[Cite as State v. Matthews, 2023-Ohio-1771.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : CRAIG E. MATTHEWS : Case No. 2023 CA 0007 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2020 CR 0132
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 25, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISHANA L. CARROLL CRAIG E. MATTHEWS 318 Chestnut Street Noble Corr. Inst. #788437 Coshocton, OH 43812 15708 McConnelsville Caldwell, OH 43724 King, J.
{¶ 1} Defendant-Appellant Craig E. Matthews appeals the January 26, 2023
judgment of the Coshocton County Court of Common Pleas which denied Matthews' post-
sentence motion to withdraw his guilty pleas. Plaintiff-Appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} Following a traffic accident wherein Matthews was driving under the
influence of alcohol, a drug of abuse, or a combination of them, Matthews was charged
by indictment with two counts of operating under the influence of alcohol or drugs with
prior charges for the same, one count of operating a vehicle without being in control of
the vehicle, and tampering with evidence.
{¶ 3} On May 25, 2021, following negotiations with the state, Matthews pled guilty
to one count of operating a vehicle under the influence of alcohol, a drug of abuse or a
combination of them, and tampering with evidence. In exchange, the state agreed to
dismiss the remaining counts of the indictment and agreed to take no position on
sentencing, judicial release, or bond and further agreed not to oppose a presentence
investigation. Matthews was represented by counsel at his change-of-plea hearing.
{¶ 4} Following the preparation of a presentence investigation, a sentencing
hearing was held on July 14, 2021. The trial court sentenced Matthews to an aggregate
prison term of four years.
{¶ 5} A year later, Matthews filed a motion with this court for leave to file a delayed
appeal. On August 9, 2022, we denied the motion.
{¶ 6} On January 11, 2023, Matthews filed a pro se "Motion to Set Aside
Judgment of Conviction and Permit the Defendant to Withdraw his Plea." In his motion Matthews argued that his trial counsel was ineffective because counsel induced him to
plead guilty to tampering with evidence when, according to Matthews, he could not have
been convicted of that offense at a trial. Matthews supported these arguments with his
own version of the events which are contained nowhere in the record. The state did not
file a response.
{¶ 7} Relying on this court's opinion in State v. Koon, 5th Dist. Perry No. 20 CA
0006, 2021-Ohio-1561, the trial court noted Matthews' arguments were based on his own
"unsworn version of the facts" and further found Matthews' arguments were barred by res
judicata "because the motion argues facts that could have been presented at trial, and an
ineffective assistance of counsel claim that could have been resolved on appeal."
Judgment Entry filed January 26, 2023, docket at 98.
{¶ 8} Matthews timely appealed and the matter is now before this court for
consideration. He raises one assignment of error as follows:
I
{¶ 9} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT’S SUBSTANTIAL RIGHTS, INCLUDING HIS RIGHT TO DUE PROCESS
OF LAW, TO ACCESS COURTS, AND EQUAL PROTECTION OF THE LAW, BY
APPLYING RES JUDICATA TO BAR THE APPELLANT’S POST-JUDGMENT MOTION
TO SET ASIDE THE JUDGMENT AND PERMIT THE APPELLANT TO WITHDRAW HIS
GUILTY PLEA THAT IS SPECIFICALLY ALLOWED BY CRIMINAL RULE 32.1"
{¶ 10} In his sole assignment of error, Matthews argues the trial court erred by
applying res judicata to his motion to withdraw his guilty plea. According to Matthews, his
motion should have been granted to correct a manifest injustice because had he elected to go to trial, he could not have been convicted of tampering with evidence under the
version of facts that Matthews advances. We disagree.
Procedural Issues
{¶ 11} As an initial matter, Matthews' appeal is a procedural quagmire. He sets
forth facts that are found nowhere in the trial court record save for his own motion to
withdraw his guilty plea. In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d
528 (2001), the Supreme Court noted, "a reviewing court cannot add matter to the record
before it that was not a part of the trial court's proceedings, and then decide the appeal
on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500
(1978)." It is also true "that the record cannot be enlarged by factual assertions in the
brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),
citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(1963). New material or factual assertions contained in any brief in this court will not
be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d
386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d
1202, ¶ 16. We therefore disregard the facts contained in both Matthews' brief as well as
the state's brief which each claim constitutes the charge of tampering with evidence
because they are facts outside of the record.
{¶ 12} We further note Matthews has failed to submit a transcript of the change-
of-plea hearing, and did not utilize App.R. 9(C) or (D) as a substitute for transcripts.
