[Cite as State v. Cain,
2021-Ohio-1841.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1126
Appellee Trial Court No. CR0201801710
v.
Michael E. Cain DECISION AND JUDGMENT
Appellant Decided: May 28, 2021
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Michael E. Cain, pro se.
…
PIETRYKOWSKI, J.
{¶ 1} Appellant, Michael Cain, appeals the judgment of the Lucas County Court of
Common Pleas, denying his post-sentence motion to withdraw his guilty plea. For the
reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On April 19, 2018, the Lucas County Grand Jury indicted appellant on one
count of felonious assault in violation of R.C. 2903.11(A)(2) and (D), a felony of the
second degree, with an attendant firearm specification pursuant to R.C. 2941.145(A), (B),
(C), and (F), and one count of aggravated menacing in violation of R.C. 2903.21(A) and
(B), a misdemeanor of the first degree.
{¶ 3} On July 31, 2018, appellant withdrew his initial plea of not guilty, and
entered a plea of guilty pursuant to North Carolina v. Alford, to the count of felonious
assault. In exchange for his plea, the state agreed to dismiss the firearm specification and
the count of aggravated menacing, and to recommend that any prison sentence not exceed
two years. Prior to accepting the guilty plea, the trial court conducted a Crim.R. 11
colloquy with appellant during which the following exchange occurred:
THE COURT: With respect to the State’s recommendation of a
two-year sentencing cap, do you understand that that’s just a
recommendation, that I don’t have to follow it if I choose not to?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And knowing that, do you still wish to go forward
with the plea?
THE DEFENDANT: Yes, ma’am.
THE COURT: Are you satisfied with the amount of time you’ve
had to speak with your attorney about this case?
2.
THE DEFENDANT: Yes, ma’am.
THE COURT: Are you satisfied with his advice and counsel?
THE DEFENDANT: Yes, ma’am.
THE COURT: Did anyone force you to enter this plea?
THE DEFENDANT: No, ma’am.
THE COURT: Did anyone promise you anything to get you to enter
this plea?
THE DEFENDANT: No, ma’am.
THE COURT: You’re doing it voluntarily?
THE DEFENDANT: Yes, ma’am.
THE COURT: As I stated, you are entering a plea to a felony of the
second degree. Do you understand that that offense carries a penalty of two
to eight years in a state institution?
THE DEFENDANT: Yes, ma’am.
Thereafter, the trial court accepted appellant’s guilty plea, and the matter was continued
for sentencing on August 22, 2018.
{¶ 4} At the sentencing hearing, the court heard statements from appellant and his
counsel in mitigation. The state then read a victim impact statement, and conveyed its
desire to abide by the terms of the plea agreement. Upon consideration, the trial court
sentenced appellant to serve a term of four years in prison.
{¶ 5} Appellant did not appeal his conviction and sentence.
3.
{¶ 6} Over one and one-half years later, on March 16, 2020, appellant moved to
withdraw his guilty plea pursuant to Crim.R. 32.1. In his motion, appellant argued that
his trial counsel was ineffective for failing to notify him that the trial court judge was not
bound by the state’s sentencing recommendation of two years in prison. Additionally,
appellant argued that he was never advised by the trial court that he had the right to make
a statement in mitigation at his sentencing hearing. For these reasons, appellant
requested that the trial court impose the two-year prison sentence that was recommended
by the plea deal, and release him from prison at the end of those two years.
{¶ 7} On June 16, 2020, the trial court denied appellant’s motion to withdraw his
guilty plea. The trial court reasoned that appellant failed to establish that his counsel’s
performance was deficient, and that appellant in fact was notified that the state’s
sentencing recommendation was not binding on the court. The court further noted that
appellant stated that he was entering the plea voluntarily, affirmed that he was satisfied
with his attorney’s advice and counsel, and signed a plea form acknowledging that he
understood his rights and the potential sentence he was facing. As to his right to make a
statement in mitigation at the sentencing hearing, the trial court found that both appellant
and his counsel spoke in mitigation. Finally, the court recognized that the nearly two-
year delay between appellant’s sentence and his motion to withdraw his guilty plea was a
factor that adversely affected appellant’s good faith and credibility when all of the
allegations supporting his motion were known at the time of sentencing. Therefore, the
4.
trial court found that appellant did not meet his burden of proving a manifest injustice,
and denied appellant’s motion to withdraw his guilty plea.
II. Assignments of Error
{¶ 8} Appellant has appealed the trial court’s June 16, 2020 judgment, and now
presents two assignments of error for our review:
1. Trial counsel for Mr. Cain denied his Sixth and Fourteenth
Amendment rights to effective assistance of counsel.
2. Trial counsel for Mr. Cain allowed the trial court to violate the
colloquy under Criminal Rule 32(A).
III. Analysis
{¶ 9} Because both of appellant’s assignments of error challenge the basis for the
trial court’s denial of his post-sentence motion to withdraw his guilty plea, they will be
addressed together.
{¶ 10} Crim.R. 32.1 provides, “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.”
