¶1 concurring.
¶2 {¶ 38} I concur with the majority opinion and write separately to raise one other basis for affirming the trial court’s decision. It is important to note that the fact of Tabbaa’s noncitizenship is contained in the record at his plea hearing in 1990. Therefore, the issue raised herein was reviewable on direct appeal, unlike the scenario presented in State v. Felix (Apr. 17, 1997), Cuyahoga App. No. 70898, 1997 WL 186838 (evidence of Felix’s noncitizenship was outside the record and therefore the court could not review the issue on direct appeal). I would, therefore, find that res judicata bars the instant challenge to his 1990 plea.
¶3 {¶ 39} As the Ohio Supreme Court held in State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus:
¶4 {¶ 40} “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” (Emphasis sic.)
¶5*359 {¶ 41} In the instant ease, Tabbaa failed to perfect an appeal of his conviction. Following Perry, the doctrine of res judicata bars his challenge of his guilty plea because the issues he raises now could have been fully litigated on direct appeal in 1991 or through delayed appeal in 1992 or 1993.
¶6 {¶ 42} I recognize that not every case presents a scenario for the application of res judicata. As the dissent points out, some offenses were not deportable until after 1996. In those cases, the presentation of competent, reliable, and material evidence outside the record may defeat the application of res judicata, but such evidence de hors the record must demonstrate that the defendant could not have appealed the claim based on information in the trial record.
¶7 {¶43} The dissent states that “[ajdding a vague time limitation, however, would be contrary to the legislative intent and mandate an unjust and unreasonable result.” However, the unreasonable and unjust result would be allowing Tabbaa to withdraw his plea 10 years after he was ordered deported and nearly 12 years after his plea was entered.