Because there is no record from which we can address the bulk of Matthews' complaints,
we address only the narrow issue of whether res judicata may be applied to a post- conviction motion to withdraw a guilty plea, and specifically, Matthews' ineffective
assistance challenge.
Res Judicata as Applied to Crim.R. 32.1
{¶ 13} A motion to withdraw a guilty plea after sentencing is permitted to correct a
manifest injustice. See Crim.R. 32.1. Our review of a trial court's decision under Crim.R.
32.1 is limited to a determination of whether the trial court abused its discretion. State v.
Caraballo, 17 Ohio St.3d 66, 477 N.E.2d 627 (1985).
{¶ 14} "Abuse of discretion" means an attitude that is unreasonable, arbitrary or
unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248
(1985). Most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary. AAAA Ent., Inc.
v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
(1990). An unreasonable decision is one backed by no sound reasoning process which
would support that decision. Id. "It is not enough that the reviewing court, were it deciding
the issue de novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would support a contrary
result." Id.
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[Cite as State v. Matthews, 2023-Ohio-1771.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : CRAIG E. MATTHEWS : Case No. 2023 CA 0007 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2020 CR 0132
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 25, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISHANA L. CARROLL CRAIG E. MATTHEWS 318 Chestnut Street Noble Corr. Inst. #788437 Coshocton, OH 43812 15708 McConnelsville Caldwell, OH 43724 King, J.
{¶ 1} Defendant-Appellant Craig E. Matthews appeals the January 26, 2023
judgment of the Coshocton County Court of Common Pleas which denied Matthews' post-
sentence motion to withdraw his guilty pleas. Plaintiff-Appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} Following a traffic accident wherein Matthews was driving under the
influence of alcohol, a drug of abuse, or a combination of them, Matthews was charged
by indictment with two counts of operating under the influence of alcohol or drugs with
prior charges for the same, one count of operating a vehicle without being in control of
the vehicle, and tampering with evidence.
{¶ 3} On May 25, 2021, following negotiations with the state, Matthews pled guilty
to one count of operating a vehicle under the influence of alcohol, a drug of abuse or a
combination of them, and tampering with evidence. In exchange, the state agreed to
dismiss the remaining counts of the indictment and agreed to take no position on
sentencing, judicial release, or bond and further agreed not to oppose a presentence
investigation. Matthews was represented by counsel at his change-of-plea hearing.
{¶ 4} Following the preparation of a presentence investigation, a sentencing
hearing was held on July 14, 2021. The trial court sentenced Matthews to an aggregate
prison term of four years.
{¶ 5} A year later, Matthews filed a motion with this court for leave to file a delayed
appeal. On August 9, 2022, we denied the motion.
{¶ 6} On January 11, 2023, Matthews filed a pro se "Motion to Set Aside
Judgment of Conviction and Permit the Defendant to Withdraw his Plea." In his motion Matthews argued that his trial counsel was ineffective because counsel induced him to
plead guilty to tampering with evidence when, according to Matthews, he could not have
been convicted of that offense at a trial. Matthews supported these arguments with his
own version of the events which are contained nowhere in the record. The state did not
file a response.
{¶ 7} Relying on this court's opinion in State v. Koon, 5th Dist. Perry No. 20 CA
0006, 2021-Ohio-1561, the trial court noted Matthews' arguments were based on his own
"unsworn version of the facts" and further found Matthews' arguments were barred by res
judicata "because the motion argues facts that could have been presented at trial, and an
ineffective assistance of counsel claim that could have been resolved on appeal."
Judgment Entry filed January 26, 2023, docket at 98.
{¶ 8} Matthews timely appealed and the matter is now before this court for
consideration. He raises one assignment of error as follows:
I
{¶ 9} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT’S SUBSTANTIAL RIGHTS, INCLUDING HIS RIGHT TO DUE PROCESS
OF LAW, TO ACCESS COURTS, AND EQUAL PROTECTION OF THE LAW, BY
APPLYING RES JUDICATA TO BAR THE APPELLANT’S POST-JUDGMENT MOTION
TO SET ASIDE THE JUDGMENT AND PERMIT THE APPELLANT TO WITHDRAW HIS
GUILTY PLEA THAT IS SPECIFICALLY ALLOWED BY CRIMINAL RULE 32.1"
{¶ 10} In his sole assignment of error, Matthews argues the trial court erred by
applying res judicata to his motion to withdraw his guilty plea. According to Matthews, his
motion should have been granted to correct a manifest injustice because had he elected to go to trial, he could not have been convicted of tampering with evidence under the
version of facts that Matthews advances. We disagree.
