[Cite as State v. Burton, 2023-Ohio-4370.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0010
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
JERRY T. BURTON, Trial Court No. 2019 CR 00704 Defendant-Appellant.
OPINION
Decided: December 4, 2023 Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Sean P. Martin, P.O. Box 716, Willoughby, OH 44096 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Jerry T. Burton, appeals the denial of his post-
sentence motion to withdraw his guilty plea. For the following reasons, we affirm the
judgment of the Portage County Court of Common Pleas.
{¶2} On July 31, 2019, the Portage County Grand Jury issued a three-count
indictment charging appellant with failure to comply with order or signal of a police officer,
a third degree felony, in violation of R.C. 2921.331 (Count One), receiving stolen property,
a fourth degree felony, in violation of R.C. 2913.51 (Count Two), and driving under
suspension, a first degree misdemeanor, in violation of R.C. 4510.11 (Count Three). {¶3} As to Count One, the indictment states that on or about June 5, 2019,
appellant “did operate a motor vehicle * * * so as willfully to elude or flee a police officer
after receiving a visible or audible signal from a police officer to bring his motor vehicle to
a stop; and the operation of the motor vehicle by the said Jerry T. Burton caused a
substantial risk of serious physical harm to persons or property” in Portage County, Ohio.
{¶4} The indictment as to Count Two provides that on or about June 5, 2019,
appellant “did receive, retain or dispose of certain property, being a 2017 Hyundai Elantra,
VIN#5NPD74LF9HH112783, the property of another, one Anna M. Langham, * * * Burton
knowing or having reasonable cause to believe said property had been obtained through
the commission of a theft offense, and the property involved is a motor vehicle * * * ” in
Portage County, Ohio.
{¶5} Finally, as to Count Three, the indictment states on or about June 5, 2019,
appellant did “operate any motor vehicle upon the public highway within the State of Ohio,
when [his] driver’s license or commercial driver’s license or permit or other nonresident
driving privileges has been suspended under any provision of the Revised Code * * * or
under an applicable law in any other jurisdiction in which the person’s license or permit
was issued during the period of suspension” in Portage County, Ohio.
{¶6} Appellant initially entered a plea of not guilty at arraignment.
{¶7} On February 12, 2020, a plea hearing was held and a written plea of guilty
was executed by appellant. According to the written plea agreement, appellant entered
a plea of guilty to Counts One and Two of the indictment. In exchange for his plea, the
State dismissed the remaining count, Count Three. The agreement, signed by appellant,
Case No. 2023-P-0010 detailed the constitutional rights he waived because of his plea and included a description
of his appellate rights. A PSI was ordered.
{¶8} The trial court sentenced appellant on June 22, 2020, to 12 months of
intensive supervised probation and 48 months of basic probation. He was ordered to
complete Thinking for a Change, to continue counseling through Signature Health, and
to take prescribed medication. The court imposed a $300.00 fine and suspended
appellant’s driver’s license for seven years. Appellant did not appeal this entry.
{¶9} On November 10, 2020, a motion to revoke/extend probation was filed
which alleged that appellant “pled guilty in Lake County Common Pleas Court to Failure
to Comply with Order or Signal of Police (F-3); Weapons Under Disability (F-3), and
Criminal Damaging or Endangering (M-2).”
{¶10} Appellant appeared before the trial court on a probation violation on January
22, 2021. The assistant prosecuting attorney informed the court below that appellant was
sentenced to a five-year sentence on an unrelated conviction in Lake County, Ohio.
Appellant admitted the violation. The trial court concluded that “more restrictive sanctions
are necessary” and terminated appellant’s probation. The trial court sentenced him to 24
months on Count One and 12 months on Count Two and ordered the sentences to be
served concurrently to each other but consecutively to the five-year sentence imposed by
Lake County in the separate and unrelated case. Appellant did not appeal this entry.
{¶11} On January 17, 2023, appellant filed a pro se motion requesting judicial
release. The trial court denied that motion.
