[Cite as State v. Harden, 2012-Ohio-1657.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24603
vs. : T.C. CASE NO. 95CR2190
CHARLES HARDEN : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 13th day of April, 2012.
Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst. Pros. Attorney, Atty. Reg. No. 0061560, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee
Charles Harden, # 43563-061, USP-Beaumont, P.O. Box 26030, Beaumont, Texas 77720 Defendant-Appellant, Pro Se
GRADY, P.J.:
{¶ 1} Defendant, Charles Harden, appeals from a final
judgment denying his postsentence Crim.R. 32.1 motion to withdraw
his guilty plea.
{¶ 2} Defendant was charged with aggravated arson, R.C. 2
2909.02(A)(2), after setting fire to his cell at Dayton
Correctional Institution on December 14, 1995. Defendant entered
a plea of guilty to the aggravated arson charge. The trial court
convicted Defendant on his guilty plea and sentenced Defendant
to a prison term of from five to twenty-five years. Defendant
did not appeal from his conviction.
{¶ 3} Defendant was subsequently released on parole. In
September 2003, Defendant was convicted of a federal firearm
offense and was sentenced to a prison term of one hundred and
eighty-eight months. Defendant remains incarcerated in a federal
prison.
{¶ 4} On August 3, 2004, Defendant filed a motion to withdraw
his guilty plea to the aggravated arson charge. Defendant claimed
that his mental health problems and his attorney’s failure to
investigate his competence prevented him from entering a knowing,
intelligent and voluntary guilty plea. The trial court overruled
Defendant’s motion on September 21, 2004. Defendant did not
appeal.
{¶ 5} In November 2004, Defendant filed an untimely petition
for post-conviction relief. As grounds for relief, Defendant
claimed that his trial counsel was ineffective because he failed
to investigate and present evidence of Defendant’s history of
mental health problems and the effects of the psychiatric
medications Defendant was taking. The trial court denied 3
Defendant’s post-conviction petition without a hearing on November
18, 2004, noting that it was based upon the same mental health
arguments Defendant previously raised and that had been rejected
in support of the motion to withdraw his guilty plea. Defendant
appealed the trial court’s decision denying his petition for
post-conviction relief, and we affirmed the trial court’s judgment
because Defendant’s petition was untimely and failed to demonstrate
any of the exceptions for untimely petitions in R.C. 2953.23.
State v. Harden, 2d Dist. Montgomery No. 20803, 2005-Ohio-5580.
{¶ 6} On March 11, 2008, Defendant filed his second motion
to withdraw his guilty plea. Defendant claimed, among other
things, that his plea was not knowing, intelligent and voluntary
due to the effects of the psychiatric medications he was taking
at the time and his mental health problems. The trial court
overruled Defendant’s motion on July 8, 2008. Defendant appealed
to this court and we affirmed the trial court’s judgment. State
v. Harden, 2d Dist. Montgomery No. 22839, 2009-Ohio-3431.
{¶ 7} On October 23, 2009, Defendant filed his third motion
to withdraw his guilty plea. Defendant claimed that his counsel
was not present at the time he entered his plea. The trial court
overruled Defendant’s motion on November 3, 2009. Defendant
appealed to this court and we again affirmed the trial court’s
judgment. State v. Harden, 2d Dist. Montgomery No. 23742,
2010-Ohio-5282. 4
{¶ 8} On December 8, 2010, Defendant filed his fourth motion
to withdraw his guilty plea. Defendant again claimed that he was
not competent to enter a knowing, intelligent and voluntary plea
due to his mental health problems, including auditory
hallucinations, the effects of the psychiatric medications he was
taking, and his counsel’s failure to investigate his competency.
The trial court overruled Defendant’s motion on April 6, 2011,
noting that Defendant’s latest claim which regarding his mental
health problems and the effects of the psychiatric medications
he was taking is barred by res judicata because those matters were
previously raised by Defendant in the trial court and rejected
by both the trial court and this court.
{¶ 9} Defendant has once again appealed to this court from
the trial court’s judgment denying his motion to withdraw his guilty
plea.
FIRST ASSIGNMENT OF ERROR
{¶ 10} “THE TRIAL COURT RELIED ON INCORRECT FACT AND A DEFICIENT
MEMORANDUM IN OPPOSITION TO OVERRULE MY RULE 32.1 MOTION.”
