[Cite as State v. Woody, 2014-Ohio-302.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99774




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           MIKE WOODY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-478107

        BEFORE: Keough, P.J., Kilbane, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                    January 30, 2014
ATTORNEYS FOR APPELLANT

Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

Thomas J. Escovar
Steuer, Escovar, Berk & Brown Co.
55 Public Square, Suite 1475
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Mike Woody (“Woody”), appeals from the trial

court’s judgment denying his second motion to withdraw his guilty plea. For the reasons

that follow, we affirm.

                                       I. Background

       {¶2} In October 2005, Woody, then a juvenile, was arrested in connection with

the death of an elderly woman. Woody and other members of the “Goonies” gang

snatched the woman’s purse, which caused her to fall and hit her head.          She was

hospitalized for a head injury and a separated shoulder; she subsequently developed

pneumonia as a result of her injuries and died a short time later.

       {¶3} In November 2005, Woody was referred to the juvenile court diagnostic

clinic for psychological evaluation related to his competency to participate in the court

proceedings.   Dr. Joseph Konieczny found that Woody had “significant intellectual

limitations” but that he had “an adequate understanding as to the nature and objective of

the current proceedings.” In January 2006, after an evidentiary hearing, the juvenile

court judge found him competent to stand trial.

       {¶4} In February 2006, Woody was bound over to the common pleas court and,

in March 2006, he was indicted on counts of murder, aggravated robbery, and felonious

assault, with gang specifications.

       {¶5} Woody was referred to the court psychiatric clinic in April 2006 for another

competency evaluation. In May, Dr. Brad Booth evaluated Woody on two occasions and
Dr. George Schmedlen gave him an IQ test. In light of his evaluations and Dr.

Schmedlen’s report, in June 2006, Dr. Booth issued a report in which he opined that

Woody suffered from ADHD and mild mental retardation but that despite the limitations,

he was capable of understanding the nature and objectives of the court proceedings and of

assisting in his defense.

       {¶6} In August 2006, the trial court granted defense counsel’s motion for

appointment of Dr. James J. Karpawich as defense psychologist.           After evaluating

Woody, Dr. Karpawich opined, as the other psychologists had, that although Woody had

“intellectual limitations,” he was capable of understanding the nature and objective of the

proceedings against him and of assisting in his defense. None of the psychologists’

reports, however, were made part of the record.

       {¶7} In January 2007, Woody pled guilty to involuntary manslaughter and

felonious assault, and the court sentenced him to the agreed upon sentence of 18 years

incarceration. Subsequently, in August 2007, this court granted Woody’s motion to file a

delayed direct appeal. However, in December 2007, appellate counsel moved to dismiss

the appeal, noting that he had reviewed the transcripts from the plea and sentencing and

found no error, and that absent evidence outside the record, it appeared that Woody had

entered a knowing, intelligent, and voluntary plea. This court granted the motion and

dismissed the appeal. Later, this court denied as untimely Woody’s motion to reopen the

appeal. State v. Woodey [sic], 8th Dist. Cuyahoga No. 90317, 2008-Ohio-2825.
      {¶8} In January 2008, Woody filed a Crim.R. 32.1 motion to withdraw his guilty

plea due to a manifest injustice,1 alleging that (1) there were unresolved issues of his

competency when he entered his plea, (2) he lacked the mental capacity to understand his

plea due to his low IQ and the drugs he was taking at the time of the plea, and (3) trial

counsel was ineffective for failing to litigate these issues.    The trial court denied

Woody’s motion without hearing. This court affirmed the trial court’s judgment on

appeal, holding that because Woody had not filed a transcript of the plea hearing on

appeal, the court had to presume regularity and, therefore, Woody had failed to meet his

burden of demonstrating a manifest injustice.   State v. Woody, 8th Dist. Cuyahoga No.

92929, 2010-Ohio-72, ¶ 10-11.

      {¶9} In September 2010, Woody filed a second motion to withdraw his guilty plea.

Among other documents, Woody attached to the motion the psychiatric reports from Drs.

Konieczny, Booth, and Karpawich, as well as jail medication records from December

2006 and January 2007. In his motion, Woody acknowledged that the issues raised in the

second motion were similar to the first motion but argued that the earlier motion did not

include the documentation attached to this motion — specifically, the psychiatric reports

and jail medication records. Woody argued further that because the first motion to




      1
       Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest
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.”
withdraw was denied without a hearing or findings of fact or conclusions of law, it was

unclear whether the motion was overruled on substantive or procedural grounds, or both.

       {¶10} The trial court subsequently denied the motion as barred by the doctrine of

res judicata, finding that it was a reassertion of claims that were raised or could have been

raised in the first motion to withdraw or the prior appeals. The court stated that “the only

discernible difference between the current motion and the previous motion is that defense

counsel have appended copies of records from Defendant’s file to the motion — all of

which were available to the court at the time of the plea and sentencing.”

