[Cite as State v. Harris, 2014-Ohio-2633.]


                                        COURT OF APPEALS
                                    COSHOCTON COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. William B. Hoffman, P.J.
                                               :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2013CA0013
ISAAC HARRIS                                   :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Coshocton County
                                                   Common Pleas Court, Case No.
                                                   2008CR0033

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            June 16, 2014

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JASON GIVEN                                        THOMAS D. WHITE
Coshocton County Prosecutor                        CHRISTOPHER M. WHITE
318 Chestnut Street                                ALYSSE GILES
Coshocton, OH 43812                                209 N. Washington Street
                                                   Millersburg, OH 44654
[Cite as State v. Harris, 2014-Ohio-2633.]


Gwin, J.

        {¶1}     Defendant-appellant Isaac Harris [“Harris”] appeals from a May 6, 2013

judgment of the Coshocton County Court of Common Pleas overruling his post-

sentence motion to withdraw his previously entered no contest pleas.

                                             Facts and Procedural History

        {¶2}     Harris was originally indicted by the Coshocton County Grand Jury on

March 31, 2008 on one count of aggravated robbery, a felony of the first degree, one

count of attempted rape, a felony of the second degree and one count of kidnapping, a

felony of the first degree. Harris was arraigned on these charges on April 7, 2008 and

entered pleas of not guilty to all counts.

        {¶3}     The original indictment was later amended on April 28, 2008. Harris was

arraigned pursuant to the amended indictment on May 5, 2008. Harris entered pleas of

not guilty to the charges contained in the amended indictment.

        {¶4}     Harris, through his counsel, entered an affirmative defense of not guilty by

reason of insanity. Harris at that time also alleged that he was not competent to stand

trial. The trial court ordered that Harris be examined. Subsequently, the trial court found

that Harris was competent to stand trial in a judgment entry filed on October 20, 2008.

        {¶5}     On January 20, 2009, Harris entered pleas of no contest to count one of

the amended indictment aggravated robbery, and to count three of the amended

indictment, kidnapping. The trial court granted the state’s request to dismiss count two

of the amended indictment. Following Harris’ pleas of no contest the trial court found

Harris guilty and ordered a presentence investigation report be prepared.
Coshocton County, Case No. 2013CA0013                                                   3


      {¶6}   A sentencing hearing was held on March 6, 2009. At that time, the court

sentenced Harris to a penitentiary sentence of nine years for the aggravated robbery

and nine years for the kidnapping, concurrent. A nunc pro tunc sentencing entry was

filed on March 13, 2009.

      {¶7}   On April 24, 2013, Harris simultaneously filed a request with this Court to

permit him a delayed appeal of the trial court's March 13, 2009 sentencing entry and a

motion with the trial court to permit him to withdraw his pleas of no contest entered on

January 20, 2009. The trial court subsequently denied his motion to withdraw his pleas,

without hearing, on May 6, 2013.

      {¶8}   Harris then filed an additional notice of delayed appeal regarding his

March 13, 2009 sentencing entry and on a direct appeal of the trial court's May 6, 2013

judgment entry denying Harris’ motion to withdraw his pleas of no contest. The delayed

appeal was disallowed and the parties are now before the court on Harris’ direct appeal

of the trial court's May 6, 2013 judgment entry denying his motion to withdraw his pleas.

                                     Assignments of Error

      {¶9}   Harris raises three assignments of error,

      {¶10} “I. THE TRIAL COURT ERRED BY FAILING TO HOLD A HEARING ON

MR. HARRIS' MOTION TO WITHDRAW GUILTY PLEA.

      {¶11} “II. THE TRIAL COURT'S DENIAL OF MR. HARRIS' MOTION TO

WITHDRAW GUILTY PLEA WAS A "MANIFEST INJUSTICE.

      {¶12} “III. MR. HARRIS' PLEA WAS NOT KNOWING, INTELLIGENT, AND

VOLUNTARY BECAUSE HE WAS INCOMPETENT TO STAND TRIAL.”
Coshocton County, Case No. 2013CA0013                                                       4


                                                 I.

