[Cite as State v. McGraw, 2022-Ohio-1321.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 110799 v. :
JOHN A. MCGRAW, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 21, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-534815-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione, Assistant Prosecuting Attorney, for appellee.
John McGraw, pro se.
SEAN C. GALLAGHER, A.J.:
John A. McGraw appeals the denial of his fourth postsentence motion
to withdraw his guilty pleas. For the following reason, we affirm.
In 2011, McGraw was convicted of various murder-related offenses
for strangling his girlfriend to death. In exchange for dismissing the capital specification attendant to the aggravated murder count, McGraw pleaded guilty to
one count of aggravated murder with prior calculation and design, a violation of R.C.
2903.01(A); aggravated burglary, a violation of R.C. 2911.11(A)(1); and failure to
comply with an order of a police officer, a violation of R.C. 2921.331(B). McGraw
was sentenced to an indefinite aggregate term of imprisonment of 45 years to life.
As it will be discussed in further detail, our review and the trial court’s
ability to offer McGraw his requested relief are hampered by the procedural posture
of this case. McGraw was granted leave to file a delayed appeal in 2011, in which his
convictions were affirmed. State v. McGraw, 8th Dist. Cuyahoga No. 96606, 2012-
Ohio-174 (“McGraw I”); see also State v. McGraw, 8th Dist. Cuyahoga No. 96606,
2012-Ohio-3247 (“McGraw II”) (denial of petition to reopen direct appeal).
McGraw also filed several motions to withdraw or vacate his guilty pleas in 2011 and
2012, which were denied, and a separate postconviction-relief petition in 2011. The
trial court denied appellant’s postconviction-relief petition, which this court
affirmed in that subsequent appeal. State v. McGraw, 8th Dist. Cuyahoga No.
97839, 2012-Ohio-3692 (“McGraw III”). In 2015, McGraw filed another motion to
withdraw his guilty pleas, claiming that the trial court failed to inform him of the
maximum penalties for the counts to which he pleaded guilty and failed to advise
him of the postrelease control. The trial court’s decision denying the requested relief
was also affirmed. State v. McGraw, 8th Dist. Cuyahoga No. 102807, 2016-Ohio-
205, ¶ 4 (“McGraw IV”). In pertinent part, the McGraw IV panel concluded that res judicata precluded McGraw from advancing new claims in successive motions to
withdraw his guilty pleas. Id. at ¶ 14.
Despite this admonition, in 2021, McGraw filed yet another
postconviction motion to withdraw his guilty plea under Crim.R. 32.1. In this latest
attempt, McGraw claimed that the underlying record of his original conviction failed
to demonstrate that the trial court complied with the mandatory hearing
requirement under R.C. 2945.37 after McGraw’s competency became an issue in the
pretrial proceedings but before McGraw entered his guilty pleas, which in turn
precluded McGraw from knowingly, voluntarily, and intelligently entering his guilty
pleas. The trial court denied the motion, and this timely appeal followed.
We need not address the merits of McGraw’s latest attempt to
withdraw his guilty pleas. All of his claims are barred under the doctrine of res
judicata, and moreover, the trial court lacked authority to grant McGraw his
requested relief since McGraw’s convictions were affirmed in McGraw I based on
McGraw’s failure to timely appeal his first postsentence motion to withdraw his
guilty plea. Under either theory, we must affirm.
“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. “Manifest injustice” is defined as a “fundamental flaw in
the path of justice so extraordinary that the defendant could not have sought redress
from the resulting prejudice through another form of application reasonably available to him or her. It has also been defined as ‘a clear or openly unjust act,’
which exists only in extraordinary cases.” State v. Cottrell, 8th Dist. Cuyahoga No.