       {¶11} Woody now appeals from this judgment.

                                          II. Analysis

       {¶12} In his single assignment of error, Woody contends that the trial court erred

by finding that the claims raised in his second motion to withdraw the guilty plea were

barred by the doctrine of res judicata.

       The usual formulation of res judicata in postconviction proceedings is that it
       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. Perry,
       10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
       Res judicata does not, however, apply only to direct appeals, but to all
       postconviction proceedings in which an issue was or could have been
       raised. Thus, res judicata bars the assertion of claims in a motion to
       withdraw a guilty plea that were, or could have been, raised in a prior
       proceedings. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935
       N.E.2d 9, ¶ 59, citing State v. McGee, 8th Dist. Cuyahoga No. 91638,
       2009-Ohio-3374, ¶ 9.

State v. Montgomery, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193, ¶ 42.
       {¶13}   Contrary to the state’s assertion, the issues raised in Woody’s second

motion to withdraw the guilty plea could not have been raised on direct appeal because

they relied on matters outside the record. Thus, they were properly the subject of a

postconviction motion to withdraw the guilty plea. Id. at ¶ 43, citing State v. Smith, 17

Ohio St.3d 98, 101, 477 N.E.2d 1128 (1985), fn. 1.

       {¶14} Nevertheless, the issues raised by Woody in his second motion to withdraw

the guilty plea could have been raised in his first motion to withdraw the plea, and thus

are barred by res judicata.    Attached to Woody’s second motion to withdraw the plea

were (1) a juvenile court judgment entry dated January 31, 2006, finding Woody

competent to stand trial; (2) Dr. Konieczny’s report, dated November 16, 2005; (3) Dr.

Schmedlen’s report, dated May 15, 2006; (4) Dr. Booth’s report, dated June 2, 2006; (5)

Dr. Karpawich’s report, dated September 18, 2006; (6) jail medication reports dated

December 2006 and January 2007 regarding medications given to Woody while he was in

jail; and (7) a transcript of the plea hearing. In his motion, Woody argued that he should

be allowed to withdraw his plea because these documents demonstrated that on the day of

the plea, he was under the influence of psychotropic medications administered by the

county jail, suffered from ADHD and depression, and was mildly mentally retarded, all of

which affected his ability to understand the ramifications of his plea.

       {¶15} All of these documents, however, were available at the time of the guilty

plea and sentencing, which Woody concedes. Although the documents were not made

part of the record, there is no evidence that defense counsel was unaware of these
documents.    Accordingly, any issues regarding Woody’s understanding of the plea

relative to the documents could have been raised in Woody’s first motion to withdraw the

plea and, therefore, are res judicata. “Any issue that was, or should have been, litigated

in a prior action between the parties may not be relitigated.” State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

      {¶16} Woody contends, however, that applying res judicata in this case would

work an injustice. He argues that the trial court denied his first motion to withdraw

without a hearing or opinion so there is no indication whether the trial court denied the

motion on the merits or on some other procedural basis, and that this court affirmed the

denial not on the merits but because counsel failed to attach the transcript of the plea

hearing. Therefore, he contends, under such circumstances and in light of his mental

history and deficiencies as demonstrated by the documents attached to his motion, it

would be unjust to apply the doctrine of res judicata. We find no such injustice.

      Because this is a postsentence motion to withdraw a guilty plea, we apply
      Crim.R. 32.1, which permits a criminal defendant to withdraw a plea after
      the imposition of sentence only to correct a “manifest injustice.” A
      manifest injustice has been defined as a “clear or openly unjust act.” State
      ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271, 699
      N.E.2d 83.      Under the manifest injustice standard, a postsentence
      withdrawal motion is allowable only in extraordinary cases. State v. Smith,
      49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “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. We therefore review a trial court’s refusal
      to allow a postsentence motion to withdraw a guilty plea for an abuse of
      discretion. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

Montgomery, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193 at ¶ 61.
      {¶17}     Woody has failed to demonstrate a manifest injustice because the

psychiatric reports attached to his motion to withdraw his guilty plea demonstrate that

each psychiatrist who examined him found him competent to stand trial and to assist in

his defense. Dr. Konieczny opined that although Woody showed “significant intellectual

limitations,” he “has an adequate understanding as to the nature and objective of the

current proceedings.” Dr. Booth opined that despite Woody’s limitations, he “is capable

of understanding the nature and objective of the court proceedings.”           And Dr.

Karpawich, the defense psychologist, opined that

      [c]oncerning his competency to stand trial, Mr. Woody is aware of the
      charges against him, he has a basic knowledge of legal terms, he
      understands the adversarial nature of the legal process, and he is aware of
      the roles of courtroom figures. He does not report any problems in
      working with his attorney, he is able to given an account of his behavior
      around the time of the offense, he can make decisions which are in his best
      interest, and he can control his behavior in the courtroom.