       {¶13} Harris first argues that the trial court erred when it overruled his motion to

withdraw his previously entered pleas of no contest without conducting a hearing. We

disagree.

       {¶14} Crim.R. 32.1 provides that a trial court may grant a defendant’s post-

sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore,

“[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence

has the burden of establishing the existence of manifest injustice.” State v. Smith, 49

Ohio St.2d 261,361 N.E.2d 1324(1977), paragraph one of the syllabus. Although no

precise definition of “manifest injustice” exists, in general, “‘manifest injustice relates to

some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or

is inconsistent with the demands of due process.’” State v. Wooden, 10th Dist. Franklin

No. 03AP–368, 2004–Ohio–588, ¶10, quoting State v. Hall, 10th Dist. Franklin No.

03AP–433, 2003–Ohio–6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP–

708, 2005–Ohio–4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203,

208, 699 N.E.2d 83(1998) (“[a] manifest injustice has been defined as a ‘clear or openly

unjust act’ ”). Under this standard, a post sentence withdrawal motion is allowable only

in extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.

       {¶15} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound

discretion of the trial court, and the good faith, credibility and weight of the movant’s

assertions in support of the motion are matters to be resolved by that court.” Id. at

paragraph two of the syllabus. Thus, we review a trial court’s denial of a motion to
Coshocton County, Case No. 2013CA0013                                                    5


withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that

denial only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005–Ohio–4926.

       {¶16} A trial court is not automatically required to hold a hearing on a post-

sentence motion to withdraw a guilty plea. State v. Spivakov, 10th Dist. No. 13AP–32,

2013–Ohio–3343, ¶11, citing State v. Barrett, 10th Dist. No. 11AP–375, 2011–Ohio–

4986, ¶9. A hearing must only be held if the facts alleged by the defendant, accepted as

true, would require that the defendant be allowed to withdraw the plea. Id. Accord, State

v. Wynn, 131 Ohio App.3d 725, 728, 723 N.E.2d 627, 629 (8th Dist 1998); State v.

Blatnik, 17 Ohio App.3d 201, 204, 478 N.E.2d 1016, 1020(6th Dist 1984); State v.

Aleshire, 5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, ¶71.

       {¶17} The decision whether to hold a hearing on a post-sentence motion to

withdraw a guilty plea and whether to grant or deny the motion is left to the discretion of

the trial court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph

two of the syllabus; Spivakov, ¶10. Therefore, this court's review of the trial court's

denial of a post-sentence motion to withdraw a guilty plea or the decision not to hold a

hearing is limited to a determination of whether the trial court abused its discretion.

State v. Conteh, 10th Dist. No. 09AP–490, 2009–Ohio–6780, ¶16. Absent an abuse of

discretion on the part of the trial court, its decisions concerning a post-sentence motion

to withdraw guilty plea must be affirmed. State v. Xie, 62 Ohio St.3d 521, 527 (1992).

Although an abuse of discretion is typically defined as an unreasonable, arbitrary, or

unconscionable decision, State v. Beavers, 10th Dist. No. 11AP–1064, 2012–Ohio–

3654, ¶ 8, we note that no court has the authority within its discretion to commit an error

of law. State v. Beechler, 2d Dist. No. 09–CA–54, 2010–Ohio–1900, ¶ 70.
Coshocton County, Case No. 2013CA0013                                                  6


      {¶18} In his motion, Harris contended that he had received ineffective assistance

of counsel. He claimed counsel failed to discuss the facts of the case, did not interview

potential witnesses, disregarded information concerning the identity of the true offender

failed to discuss potential defenses and trial tactics and produced no mitigation

evidence at sentence. However, during the plea hearing in the case at bar Harris

indicated that he had confidence in his attorney, that he understood the proceedings

and that the medications he was taking helped him to think clearly. The following

exchange occurred between Harris and the trial judge,

      The Court:    Do you have complete confidence in Mr. Blackwell as your

      attorney to represent you skillfully and diligently in this matter?

      Appellant:    Yes, sir.

