[Cite as State v. Milner, 2020-Ohio-1160.]




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


State of Ohio                                    Court of Appeals No. E-19-053

        Appellee                                 Trial Court No. 2012 CR 0339

v.

Michael Milner                                   DECISION AND JUDGMENT

        Appellant                                Decided: March 27, 2020

                                             *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, for appellee.

        Michael Milner, pro se.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an accelerated, pro se appeal of a September 3, 2019 nunc pro tunc

trial court entry. The entry was issued in connection to a 2019 motion filed by appellant

stemming from appellant’s 2014 murder conviction for the 2012 death of a three-year-old

boy.
         {¶ 2} We note that appellant’s 2015 direct appeal of the underlying murder case

was denied, and the underlying conviction and sentence were affirmed. State v. Milner,

6th Dist. Erie No. E-14-113, 2015-Ohio-2446. In addition, further review of our direct

appeal decision in this case was denied by the Ohio Supreme Court in State v. Milner,

143 Ohio St.3d 1502, 2015-Ohio-4468, 39 N.E.3d 1272.

         {¶ 3} For the reasons set forth more fully below, our disposition of the instant

appeal is governed by res judicata and the law of the case doctrine. Accordingly, the

judgment of the Erie County Court of Common Pleas is hereby affirmed.

         {¶ 4} Appellant, Michael Milner, sets forth the following two assignments of

error:

                1. The assistance of trial counsel was ineffective.

                2. The trial court erred by denying the motion to withdraw [the]

         guilty plea.

         {¶ 5} The following undisputed facts are relevant to this appeal. On July 30,

2012, appellant killed the three-year-old son of appellant’s live-in girlfriend. The autopsy

performed by the Lucas County coroner’s office revealed that the cause of death was

blunt force trauma.

         {¶ 6} The record reflects that appellant physically assaulted the boy so brutally

that it caused a perforated right atrium of the heart, a lacerated liver, a lacerated

mesentery artery, bilateral pulmonary contusions, and a host of other traumatic injuries,




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thereby killing the boy. Appellant waited for several hours after the boy’s death to seek

medical assistance for the already deceased victim.

       {¶ 7} Appellant untenably maintained that the toddler had inflicted the above-

described traumatic, fatal injuries upon himself. The overwhelming evidence reflected

otherwise. In addition, the record encompassed voluminous evidence of prior child abuse

investigations involving appellant and the victim by children’s services.

       {¶ 8} On August 15, 2012, appellant was indicted on one count of aggravated

murder, in violation of R.C. 2903.01(C), an unclassified felony, one count of murder, in

violation of R.C. 2903.02(B), a felony of the first degree, one count of felonious assault,

in violation of R.C. 2903.11(A), a felony of the second degree, and one count of child

endangerment, in violation of R.C. 2919.22(B), a felony of the second degree.

       {¶ 9} On May 28, 2014, pursuant to a negotiated plea agreement, appellant pled

guilty to one count of aggravated murder, in violation of R.C. 2903.01(C), an unclassified

felony. In exchange, the death penalty specification and the additional three felony

offenses were dismissed.

       {¶ 10} As part of the above-referenced plea agreement, the state also specifically

requested that the trial court not impose a sentence of life without parole. However,

following a two-day sentencing hearing, which carefully considered voluminous evidence

from multiple expert and lay witnesses, the trial court determined that, given the extreme

nature of this case, appellant should be sentenced to a prison term of life without parole.

A timely, direct appeal was filed.




3.
       {¶ 11} On direct appeal, appellant asserted that it was improper for the trial court

to fail to adhere to the sentencing recommendation of the negotiated plea agreement.

This argument was found not well-taken given the well-established rule that, “plea

agreements are generally not binding upon the court.” Milner, 6th Dist. Erie No.

E-14-113, 2015-Ohio-2446, at ¶ 19. This court further held in relevant part that, “the

record clearly reflects both that the trial court engaged in no conduct or communications

that could conceivably be construed as constituting consent to be strictly bound to the

sentencing recommendation of the plea agreement” and that it, “repeatedly and

unequivocally conveyed this to appellant and confirmed appellant’s understanding that

the trial court was free to impose a maximum sentence.”

       {¶ 12} In the instant appeal, appellant attempts to relitigate the matter through an

appeal of a motion-related, nunc pro tunc entry. This runs counter to res judicata and the

law of the case doctrine.

       {¶ 13} As affirmed by the Ohio Supreme Court in Reid v. Cleveland Police Dept.,

151 Ohio St.3d 243, 2017-Ohio-7527, 87 N.E.3d 1231, “[T]he law of the case [doctrine]

is applicable to subsequent proceedings in the reviewing court as well as the trial court

* * * [,] the law of the case doctrine exists to promote the finality and efficiency of the

judicial process by protecting against the agitation of settled issues.” Reid at ¶ 9-10.

       {¶ 14} As similarly held in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

942 N.E.2d 332, at ¶ 34, “The [law of the case] doctrine retains its vitality in Ohio. In

discussing the doctrine, we have held that it precludes a litigant from attempting to rely




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on arguments at a retrial which were fully pursued, or available to be pursued, in a first

appeal and noted that new arguments are subject to issue preclusion, and are barred.”

       {¶ 15} This court follows those principles and held in State v. Barfield, 6th Dist.

Lucas Nos. L-06-1262 and L-06-1263, 2007-Ohio-1037, at ¶ 6, “[T]he principles of res

judicata may be applied to bar further litigation in a criminal case of issues which were

raised, or could have been raised, previously in an appeal.”

       {¶ 16} Approximately four years after the affirmation of appellant’s conviction

and sentence on direct appeal, and three years after the Ohio Supreme Court denied

further review of this matter, appellant filed a Crim.R. 32.1 motion to withdraw his guilty

plea. In support, appellant contended that his trial counsel failed to properly inform him

of the consequences of his plea and improperly pressured him to consent to the plea

agreement.

       {¶ 17} In denying the motion, the court correctly held that it lacked jurisdiction to

consider the motion under the facts and circumstances of the case. In addition, the court

found that the motion would nevertheless fail because appellant did not demonstrate a

manifest injustice so as to arguably warrant withdrawal of the plea.

       {¶ 18} As directly analogous to the facts of this case, reasonable reliance upon

counsel’s representations about the sentence cannot be shown when the trial judge

properly informs the defendant of the maximum penalty that can be imposed and advises

that it is not required to adhere to the recommended sentence. State v. Leonhart, 4th Dist.

Washington No. 13-CA-38, 2014-Ohio-5601, ¶ 49.




5.
       {¶ 19} In conjunction with the above, in State v. Ketterer, 126 Ohio St.3d 448,

2010-Ohio-3831, 935 N.E.2d 9, ¶ 59-60, the Ohio Supreme Court recognized that res

judicata serves as a valid basis for the rejection of claims made in a Crim.R. 32.1 motion

that were or could have been raised at trial or on direct appeal.

       {¶ 20} Lastly, the trial court also lacked jurisdiction to consider appellant’s

Crim.R. 32.1 motion given that this court had already affirmed appellant’s conviction on

direct appeal. State ex rel. Special Prosecutors v. Judges, Belmont Cty. Court of

Common Pleas, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978).

       {¶ 21} Wherefore, we find appellant’s first and second assignments of error not

well-taken and further find that this appeal is barred by res judicata and the law of the

case doctrine. The judgment of the Erie 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.




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                                                                     State v. Milner
                                                                     C.A. No. E-19-053




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Christine E. Mayle, 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.supremecourt.ohio.gov/ROD/docs/.




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