[Cite as State v. McCreery, 2017-Ohio-988.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
STATE OF OHIO, : : Case No. 16CA17 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY NICHOLAS C. McCREERY : : Defendant-Appellant. : Released: 03/13/17 _____________________________________________________________ APPEARANCES:
Nicholas C. McCreery, Chillicothe, Ohio, Pro Se Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} Nicholas C. McCreery appeals the May 19, 2016 judgment entry
of the Lawrence County Court of Common Pleas denying his motion to
withdraw his 2010 guilty plea and set aside judgment. On appeal, we
observe that Appellant does not address the standards for granting a motion
to withdraw but instead generally contends: (1) that the trial court erred in
modifying a valid final judgment; (2) that the trial court erred in failing to
merge all burglary counts of which he was convicted; and (3) that he was
rendered the ineffective assistance of counsel. Upon review, we find the Lawrence App. No. 16CA17 2
trial court did not err by overruling Appellant’s motion to withdraw his prior
plea. However, we do so for reasons different from those stated in the trial
court’s judgment entry. Accordingly, we overrule the assignments of error
and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} We recount the facts as previously set forth in State v. McCreery,
4th Dist. Lawrence No. 10CA17, 2011-Ohio-5885 (“McCreery I”) and State
v. McCreery, 4th Dist. Lawrence No. 15CA10, 2015-Ohio-5453 (“McCreery
II”). In November 2009, Appellant and an accomplice, Christy Stone, were
arrested for the burglaries of three separate residences in Lawrence County.
Appellant was subsequently indicted on three counts of burglary in violation
of R.C. 2911.12(A)(2), second degree felonies, and one count of resisting
arrest in violation of R.C. 2921.33(A), a second degree misdemeanor.
{¶3} In January 2010, when the matter came on for pretrial, Appellant
accepted a plea agreement and pleaded guilty to all charges against him. On
January 20, 2010, the trial court sentenced him to an agreed sentence of four
years on each burglary count, to be served consecutively, and thirty days in
jail for the resisting arrest charge, to be served concurrently with the
burglary sentences. At that January 20, 2010 sentencing hearing, the court
misstated the conditions of Appellant’s post-release control. The court Lawrence App. No. 16CA17 3
failed to indicate that post-release control would be mandatory, and would
be for three years for the second-degree felonies for which Appellant was
convicted. After the court journalized its sentence on February 4, 2010,
Appellant filed an appeal.
{¶4} Before the record could be transmitted on appeal, the trial court
scheduled a re-sentencing hearing. At that hearing, held on April 9, 2010,
the court noted the deficiencies of its January 20, 2010 sentencing, and then
fully informed Appellant of the conditions of post-release control. The
appeal of the trial court’s first sentence was dismissed by mutual agreement
and an appeal of Appellant’s re-sentencing followed.
{¶5} In the re-filed appeal, case number 10CA17, Appellant raised
two assignments of error: (1) that the trial court erred in re-sentencing him
without vacating the prior judgment entry; and (2) that he received
ineffective assistance of counsel which rendered his guilty plea involuntary.
On November 3, 2011, this court issued a decision and judgment entry
overruling both assignments of error Appellant had presented and affirmed
the judgment and sentence of the trial court. See McCreery I, supra, at ¶ 1.
{¶6} On or about March 12, 2015, Appellant filed a pro se “Motion
for Re-Sentencing Based on Void Judgment” in the trial court. The trial
court overruled Appellant’s motion on April 22, 2015 on the basis that the Lawrence App. No. 16CA17 4
trial court no longer had jurisdiction in the matter. Appellant filed a timely
appeal.
{¶7} On appeal of the denial of his motion for re-sentencing based on
a void judgment, Appellant contended: (1) that the trial court erred and
abused its discretion when it failed to notify him at sentencing and re-
sentencing that failure to pay the costs of prosecution could result in an order
that he perform community service; (2) that the trial court erred and abused
its discretion when it failed to consider the offender's present and future
ability to pay fines; and (3) that trial counsel provided ineffective assistance
by failing to object to the trial court's imposition of court costs and costs of
prosecution, and by failing to object regarding the improper notification
regarding possible community service. Upon consideration of Appellant’s
arguments, on December 17, 2015, we found Appellant's arguments were
barred by the doctrine of res judicata and we declined to consider them. See
McCreery II, supra, at ¶ 21.
{¶8} On May 18, 2016, Appellant filed a “Motion to Withdraw Guilty
Plea and Set Aside Judgment.” On May 19, 2016, the trial court overruled
Appellant’s motion, stating that it is “only permitted to respond * * * if
ordered to by a Court of Appeals or the Ohio State Supreme Court,” and Lawrence App. No. 16CA17 5
noting that “there was no appeal of right taken upon the re-sentencing of this
Defendant * * *.” This timely appeal followed.
