[Cite as State v. Johnson, 2019-Ohio-632.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 107126



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                     MARVIN F. JOHNSON, SR.

                                                        DEFENDANT-APPELLANT




                                          JUDGMENT:
                                    AFFIRMED AND REMANDED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-15-594187-B

        BEFORE: Boyle, J., Kilbane, A.J., and Headen, J.

        RELEASED AND JOURNALIZED: February 21, 2019
FOR APPELLANT

Marvin F. Johnson, Sr., pro se
Inmate No. A694191
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Patrick J. Lavelle
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

       {¶1}    Defendant-appellant, Marvin Johnson, appeals from a judgment reinstating his

original sentence of six years in prison. Johnson raises four assignments of error for our review:

       1. Appellant’s plea of no contest was not entered knowing, intelligent, and
       voluntary due to (a) breach of plea bargain, (b) judicial participation in the plea
       discussion and process, (c) denial of the effective assistance of trial counsels.

       2. The trial court erred when it imposed a six-year prison sentence on the
       appellant that was based on vindictiveness.

       3. The trial court abused its discretion by denying as moot, appellant’s motion to
       withdraw “no contest” plea: to correct manifest injustice pursuant to Crim.R. 32.1.

       4. The trial court abused its discretion by denying the appellant jail-time credit for
       61 days spent on electronic monitored house arrest.
       {¶2}    We find merit to Johnson’s third assignment of error because the trial court never

considered his motion to withdraw his plea. We otherwise affirm the trial court’s judgment but

remand for the trial court to consider Johnson’s motion to withdraw his plea.

I. Background and Procedural History

       {¶3}    In March 2015, Johnson was indicted on three counts, including drug trafficking

in violation of R.C. 2925.03, drug possession in violation of R.C. 2925.11, and possession of

criminal tools in violation of R.C. 2923.24.       Each count carried forfeiture specifications.

Johnson filed a motion to suppress evidence, which the trial court denied in December 2015.

       {¶4}    Johnson pleaded no contest to the indictment after the trial court denied his

motion to suppress. The trial court found that drug trafficking and possession were allied

offenses of similar import. The state elected to proceed with drug trafficking. The trial court

sentenced Johnson to six years in prison for trafficking and six months in prison for possessing

criminal tools and ordered that they be served concurrently, for an aggregate six years in prison.

The trial court also notified Johnson that he would be subject to a mandatory period of five years

of postrelease control upon his release from prison.

       {¶5}    The trial court then deferred execution of the sentence and placed Johnson on

supervised release and electronic home detention so that Johnson could undergo a heart

procedure on July 22, 2016. The trial court directed Johnson to report to jail on August 1, 2016.

 The trial court warned Johnson that if he failed to show up, it would vacate his six-year sentence

and impose a longer one.

       {¶6}    Johnson did not report on August 1, 2016. The trial court resentenced Johnson

on February 13, 2017, to eight years in prison.
       {¶7}    Johnson appealed, raising several assignments of error. See State v. Johnson, 8th

Dist. Cuyahoga No. 105560, 2018-Ohio-169. This court affirmed his convictions but reversed

his eight-year sentence. Id. at ¶ 48. We held that the trial court lacked authority to resentence

Johnson in February 2017, and that the “original sentence [was] still in effect.” Id. at ¶ 46. We

“remanded the case for the limited purpose of executing the original sentence.” Id. at ¶ 48.

       {¶8}    On March 29, 2018, the trial court held a hearing with the state, Johnson, and his

counsel present. The trial court indicated that per the Eighth District’s remand instruction, it had

no discretion but to reinstate Johnson’s original six-year prison sentence.         It is from this

judgment that Johnson now appeals.

II. No Contest Plea

       {¶9}    In his first assignment of error, Johnson argues that his no contest plea was not

entered knowingly, intelligently, or voluntarily. The doctrine of res judicata, however, bars us

from considering this argument.

       {¶10} “‘Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or claimed lack of due process that

was raised or could have been raised by the defendant at the trial, * * * or on appeal from that

judgment.’” State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996), quoting State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); see also State v. Davis, 139 Ohio St.3d 122,

2014-Ohio-1615, 9 N.E.3d 1031, ¶ 28.

       {¶11} Johnson could have raised the argument regarding his no contest plea in his direct

appeal, but he did not. Therefore, we will not address it now.

       {¶12} Accordingly, Johnson’s first assignment of error is overruled.
III. Six-Year Sentence

       {¶13} In his second assignment of error, Johnson argues that the trial court erred when it

imposed a sentence of six years in prison because it was based on vindictiveness.

       {¶14} Johnson’s argument that the trial court was vindictive is also barred by res judicata.