THIRD ASSIGNMENT OF ERROR
{¶ 11} “THE TRIAL COURT ERRED BY NOT HOLDING AN EVIDENTIARY
HEARING TO DETERMINE THE EFFECTS THAT THE AUDIO HALLUCINATIONS
I SUFFER DURING THIS CASE HAD ON THE GUILTY PLEA.”
{¶ 12} In his first and third assignments of error, Defendant
argues that the trial court erred by overruling his Crim.R. 32.1 5
motion to withdraw his guilty plea without first holding a hearing.
{¶ 13} In State v. Harden, 2d Dist. Montgomery No. 23742,
2010-Ohio-5282, at ¶ 18, we observed:
A post-sentence motion to withdraw a guilty plea
is allowed only to correct a manifest injustice. Crim.R.
32.1; State v. Wright, supra. The burden to establish
a manifest injustice is on the party seeking to withdraw
the plea. Wright. An undue delay between the occurrence
of the alleged cause of a withdrawal of a guilty plea
and the filing of a Crim.R. 32 motion is a factor
adversely affecting the credibility of the movant and
militating against the granting of the motion. State
v. Smith (1972), 49 Ohio St.2d 261, 361 N.E.2d 1324;
State v. Harden, Montgomery App. No. 22839,
2009-Ohio-3431.
{¶ 14} In State v. Grier, 2d Dist. Greene No. 2006CA61,
2007-Ohio-2597 at ¶ 6, we stated:
“[A]n evidentiary hearing is not required on every
post-sentence motion to withdraw a plea.” State v.
Stewart, Greene App. No.2003-CA-28, 2004-Ohio-3574. In
State v. Francis, 104 Ohio St.3d 490, 500,
2004-Ohio-6894, 820 N.E.2d 355, the Supreme Court stated
that the court should hold a hearing on a motion to
withdraw a plea “unless it is clear that denial of the 6
motion is warranted.”
{¶ 15} “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.” State v. Szefcyk, 77 Ohio St.3d
93, 671 N.E.2d 233, syllabus.
{¶ 16} Defendant’s motion to withdraw his guilty plea filed
on December 8, 2010 is based upon claims that he was incompetent
to enter a knowing, intelligent and voluntary guilty plea due to
auditory hallucinations that were the adverse influence of
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[Cite as State v. Harden, 2012-Ohio-1657.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24603
vs. : T.C. CASE NO. 95CR2190
CHARLES HARDEN : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 13th day of April, 2012.
Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst. Pros. Attorney, Atty. Reg. No. 0061560, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee
Charles Harden, # 43563-061, USP-Beaumont, P.O. Box 26030, Beaumont, Texas 77720 Defendant-Appellant, Pro Se
GRADY, P.J.:
{¶ 1} Defendant, Charles Harden, appeals from a final
judgment denying his postsentence Crim.R. 32.1 motion to withdraw
his guilty plea.
{¶ 2} Defendant was charged with aggravated arson, R.C. 2
2909.02(A)(2), after setting fire to his cell at Dayton
Correctional Institution on December 14, 1995. Defendant entered
a plea of guilty to the aggravated arson charge. The trial court
convicted Defendant on his guilty plea and sentenced Defendant
to a prison term of from five to twenty-five years. Defendant
did not appeal from his conviction.
{¶ 3} Defendant was subsequently released on parole. In
September 2003, Defendant was convicted of a federal firearm
offense and was sentenced to a prison term of one hundred and
eighty-eight months. Defendant remains incarcerated in a federal
prison.
{¶ 4} On August 3, 2004, Defendant filed a motion to withdraw
his guilty plea to the aggravated arson charge. Defendant claimed
that his mental health problems and his attorney’s failure to
investigate his competence prevented him from entering a knowing,
intelligent and voluntary guilty plea. The trial court overruled
Defendant’s motion on September 21, 2004. Defendant did not
appeal.