ASSIGNMENTS OF ERROR
“I. THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN MODIFYING A VALID FINAL JUDGMENT. II. THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO MERGE ALL COUNTS.
III. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.”
A. STANDARD OF REVIEW
{¶9} In the case sub judice, the trial court did not find it had
jurisdiction to entertain Appellant’s motion to withdraw his guilty plea.
However, generally speaking, “[C]ourts of common pleas have jurisdiction
to rule on post-judgment motions. State ex rel. Cordray v. Marshall, 123
Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 31. Thus, we turn to
consideration of Appellant’s arguments pursuant to Crim.R. 32.1, which
governs the withdrawal of pleas.
{¶10} Crim.R. 32.1 provides as follows: “A motion to withdraw a plea
of guilty or no contest may be made only before sentence is imposed or
imposition of sentence is suspended; but to correct manifest injustice the
court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his plea.” State v. Ogle, 4th Dist. Hocking No. Lawrence App. No. 16CA17 6
13CA18, 2014-Ohio-2251, ¶ 8, quoting State v. Congrove, 5th Dist.
Delaware No. 09CA090080, 2010-Ohio-2933, ¶ 30, quoting State v.
Copeland–Jackson, 5th Dist. Ashland No. 02COA018, 2003-Ohio-1043, ¶ 6.
The standard upon which the trial court is to review a request for a change of
plea after sentence is whether there is a need to correct a manifest injustice.
Congrove, supra. The accused has the burden of showing a manifest
injustice warranting the withdrawal of a guilty plea. Id.; State v. Rockwell,
5th Dist. Stark No.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. McCreery, 2017-Ohio-988.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
STATE OF OHIO, : : Case No. 16CA17 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY NICHOLAS C. McCREERY : : Defendant-Appellant. : Released: 03/13/17 _____________________________________________________________ APPEARANCES:
Nicholas C. McCreery, Chillicothe, Ohio, Pro Se Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} Nicholas C. McCreery appeals the May 19, 2016 judgment entry
of the Lawrence County Court of Common Pleas denying his motion to
withdraw his 2010 guilty plea and set aside judgment. On appeal, we
observe that Appellant does not address the standards for granting a motion
to withdraw but instead generally contends: (1) that the trial court erred in
modifying a valid final judgment; (2) that the trial court erred in failing to
merge all burglary counts of which he was convicted; and (3) that he was
rendered the ineffective assistance of counsel. Upon review, we find the Lawrence App. No. 16CA17 2
trial court did not err by overruling Appellant’s motion to withdraw his prior
plea. However, we do so for reasons different from those stated in the trial
court’s judgment entry. Accordingly, we overrule the assignments of error
and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} We recount the facts as previously set forth in State v. McCreery,
4th Dist. Lawrence No. 10CA17, 2011-Ohio-5885 (“McCreery I”) and State
v. McCreery, 4th Dist. Lawrence No. 15CA10, 2015-Ohio-5453 (“McCreery
II”). In November 2009, Appellant and an accomplice, Christy Stone, were
arrested for the burglaries of three separate residences in Lawrence County.
Appellant was subsequently indicted on three counts of burglary in violation
of R.C. 2911.12(A)(2), second degree felonies, and one count of resisting
arrest in violation of R.C. 2921.33(A), a second degree misdemeanor.
{¶3} In January 2010, when the matter came on for pretrial, Appellant
accepted a plea agreement and pleaded guilty to all charges against him. On
January 20, 2010, the trial court sentenced him to an agreed sentence of four
years on each burglary count, to be served consecutively, and thirty days in
jail for the resisting arrest charge, to be served concurrently with the
burglary sentences. At that January 20, 2010 sentencing hearing, the court
misstated the conditions of Appellant’s post-release control. The court Lawrence App. No. 16CA17 3
failed to indicate that post-release control would be mandatory, and would
be for three years for the second-degree felonies for which Appellant was
convicted. After the court journalized its sentence on February 4, 2010,
Appellant filed an appeal.
{¶4} Before the record could be transmitted on appeal, the trial court
scheduled a re-sentencing hearing. At that hearing, held on April 9, 2010,
the court noted the deficiencies of its January 20, 2010 sentencing, and then
fully informed Appellant of the conditions of post-release control. The
appeal of the trial court’s first sentence was dismissed by mutual agreement
and an appeal of Appellant’s re-sentencing followed.
{¶5} In the re-filed appeal, case number 10CA17, Appellant raised
two assignments of error: (1) that the trial court erred in re-sentencing him
without vacating the prior judgment entry; and (2) that he received
ineffective assistance of counsel which rendered his guilty plea involuntary.
On November 3, 2011, this court issued a decision and judgment entry
overruling both assignments of error Appellant had presented and affirmed
the judgment and sentence of the trial court. See McCreery I, supra, at ¶ 1.