      The Court:    Have there been any threats or promises or inducements of

      any kind made to get you to enter a plea of no contest in this case other

      than what's been stated here in open court this morning?

      The Defendant:       No, sir

      The Court:    Do you have evidence to present which — well, let me

      phrase that a different way. Do you understand that if you persist in a plea

      of no contest, that that is an admission of the truth of the charge against

      you? Do you understand the effect of a plea of no contest?

      The Defendant:       Yes, sir

      The Court:    Do you wish to persist in a plea of no contest to both counts

      1 and, Count 1 being aggravated robbery, Count 2 being kidnapping? Do

      you wish to persist in a plea of no contest to each of those two charges?
Coshocton County, Case No. 2013CA0013                                             7


     The Defendant:      Yes, sir.

     The Court:   Do you feel that you understand everything that's gone on

     thus far?

     The Defendant:      Yes, sir.

     The Court:   Do you have any questions about your rights or any of the

     procedures that have taken place?

     The Defendant:      No, sir.

     The Court:   Knowing and understanding what you do, is it still your

     desire then to enter a plea of no contest to the charges as contained in

     Count 1 and Count 3 of the indictment? Do you still wish to plead no

     contest to both of those charges?

     The Defendant:      Yes, sir.

     The Court:   Are you making this plea of your own free will?

     The Defendant:      Yes, sir.

     The Court:   Are you taking any medications at this time?

     The Defendant:      Yes, sir.

     The Court:   What do you take?

     The Defendant:      Seroquel,    Zoloft   —   no,   Seroquel,   Trazadone,

     Clonopin and two other pills I don't know the names of. One is for helping

     me sleep and one is for help me from shaking a lot.

     The Court:   The prescription medications that you are currently taking in

     the amounts and the combinations in which you are taking them, do they
Coshocton County, Case No. 2013CA0013                                                     8


         have any effect on your ability to think clearly or to make voluntary

         decisions on your own?

         The Defendant:       No, sir. They help me to think clearly.

         The Court:    Are you taking any other drugs of any kind prescription or

         otherwise?

         The Defendant:       No, sir.

T. Change of Plea Hearing, Jan 20, 2009 at 9-11.

         {¶19} Further, at the March 6, 2009 sentencing hearing Harris informed the trial

judge,

                I wanted to say I don't want you to think that I feel that just because

         I was off my medication that I feel I had a right to do anything because

         what is wrongness is wrong regardless of the fact. And I wanted to let you

         know that before all that has happened, I was court-ordered from another

         court, the probation officers to give me my medication, to get my

         medication. He said if I couldn't get it, for me to be placed somewhere until

         I get it. Once the court order came, I called Six Counties and several other

         places out here. Six County had a six-month waiting list, and some other

         private offices had some — they wasn't taking anybody or nothing. I went

         to the probation department, and I told the probation that I was having

         problems. He asked me was I going to commit suicide? I told him no, that I

         wasn't going to hurt myself but I was still, you know, having a lot of

         problems and I needed my medication. He said well, there ain't nothing we

         can do at this point but wait.
Coshocton County, Case No. 2013CA0013                                                    9


            At the time I had someone in my house that also took medication.

     And I asked him, "Well, can I take her medication," which was my father's

     girlfriend. And he said, "No. That is against the law." I said, "Okay." So, I

     started asking him, "What am I supposed to do?" He said, "Well, try to find

     a job or something." And I asked him, "How could I do that when I can't be

     -- I don't know what to do." Even though he told me that, I still went out

     and applied to all these temp places, even though I felt I wasn't going to

     be able to get a job with all my health issues and everything. But I did

     what he said.

             Then I got to the point where I started getting real depressed and

     started drinking and started wanting to use drugs with my friend. Now, I

     am saying that the part of me wanting to get drugs is because I couldn't

     get the medication. I'm not saying because of my medication I went and

     fought her because I know it was wrong, and me fighting her was wrong.