{¶ 5} In November 2004, Defendant filed an untimely petition
for post-conviction relief. As grounds for relief, Defendant
claimed that his trial counsel was ineffective because he failed
to investigate and present evidence of Defendant’s history of
mental health problems and the effects of the psychiatric
medications Defendant was taking. The trial court denied 3
Defendant’s post-conviction petition without a hearing on November
18, 2004, noting that it was based upon the same mental health
arguments Defendant previously raised and that had been rejected
in support of the motion to withdraw his guilty plea. Defendant
appealed the trial court’s decision denying his petition for
post-conviction relief, and we affirmed the trial court’s judgment
because Defendant’s petition was untimely and failed to demonstrate
any of the exceptions for untimely petitions in R.C. 2953.23.
State v. Harden, 2d Dist. Montgomery No. 20803, 2005-Ohio-5580.
{¶ 6} On March 11, 2008, Defendant filed his second motion
to withdraw his guilty plea. Defendant claimed, among other
things, that his plea was not knowing, intelligent and voluntary
due to the effects of the psychiatric medications he was taking
at the time and his mental health problems. The trial court
overruled Defendant’s motion on July 8, 2008. Defendant appealed
to this court and we affirmed the trial court’s judgment. State
v. Harden, 2d Dist. Montgomery No. 22839, 2009-Ohio-3431.
{¶ 7} On October 23, 2009, Defendant filed his third motion
to withdraw his guilty plea. Defendant claimed that his counsel
was not present at the time he entered his plea. The trial court
overruled Defendant’s motion on November 3, 2009. Defendant
appealed to this court and we again affirmed the trial court’s
judgment. State v. Harden, 2d Dist. Montgomery No. 23742,
2010-Ohio-5282. 4
{¶ 8} On December 8, 2010, Defendant filed his fourth motion
to withdraw his guilty plea. Defendant again claimed that he was
not competent to enter a knowing, intelligent and voluntary plea
due to his mental health problems, including auditory
hallucinations, the effects of the psychiatric medications he was
taking, and his counsel’s failure to investigate his competency.
The trial court overruled Defendant’s motion on April 6, 2011,
noting that Defendant’s latest claim which regarding his mental
health problems and the effects of the psychiatric medications
he was taking is barred by res judicata because those matters were
previously raised by Defendant in the trial court and rejected
by both the trial court and this court.
{¶ 9} Defendant has once again appealed to this court from
the trial court’s judgment denying his motion to withdraw his guilty
plea.
FIRST ASSIGNMENT OF ERROR
{¶ 10} “THE TRIAL COURT RELIED ON INCORRECT FACT AND A DEFICIENT
MEMORANDUM IN OPPOSITION TO OVERRULE MY RULE 32.1 MOTION.”
THIRD ASSIGNMENT OF ERROR
{¶ 11} “THE TRIAL COURT ERRED BY NOT HOLDING AN EVIDENTIARY
HEARING TO DETERMINE THE EFFECTS THAT THE AUDIO HALLUCINATIONS
I SUFFER DURING THIS CASE HAD ON THE GUILTY PLEA.”
{¶ 12} In his first and third assignments of error, Defendant
argues that the trial court erred by overruling his Crim.R. 32.1 5
motion to withdraw his guilty plea without first holding a hearing.
{¶ 13} In State v. Harden, 2d Dist. Montgomery No. 23742,
2010-Ohio-5282, at ¶ 18, we observed:
A post-sentence motion to withdraw a guilty plea
is allowed only to correct a manifest injustice. Crim.R.
32.1; State v. Wright, supra. The burden to establish
a manifest injustice is on the party seeking to withdraw
the plea. Wright. An undue delay between the occurrence
of the alleged cause of a withdrawal of a guilty plea
and the filing of a Crim.R. 32 motion is a factor
adversely affecting the credibility of the movant and
militating against the granting of the motion. State
v. Smith (1972), 49 Ohio St.2d 261, 361 N.E.2d 1324;
State v. Harden, Montgomery App. No. 22839,
2009-Ohio-3431.
{¶ 14} In State v. Grier, 2d Dist. Greene No. 2006CA61,
2007-Ohio-2597 at ¶ 6, we stated:
“[A]n evidentiary hearing is not required on every
post-sentence motion to withdraw a plea.” State v.
Stewart, Greene App. No.2003-CA-28, 2004-Ohio-3574. In
State v. Francis, 104 Ohio St.3d 490, 500,
2004-Ohio-6894, 820 N.E.2d 355, the Supreme Court stated
that the court should hold a hearing on a motion to
withdraw a plea “unless it is clear that denial of the 6
motion is warranted.”