Case No. 2023-P-0010 {¶12} On February 22, 2023, appellant filed a pro se motion to withdraw his guilty
plea pursuant to Crim.R. 32.1. Two days later, the trial court denied his motion without
hearing. Appellant now appeals.
{¶13} On appeal, appellant raises the following three assignments of error:
[1.] “The trial court abused their discretion by denying appellant’s Motion to Withdraw Plea.”
[2.] “Trial counsel committed ineffective assistance of counsel of by failing to raise a Double Jeopardy defense.”
[3.] “The Appellant’s conviction in Portage County violated the Double Jeopardy Clause.”
These assignments of errors as presented will be considered jointly.
{¶14} A criminal defendant’s plea must be made knowingly, intelligently, and
voluntarily. “Failure on any of those points renders enforcement of the plea
unconstitutional under both the United States Constitution and the Ohio Constitution.”
State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Crim.R. 11 was enacted
and adopted “to ensure compliance with the constitutional mandates.” State v. McDaniel,
11th Dist. Portage No. 2017-P-0098, 2020-Ohio-7003, ¶ 11. There is a presumption that
a plea was knowingly, intelligently, and voluntarily entered when a trial court complies
with Crim.R. 11. State v. Haines, 11th Dist. Ashtabula No. 2022-A-0106, 2013-Ohio-3016,
¶ 8.
{¶15} “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.”
Crim.R. 32.1.
Case No. 2023-P-0010 {¶16} This Court noted in State v. Haines, 11th Dist. Ashtabula No. 2022-A-0106,
2023-Ohio-3016, ¶ 11:
“Ohio courts have held that ‘manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.’” (Citation omitted.) State v. Bradford, 8th Dist. Cuyahoga Nos. 110907 et al., 2022-Ohio-1503, ¶ 12; State v. Jones, 4th Dist. Gallia No. 19CA9, 2020-Ohio-7037, ¶ 21 (“[a] trial court violates a defendant's due process rights, and hence may produce a manifest injustice, if it accepts a guilty plea that the defendant did not enter knowingly, intelligently, and voluntarily”) (citation omitted). Accordingly, “[i]f a defendant shows that he or she did not enter a plea knowingly, intelligently or voluntarily, the defendant may establish a manifest injustice sufficient to warrant withdrawal of the guilty plea under Crim.R. 32.1.” (Citation omitted.) State v.
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[Cite as State v. Burton, 2023-Ohio-4370.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0010
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
JERRY T. BURTON, Trial Court No. 2019 CR 00704 Defendant-Appellant.
OPINION
Decided: December 4, 2023 Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Sean P. Martin, P.O. Box 716, Willoughby, OH 44096 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Jerry T. Burton, appeals the denial of his post-
sentence motion to withdraw his guilty plea. For the following reasons, we affirm the
judgment of the Portage County Court of Common Pleas.
{¶2} On July 31, 2019, the Portage County Grand Jury issued a three-count
indictment charging appellant with failure to comply with order or signal of a police officer,
a third degree felony, in violation of R.C. 2921.331 (Count One), receiving stolen property,
a fourth degree felony, in violation of R.C. 2913.51 (Count Two), and driving under
suspension, a first degree misdemeanor, in violation of R.C. 4510.11 (Count Three). {¶3} As to Count One, the indictment states that on or about June 5, 2019,
appellant “did operate a motor vehicle * * * so as willfully to elude or flee a police officer
after receiving a visible or audible signal from a police officer to bring his motor vehicle to
a stop; and the operation of the motor vehicle by the said Jerry T. Burton caused a
substantial risk of serious physical harm to persons or property” in Portage County, Ohio.
{¶4} The indictment as to Count Two provides that on or about June 5, 2019,
appellant “did receive, retain or dispose of certain property, being a 2017 Hyundai Elantra,
VIN#5NPD74LF9HH112783, the property of another, one Anna M. Langham, * * * Burton
knowing or having reasonable cause to believe said property had been obtained through
the commission of a theft offense, and the property involved is a motor vehicle * * * ” in
Portage County, Ohio.
