[Cite as State v. Robinson, 2015-Ohio-4262.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.    27641

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JACKY ROBINSON                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2005 01 0042

                                 DECISION AND JOURNAL ENTRY

Dated: October 14, 2015



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Jacky Robinson, Jr., appeals the judgment of the Summit

County Court of Common Pleas denying his motion to withdraw his guilty plea. For the reasons

that follow, we reverse the trial court’s judgment.

                                                 I.

        {¶2}     This matter implicates Robinson’s 2005 conviction on aggravated murder and

aggravated burglary with two firearm specifications in trial court case number CR-2005-01-

0042. The victim of these crimes was Dennis Ober. Before this conviction, Robinson pled

guilty in trial court case number CR-2003-02-0555 to the murder of Grover Jones after giving a

confession to police. After starting to serve his prison term for the Jones murder, Robinson was

implicated in Ober’s murder and was questioned by police. During this police interrogation,

Robinson confessed to Ober’s murder. He subsequently pled guilty to aggravated murder and

the trial court sentenced him to life imprisonment in CR-2005-01-0042.
                                                2


       {¶3}    On September 30, 2014, Robinson filed a motion to withdraw his guilty plea.1

Attached to the motion was both an affidavit dated April 19, 2012 that was purportedly executed

by Demian Duncan and a letter from Duncan to Robinson’s father. In these materials, Duncan

admitted to committing both murders. Neither the letter nor the affidavit included an address for

Duncan. However, it did contain an Ohio inmate number that corresponded to an individual who

is in prison for 16 years following multiple robbery convictions.        Moreover, Duncan was

incarcerated at Southern Ohio Correctional Facility, which is where Robinson was also

incarcerated at the commencement of his prison term.

       {¶4}    After the State filed its opposition, Robinson filed a reply brief with an attached

affidavit executed by him on October 7, 2014. Robinson attested that he only confessed to

murdering Jones after the interrogating police officers told him that his girlfriend, Dusty Woods,

was suffering an asthma attack in a nearby cell and would not be released until he confessed. In

regard to the Ober murder, Robinson stated that he only gave his confession after Ms. Woods

called him and told him that the police were questioning her on the incident and possibly about

to charge her. He averred both confessions were false and he just made them to help Ms.

Woods. Robinson also averred that he “did not know until years later the true events that

happened with Grover Jones and Dennis Ober, [sic] and Demian Duncan.”

       {¶5}    The trial court did not conduct an evidentiary hearing and instead issued a

judgment entry denying the motion to withdraw his guilty plea. In so doing, the trial court stated

as follows:

       1
          It appears from the record that Robinson filed a motion to withdraw his guilty plea in
both CR-2003-02-0555 and CR-2005-01-0042. Robinson’s appellate brief argues that the trial
court erred in denying both motions to withdraw his guilty pleas. But, there is no indication that
the trial court has taken any action in regard to Robinson’s motion to withdraw guilty plea in
CR-2003-02-0555. As a result, we are constrained to only reviewing the trial court’s judgment
in CR-2005-01-0042 since the notice of appeal only relates to that judgment.
                                                3


       The only purported evidence attached in support of [Robinson]’s motion is what
       appears to be a confession letter from Damien Duncan [sic], an inmate at the
       Southern Ohio Correctional Facility, who is presently serving a sixteen-year
       prison sentence for multiple robberies. The Court gives no weight to this letter.
       [Robinson] has not provided the Court with any other evidentiary materials in
       support of his claims. Therefore, the Court finds that [Robinson] has failed to
       meet his burden on establishing the existence of a manifest injustice.

(Emphasis added.) The trial court also found that res judicata barred Robinson’s motion.

Robinson timely appealed the denial of his motion to withdraw his guilty plea in case number

CR-2005-01-0042, presenting a sole assignment of error for our review.

                                               II.

                                     Assignment of Error

       The trial court erred in denying the appellant’s motion to withdraw his
       guilty pleas.

       {¶6}    In his sole assignment of error, Robinson contends that the trial court erred by

denying his motion to withdraw his guilty plea in case number CR-2005-01-0042. Specifically,

he argues that the trial court failed to properly consider Duncan’s affidavit that was attached to

the original motion to withdraw and Robinson’s affidavit that was attached to his reply brief.

Robinson also argues that the trial court erred in concluding that res judicata barred his motion.

We agree on both points.

       {¶7}    Crim.R. 32.1 pertinently provides that “[a] motion to withdraw a plea of guilty * *

* 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.” Since trial courts are vested with discretion when addressing motions to withdraw

guilty pleas, “the good faith, credibility and weight of the movant’s assertions in support of the

motion are matters to be resolved by [the trial] court.” State v. Smith, 49 Ohio St.2d 261 (1977),

paragraph two of the syllabus. Accordingly, we review a trial court’s ruling on a Crim.R. 32.1
                                                4


motion for an abuse of discretion. State v. Cargill, 9th Dist. Summit Nos. 27011, 27590, 2015-

Ohio-661, ¶ 8. A trial court abuses its discretion when its decision is arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the

abuse of discretion standard, a reviewing court may not simply substitute its own judgment for

that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶8}    “[T]he extent of the trial court’s exercise of discretion * * * is determined by the

particular provisions that govern the motion under which the defendant is proceeding[.]” State v.

Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 33. While “a presentence motion to withdraw a

guilty plea should be freely and liberally granted,” State v. Xie, 62 Ohio St.3d 521, 527 (1992),

the same principle does not apply in a post-sentence motion since there the defendant “has the

burden of establishing the existence of manifest injustice,” Smith at paragraph one of the

syllabus. We have previously defined manifest injustice as “relat[ing] to a fundamental flaw in

the proceedings which results in a miscarriage of justice or is inconsistent with the demands of

due process.” State v. Ford, 9th Dist. Summit No. 26260, 2012-Ohio-4028, ¶ 5, citing State v.

Ruby, 9th Dist. Summit No. 23219, 2007-Ohio-244, ¶ 11. Trial courts are not required to hold a

hearing on a post-sentence motion to withdraw a guilty plea where the “‘record indicates that the

movant is not entitled to relief and the movant has failed to submit evidentiary documents

sufficient to demonstrate manifest injustice.’” State v. Razo, 9th Dist. Lorain No. 05CA008639,

2005-Ohio-3793, ¶ 20, quoting State v. Russ, 8th Dist. Cuyahoga No. 81580, 2003-Ohio-1001, ¶

12. The standard of manifest injustice is exacting as “a post-sentence withdrawal motion is

allowable only in extraordinary cases.” State v. Brown, 9th Dist. Summit No. 24831, 2010-Ohio-

2328, ¶ 9; see also State v. Molnar, 9th Dist. Summit No. 25267, 2011-Ohio-3799, ¶ 17
                                                   5


(Belfance, J., concurring) (“When a defendant moves to withdraw his plea after sentence, * * *

he must meet a high burden[.]”).

        {¶9}    Here, three pieces of evidence were offered in support of Robinson’s motion to

withdraw his guilty plea: (1) the letter from Duncan to Robinson’s father; (2) Duncan’s affidavit;

and (3) Robinson’s affidavit. In its judgment entry denying the motion, the trial court indicates

that it gave no weight to the letter from Duncan to Robinson’s father. But, it never addresses the

weight of Duncan’s affidavit or Robinson’s affidavit. Indeed, the trial court’s judgment entry

explicitly states that Robinson offered no other evidentiary materials besides Duncan’s letter,

which suggests that it failed to properly consider the affidavits. In light of the trial court’s failure

to account for all of the evidentiary materials offered by Robinson, its decision to deny the

motion to withdraw guilty plea constituted an abuse of discretion. See State v. Jeffrey, 9th Dist.

Summit No. 26639, 2013-Ohio-2985, ¶ 11 (reversing trial court’s denial of motion to withdraw

guilty plea where it failed to “squarely address” the evidentiary issues raised by the defendant in

his motion). It is within the trial court’s province, not ours, to determine “the good faith,

credibility and weight of the movant’s assertions in support of the motion” and we accordingly

remand this matter for the trial court to consider the assertions in Duncan’s affidavit and

Robinson’s affidavit. Smith at paragraph two of the syllabus.

        {¶10} We do not express any opinion as to whether a hearing is necessary in this matter

or as to whether Robinson should be allowed to withdraw his plea. Rather, this matter is simply

being remanded for the trial court to properly account for all of the evidence offered in support

of Robinson’s motion to withdraw guilty plea and to further consider the motion after accounting

for all of the evidence. See Jeffrey at ¶ 11 (remanding matter “for further consideration” of the
                                                6


motion to withdraw guilty plea and declining to express an opinion as to whether withdrawal

should ultimately be allowed).

       {¶11} Finally, we determine that res judicata does not bar Robinson’s motion to

withdraw his guilty plea, as the trial court erroneously found. We have previously noted that the

doctrine of res judicata applies to Crim.R. 32.1 motions to withdraw guilty pleas. Molnar, 2011-

Ohio-3799, at ¶ 9. But, the preclusive effect of res judicata only “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. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶59, citing State v. Perry, 10

Ohio St.2d 175 (1967), paragraph nine of the syllabus. Robinson’s September 30, 2014 Crim.R.

32.1 motion is the first motion that he has filed to withdraw his guilty plea. Moreover, the basis

for Robinson’s motion is newly-discovered information that he purportedly received years after

his conviction. As a result, the issues raised in this motion have not been previously raised, nor

could they have been, and the doctrine of res judicata is inapplicable. See State v. Nemchik, 9th

Dist. Lorain No. 98CA00729, 2000 WL 254908, * 1 (Mar. 8, 2000) (“To 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.”).

       {¶12} Accordingly, we sustain Robinson’s sole assignment of error.

                                               III.

       {¶13} Having sustained Robinson’s assignment of error, we reverse the judgment of the

Summit County Court of Common Pleas and remand this matter for further proceedings

consistent with this opinion.
                                                 7


                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



WHITMORE, P.J.
MOORE, J.
CONCUR.


APPEARANCES:

JONATHAN T. SINN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