 In his first appeal, before we found that the trial court did not have the authority to vacate

Johnson’s original six-year sentence, we addressed Johnson’s separate argument that his

eight-year sentence was not supported by the record. We summarized Johnson’s arguments as

follows:

       Specifically, Johnson offers that the trial court did not consider that: (1) none of
       the seriousness factors listed under R.C. 2929.12(B) apply; (2) Johnson did not
       intend or expect to cause physical harm to person or property under R.C.
       2929.12(C)(3); (3) his conduct was mitigated due to documented heart disease,
       high blood pressure, and kidney problems impacting his ability to work; and (4)
       Johnson’s last felony conviction was in 2001, 15 years earlier and he expressed
       sincere remorse at sentencing (R.C. 2929.12(E)(3) and (5)). Finally, Johnson
       argues that the serious nature of his medical condition made the offense less likely
       to recur (R.C. 2929.12(E)(4)).

Johnson, 8th Dist. Cuyahoga No. 105560, 2018-Ohio-169, at ¶ 35.

       {¶15} We found no merit to his arguments and overruled his assigned error. Id. at ¶ 39.

 Because we previously found that Johnson’s sentence was supported by the record, Johnson

cannot now argue that the trial court was vindictive when it sentenced him. He should have

raised the issue of vindictiveness in his first appeal, when the trial court unlawfully vacated his

six-year sentence and increased his aggregate sentence by two years. Because he did not do so,

the doctrine of res judicata bars this argument now.

       {¶16} Moreover, the trial court was simply following our limited remand instructions

when it reinstated Johnson’s original six-year sentence. There was nothing vindictive about it.

       {¶17} Johnson’s second assignment of error is overruled.
IV. Motion to Withdraw Plea

        {¶18} In his third assignment of error, Johnson argues that the trial court erred when it

denied his motion to withdraw his no contest plea as moot.

        {¶19} At the outset, we note that although the trial court stated in Johnson’s sentencing

entry, “All motions not specifically ruled on prior to the filing of this judgment entry are denied

as moot,” the transcript of the March 29, 2018 hearing establishes that the trial court had not yet

seen Johnson’s motion to withdraw his no contest plea. Johnson told the trial court that the

motion “left prison on the 21st of this month.” The trial court replied that Johnson’s motion

“does not appear on our docket as of this morning.” The state indicated that it had not seen the

motion yet either. The trial court told Johnson that it would consider the motion when he filed

it. The docket, however, indicates that Johnson’s motion was filed the day before the hearing

— on March 28, 2018.

        {¶20} Thus, it is clear that the trial court never considered Johnson’s motion to withdraw

his plea. This court will not consider Johnson’s arguments for the first time on appeal. State

v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986).

        {¶21} The state argues that the trial court did not need to consider Johnson’s motion to

withdraw his plea because he was represented by counsel at the time of the March 29, 2018

hearing.   We disagree with the state. When Johnson filed his motion, he was pro se. But the

court appointed counsel to represent Johnson at the March 29 hearing.          After the hearing,

Johnson was no longer represented by counsel. In the interest of justice, we do not agree with

the state that the trial court did not have to consider Johnson’s pro se motion to withdraw his

guilty plea.
        {¶22} We therefore sustain Johnson’s third assignment of error for the trial court to

consider Johnson’s motion to withdraw his no contest plea filed on March 28, 2018.

V. Jail-Time Credit

        {¶23} In his fourth assignment of error, Johnson contends that the trial court erred when it

did not give him credit for the days he was under house arrest. Johnson was under house arrest

between the time of his original sentencing and the time he reported to jail so that he could have

a heart procedure. Again, Johnson could have raised this claim in his direct appeal. Because

he did not, we are barred by res judicata from addressing it.

        {¶24} The trial court informed Johnson at the March 29, 2018 hearing upon remand that

he could file a motion for jail-time credit if he believed that he was not given the correct amount

of credit.1

        {¶25} Accordingly, Johnson’s fourth assignment of error is overruled.

        {¶26} Judgment affirmed.            Case remanded for the trial court to consider Johnson’s

motion to withdraw his no contest plea.

        It is ordered that appellee and appellant share the 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.

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

Rules of Appellate Procedure.




        1
           The Cuyahoga County Common Pleas Court docket indicates that Johnson filed a motion for jail-time
credit after filing a notice of appeal in this case. The trial court granted his motion on June 27, 2018. Subsequent
to that judgment, Johnson moved the court to grant him additional jail-time credit, which the court denied.
_____________________________________
MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, A.J., and
RAYMOND C. HEADEN, J., CONCUR