{¶6} On or about March 12, 2015, Appellant filed a pro se “Motion
for Re-Sentencing Based on Void Judgment” in the trial court. The trial
court overruled Appellant’s motion on April 22, 2015 on the basis that the Lawrence App. No. 16CA17 4
trial court no longer had jurisdiction in the matter. Appellant filed a timely
appeal.
{¶7} On appeal of the denial of his motion for re-sentencing based on
a void judgment, Appellant contended: (1) that the trial court erred and
abused its discretion when it failed to notify him at sentencing and re-
sentencing that failure to pay the costs of prosecution could result in an order
that he perform community service; (2) that the trial court erred and abused
its discretion when it failed to consider the offender's present and future
ability to pay fines; and (3) that trial counsel provided ineffective assistance
by failing to object to the trial court's imposition of court costs and costs of
prosecution, and by failing to object regarding the improper notification
regarding possible community service. Upon consideration of Appellant’s
arguments, on December 17, 2015, we found Appellant's arguments were
barred by the doctrine of res judicata and we declined to consider them. See
McCreery II, supra, at ¶ 21.
{¶8} On May 18, 2016, Appellant filed a “Motion to Withdraw Guilty
Plea and Set Aside Judgment.” On May 19, 2016, the trial court overruled
Appellant’s motion, stating that it is “only permitted to respond * * * if
ordered to by a Court of Appeals or the Ohio State Supreme Court,” and Lawrence App. No. 16CA17 5
noting that “there was no appeal of right taken upon the re-sentencing of this
Defendant * * *.” This timely appeal followed.
ASSIGNMENTS OF ERROR
“I. THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN MODIFYING A VALID FINAL JUDGMENT. II. THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO MERGE ALL COUNTS.
III. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.”
A. STANDARD OF REVIEW
{¶9} In the case sub judice, the trial court did not find it had
jurisdiction to entertain Appellant’s motion to withdraw his guilty plea.
However, generally speaking, “[C]ourts of common pleas have jurisdiction
to rule on post-judgment motions. State ex rel. Cordray v. Marshall, 123
Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 31. Thus, we turn to
consideration of Appellant’s arguments pursuant to Crim.R. 32.1, which
governs the withdrawal of pleas.
{¶10} Crim.R. 32.1 provides as follows: “A motion to withdraw a plea
of guilty or no contest may be made only before sentence is imposed or
imposition of sentence is suspended; but to correct manifest injustice the
court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his plea.” State v. Ogle, 4th Dist. Hocking No. Lawrence App. No. 16CA17 6
13CA18, 2014-Ohio-2251, ¶ 8, quoting State v. Congrove, 5th Dist.
Delaware No. 09CA090080, 2010-Ohio-2933, ¶ 30, quoting State v.
Copeland–Jackson, 5th Dist. Ashland No. 02COA018, 2003-Ohio-1043, ¶ 6.
The standard upon which the trial court is to review a request for a change of
plea after sentence is whether there is a need to correct a manifest injustice.
Congrove, supra. The accused has the burden of showing a manifest
injustice warranting the withdrawal of a guilty plea. Id.; State v. Rockwell,
5th Dist. Stark No. 2008CA00009, 2008-Ohio-2162, ¶ 40, citing State v.
Smith, 49 Ohio St.2d 261, 361 N.E.2d 1234 (1977), paragraph one of the
syllabus. A manifest injustice has been defined as a “clear or openly unjust
act.” Congrove, supra, quoting State ex rel. Schneider v. Kreiner, 83 Ohio
St.3d 203, 208, 699 N.E.2d 2983 (1998).
{¶11} Any 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.
Ogle, supra, at ¶ 9, Congrove, supra, at ¶ 32, citing State v. Caraballo, 17
Ohio St.3d 66, 477 N.E.2d 627 (1985). “A motion made pursuant to
Crim.R. 32.1 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.” Congrove, supra, quoting
State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, (1977), paragraph two Lawrence App. No. 16CA17 7
of the syllabus. “Absent an abuse of discretion on the part of the trial court
in making the ruling, its decision must be affirmed.” Ogle, supra. “For a
court to find an abuse of discretion in this case, more than an error of
judgment must be found. We must find that the trial court's ruling was
‘unreasonable, arbitrary or unconscionable.’ ” Ogle, supra, quoting State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
B. LEGAL ANALYSIS
{¶12} Here Appellant contends the trial court erred by overruling his
“Motion to Withdraw 2010 Plea and Set Aside Judgment.” While the trial
court stated an erroneous basis for its judgment, upon review, we find the
error is not prejudicial to Appellant. When a trial court has stated an
erroneous basis for its judgment, an appellate court must affirm the
judgment if it is legally correct on other grounds, that is, it achieves the right
result for the wrong reason, because such an error is not prejudicial. State v.