{¶5} Finally, as to Count Three, the indictment states on or about June 5, 2019,
appellant did “operate any motor vehicle upon the public highway within the State of Ohio,
when [his] driver’s license or commercial driver’s license or permit or other nonresident
driving privileges has been suspended under any provision of the Revised Code * * * or
under an applicable law in any other jurisdiction in which the person’s license or permit
was issued during the period of suspension” in Portage County, Ohio.
{¶6} Appellant initially entered a plea of not guilty at arraignment.
{¶7} On February 12, 2020, a plea hearing was held and a written plea of guilty
was executed by appellant. According to the written plea agreement, appellant entered
a plea of guilty to Counts One and Two of the indictment. In exchange for his plea, the
State dismissed the remaining count, Count Three. The agreement, signed by appellant,
Case No. 2023-P-0010 detailed the constitutional rights he waived because of his plea and included a description
of his appellate rights. A PSI was ordered.
{¶8} The trial court sentenced appellant on June 22, 2020, to 12 months of
intensive supervised probation and 48 months of basic probation. He was ordered to
complete Thinking for a Change, to continue counseling through Signature Health, and
to take prescribed medication. The court imposed a $300.00 fine and suspended
appellant’s driver’s license for seven years. Appellant did not appeal this entry.
{¶9} On November 10, 2020, a motion to revoke/extend probation was filed
which alleged that appellant “pled guilty in Lake County Common Pleas Court to Failure
to Comply with Order or Signal of Police (F-3); Weapons Under Disability (F-3), and
Criminal Damaging or Endangering (M-2).”
{¶10} Appellant appeared before the trial court on a probation violation on January
22, 2021. The assistant prosecuting attorney informed the court below that appellant was
sentenced to a five-year sentence on an unrelated conviction in Lake County, Ohio.
Appellant admitted the violation. The trial court concluded that “more restrictive sanctions
are necessary” and terminated appellant’s probation. The trial court sentenced him to 24
months on Count One and 12 months on Count Two and ordered the sentences to be
served concurrently to each other but consecutively to the five-year sentence imposed by
Lake County in the separate and unrelated case. Appellant did not appeal this entry.
{¶11} On January 17, 2023, appellant filed a pro se motion requesting judicial
release. The trial court denied that motion.
Case No. 2023-P-0010 {¶12} On February 22, 2023, appellant filed a pro se motion to withdraw his guilty
plea pursuant to Crim.R. 32.1. Two days later, the trial court denied his motion without
hearing. Appellant now appeals.
{¶13} On appeal, appellant raises the following three assignments of error:
[1.] “The trial court abused their discretion by denying appellant’s Motion to Withdraw Plea.”
[2.] “Trial counsel committed ineffective assistance of counsel of by failing to raise a Double Jeopardy defense.”
[3.] “The Appellant’s conviction in Portage County violated the Double Jeopardy Clause.”
These assignments of errors as presented will be considered jointly.
{¶14} A criminal defendant’s plea must be made knowingly, intelligently, and
voluntarily. “Failure on any of those points renders enforcement of the plea
unconstitutional under both the United States Constitution and the Ohio Constitution.”
State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Crim.R. 11 was enacted
and adopted “to ensure compliance with the constitutional mandates.” State v. McDaniel,
11th Dist. Portage No. 2017-P-0098, 2020-Ohio-7003, ¶ 11. There is a presumption that
a plea was knowingly, intelligently, and voluntarily entered when a trial court complies
with Crim.R. 11. State v. Haines, 11th Dist. Ashtabula No. 2022-A-0106, 2013-Ohio-3016,
¶ 8.
{¶15} “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.”
Crim.R. 32.1.
