[Cite as State v. Coley-Carr, 2014-Ohio-5556.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 101611
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
REZATA COLEY-CARR
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-572866-A
BEFORE: McCormack, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 18, 2014 FOR APPELLANT
Rezata Coley-Carr, pro se Inmate No. A-643630 Belmont Correctional Institution P.O. Box 540 Saint Clairsville, OH 43950
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Kevin R. Filiatraut Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} Defendant-appellant, Rezata Coley-Carr, appeals from a judgment of
the trial court denying his postsentence motion to withdraw his guilty plea.
Finding no merit to the appeal, we affirm the trial court’s judgment.
{¶2} A grand jury returned a nine-count indictment against appellant for
rape, with a sexually violent predator specification, two counts of kidnapping, with
sexual motivation and sexually violent predator specifications, aggravated burglary,
attempted felonious assault, tampering with evidence, attempted burglary,
aggravated menacing, and menacing by stalking.
{¶3} Appellant pleaded not guilty. On June 24, 2013, the day of trial,
appellant withdrew his plea of not guilty and pleaded guilty under a plea agreement.
He pleaded guilty to rape, with the deletion of the sexually violent predator
specification, in exchange for the nolling of all remaining counts. The transcript
of the plea hearing is not in the record, but a review of the court’s journal entry
indicates that appellant was represented by counsel and was fully advised in open
court of his constitutional rights. After accepting his plea, the trial court ordered a
presentence report and scheduled the sentencing for August 5, 2013.
{¶4} Within a week of his guilty plea, appellant filed a pro se motion to
withdraw his guilty plea. In the motion, he claimed he did not understand the
nature of the charge, the effect of the plea, or his rights as a criminal defendant. {¶5} On August 6, 2013, the trial court held the sentencing hearing as
scheduled. The transcript of the sentencing proceeding is not part of the record
either. A review of the sentencing entry reflects that appellant was represented by
counsel, he personally addressed the court, and the trial court considered all
required factors before sentencing him to ten years in prison for his offense of rape.
The court also imposed five years of postrelease control and found him to be a tier
III sex offender. The journal entry made no mention of the motion to withdraw.1
{¶6} Appellant did not file a direct appeal of his conviction. Five months
later, he filed a series of pro se motions: on March, 6, 2014, he filed three motions,
captioned as “Petition to vacate or set aside judgment of conviction or sentence,”
“Motion for expert assistance,” and “Motion for appointment of counsel.” On
March 12, 2014, the court granted his motion for counsel and assigned counsel to
represent him.
{¶7} Despite being represented by counsel, on April 4, 2014, appellant filed
another pro se motion. The introductory paragraph of the uncaptioned motion
stated, incongruously, the following: “Defendant files that the current sentence of
ten years is a case of diligent prosecution and effective counsel presenting hearsay
evidence as the evidence of fact and supported by the law as to Civ. Proc. 16(6) and
When the record indicates that the trial court never ruled on a motion, the motion is deemed 1
denied. State v. Ogle, 2012-Ohio-3693, 975 N.E.2d 563 (8th Dist.), ¶ 15. contention that the diligent prosecutor and effective counsel had sufficient evidence
to negotiate a plea of first degree felony for 2907.02 for the maximum sentence,
filed.”
{¶8} The instant matter began when on May 21, 2014, appellant, through
his appointed counsel, filed a “Motion for leave to withdraw guilty plea and
alternative petition for post-conviction relief pursuant to 2953.21.” Appellant
argued he should be permitted to withdraw his guilty plea because he thought he
was pleading guilty to a reduced charge of sexual battery. He also claimed that,
after his guilty plea and before sentencing, he told his counsel that he wanted to
withdraw his plea, but his counsel failed to notify the prosecution. Although the
brief attached to the motion referenced a sworn affidavit by appellant, the record
does not contain such an affidavit.
{¶9} The trial court denied the motion. Appellant appealed pro se from
that judgment. In his brief, he argues something different from his motion before
the trial court. He argues he was innocent of rape because the victim had agreed
to engage in sex with him for money. He claims he is only guilty of prostitution.
