[Cite as State v. Johnson,
2020-Ohio-3892.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108937
v. :
MARVIN F. JOHNSON, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 30, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-594187-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Patrick Lavelle, Assistant Prosecuting
Attorney, for appellee.
Marvin F. Johnson, Sr., pro se.
MICHELLE J. SHEEHAN, J.:
Marvin Johnson appeals from a judgment of the trial court denying his
motion to withdraw his no-contest plea. After a review of the record and applicable
law, we affirm the judgment of the trial court.
Procedural Background
Johnson was indicted in March 2015 for drug trafficking, drug
possession, and possession of criminal tools. Johnson filed a motion to suppress the
evidence. After a hearing, the trial court denied the motion. Subsequently, Johnson
pleaded no contest to the indictment.
On May 26, 2016, the trial court sentenced Johnson to six years in
prison for drug trafficking, after finding drug possession to be an allied offense of
drug trafficking. The court also imposed a concurrent six-month prison term for
possessing criminal tools. The trial court then deferred execution of the sentence
and placed Johnson on supervised release and electronic home detention so that
Johnson could undergo a heart procedure on July 22, 2016. The trial court directed
Johnson to report to jail on August 1, 2016, and warned him that if he failed to
appear, the court would vacate his six-year sentence and impose a longer one.
Johnson failed to appear on August 1, 2016, and the trial court resentenced Johnson
on February 13, 2017, to eight years in prison.
Johnson I
Johnson appealed from the trial court’s judgment. He argued that the
trial court erred in denying his motion to suppress evidence; his eight-year prison
term was not supported by the record; the trial court erred when it resentenced him
to an increased prison term of eight years after initially imposing a six-year term;
and that he was denied the effective assistance of counsel when his trial counsel
failed to object to the increased prison term of eight years and had also failed to
object to the issuance of a capias for Johnson's failure to appear in court due to
medical reasons.
On appeal, this court held that the trial court lacked authority to
resentence Johnson to an eight-year term in February 2017 and the original
sentence was still in effect. This court remanded the case for the limited purpose of
executing the original sentence. State v. Johnson, 8th Dist. Cuyahoga No. 105560,
2018-Ohio-169, appeal not accepted,
152 Ohio St.3d 1484,
2018-Ohio-1990,
98
N.E.3d 296 (“Johnson I”). Johnson’s ineffective-assistance-of-counsel claim was
found moot.
Johnson II
After Johnson filed the notice of appeal from the trial court’s
February 13, 2017 judgment, on March 24, 2017, he filed a “Petition to Vacate or Set
Aside Judgment of Conviction or Sentence.” He argued that his due process rights,
the right against cruel and unusual punishment, and the right to effective assistance
of counsel were violated. For the ineffective assistance of counsel claim, he alleged
that he was denied effective assistance of counsel from each of his trial attorneys at
various stages of the proceedings.
The trial court construed his motion as a petition for postconviction
relief and found that the motion was barred by res judicata because the newly raised
claims could have been raised in his direct appeal and Johnson offered no evidence
outside the record for the claims. On appeal, this court affirmed the trial court’s
judgment, finding his claims could have been raised on direct appeal because the
claims did not rely on evidence outside of the record, and therefore, they were barred
by res judicata. State v. Johnson, 8th Dist. Cuyahoga No. 105855, 2018-Ohio-178
(“Johnson II”).
Johnson III
On remand from Johnson I, the trial court held a hearing on March 29,
2018. The trial court reinstated Johnson's original six-year prison sentence
pursuant to the directive given by the court in Johnson I.
Johnson appealed from the decision. He argued that his no-contest
plea was not entered knowingly, intelligently, or voluntarily. This court found the
doctrine of res judicata barred his claim because he could have raised the argument
regarding his no-contest plea in his direct appeal but did not. State v. Johnson, 8th
Dist. Cuyahoga No. 107126, 2019-Ohio-632, appeal not accepted,
156 Ohio St.3d
1445,
2019-Ohio-2498,
125 N.E.3d 928 (“Johnson III”). Johnson also argued the
trial court sentenced him to six years in prison out of vindictiveness. The court
found his claim that the trial court was vindictive was also barred by res judicata.
A day before that hearing, on March 28, 2018, Johnson filed a motion
to withdraw his no-contest plea. His motion was based on his claim that his plea
was not knowing, intelligent, or voluntary because the plea was “induced by an
implied statement by the Prosecutor during the plea bargaining process,” the trial
judge “interfered in the plea bargain discussions,” and his counsel failed “to meet a
valid legal standard during the plea bargaining process.” The trial court denied the
motion to withdraw as moot. On appeal, however, this court sustained Johnson’s
assignment of error regarding the trial court’s denial of his motion to withdraw on
the ground that the transcript of the March 29, 2018 hearing reflected that the trial
court had not yet seen his motion to withdraw before denying it as moot. This court
therefore remanded the case for the trial court to consider his March 28, 2018
motion to withdraw his plea.