Case No. 2023-P-0010 {¶16} This Court noted in State v. Haines, 11th Dist. Ashtabula No. 2022-A-0106,
2023-Ohio-3016, ¶ 11:
“Ohio courts have held that ‘manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.’” (Citation omitted.) State v. Bradford, 8th Dist. Cuyahoga Nos. 110907 et al., 2022-Ohio-1503, ¶ 12; State v. Jones, 4th Dist. Gallia No. 19CA9, 2020-Ohio-7037, ¶ 21 (“[a] trial court violates a defendant's due process rights, and hence may produce a manifest injustice, if it accepts a guilty plea that the defendant did not enter knowingly, intelligently, and voluntarily”) (citation omitted). Accordingly, “[i]f a defendant shows that he or she did not enter a plea knowingly, intelligently or voluntarily, the defendant may establish a manifest injustice sufficient to warrant withdrawal of the guilty plea under Crim.R. 32.1.” (Citation omitted.) State v. Artuso, 11th Dist. Ashtabula No. 2022-A-0009, 2022-Ohio-3283, ¶ 21; see also State v. Garcia, 11th Dist. Ashtabula No. 2022-A- 0066, 2023-Ohio-2446, ¶ 13.”
{¶17} We review a trial court’s decision regarding a motion to withdraw a plea
under an abuse-of-discretion standard. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-
6894, 820 N.E.2d 355, ¶ 32; State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129
N.E.3d 404, ¶ 13.
{¶18} Appellant asserts that he should be permitted to withdraw his plea on the
grounds that his conviction in Portage County violates the double jeopardy clause, and
that his trial counsel was ineffective for refusing to raise the claim in the trial court at the
time of his plea in February 2020. Appellant’s claims are procedurally barred.
{¶19} “Motions filed pursuant to Crim.R. 32.1 are subject to the doctrine of res
judicata.” State v. Rock, 11th Dist. Lake No. 2018-L-021, 2018-Ohio-4175, ¶ 9, citing
State v. Gegia, 11th Dist. Portage No. 2003-P-0026, 2004-Ohio-1441, ¶ 24. “‘Thus, “when
presented with a motion to withdraw a guilty plea * * *, [trial courts and appellate courts]
Case No. 2023-P-0010 should consider first whether the claims raised in that motion are barred by res judicata.”’
[Gegia], quoting State v. Reynolds, 3d Dist. Putnam No. 12-01-11, 2002-Ohio-2823, ¶
27.” Rock, at ¶ 9. “If the claim is not barred by res judicata, courts can then apply the
manifest injustice standard in accordance with Crim.R. 32.1.” Id., citing Reynolds, supra,
at ¶ 27.
{¶20} The doctrine of res judicata operates to prevent relitigation of issues that
were already decided by a court and litigation of matters that should have been brought
in a previous action. Rock at ¶ 10, citing State v. McDonald, 11th Dist. Lake No. 2003-L-
155, 2004-Ohio-6332, ¶ 21. As such, res judicata will bar claims raised in a post-
sentencing motion to withdraw guilty plea that could have been raised in a prior
proceeding. Id.
{¶21} Upon review, we conclude that res judicata bars appellant’s claims. Notably,
appellant filed his motion to withdraw his guilty plea on February 22, 2023, thirty-two (32)
months after he was originally sentenced and twenty-five (25) months after the trial court
revoked his community control sanctions. Appellant alleged below that he spoke with trial
counsel at the time of his plea about a possible double jeopardy claim. According to the
appellant, his trial counsel refused to raise the issue to the lower court. Despite the
opportunity to do so, Appellant also did not inform the trial court of any concerns when
addressed by the trial court at the plea hearing or at his sentencing hearing.
{¶22} Further, appellant did not file a direct appeal from the entry on sentence.
Appellant could have raised both the ineffective assistance of trial counsel and double
jeopardy claims in a direct appeal of his conviction. He failed to do so, thus, res judicata
Case No. 2023-P-0010 bars him from raising them now. State v. Curry, 11th Dist. Ashtabula No. 2014-A-0056,
2015-Ohio-1768, ¶ 8.
{¶23} Since appellant’s claims are res judicata barred, this Court need not review
for manifest injustice. Rock at ¶ 9. Therefore, we conclude that the trial court did not
abuse its discretion when it denied appellant’s post-sentence motion to withdraw his plea.
{¶24} Based on the opinion of this court, none of appellant’s assignments of error
have merit and the judgment of the Portage County Court of Common Pleas is affirmed.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2023-P-0010