95053, 2010-Ohio-5254, ¶ 16, citing State v. Blatnik, 17 Ohio App.3d 201, 202, 478
N.E.2d 1016 (6th Dist.1984). As has already been concluded as law of this case,
however, “‘res judicata * * * acts to bar raising issues in a successive Crim.R. 32.1
motion to withdraw a plea of guilty where those issues could have been raised in the
prior Crim.R. 32.1 motion.’” McGraw IV, quoting State v. Tran, 10th Dist. Franklin
No. 11AP-146, 2012-Ohio-1072, ¶ 11; State v. Ikharo, 10th Dist. Franklin No. 10AP-
967, 2011-Ohio-2746, ¶ 11; and State v. Gallegos-Martinez, 5th Dist. Delaware No.
10-CAA-06-0043, 2010-Ohio-6463, ¶ 12. This district adheres to this precedent.
Id., citing State v. Waite, 8th Dist. Cuyahoga No. 96954, 2012-Ohio-489, ¶ 7
(collecting cases); see also State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831,
935 N.E.2d 9, ¶ 59, quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
paragraph nine of the syllabus.
Further, a trial court lacks authority to consider a motion to withdraw
a guilty plea subsequent to an affirmance of an offender’s convictions by an appellate
court. According to well-settled law, Crim.R. 32.1 “‘does not confer upon the trial
court the power to vacate a judgment which has been affirmed by the appellate court,
for this action would affect the decision of the reviewing court, which is not within
the power of the trial court to do.’” Ketterer at ¶ 61, quoting State ex rel. Special
Prosecutors v. Judges, Belmont Cty. Court of Common Pleas, 55 Ohio St.2d 94, 97-
98, 378 N.E.2d 162 (1978). In other words, once the convictions have been affirmed on appeal, the trial court no longer may entertain a postsentence motion to
withdraw a guilty plea under Crim.R. 32.1.1 See also State v. Hill, 1st Dist. Hamilton
No. C-190337, 2020-Ohio-3271, ¶ 10; State v. Carter, 3d Dist. Allen No. 1-11-36,
2011-Ohio-6104, ¶ 11; State v. Caston, 6th Dist. Erie No. E-11-077, 2012-Ohio-5260,
¶ 10; State v. Smith, 7th Dist. Mahoning No. 14 MA 65, 2015-Ohio-4809, ¶ 5; State
v. Bains, 8th Dist. Cuyahoga No. 98845, 2013-Ohio-2530, ¶ 21; Ohio v. Torres, 9th
Dist. Medina No. 19CA0076-M, 2020-Ohio-3691, ¶ 7; State v. Davic, 2021-Ohio-
131, 166 N.E.3d 681, ¶ 16-22 (10th Dist.) (concluding that Special Prosecutors has
not been overruled by the Ohio Supreme Court); State v. Peters, 12th Dist. Clermont
No. CA2015-07-066, 2016-Ohio-5288, ¶ 8.
As a result, McGraw’s claims regarding his fourth postsentence
motion to withdraw his guilty plea are barred by the doctrine of res judicata. The
claims regarding the trial court’s handling of the competency issue could have been,
at the least, addressed in one of the three earlier postsentence motions to withdraw
the guilty pleas. McGraw IV at ¶ 14. McGraw also did not timely appeal two of the
denials.
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[Cite as State v. McGraw, 2022-Ohio-1321.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 110799 v. :
JOHN A. MCGRAW, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 21, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-534815-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione, Assistant Prosecuting Attorney, for appellee.
John McGraw, pro se.
SEAN C. GALLAGHER, A.J.:
John A. McGraw appeals the denial of his fourth postsentence motion
to withdraw his guilty pleas. For the following reason, we affirm.
In 2011, McGraw was convicted of various murder-related offenses
for strangling his girlfriend to death. In exchange for dismissing the capital specification attendant to the aggravated murder count, McGraw pleaded guilty to
one count of aggravated murder with prior calculation and design, a violation of R.C.
2903.01(A); aggravated burglary, a violation of R.C. 2911.11(A)(1); and failure to
comply with an order of a police officer, a violation of R.C. 2921.331(B). McGraw
was sentenced to an indefinite aggregate term of imprisonment of 45 years to life.