Sebastian, 4th Dist. Highland No. 08CA19, 2009-Ohio-3117, at ¶ 25.
{¶13} As we stated in McCreery II at ¶ 8: “The doctrine of res
judicata bars the relitigation of issues that were raised on appeal or could
have been raised on appeal.” Id. quoting State v. Cruz, 8th Dist. Cuyahoga
No. 101544, 2014-Ohio-5695, ¶ 14, quoting In re A.I., 8th Dist. Cuyahoga
No. 99808, 2014-Ohio-2259, ¶ 34. The doctrine of res judicata bars claims Lawrence App. No. 16CA17 8
that the defendant raised or could have raised on direct appeal. In re B.C.S.,
4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 14. “[T]he doctrine
serves to preclude a defendant who has had his day in court from seeking a
second on that same issue. In so doing, res judicata promotes the principles
of finality and judicial economy by preventing endless relitigation of an
issue on which a defendant has already received a full and fair opportunity to
be heard.” State v. Crum, 4th Dist. Lawrence No. 13CA13, 2014-Ohio-2361,
¶16, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824, ¶ 18.
{¶14} Courts have repeatedly applied the doctrine of res judicata to
Crim.R. 32.1 motions. State v. Frazier, 4th Dist. Pickaway No. 15CA14,
2016-Ohio-5306, ¶ 13; State v. Reyes, 11th Dist. Portage No. 2016-P-0010,
2016-Ohio-5673, ¶ 14; State v. Bryukhanova, 6th Dist. Fulton No. F–10–
002, 2010-Ohio-5504, ¶ 11. State v. Madrigal, 6th Dist. Lucas Nos. L–10–
1142 and L–10–1143, 2011-Ohio-798, ¶ 16 (“It is well established * * * that
claims submitted in support of a Crim.R. 32.1 motion to withdraw plea that
could have been raised on direct appeal, but were not raised on direct appeal,
are barred by res judicata”).
{¶15} Under the first assignment of error, Appellant argues the trial
court erred by modifying a valid final judgment. This argument is barred by Lawrence App. No. 16CA17 9
the doctrine of res judicata. Although Appellant made a varied argument
regarding his sentence in McCreery I, the argument made here is one that
could and should have been made in his first direct appeal. Since res
judicata applies to bar Appellant’s claim, it cannot be said that the trial court
abused its discretion by denying Appellant’s motion to withdraw his plea on
this basis.
{¶16} Appellant next argues that the trial court erred by failing to
merge his burglary offenses as allied offenses of similar import for purposes
of sentencing. In State v. Miller, 4th Dist. Lawrence No. 11CA14, 2012-
Ohio-1922, ¶ 6, we held because Miller failed to raise his allied offenses
argument in a direct appeal, that issue had become res judicata and he could
not challenge his sentence on that basis collaterally through a motion for re-
sentencing. State v. Perkins, 2nd Dist. Montgomery Nos. 26788, 26797,
26804, 2016-Ohio-4581, ¶ 7. As stated above, the doctrine of res judicata
applies in Crim.R. 32 proceedings. Therefore, since res judicata also applied
to bar this argument, the trial court properly denied Appellant’s motion on
this basis and again, it cannot be said the trial court abused its discretion.
{¶17} As to Appellant’s final assignment of error, that he was
rendered ineffective assistance of counsel, he has already raised that issue in
both McCreery I and McCreery II. When a defendant pleads guilty, he Lawrence App. No. 16CA17 10
waives all claims of ineffective assistance of counsel, except to the extent
that counsel's performance caused an unknowing and involuntary plea. State
v. Brown, 4th Dist. Highland No. 07CA2, 2007-Ohio-5008, at ¶ 16. State v.
Persons, 4th Dist. Meigs No. 02CA6, 2003-Ohio-4213, ¶ 11. Specifically,
Appellant challenged the voluntary nature of his plea in McCreery I. In
McCreery II, Appellant challenged his counsel’s failure to object to the trial
court’s imposition of court costs and costs of prosecution and failing to
object to the improper notification regarding possible community service.
We rejected these arguments in McCreery II as barred by res judicata.
Appellant’s ineffective assistance claims herein are different and somewhat
vague. However, we find the doctrine of res judicata operates to bar them
herein. State v. McDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-
5080, ¶ 26.
{¶18} For the foregoing reasons, we find all arguments Appellant sets
forth in his current appeal were raised in prior appeals or should have been
raised in a direct appeal. As such, we find the doctrine of res judicata
applies to bar Appellant’s current appeal of his motion to withdraw his 2010
guilty plea. We decline to consider the merits of Appellant’s arguments and
affirm the judgment of the trial court.
JUDGMENT AFFIRMED. Lawrence App. No. 16CA17 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment Only.
For the Court,
BY: ______________________________ Matthew W. McFarland, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.