     And that ain't why I'm saying my medication. I said the reason the whole

     thing happened is because I wanted to get drugs to withstain [sic.] the

     medication that I was supposed to be taking. That's the whole reason I got

     into all of this trouble was -- if it wasn't for me trying to get drugs, get some

     drugs because I couldn't handle being without medication. I would have

     never have had no reason to meet with Yvonne or Josh or nobody. I would

     have been at the house or something. That's the only reason that I say I

     was doing that. But I'm not saying my medication was the reason I did

     anything wrong as far as trying to fight her or get my money back or
Coshocton County, Case No. 2013CA0013                                                    10


       anything. So I didn't want you to think I was using that in a sense of saying

       that’s the reason I did it. I was just using that as the sense that’s the

       reason I was trying to get the drugs.

T. Dispositional Hearing, March 6, 2009 at 9-11.

       {¶20} Upon review, we find that the trial court did not abuse its discretion when it

failed to hold a hearing on Harris’ motion to withdraw his guilty plea. Harris’ self-serving

generalized allegations contained within his motion were insufficient in this case to

demonstrate a manifest injustice.

       {¶21} Harris’ first assignment of error is overruled.

                                               II. & III.

       {¶22} In his second assignment of error, Harris contends that the trial court erred

by overruling his motion to withdraw his previously entered no contest pleas. In his third

assignment of error, Harris contends that his pleas of no contest were not knowing,

intelligent, and voluntary because he was incompetent to stand trial. We shall address

these arguments together as they involve interrelated issues.

       {¶23} We begin by noting that Harris did not raise a claim that he was

incompetent to enter pleas in this case in the motion to withdraw his pleas that he filed

in the trial court on April 24, 2013.

       {¶24} R.C. 2945.37(B) provides that the court, prosecutor, or defense may raise

the issue of the defendant’s competence to stand trial. If the issue is raised before the

trial has commenced, the court shall hold a hearing on the issue within 30 days after the

issue is raised, unless the defendant has been referred for evaluation in which case the

court shall conduct the hearing within 10 days after the filing of the report of the
Coshocton County, Case No. 2013CA0013                                                    11


evaluation. R.C. 2945.37(C). R.C. 2945.37(E) provides for stipulating to the admissibility

of the competency report as evidence so the medical professionals will not need to

testify in order to present their findings. These procedures were followed in Harris case.

The state and the defenses stipulated to the admissibility of the competency report in

the case at bar. Harris did not file a direct appeal concerning the trial court’s

competency finding as he had a right to do after sentencing in March 2009.

         {¶25} 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 any claimed lack of

due process that was raised or could have been raised by the defendant at the trial,

which resulted in that judgment of conviction, or on an appeal from that judgment. State

v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233(1996), syllabus, approving and following

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

syllabus. It is well settled that, "pursuant to res judicata, a defendant cannot raise an

issue in a [petition] for post conviction relief if he or she could have raised the issue on

direct appeal." State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131(1997).

Accordingly, "[t]o survive preclusion by res judicata, a petitioner must produce new

evidence that would render the judgment void or voidable and must also show that he

could not have appealed the claim based upon information contained in the original

record." State v. Nemchik, 9th Dist. Lorain No. 98CA007279, 2000 WL 254908(Mar. 8,

2000); see, also, State v. Ferko, 9th Dist. Summit No. 20608, 2001 WL 1162835(Oct. 3,

2001).
Coshocton County, Case No. 2013CA0013                                                   12


       {¶26} In the case at bar, Harris had the opportunity to raise the issues of

ineffective assistance of trial counsel and his competency to stand trial on direct appeal,

but he failed to do so. The doctrine of res judicata bars Harris from raising this issue

anew via a motion to withdraw his no contest plea filed four years after sentencing. See,

State v. Foy, 5th Dist. No. 2009–CA–00239, 2010–Ohio–2445, ¶8; State v. Miller, 5th

Dist. No. 2011–CA–00074, 2011–Ohio–3039.

       {¶27} Harris’ second and third assignments of error are overruled.

       {¶28} For the foregoing reasons the judgment of the Coshocton County Court of

Common Pleas is affirmed.

By Gwin, J.,

Hoffman, P.J., and

Baldwin, J., concur