As it will be discussed in further detail, our review and the trial court’s
ability to offer McGraw his requested relief are hampered by the procedural posture
of this case. McGraw was granted leave to file a delayed appeal in 2011, in which his
convictions were affirmed. State v. McGraw, 8th Dist. Cuyahoga No. 96606, 2012-
Ohio-174 (“McGraw I”); see also State v. McGraw, 8th Dist. Cuyahoga No. 96606,
2012-Ohio-3247 (“McGraw II”) (denial of petition to reopen direct appeal).
McGraw also filed several motions to withdraw or vacate his guilty pleas in 2011 and
2012, which were denied, and a separate postconviction-relief petition in 2011. The
trial court denied appellant’s postconviction-relief petition, which this court
affirmed in that subsequent appeal. State v. McGraw, 8th Dist. Cuyahoga No.
97839, 2012-Ohio-3692 (“McGraw III”). In 2015, McGraw filed another motion to
withdraw his guilty pleas, claiming that the trial court failed to inform him of the
maximum penalties for the counts to which he pleaded guilty and failed to advise
him of the postrelease control. The trial court’s decision denying the requested relief
was also affirmed. State v. McGraw, 8th Dist. Cuyahoga No. 102807, 2016-Ohio-
205, ¶ 4 (“McGraw IV”). In pertinent part, the McGraw IV panel concluded that res judicata precluded McGraw from advancing new claims in successive motions to
withdraw his guilty pleas. Id. at ¶ 14.
Despite this admonition, in 2021, McGraw filed yet another
postconviction motion to withdraw his guilty plea under Crim.R. 32.1. In this latest
attempt, McGraw claimed that the underlying record of his original conviction failed
to demonstrate that the trial court complied with the mandatory hearing
requirement under R.C. 2945.37 after McGraw’s competency became an issue in the
pretrial proceedings but before McGraw entered his guilty pleas, which in turn
precluded McGraw from knowingly, voluntarily, and intelligently entering his guilty
pleas. The trial court denied the motion, and this timely appeal followed.
We need not address the merits of McGraw’s latest attempt to
withdraw his guilty pleas. All of his claims are barred under the doctrine of res
judicata, and moreover, the trial court lacked authority to grant McGraw his
requested relief since McGraw’s convictions were affirmed in McGraw I based on
McGraw’s failure to timely appeal his first postsentence motion to withdraw his
guilty plea. Under either theory, we must affirm.
“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. “Manifest injustice” is defined as a “fundamental flaw in
the path of justice so extraordinary that the defendant could not have sought redress
from the resulting prejudice through another form of application reasonably available to him or her. It has also been defined as ‘a clear or openly unjust act,’
which exists only in extraordinary cases.” State v. Cottrell, 8th Dist. Cuyahoga No.
95053, 2010-Ohio-5254, ¶ 16, citing State v. Blatnik, 17 Ohio App.3d 201, 202, 478
N.E.2d 1016 (6th Dist.1984). As has already been concluded as law of this case,
however, “‘res judicata * * * acts to bar raising issues in a successive Crim.R. 32.1
motion to withdraw a plea of guilty where those issues could have been raised in the
prior Crim.R. 32.1 motion.’” McGraw IV, quoting State v. Tran, 10th Dist. Franklin
No. 11AP-146, 2012-Ohio-1072, ¶ 11; State v. Ikharo, 10th Dist. Franklin No. 10AP-
967, 2011-Ohio-2746, ¶ 11; and State v. Gallegos-Martinez, 5th Dist. Delaware No.
10-CAA-06-0043, 2010-Ohio-6463, ¶ 12. This district adheres to this precedent.
Id., citing State v. Waite, 8th Dist. Cuyahoga No. 96954, 2012-Ohio-489, ¶ 7
(collecting cases); see also State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831,
935 N.E.2d 9, ¶ 59, quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
paragraph nine of the syllabus.
