[Cite as State v. Hurt, 2018-Ohio-5161.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2018-CA-7
                                                 :
 v.                                              :   Trial Court Case No. 1990-CR-39
                                                 :
 JOHNNY W. HURT, JR.                             :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                          Rendered on the 21st day of December, 2018.

                                            ...........

PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office,
Appellate Division, Safety Building, 201 W. Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

JOHNNY W. HURT, JR., #263-779, P.O. Box 4501, Lima, Ohio 45802
    Defendant-Appellant, Pro Se

                                           .............
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HALL, J.

       {¶ 1} Johnny W. Hurt, Jr. appeals pro se from the trial court’s decision and

judgment entry overruling his second post-sentence motion to withdraw a guilty plea.

       {¶ 2} Hurt advances three assignments of error. First, he contends the trial court

erred in finding his motion barred by the doctrine of res judicata. Second, he claims the

trial court’s denial of his motion was inconsistent with his showing of a manifest injustice.

Third, he asserts that the trial court erred in finding a declaratory judgment action, rather

than a plea-withdrawal motion, to be the proper vehicle for him to seek relief.

       {¶ 3} In 1992, Hurt pled guilty to aggravated murder and attempted aggravated

murder as part of a plea bargain and was sentenced accordingly. This court affirmed on

direct appeal. See State v. Hurt, 2d Dist. Miami No. 95-CA-43, 1996 WL 221753 (May 3,

1996) (Hurt I). In June 2016, Hurt filed a pro se motion to withdraw his guilty plea. (Doc.

# 165.) He alleged that the State breached his plea agreement when the Ohio Adult

Parole Authority (OAPA) relied on new legislation to alter its guidelines and deny him

parole. The trial court overruled his motion. It held that a declaratory judgment action was

the proper vehicle for Hurt to raise his argument. (Doc. # 167). We affirmed in State v.

Hurt, 2d Dist. Miami No. 16-CA-11, 2017-Ohio-5495 (Hurt II). We agreed with the trial

court’s determination that a declaratory judgment action was the proper way for Hurt to

pursue relief. Id. at ¶ 10-17. We also held that the application of new parole guidelines

did not create an ex post facto imposition of punishment even if they did negatively impact

Hurt’s parole eligibility. Id. at ¶ 19-22. Finally, we concluded that Hurt was not entitled to

a hearing on his plea-withdrawal motion. Id. at ¶ 24-26.

       {¶ 4} Following another denial of parole, Hurt filed a second plea-withdrawal
                                                                                            -3-


motion in January 2018. (Doc. # 173). He argued that the most recent denial of parole

constituted another breach of his plea agreement. As in his earlier motion, he alleged the

State’s violation of his plea agreement based on statutory changes that purportedly

impacted his suitability for parole and the OAPA’s decision to deny him parole. The trial

court overruled Hurt’s motion on the basis of res judicata, finding that the motion

advanced the same legal theory as his unsuccessful 2016 motion. Alternatively, the trial

court held that he had not established a manifest injustice entitling him to withdraw his

plea even if res judicata did not apply. Finally, the trial court again concluded, as we did

in the appeal of the denial of appellant’s 2016 plea-withdrawal motion, that a declaratory

judgment action is the proper way for Hurt to seek relief regarding the application of parole

procedures to his sentence. (Doc. # 175).

       {¶ 5} In his first assignment of error, Hurt challenges the trial court’s reliance on

res judicata to overrule his motion. He argues in his opening brief and in his reply brief

that his prior motion alleged a breach of his plea agreement based on the OAPA’s use of

changed parole guidelines. Hurt insists that his 2018 motion was different because it

alleged a breach of his plea agreement based on the OAPA’s reliance on changed

statutes to deny him parole.1 But this argument is one of semantics. In both motions, Hurt

alleged a breach of his plea agreement based on statutory changes that allegedly forced

the OAPA to apply more stringent guidelines to deny him parole. He cannot avoid the


1 In his appeal from the trial court’s denial of his first plea-withdrawal motion, Hurt alleged
the opposite. He claimed there that he was not challenging the application of parole
guidelines to him. Rather, he claimed he was challenging the enactment of retroactive
statutes. We rejected this argument, reasoning: “Hurt's assertion that he is not challenging
the application of the parole guidelines to him is belied by his assertion that enactment of
new guidelines after his plea agreement increased his burden to establish suitability for
parole.” Hurt II at ¶ 17.
                                                                                           -4-


preclusive effect of res judicata by claiming that his former motion invoked the word

“guidelines” whereas his current motion emphasizes the word “statutes.” Having reviewed

our decision in Hurt II and both plea-withdrawal motions, we conclude that the substantive

issue raised by the two motions is the same.

       {¶ 6} This court held in Hurt II that the proper vehicle for Hurt to obtain relief is a

declaratory judgment action, not a plea-withdrawal motion. Because we resolved that

issue in a prior action between the same parties, the issue-preclusion branch of res

judicata precludes Hurt from asserting that legislative changes once again adversely

impacted his ability to obtain parole and entitle him to withdraw his plea. Issue prelusion

“holds that * * * a point that was actually and directly at issue in a previous action, and

was passed upon and determined by a court of competent jurisdiction, may not be drawn

into question in a subsequent action between the same parties * * *.” Ft. Frye Teachers

Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395, 692 N.E.2d 140

(1998). The trial court did not err in finding the issue-preclusion branch of res judicata to

be applicable here. Hurt’s first assignment of error is overruled.

       {¶ 7} Even without regard to issue preclusion, we also affirm the trial court’s

judgment on the basis of stare decisis. In his third assignment of error, Hurt contends the

trial court erred in holding that the proper way for him to pursue relief is a declaratory

judgment action. As set forth above, we reached that same conclusion in Hurt II when

confronted with essentially the same issue between the same parties. On the authority of

Hurt II, we again hold that a declaratory judgment action is the proper way for Hurt to seek

relief about application of parole procedures to his sentence. See also Smith v. Ohio Adult

Parole Auth., 2d Dist. Champaign No. 2009 CA 22, 2010-Ohio-1131 (involving a
                                                                                             -5-


complaint for declaratory and injunctive relief based on an alleged breach of a plea

agreement when the OAPA applied amended guidelines to assess the appellant’s parole

suitability). The third assignment of error is overruled.

       {¶ 8} In his second assignment of error, Hurt contends the trial court erred in

alternatively finding no manifest injustice warranting withdrawal of his plea. He also

suggests that an evidentiary hearing was necessary. We disagree. Hurt’s manifest-

injustice argument is rendered moot by our determination that a plea-withdrawal motion

is not the proper way for him to seek relief based on statutory or OAPA guideline changes

to parole suitability. Moreover, since a plea withdrawal-motion is not the proper vehicle

for Hurt to seek relief, it follows that the trial court was not required to hold an evidentiary

hearing. Hurt II at ¶ 26. The second assignment of error is overruled.

       {¶ 9} For the foregoing reasons, the judgment of the Miami County Common Pleas

Court is affirmed.

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



DONOVAN, J. and FROELICH, J., concur.




Copies sent to:

Paul M. Watkins
Johnny W. Hurt, Jr.
Hon. Christopher Gee