The Instant Appeal
On remand from Johnson III, on August 8, 2019, the trial court held a
hearing on Johnson’s motion to withdraw the no-contest plea. At the hearing,
Johnson stated his motion to withdraw was based on infective assistance of counsel
in the plea bargain stage: more specifically, counsel filed a motion to suppress,
which caused him to lose out on the opportunity of a plea bargain.
The trial court noted that Johnson had already raised an ineffective-
assistance-of-counsel claim in his direct appeal, Appeal No. 105660 (Johnson I), and
he raised another ineffective-assistance-of-counsel claim in Appeal No. 105855
(Johnson II), which the Eighth District found to be barred by res judicata because
the claim could have been raised in his direct appeal. The trial court denied his
motion to withdraw on the ground of res judicata.
Johnson appeals from the decision. His assignments of error state:
The trial court abused its discretion by considering appellant’s
Crim.R. 32.1 motion to withdraw no contest plea as a post-sentence
motion instead of a pre-sentence motion, violating his rights under
the Fourteenth Amendment of the United States Constitution, and
Section 10 & 16, Article I, of the Ohio Constitution.
The trial court abused its discretion by denying appellant’s
Crim.R. 32.1 motion to withdraw no contest plea [to correct manifest
injustice], violating his rights under the Fourteenth Amendment of
the United States Constitution, and Section 10 & 16, Article I, of the
Ohio Constitution.
For ease of discussion, we address the two assignments together.
Johnson argues his motion to withdraw should be treated as a
presentence motion to withdraw and considered under a more liberal standard.
Crim.R. 32.1 governs withdrawals of guilty pleas and provides that “[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.” In
contrast, a presentence motion to withdraw a guilty plea, generally, should be freely
and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527,
584 N.E.2d 715 (1992).
We agree with the state, however, that Johnson’s March 28, 2018
motion to withdraw the no-contest plea is a postsentence motion. The record
reflects that the execution of Johnson’s original six-year term imposed by the trial
court was stayed to allow him to undergo a heart procedure. When he failed to
appear on the scheduled date to begin his sentence, a capias was issued for him and
the trial court increased his sentence to eight years. In Johnson I, this court held
that the trial court lacked authority to resentence him and the original six-year term
was still in effect. Johnson I at ¶ 46. As the original six-year term was imposed on
May 26, 2016, the March 28, 2018 motion to withdraw is a postsentence motion.
More importantly, regardless of whether the motion is considered a
presentence or postsentence motion, we note that Johnson’s motion to withdraw
was based on a claim of ineffective assistance of counsel. This is the third occasion
where Johnson raised a claim of ineffective assistance of counsel.
The Supreme Court of Ohio explained the application of res judicata in
criminal cases as follows:
Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding,
except an appeal from that judgment, any defense or 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.) State v. Perry, 10 Ohio St.2d 175, 180,
226 N.E.2d 104 (1967).
In his direct appeal (Johnson I), Johnson raised the ineffective-
assistance-of-counsel claim in his fourth assignment of error alleging counsel
provided ineffective assistance at the February 13, 2017 sentencing hearing, when
the court imposed the eight-year sentence. He raised the ineffective-assistance-of-
counsel claim again in his “Petition to Vacate or Set Aside Judgment of Conviction
or Sentence,” alleging that each of his trial attorneys provided ineffective assistance
at different stages of the proceedings. In Johnson II, this court determined that the
ineffective-assistance-of-counsel claim was barred by res judicata because he could
have raised the claim in Johnson I. This court explained that the trial court may
dismiss a petition for postconviction relief based on res judicata if it finds that the
petitioner could have raised the issues on direct appeal without resorting to evidence
beyond the scope of the record. Johnson II at ¶ 16, citing State v. Abdussatar, 8th
Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 16, citing State v. Scudder,
131 Ohio
App.3d 470, 475,
722 N.E.2d 1054 (10th Dist.1998).
Similarly, the latest ineffective assistance of counsel claim (that
counsel’s filing of the motion to suppress caused him to lose out on the opportunity
of a plea bargain), upon which his March 28, 2018 motion to withdraw was
predicated, could have been raised in his direct appeal but was not. “Res judicata
generally bars a defendant from raising claims in a Crim.R.32.1 post-sentencing
motion to withdraw a guilty plea that he raised or could have raised on direct
appeal.” State v. Straley, Slip Opinion No. 2019-Ohio-5206, ¶ 23, citing State v.
Ketterer,
126 Ohio St.3d 448,
2010-Ohio-3831,
935 N.E.2d 9, ¶ 59. See also State
v. Cobb, 8th Dist. Cuyahoga No. 93404,
2010-Ohio-5118, ¶ 10, and State v.
Fountain, 8th Dist. Cuyahoga Nos. 92772 and 92874,
2010-Ohio-1202,
¶ 9 (“this court has consistently recognized that the doctrine of res judicata bars all
claims raised in a Crim.R. 32.1 motion that were raised or could have been raised in
a prior proceeding, including a direct appeal”). The trial court properly concluded
that Johnson’s claim was barred by res judicata and denied his motion to withdraw
the no-contest plea.
Judgment affirmed.
It is ordered that appellee recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________
MICHELLE J. SHEEHAN, JUDGE
SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR
