State v. Holloway

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[Cite as State v. Holloway, 2022-Ohio-1459.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, Plaintiff-Appellee, v. JERMAILL HOLLOWAY, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 21 MA 0035 Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2016 CR 1351 BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges. JUDGMENT: Affirmed. Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Chief Prosecuting Attorney, Criminal Division, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee Jermaill Holloway, Pro se, Inmate No. 693-841, Lake Erie Correctional Institution, 501 Thompson Road, Conneaut, Ohio 44030. –2– Dated: March 24, 2022 WAITE, J. {¶1} Appellant Jermaill Holloway appeals a March 18, 2021 Mahoning County Common Pleas Court judgment entry denying his motion to withdraw his guilty plea. Appellant raises several assignments of error centered on evidence of a second possible shooter that he was previously unaware of and his assertion that this knowledge would have affected his decision to plead guilty. Because Appellant’s arguments are barred by res judicata, the judgment of the trial court is affirmed. Factual and Procedural History {¶2} On December 1, 2016, Appellant was indicted on two counts of murder, felonies of the first degree in violation of R.C. 2903.02(A)(D), (B)(D); one count of improper discharge of a firearm at or into habitation, a felony of the second degree in violation of R.C. 2923.161(A)(1), (D); eight counts of felonious assault, felonies of the second degree in violation of R.C. 2903.11 (A)(2), (D). All counts were accompanied by a firearm specification pursuant to R.C. 2941.145(A). The indictment stemmed from an incident on March 20, 2016 where Appellant was asked to leave a house after an argument over a video game. (3/9/17 Sentencing Hrg. Tr., p. 8.) Apparently, the argument continued, leading both Appellant and the victim to fire shots at one another. (3/9/17 Sentencing Hrg. Tr., p. 9.) According to witnesses, the victim fired from inside the house and Appellant fired from outside of the house. {¶3} On March 8, 2017, Appellant pleaded guilty to an amended charge of voluntary manslaughter, a felony of the first degree in violation of R.C. 2903.03(A)(C), Case No. 21 MA 0035 –3– and all eight counts of felonious assault. The remaining murder charge and the sole count of improper discharge of a firearm were dismissed. (3/8/17 Plea Agreement.) {¶4} On March 9, 2017, the trial court sentenced Appellant to an aggregate total of fifteen years of incarceration. On March 10, 2017, Appellant wrote a letter to the trial court which was construed as a motion to withdraw his plea. After a hearing on the matter, the court denied the motion. Appellant’s timely direct appeal followed in State v. Holloway, 7th Dist. Mahoning No. 17 MA 0048, 2018-Ohio-5393 (“Holloway I”). In Holloway I, Appellant raised assignments of error pertaining to his guilty plea, his sentence, the trial court’s decision to deny his motion to withdraw his plea, and the effectiveness of his trial counsel. We affirmed the judgment of the trial court. Id. at ¶ 55. {¶5} Appellant subsequently filed an application to reopen his appeal based on his appellate counsel’s representation. He claims that counsel failed to challenge the trial court’s denial of his motion to withdraw his plea or to challenge the voluntariness of his plea. He alleges counsel was also deficient in failing to raise as error his lack of an evidentiary hearing on these claims prior to sentencing. Additionally he urges that appellate counsel should have raised prosecutorial misconduct as an assignment of error in his direct appeal. State v. Holloway, 7th Dist. Mahoning No. 17 MA 0048, 2019-Ohio1575 (“Holloway II”). We denied the application. {¶6} On November 20, 2020, Appellant filed a second motion to withdraw his guilty plea. In this motion he raised seven claims: trial counsel’s failure to adequately investigate the charge and prepare for trial, prosecutorial misconduct for failing to provide exculpatory evidence, the withholding of evidence of a second shooter, counsel’s allegedly erroneous statement that self-defense is not available in Ohio, and an alleged Case No. 21 MA 0035 –4– breach of a plea agreement by the state. On March 18, 2021, the trial court denied the motion. Appellant now appeals this entry. Motion to Withdraw Plea {¶7} A motion to withdraw a guilty plea is reviewed for an abuse of discretion. State v. Carabello, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). “Abuse of discretion means an error in judgment involving a decision that is unreasonable based