{¶10} Under Crim.R. 32.1, “[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.” Whether the motion is filed
before or after the sentence, it 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 that court.” State v. Smith, 49
Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus.
{¶11} The instant motion is styled as a “motion for leave to withdraw guilty
plea and alternative petition for post-conviction relief.” Whether we construe it as
a postsentence motion to withdraw a guilty plea or a postconviction petition, the
doctrine of res judicata bars appellant’s claim. See State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus (in a postconviction
proceeding, res judicata bars the assertion of claims against a valid, final judgment
of conviction that have been raised or could have been raised on appeal); State v.
Bryukhanova, 6th Dist. Fulton No. F-10-002, 2010-Ohio-5504, ¶ 12 (courts
repeatedly applied the doctrine of res judicata to postconviction Crim.R. 32.1
motions).
{¶12} Appellant could have raised the claims regarding his guilty plea on
direct appeal. Therefore, his claim is now barred by res judicata.
{¶13} Even if we were to review his motion to withdraw the guilty plea,
under the standard of Crim.R. 32.1, we would find no manifest injustice to be corrected by the trial court. “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.” State v. Ruby, 9th Dist. Summit No. 23219,
2007-Ohio-244, ¶ 11. “Under the manifest injustice standard, a postsentence
withdrawal motion is allowable only in extraordinary cases.” State v.
Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 61 (8th Dist.), citing State v.
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[Cite as State v. Coley-Carr, 2014-Ohio-5556.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 101611
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
REZATA COLEY-CARR
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-572866-A
BEFORE: McCormack, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 18, 2014 FOR APPELLANT
Rezata Coley-Carr, pro se Inmate No. A-643630 Belmont Correctional Institution P.O. Box 540 Saint Clairsville, OH 43950
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Kevin R. Filiatraut Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} Defendant-appellant, Rezata Coley-Carr, appeals from a judgment of
the trial court denying his postsentence motion to withdraw his guilty plea.
Finding no merit to the appeal, we affirm the trial court’s judgment.
{¶2} A grand jury returned a nine-count indictment against appellant for
rape, with a sexually violent predator specification, two counts of kidnapping, with
sexual motivation and sexually violent predator specifications, aggravated burglary,
attempted felonious assault, tampering with evidence, attempted burglary,
aggravated menacing, and menacing by stalking.
{¶3} Appellant pleaded not guilty. On June 24, 2013, the day of trial,
appellant withdrew his plea of not guilty and pleaded guilty under a plea agreement.
He pleaded guilty to rape, with the deletion of the sexually violent predator
specification, in exchange for the nolling of all remaining counts. The transcript
of the plea hearing is not in the record, but a review of the court’s journal entry
indicates that appellant was represented by counsel and was fully advised in open
court of his constitutional rights. After accepting his plea, the trial court ordered a
presentence report and scheduled the sentencing for August 5, 2013.
{¶4} Within a week of his guilty plea, appellant filed a pro se motion to
withdraw his guilty plea. In the motion, he claimed he did not understand the
nature of the charge, the effect of the plea, or his rights as a criminal defendant. {¶5} On August 6, 2013, the trial court held the sentencing hearing as
scheduled. The transcript of the sentencing proceeding is not part of the record
either. A review of the sentencing entry reflects that appellant was represented by
counsel, he personally addressed the court, and the trial court considered all
required factors before sentencing him to ten years in prison for his offense of rape.
The court also imposed five years of postrelease control and found him to be a tier
III sex offender. The journal entry made no mention of the motion to withdraw.1
{¶6} Appellant did not file a direct appeal of his conviction. Five months
later, he filed a series of pro se motions: on March, 6, 2014, he filed three motions,
captioned as “Petition to vacate or set aside judgment of conviction or sentence,”
“Motion for expert assistance,” and “Motion for appointment of counsel.” On
March 12, 2014, the court granted his motion for counsel and assigned counsel to
represent him.