{¶ 15} “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.” State v. Szefcyk, 77 Ohio St.3d
93, 671 N.E.2d 233, syllabus.
{¶ 16} Defendant’s motion to withdraw his guilty plea filed
on December 8, 2010 is based upon claims that he was incompetent
to enter a knowing, intelligent and voluntary guilty plea due to
auditory hallucinations that were the adverse influence of
psychiatric medications he was taking, and the fact that his trial
counsel failed to investigate his history of mental health problems
and his competency. As the trial court properly noted, Defendant’s
claim is barred by res judicata because those claims were previously
raised by Defendant multiple times in the trial court vis-a-vis
the prior motions to withdraw his plea and post-conviction
petitions that he filed, and those claims were rejected by the
trial court and by this court. See: Motion to Withdraw Guilty
Plea filed August 3, 2004; post-conviction petition filed November
4, 2004; Decision overruling petition for post-conviction relief
filed November 18, 2004; Motion to Withdraw Guilty Plea filed March 7
11, 2008; State v. Harden, 2d Dist. Montgomery No. 22839,
2009-Ohio-3431 at ¶5-10; Szefcyk.
{¶ 17} Defendant argues, however, that he has never before made
a claim that his guilty plea was not knowing, intelligent and
voluntary because of auditory hallucinations. Defendant clearly
could have presented that particular claim in his prior motions
to withdraw his plea, but he did not. That claim is likewise barred
by res judicata. Szefcyk. Furthermore, the fact that Defendant
waited thirteen years after entering his guilty plea before moving
to withdraw that plea on the claim that he was not competent to
enter his plea because at the time of his plea he was suffering
from auditory hallucinations, adversely affects Defendant’s
credibility and militates against granting his motion to withdraw
his guilty plea. State v. Harden, 2d Dist. Montgomery No. 23742,
2010-Ohio-5282; State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324
(1972).
{¶ 18} Defendant has not demonstrated that a manifest injustice
exists in this case or that the trial court abused its discretion
by denying his motion to withdraw his plea without a hearing.
{¶ 19} Defendant’s first and third assignments of error are
overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 20} “THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MY
MOTION TO EXPAND THE RECORD TO INCLUDE MY INMATE MEDICAL AND MENTAL 8
HEALTH RECORD RELATED TO THE OFFENSE CHARGED.”
{¶ 21} On February 17, 2011, Defendant filed a motion asking
the trial court to expand the record in this case in connection
with his December 8, 2010 motion to withdraw his guilty plea, to
include his prison medical and mental health records, or in the
alternative, appoint counsel for the purpose of obtaining and
including those records in this case. According to Defendant,
those prison mental health records would include a psychological
evaluation that was done after Defendant had set fire to his cell
at D.C.I., during which Defendant discussed his auditory
hallucinations. The record before us fails to demonstrate that
the trial court addressed or ruled upon Defendant request.
{¶ 22} When a motion to withdraw a guilty plea is not filed
until several years after a conviction and sentence has become
final, the movant is not entitled to appointed counsel for purposes
of assisting him with the post-sentence motion to withdraw the
plea, especially when no hearing is held on the motion. State v.
Meadows, 6th Dist. Lucas No. L-05-1321, 2006-Ohio-2622; State v.
McNeal, 8th Dist. Cuyahoga No. 82793, 2004-Ohio-50.
{¶ 23} When a court fails to address a motion or application,
the court is presumed to have denied the relief requested.
However, a denial of Defendant’s motion concerning his prison
medical records presents no basis to reverse. Defendant would
rely on those records to prove that he suffered from auditory 9
hallucinations at the time he entered his guilty plea, and for
that reason his plea was not knowing, intelligent and voluntary.
As we previously indicated above, Defendant could have presented
his auditory hallucination claim in his earlier motions to withdraw
his plea, but he did not, and that particular claim is now barred
by res judicata. The bar likewise precludes consideration of
medical records Defendant would offer to prove the barred claim.
{¶ 24} Defendant’s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
FAIN, J., And FROELICH, J., concur.
Copies mailed to:
R. Lynn Nothstine, Esq. Charles Harden Hon. Michael L. Tucker