upon the record; that the appellate court merely may have reached a different result is not enough.” State v. Brewer, 7th Dist. Mahoning No. 14 MA 0127, 2016-Ohio-3224, ¶ 10, citing State v. Dixon, 7th Dist. No. 10 MA 185, 2013-Ohio-2951, ¶ 21. {¶8} Pursuant to 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.” {¶9} “When a defendant seeks to withdraw a guilty plea after the trial court imposed a sentence, the defendant bears the burden of establishing the existence of a manifest injustice. Post-sentence plea withdrawal is allowable only in an extraordinary case.” (Internal citations omitted.) State v. Devine, 7th Dist. Columbiana No. 17 CO 0013, 2019-Ohio-778, ¶ 18, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). {¶10} “A hearing on the motion must be held only if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea. State v. Brooks, 7th Dist. No. 04 MA 240, 2005-Ohio-5058, ¶ 9. But, the trial court's decision whether to hold a hearing is granted deference. State v. Toda, 7th Dist. No. 13 Case No. 21 MA 0035 –5– MA 44, 2014-Ohio-943, ¶ 10.” State v. Buggs, 7th Dist. Jefferson No. 20 JE 0001, 2020Ohio-4143, ¶ 17. ASSIGNMENT OF ERROR NO. 1 APPELLANTS [SIC] DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATLY [SIC] INVESTIGATE THE MURDER CHARGE AND PREPARE FOR TRIAL. ASSIGNMENT OF ERROR NO. 2 PROSECURIAL [SIC] MISCONDUCT VIOLATED DEFENDANTS [SIC] DUE PROCESS RIIGHTS [SIC] AND CONSTITUTED A BRADY VIOLATION. ASSIGNMENT OF ERROR NO. 3 A MANIFEST INJUSTICE HAS OCCURRED IN THIS CASE BECAUSE THE DEFENDANT COULD NOT BE FOUND GUILTY OF THE VOLUNTARY MANSLAGHTER [SIC] CHARGE HE PLED GUILTY TO AS A MATTER OF LAW. ASSIGNMENT OF ERROR NO. 4 APPELLANTS [SIC] DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE GAVE APPELLANT ERRONEOUS LEGAL ADVICE. ASSIGNMENT OF ERROR NO. 5 Case No. 21 MA 0035 –6– APPELLANTS [SIC] DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE THE WITNESSES [SIC] STATEMENTS AND PREPARE FOR TRIAL. ASSIGNMENT OF ERROR NO. 6 APELLANTS [SIC] PROCEDURAL DUE PROCESS RIGHTS WAS [SIC] VIOLATED BECAUSE HE WAS PREJUDICED THROUGHOUT THIS ENTIRE CASE BY THE POLICE, THE PROSECUTORS, AND HIS DEFENSE COUNSEL. {¶11} Appellant generally argues that his trial counsel failed to adequately investigate the case and any possible defenses before advising him to plead guilty. Appellant relies on a claim he repeats throughout his brief that evidence of a second possible shooter was withheld from him. {¶12} The state argues that Appellant is barred from raising these arguments by res judicata. The state also points out that this is Appellant’s second motion to withdraw his plea. {¶13} The doctrine of res judicata “bars an individual from raising a defense or claiming a lack of due process that was or could have been raised at trial or on direct appeal.” State v. Croom, 7th Dist. Mahoning No. 13 MA 98, 2014-Ohio-5635, ¶ 7, citing State v. Ishmail, 67 Ohio St.2d 16, 18, 423 N.E.2d 1068 (1981). {¶14} Most of Appellant’s arguments center on his belief that certain evidence was withheld from him. According to Appellant, two 9mm guns were located underneath a mattress at the house. However, he claims that the state represented to the Grand Jury Case No. 21 MA 0035 –7– and to the trial court that only one gun had been recovered. It appears that Appellant believes that the existence of this second gun suggests that another possible shooter was present at the scene. As such, the fatal shot to the victim could have come from that other person. Appellant claims that if he had known of this evidence during discovery, he would not have pleaded guilty. {¶15} The crux of Appellant’s argument appears to center on the inability of the ballistic testing to specifically identify the gun from which the fatal bullet was fired. Thus, he contends it is possible that he was not the person who killed the victim. However, Appellant does not argue that he was not present or that he did not fire a weapon. Instead, he apparently argues that he fired in response to shooting from the house, and that either he or some unidentified shooter could have fired the fatal shot. Appellant provided the court with an exhibit showing that two guns were recovered from the house. It is unclear where Appellant obtained this exhibit and when it was received. {¶16} However, Appellant raised this argument in both Holloway I and Holloway II, as he claimed that the court should have been alerted to the fact that ballistics could not identify the gun which fired the fatal bullet and that this could be exculpatory. Holloway I at ¶ 28; Holloway II at ¶ 6. We addressed this contention on direct appeal and again in Holloway II, where we noted that Appellant’s appellate counsel had raised this issue in the direct appeal. Id. at ¶ 6. {¶17} Appellant also argues that trial counsel failed to raise prosecutorial misconduct based on his claim that the state withheld evidence of a possible second shooter. Again, this issue was raised, although indirectly, in both Holloway I and Holloway II. See Holloway I at ¶ 52; Holloway II at ¶ 6-7. Case No. 21 MA 0035 –8– {¶18} Appellant generally argues that his counsel failed to investigate the claims against him and prepare for the case. In Holloway I, we addressed this identical argument: First, appellant alleges that trial counsel’s pre-trial investigation was insufficient. But there is nothing in the record regarding how counsel went about the investigation. If the evidence of ineffective assistance of counsel is not in the record, the subject is not available for analysis by this court. State v. Prieto, 7th Dist. No. 07-MA-4, 2007-Ohio-7204, ¶ 36. There is no way for this court to know what steps trial counsel took to investigate, therefore any opinion on the effectiveness of the investigation would be conjecture. Id. at ¶ 50. {¶19} Appellant next argues that his counsel erroneously informed him that selfdefense is not available in Ohio. This argument requires consideration of evidence de hors the record, thus is appropriate for a postconviction petition. Regardless, Appellant raised this argument in Holloway I at ¶ 15; 28. In one of his assignments of error, he stated “the record reveals that Appellant was claiming innocence on the basis of selfdefense.” Holloway I at ¶ 31. {¶20} Appellant also contends that the prosecutor erroneously informed the court that he made several statements before firing into the house. Appellant argues that this contradicts the witnesses’ statements. This issue was previously raised in Holloway II, Case No. 21 MA 0035 –9– and we explained that this argument relied on evidence de hors the record, thus would also be more appropriate for a postconviction petition. Id. at ¶ 20. {¶21} Because Appellant has already raised or should have raised each of these claims in his direct appeal or his application to reopen the appeal, res judicata bars him from raising these issues, here. Appellant’s first, second, third, fourth, fifth, and sixth assignments of error are without merit and are overruled. ASSIGNMENT OF ERROR NO. 7 A MANIFEST INJUSTICE HAS OCCURRED IN THIS CASE BECAUSE APPELLANTS [SIC] GUILTY PLEA IS VOID BECAUSE THE PLEA AGREEMENT WAS BREACHED BY THE STATE OF OHIO. {¶22} Appellant believes the state breached the plea agreement by later adding a term that had not been negotiated. According to Appellant, the state agreed to dismiss an unrelated rape charge, and he complains that this was accomplished in an agreement separate from his plea agreement. Appellant claims to possess an affidavit from the victim of that case showing that the dismissal was not related to the instant case. {¶23} Even if true, it is unclear what prejudice Appellant would suffer as a result of an unrelated rape charge being dismissed as part of this case rather than independently. Regardless, at his plea hearing in this matter the state informed the court that as part of the plea agreement it would “dismiss Case Number 16 CR 1438 as part of this plea agreement in exchange for all those pleas of guilty to this indictment, Your Honor.” (6/21/17 Plea Hrg. Tr., p. 3.) This case number pertains to the rape case. Appellant did not object. Further, this Court discussed in Holloway I that the rape charge Case No. 21 MA 0035 – 10 – was dismissed as part of this plea agreement. Appellant’s argument in this regard is confused, at best, and Appellant did not raise it in either his direct appeal or application for reopening despite the fact that he knew the charge had been separately addressed because it was discussed both at plea hearing and on direct appeal. Thus, he is barred by res judicata from doing so, here. Appellant’s seventh assignment of error is without merit and is overruled. Conclusion {¶24} Appellant raises several assignments of error which are centered on allegations there was evidence of a second possible shooter that he contends was withheld and would have affected his decision to plead guilty. Because Appellant’s arguments are barred by res judicata, Appellant’s arguments are without merit and the judgment of the trial court is affirmed. Donofrio, P.J., concurs. D’Apolito, J., concurs. Case No. 21 MA 0035 [Cite as State v. Holloway, 2022-Ohio-1459.] For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against the Appellant. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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