{¶7} Despite being represented by counsel, on April 4, 2014, appellant filed
another pro se motion. The introductory paragraph of the uncaptioned motion
stated, incongruously, the following: “Defendant files that the current sentence of
ten years is a case of diligent prosecution and effective counsel presenting hearsay
evidence as the evidence of fact and supported by the law as to Civ. Proc. 16(6) and
When the record indicates that the trial court never ruled on a motion, the motion is deemed 1
denied. State v. Ogle, 2012-Ohio-3693, 975 N.E.2d 563 (8th Dist.), ¶ 15. contention that the diligent prosecutor and effective counsel had sufficient evidence
to negotiate a plea of first degree felony for 2907.02 for the maximum sentence,
filed.”
{¶8} The instant matter began when on May 21, 2014, appellant, through
his appointed counsel, filed a “Motion for leave to withdraw guilty plea and
alternative petition for post-conviction relief pursuant to 2953.21.” Appellant
argued he should be permitted to withdraw his guilty plea because he thought he
was pleading guilty to a reduced charge of sexual battery. He also claimed that,
after his guilty plea and before sentencing, he told his counsel that he wanted to
withdraw his plea, but his counsel failed to notify the prosecution. Although the
brief attached to the motion referenced a sworn affidavit by appellant, the record
does not contain such an affidavit.
{¶9} The trial court denied the motion. Appellant appealed pro se from
that judgment. In his brief, he argues something different from his motion before
the trial court. He argues he was innocent of rape because the victim had agreed
to engage in sex with him for money. He claims he is only guilty of prostitution.
{¶10} Under Crim.R. 32.1, “[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.” Whether the motion is filed
before or after the sentence, it 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 that court.” State v. Smith, 49
Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus.
{¶11} The instant motion is styled as a “motion for leave to withdraw guilty
plea and alternative petition for post-conviction relief.” Whether we construe it as
a postsentence motion to withdraw a guilty plea or a postconviction petition, the
doctrine of res judicata bars appellant’s claim. See State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus (in a postconviction
proceeding, res judicata bars the assertion of claims against a valid, final judgment
of conviction that have been raised or could have been raised on appeal); State v.
Bryukhanova, 6th Dist. Fulton No. F-10-002, 2010-Ohio-5504, ¶ 12 (courts
repeatedly applied the doctrine of res judicata to postconviction Crim.R. 32.1
motions).
{¶12} Appellant could have raised the claims regarding his guilty plea on
direct appeal. Therefore, his claim is now barred by res judicata.
{¶13} Even if we were to review his motion to withdraw the guilty plea,
under the standard of Crim.R. 32.1, we would find no manifest injustice to be corrected by the trial court. “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.” State v. Ruby, 9th Dist. Summit No. 23219,
2007-Ohio-244, ¶ 11. “Under the manifest injustice standard, a postsentence
withdrawal motion is allowable only in extraordinary cases.” State v.
Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 61 (8th Dist.), citing State v.
Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).
{¶14} Here, appellant pleaded guilty when a jury trial was imminent. After
the imminence of a trial was passed, he sought to withdraw his plea, claiming his
plea was not knowing or intelligent. However, he apparently did not raise the
issue at the subsequent sentencing hearing, because the sentencing entry recited the
fact that appellant pleaded guilty to rape. The sentencing entry also reflected that
appellant was represented by counsel and personally addressed the trial court. As
the sentencing transcript is not part of the record, we presume regularity of the
proceeding. Notably, appellant did not file a direct appeal of his conviction. In
the instant postconviction proceeding, appellant presented no credible evidence,
other than a purported self-serving affidavit, that he was mistaken at the plea
hearing about the charge he pleaded to. {¶15} Under these circumstances, appellant fails to demonstrate manifest
injustice to be correct by the trial court. The trial court did not abuse its discretion
in denying appellant’s motion to withdraw his guilty plea.
{¶16} 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.
______________________________________________ TIM McCORMACK, JUDGE
LARRY A. JONES, SR., P.J., and SEAN C. GALLAGHER, J., CONCUR