{¶ 11} At the outset, we hold that appellant’s arguments in his post-sentence
motion to withdraw his guilty plea are barred by res judicata. “It is well established, by
relevant Ohio caselaw, that claims submitted in support of motions filed pursuant to
Crim.R. 32.1 are subject to the doctrine of res judicata.” State v. Davis, 2020-Ohio-4539,
5.
159 N.E.3d 331, ¶ 25 (6th Dist.). “Application of the doctrine of res judicata prevents
relitigation of issues that were already decided by a court and litigation of matters that
should have been brought in a previous action.” Id. at ¶ 27, citing State v. Rock, 11th
Dist. Lake No. 2018-L-021,
2018-Ohio-4175, ¶ 10. “Res judicata bars claims raised in a
Crim.R. 32.1 post-sentence motion to withdraw guilty plea that were raised or could have
been raised in a prior proceeding.”
Id., quoting State v. McDonald, 11th Dist. Lake No.
2003-L-155,
2004-Ohio-6332, ¶ 22.
{¶ 12} Here, appellant argued that his plea was not knowing, intelligent, and
voluntary due to the ineffectiveness of his trial counsel in that he was coerced into
pleading guilty under the promise of receiving at most a two-year prison sentence, and he
was not informed that the trial court was not bound to accept the recommended two-year
prison sentence. Alternatively, appellant argued that the trial court failed to inform him
that he could speak in mitigation at his sentencing hearing. We find that these arguments,
and the information upon which they rely, are based entirely on the record from the plea
hearing and sentencing hearing. As such, appellant’s arguments were available to him at
the time of a direct appeal, and his failure to raise those arguments on direct appeal
precludes him from raising them one and one-half years later in a post-sentence motion to
withdraw his guilty plea. See Davis at ¶ 29 (claims made in defendant’s post-sentence
motion to withdraw his guilty pleas—which included claims that the pleas were not
knowing, intelligent, or voluntary, that he had ineffective assistance of counsel, and that
he was coerced into entering the guilty pleas—were barred by res judicata because they
6.
were not raised on direct appeal); State v. Reynolds, 3d Dist. Putnam No. 12-01-11, 2002-
Ohio-2823, ¶ 14 (“[A] defendant’s failure to appeal a judgment of conviction bars as
res judicata any subsequent attempt to litigate issues that could have been raised on a
direct appeal.”). Therefore, appellant’s assignments of error are not-well taken.
{¶ 13} Moreover, appellant’s claims fail on the merits.
{¶ 14} “A defendant who seeks to withdraw a guilty plea after the imposition of
sentence has the burden of establishing the existence of manifest injustice.” Davis at
¶ 20, quoting State v. Smith,
49 Ohio St.2d 261,
361 N.E.2d 1324 (1977), paragraph one
of the syllabus. “A manifest injustice is defined as a ‘clear or openly unjust act.’
Manifest injustice is an extremely high standard, and a defendant may only withdraw his
guilty plea in extraordinary cases.” State v. Johnson, 6th Dist. Lucas No. L-11-1257,
2012-Ohio-4866, ¶ 9, quoting State v. Harmon, 6th Dist. Lucas No. L-10-1195, 2011-
Ohio-5035, ¶ 12.
{¶ 15} “The decision of whether manifest injustice occurred is left to the sound
discretion of the trial court.” Davis at ¶ 20, citing Smith at paragraph two of the syllabus.
Thus, we review the trial court’s denial of appellant’s post-sentence motion to withdraw
his guilty plea under an abuse of discretion standard. Id. at ¶ 21. An abuse of discretion
connotes that the trial court’s attitude is unreasonable, arbitrary, or unconscionable. State
v. Adams,
62 Ohio St.2d 151, 157,
404 N.E.2d 144 (1980).
{¶ 16} In this case, appellant argued that he is entitled to withdraw his guilty plea
because he suffered ineffective assistance of counsel when trial counsel failed to inform
7.
him that the court was not bound by the agreed upon sentencing recommendation.
To prove a claim of ineffective assistance, appellant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness, and a reasonable
probability exists that, but for counsel’s error, the result of the proceedings would have
been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
{¶ 17} Here, appellant has not demonstrated that the results of the proceedings
would have been different had trial counsel informed him that the court was not bound by
the sentencing recommendation. Indeed, the court itself informed appellant that it was
not bound by the sentencing recommendation. Knowing that, appellant affirmed that he
wished to go forward with his guilty plea. Thus, we find no merit to appellant’s first
argument in support of his motion to withdraw his guilty plea.
{¶ 18} Alternatively, appellant argued that the trial court failed to inform him that
he could speak in mitigation at his sentencing hearing. However, the record shows that
appellant was afforded the right to speak in mitigation, and that appellant exercised this
right. Thus, we find no merit to appellant’s second argument in support of his motion to
withdraw his guilty plea.
{¶ 19} Therefore, because appellant failed to provide any meritorious arguments
demonstrating manifest injustice in support of his post-sentence motion to withdraw his
guilty plea, we hold that the trial court did not abuse its discretion when it denied
appellant’s motion.
8.
{¶ 20} Accordingly, appellant’s first and second assignments of error are not well-
taken.
IV. Conclusion
{¶ 21} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Lucas County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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