State v. Toops

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[Cite as State v. Toops, 2010-Ohio-2592.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vsCase No. 09-CA-146 RUSSELL R. TOOPS Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas Court, Case No. 08-CR-00032 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: June 7, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant KENNETH W. OSWALT LICKING COUNTY PROSECUTOR RUSSELL R. TOOPS, PRO SE Southeastern Correctional Institution 5900 B.I.S. Road Lancaster, Ohio 43130 BY: CHRISTOPHER A. REAMER Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 09-CA-146 2 Hoffman, J. {¶1} Defendant-appellant Russell R. Toops appeals the November 24, 2009 Judgment Entry entered by the Licking County Court of Common Pleas, which denied his Motion to Withdraw Guilty Plea. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE1 {¶2} On January 18, 2009, the Licking County Grand Jury indicted Appellant on one count of illegal manufacture of drugs, in violation of R.C. 2925.04(A)(C)(3)(a), a felony of the second degree; one count of illegal assembly or possession of chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A)(C)(1), a felony of the third degree; and one count of having weapons while under disability, in violation of R.C. 2923.13(A)(2), a felony of the third degree. The trial court scheduled the matter for trial September 30, 2008, after continuing the matter several times at the requests of both Appellant and the State. On the morning of trial, the parties advised the trial court they had reached an agreement. Appellant would plead guilty to one count of illegal assembly and one count of weapons under disability, and in exchange, the State would dismiss the illegal manufacture of drugs charge and recommend a sentence of five years imprisonment. The trial court accepted Appellant s plea, found him guilty as charged, and sentenced him to an aggregate term of incarceration of five years. {¶3} Sentence. On May 15, 2009, Appellant filed a Petition to Vacate or Set Aside The trial court found the petition not well taken and denied the same. Subsequently, on September 28, 2009, Appellant filed a Motion to Withdraw Guilty Plea, 1 A Statement of the Facts underlying Appellant s convictions is not necessary to our disposition of this appeal. Licking County, Case No. 09-CA-146 3 requesting a hearing pursuant to Crim.R. 32.1. Via Judgment Entry filed September 29, 2009, the trial court denied the motion, noting Appellant failed to include any affidavits or evidentiary material, and finding Appellant failed to demonstrate any manifest injustice. Appellant filed another Motion to Withdraw Guilty Plea on October 30, 2009. The State responded, asserting Appellant s claim to set aside his guilty plea was based upon ineffective assistance of counsel, and such was barred under the doctrine of res judicata. Via Judgment Entry filed November 24, 2009, the trial court denied Appellant s motion, finding not only were the issues raised barred by the doctrine of res judicata, but also no demonstration of a manifest injustice. {¶4} It is from this judgment entry Appellant appeals. Appellant has failed to comply with App.R. 16(A)(3) as his Brief does not include [a] statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected. Appellant has simply provided this Court with a State of Issues , which reads: {¶5} I. WAS DEFENSE COUNSEL INEFFECTIVE BY NOT THOROUGHLY INVESTIGATING OR INFORMING HIS CLIENT OF THE FORTH [SIC] AMENDMENT RIGHTS? {¶6} II. WAS DEFENSE COUNSEL INEFFECTIVE, CREATING A MANIFEST INJUSTICE BY NOT MOTIONING [SIC] TO SUPPRESS ALL EVIDENCE DUE TO THE FACT THAT NO WARRANT WAS ISSUED NOR WAS VERIFIABLE CONSENT GIVEN? {¶7} III. WAS DEFENSE COUNSEL INEFFECTIVE FOR NOT OFFERING HIS CLIENT ANY OTHER AVENUE OF RESOLVE? Licking County, Case No. 09-CA-146 {¶8} 4 IV. WAS DEFENSE COUNSEL INEFFECTIVE FOR NOT MAINTAINING OHIO RULES OF PROFESSIONAL CONDUCT COMPETENCE, DILIGENCE, AND COMMUNICATION? {¶9} V. HAD DEFENSE COUNSEL INFORMED HIS CLIENT OF THE CURRENT SEARCH AND SEIZURE LAWS WOULD THE OUTCOME OF [SIC] BEEN 100% DIFFERENT? {¶10} Appellant appears to argue the trial court abused its discretion in denying his motion to withdraw his guilty plea as defense counsel s ineffectiveness resulted in a manifest injustice. {¶11} Ohio Crim. R. 32.1 governs the withdraw of a plea of guilty, and reads: {¶12} 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. {¶13} A Criminal Rule 32.1 motion 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 the trial court. State v. Reed, 7th Dist. No. 04 MA 236, 2005-Ohio-2925, ¶ 7, citing State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph two of the syllabus. An abuse of discretion implies the trial court's judgment was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Notably, a post-sentence withdrawal of a guilty plea is only available in extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324. Licking County, Case No. 09-CA-146 5 {¶14} We find the trial court did not abuse its discretion in denying Appellant s motion to withdraw guilty plea. Appellant has failed to demonstrate a manifest injustice for which he is entitled to withdraw his guilty plea. Manifest injustice has been defined as a clear or openly unjust act. State v. Walling, 3d App. Dist. No. 17-04-12, 2005Ohio-428 ¶6. The burden of proof is on Appellant. State v. Totten, 10th App. Dist. Nos. 05AP-278, 05AP-508, 2005-Ohio-6210, ¶5.2 {¶15} The judgment of the Licking County Court of Common Pleas is affirmed. By: Hoffman, J. Gwin, P.J. and Wise, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN s/ John W. Wise _____________________ HON. JOHN W. WISE 2 Having determined the trial court did not abuse its discretion in concluding no manifest injustice was demonstrated warranting withdrawal of the plea, we find it is unnecessary to address Appellant s contention the trial court committed error by finding res judicata also barred Appellant s motion according to the two-issue rule. Licking County, Case No. 09-CA-146 6 IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsRUSSELL R. TOOPS Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 09-CA-146 For the reason stated in our accompanying Opinion, the judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN s/ John W. Wise _____________________ HON. JOHN W. WISE

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