Procedural Issues
{¶ 11} As an initial matter, Matthews' appeal is a procedural quagmire. He sets
forth facts that are found nowhere in the trial court record save for his own motion to
withdraw his guilty plea. In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d
528 (2001), the Supreme Court noted, "a reviewing court cannot add matter to the record
before it that was not a part of the trial court's proceedings, and then decide the appeal
on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500
(1978)." It is also true "that the record cannot be enlarged by factual assertions in the
brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),
citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(1963). New material or factual assertions contained in any brief in this court will not
be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d
386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d
1202, ¶ 16. We therefore disregard the facts contained in both Matthews' brief as well as
the state's brief which each claim constitutes the charge of tampering with evidence
because they are facts outside of the record.
{¶ 12} We further note Matthews has failed to submit a transcript of the change-
of-plea hearing, and did not utilize App.R. 9(C) or (D) as a substitute for transcripts.
Because there is no record from which we can address the bulk of Matthews' complaints,
we address only the narrow issue of whether res judicata may be applied to a post- conviction motion to withdraw a guilty plea, and specifically, Matthews' ineffective
assistance challenge.
Res Judicata as Applied to Crim.R. 32.1
{¶ 13} A motion to withdraw a guilty plea after sentencing is permitted to correct a
manifest injustice. See Crim.R. 32.1. Our review of a trial court's decision under Crim.R.
32.1 is limited to a determination of whether the trial court abused its discretion. State v.
Caraballo, 17 Ohio St.3d 66, 477 N.E.2d 627 (1985).
{¶ 14} "Abuse of discretion" means an attitude that is unreasonable, arbitrary or
unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248
(1985). Most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary. AAAA Ent., Inc.
v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
(1990). An unreasonable decision is one backed by no sound reasoning process which
would support that decision. Id. "It is not enough that the reviewing court, were it deciding
the issue de novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would support a contrary
result." Id.
{¶ 15} The failure to appeal a judgment of conviction bars as res judicata any
subsequent attempt to litigate issues that could have been raised in a direct appeal. State
v. Dick, 137 Ohio App.3d 260, 2000-Ohio-1685, 738 N.E.2d 456 (3d Dist.), citing State v.
Harmon, 103 Ohio App.3d 595, 598, 660 N.E.2d 532 (1995.) {¶ 16} In State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9,
the Supreme Court of Ohio noted res judicata may apply to a motion to withdraw a guilty
plea:
Ohio courts of appeals have applied res judicata to bar the assertion
of claims in a motion to withdraw a guilty plea that were or could have
been raised at trial or on appeal. See State v. McGee, 8th Dist.
Cuyahoga No. 91638, 2009-Ohio-3374, ¶ 9; State v. Totten, 10th
Dist. Franklin No. 05AP–278 and 05AP-508, 2005-Ohio-6210, ¶ 7.
{¶ 17} Ketterer ¶ 59, emphasis added.
{¶ 18} Matthews argues he has filed only one motion to withdraw his guilty plea
and therefore the matter cannot be barred by res judicata. We disagree. The focus is not
how many times a defendant has moved to withdraw his plea, but rather whether the
basis for his challenge could have been raised in a direct appeal.
{¶ 19} In this matter, the trial court noted Matthews' motion was based on an
"unsworn version of the facts" which he alleged supported his claim he could not have
been convicted of tampering with evidence. Judgment Entry filed January 26, 2023,
Docket at 98. The trial court was therefore without any basis to address whether or not
Matthews could have been convicted of the charged offense, and was left with the
ineffective assistance of trial counsel claim. Matthews could have raised that issue in a
direct appeal but failed to do so. The trial court's decision finding that Matthews' ineffective
assistance claim was barred by res judicata was therefore not unreasonable. {¶ 20} Matthews also complains that since this court denied his request for delayed
appeal and therefore there was no direct appeal. This court's denial of Matthews' grossly
untimely motion for delayed appeal does not change the fact that he could have raised
his ineffective assistance of trial counsel claim in a timely direct appeal. Because
Matthews failed to timely appeal, he has waived his right to challenge the issue.
{¶ 21} We find the trial court's decision to deny Matthews' motion to withdraw his
guilty plea based on res judicata was not unreasonable, arbitrary, or unconscionable. The
sole assignment of error is overruled.
{¶ 22} The judgment of the Coshocton County Court of Common Pleas is affirmed.
By King, J.,
Delaney, P.J. and
Baldwin, J. concur.