      {¶18} Dr. Karpawich further opined that despite his intellectual limitations,

Woody was “capable of understanding the nature and objectives of the proceedings

against him and of assisting in his defense.” Thus, the reports relied on by Woody as the

basis for withdrawal of his plea contradict his claim of incompetency.

      {¶19} Further, the record of the plea hearing refutes Woody’s claim that he was

under the influence of drugs when he entered his plea. The transcript reflects that

Woody answered “no” when the judge asked him prior to accepting his plea if he was

“under the influence of drugs, alcohol, or any medication.”
       {¶20} Accordingly, Woody has not shown that the application of res judicata

under these circumstances is unjust or that the trial court should have allowed him to

withdraw his plea to prevent a manifest injustice. Therefore, the trial court did not abuse

its discretion by denying Woody’s second motion to withdraw the guilty plea.

       {¶21} Likewise, we find no merit to Woody’s contention that counsel’s “failure

to insure that the record contained all necessary documents” was a denial of his

constitutional right to effective assistance of counsel. To establish ineffective assistance

of counsel, a defendant must show (1) that counsel’s performance was deficient; and (2)

prejudice, i.e., a reasonable probability that but for counsel’s errors, the result of the

proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶22} As discussed above, the reports that Woody claims counsel should have

been included in the record demonstrate that although each psychologist who examined

Woody noted his low IQ and limitations, each psychologist — including the defense

psychologist — found him competent to stand trial and able to assist in his defense.

Thus, even if counsel had acted to include the reports in the record, they would not have

supported a challenge to Woody’s competency.           Accordingly, we find no prejudice

resulting from counsel’s failure to include the reports in the record.

       {¶23} Appellant’s assignment of error is overruled and the trial court’s judgment

is affirmed.

       It is ordered that appellee recover from appellant 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. Case remanded to the trial court for

execution of sentence.

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

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS.                    (SEE ATTACHED DISSENTING
OPINION.)


MARY EILEEN KILBANE, J., DISSENTING:

       {¶24} I respectfully dissent. I would find that the claims raised in Woody’s

second motion to withdraw his guilty plea are not barred by res judicata.

       {¶25} The basis of Woody’s claim of manifest injustice focuses on his mental

competency. There is no dispute that Woody has “significant intellectual limitations”

and is mildly mentally retarded. In his report, Dr. Karpawich cautioned that certain

safeguards needed to be in place to minimize Woody’s mental deficiencies.            Dr.

Karpawich recommended that:

       [Woody’s] attorney spend sufficient time with [Woody] outside the
       courtroom to discuss his case in simple terms and to ensure that [Woody]
       has understood what he had been told. In addition, [Woody] may need
       more frequent and longer recesses to discuss his case with his attorney.
       Finally, it is recommended that all courtroom personnel make the effort to
       use simple language when [Woody] is present in court[.]

       {¶26} While the issue of competency was raised at the trial court, the record

reflects that no hearing was held pursuant to R.C. 2945.37.2 When Woody filed his first

Crim.R. 32.1 motion, it was denied without a hearing, and the subsequent appeal was

affirmed solely because the plea transcript was not filed with the appeal. Woody’s

second Crim.R. 32.1 motion did contain the additional reports and documentation, but the

trial court denied this motion without a hearing as well. Thus, there is no indication that

the issues he raised in his motions were ever addressed on the merits, and the merits of his

prior appeal were never addressed solely because no transcript was filed with the appeal.

       {¶27} The doctrine of res judicata should not ‘“be applied so rigidly as to defeat

the ends of justice or so as to work an injustice.’ Washburn v. Senff, 5th Dist. Stark No.

2002CA00393, 2003-Ohio-4379, ¶ 16, quoting Bauer v. Huntington Nat. Bank, 10th Dist.

Franklin No. 99AP-347, 2000 Ohio App. LEXIS 412 (Feb. 10, 2000) (Citations

omitted).” State v. Tinney, 5th Dist. Richland No. 2011 CA 41, 2012-Ohio-72, ¶ 31,

discretionary appeal not allowed, 131 Ohio St.3d 1542, 2012-Ohio-2025.

       {¶28} In the instant case, Woody was “qualified” as competent, yet there was no

competency hearing, as well as no hearing on his motion to withdraw his guilty plea.


       2
        R.C. 2945.37(B) provides that: “[i]n a criminal action in a court of common
pleas, a county court, or municipal court, 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 as provided in
this section.” (Emphasis added.)
Moreover, there was no indication that his motion was ever decided on the merits, and the

appeal from his first Crim.R. 32.1 motion was affirmed solely on the basis of the lack of a

transcript. I would find that these circumstances work as an injustice to Woody. As a

result, I would not apply res judicata to Woody’s Crim.R. 32.1 motion.
