degree.

         {¶ 4} On December 15, 2004, the Court Diagnostic Center evaluated appellant and

found him to be malingering in an attempt to appear legally incompetent. Appellant’s

attempt failed and he was determined to be legally competent. Subsequently, appellant

entered into a voluntary plea agreement through which he pled guilty to three of the six

counts of aggravated robbery charges pending against him. On February 3, 2005,




2.
appellant was sentenced to less than maximum terms of incarceration of seven of the

potential ten years of incarceration on each of the first degree felony convictions.

       {¶ 5} The conviction and sentence against appellant were affirmed by this court on

direct, merit appeal. State v. Hill, 6th Dist. Lucas No. L-05-1080, 2006-Ohio-859. In the

nearly ten years that have elapsed following the conviction, appellant has filed seven

substantively analogous motions to withdraw the 2005 guilty pleas. All filings have been

found to be without merit and denied by the trial court. All of the denials challenged

before this court have likewise been found to be without merit.

       {¶ 6} On February 13, 2014, appellant filed his seventh motion to withdraw the

2005 guilty plea. On April 3, 2014, it was denied. This appeal ensued.

       {¶ 7} In appellant’s first assignment of error, he again maintains that the trial court

erred in finding the underlying motion to be barred pursuant to the doctrine of res

judicata. It is well-established pursuant to the doctrine of res judicata that a final

judgment of conviction precludes the convicted party from raising any defense or claimed

lack of due process that was raised or could have been raised at trial. State v. Ishmail, 67

Ohio St.2d 16, 423 N.E.2d 1068 (1981).

       {¶ 8} In conjunction with the res judicata legal principle applicable to the instant

case, this court has consistently held, as particularly relevant to a dispute such as that

underlying this case, that a motion to withdraw a guilty plea pursuant to Crim.R. 32.1 is a

postconviction proceeding encompassed by res judicata. State v. Bryukhanova, 6th Dist.

Fulton No. F-10-002, 2010-Ohio-5504, ¶ 12.




3.
       {¶ 9} Lastly, as held by this court throughout the history of appellant’s case,

Crim.R. 32.1 does not establish trial court jurisdiction to consider and determine a motion

to withdraw a guilty plea tendered subsequent to direct appeal and affirmance by the

appellate court. State v. Hill, 6th Dist. Lucas. No. L-09-1226, 2009-Ohio-5187, ¶ 5.

       {¶ 10} The record reflects that this matter was affirmed on direct appeal in 2006.

The record reflects that the motion to withdraw plea underlying the instant case was filed

on February 13, 2014. Based upon governing precedent, as well as the law of the instant

case, it is barred by res judicata. Wherefore, we find appellant’s first assignment of error

not well-taken.

       {¶ 11} In appellant’s second assignment of error, he asserts that the trial court

erred in determining that manifest injustice has not been established. Consideration of

appellant’s second assignment of error is contingent upon the legitimacy of the motion

underlying this case. Accordingly, given our determination in response to appellant’s

first assignment of error that the motion itself is barred pursuant to res judicata,

appellant’s second assignment of error is moot and not well-taken.

       {¶ 12} In appellant’s third assignment of error, he contends that the disputed

judgment has a clerical error. Appellant concludes that the judgment failed to comport

with postrelease control notification requirements. We are not persuaded. The record

unambiguously reflects that appellant was furnished proper postrelease control notice

pursuant to R.C. 2929.19(B)(3) and 2967.28. We find appellant’s third assignment of

error not well-taken.




4.
       {¶ 13} Lastly, on October 3, 2014, appellant filed a motion to stay this appeal

based upon the filing of another motion to the trial court reiterating arguments that have

been previously rejected by this court. Appellant has not set forth any substantively new

contentions. This case entails a lengthy history of appellant filing similar motions setting

forth similar claims. These circumstances do not warrant the granting of a stay.

Accordingly, we find appellant’s motion to stay this appeal to be without merit. It is

denied.

       {¶ 14} Wherefore, we find that substantial justice has been done in this matter.

The judgment of the Lucas County Court of Common Pleas is hereby affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Thomas J. Osowik, J.                                        JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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