Further, a trial court lacks authority to consider a motion to withdraw
a guilty plea subsequent to an affirmance of an offender’s convictions by an appellate
court. According to well-settled law, Crim.R. 32.1 “‘does not confer upon the trial
court the power to vacate a judgment which has been affirmed by the appellate court,
for this action would affect the decision of the reviewing court, which is not within
the power of the trial court to do.’” Ketterer at ¶ 61, quoting State ex rel. Special
Prosecutors v. Judges, Belmont Cty. Court of Common Pleas, 55 Ohio St.2d 94, 97-
98, 378 N.E.2d 162 (1978). In other words, once the convictions have been affirmed on appeal, the trial court no longer may entertain a postsentence motion to
withdraw a guilty plea under Crim.R. 32.1.1 See also State v. Hill, 1st Dist. Hamilton
No. C-190337, 2020-Ohio-3271, ¶ 10; State v. Carter, 3d Dist. Allen No. 1-11-36,
2011-Ohio-6104, ¶ 11; State v. Caston, 6th Dist. Erie No. E-11-077, 2012-Ohio-5260,
¶ 10; State v. Smith, 7th Dist. Mahoning No. 14 MA 65, 2015-Ohio-4809, ¶ 5; State
v. Bains, 8th Dist. Cuyahoga No. 98845, 2013-Ohio-2530, ¶ 21; Ohio v. Torres, 9th
Dist. Medina No. 19CA0076-M, 2020-Ohio-3691, ¶ 7; State v. Davic, 2021-Ohio-
131, 166 N.E.3d 681, ¶ 16-22 (10th Dist.) (concluding that Special Prosecutors has
not been overruled by the Ohio Supreme Court); State v. Peters, 12th Dist. Clermont
No. CA2015-07-066, 2016-Ohio-5288, ¶ 8.
As a result, McGraw’s claims regarding his fourth postsentence
motion to withdraw his guilty plea are barred by the doctrine of res judicata. The
claims regarding the trial court’s handling of the competency issue could have been,
at the least, addressed in one of the three earlier postsentence motions to withdraw
the guilty pleas. McGraw IV at ¶ 14. McGraw also did not timely appeal two of the
denials. But beyond all of that, the trial court lacked authority to consider the merits
of the current motion, which if successful would have resulted in vacating the
1 McGraw cannot recast his motion into another form for the purposes of circumventing Ketterer. State v. Clark, 2d Dist. Darke No. 2021-CA-1, 2021-Ohio-2531, ¶ 19. “‘R.C. 2953.21 and 2953.23 do not govern a Crim.R. 32.1 postsentence motion to withdraw a guilty plea. Postsentence motions to withdraw guilty or no contest pleas and post-conviction relief petitions exist independently.’” Id., quoting State v. Bush, 96 Ohio St.3d 235, 239, 2002-Ohio-3993, 773 N.E.2d 522. convictions that were affirmed in McGraw I, a proposition that is contrary to
binding precedent. Ketterer at ¶ 61. McGraw’s arguments are overruled.
In light of the procedural posture of this case, we sua sponte issue the
following admonition. McGraw has taxed the limited resources of this court through
the continuous filing of appeals that are not reasonably grounded in fact or
warranted by existing law. See McGraw IV at ¶ 14; Ketterer, 126 Ohio St.3d 448,
2010-Ohio-3831, 935 N.E.2d 9, at ¶ 59. Accordingly, we are providing a warning to
McGraw of this court’s inherent power to prevent abuse of the appellate process. We
must caution appellant on the potential impact of his repeated attempts to raise
arguments that have been rejected by this court or were long ago settled. The
conduct of McGraw, through the continued filing of appeals from the denials of
motions that are frivolous, may result in McGraw being declared a vexatious
litigator.
The trial court has no authority to consider any motions to withdraw
a plea following the affirmance of the conviction in the direct appeal, and therefore,
any appeal following the denial of a successive motion is not warranted by existing
law. There are no reasonable grounds for this appeal, which is solely focused on the
substantive foundation of McGraw’s guilty pleas that were long ago settled.
Accordingly, McGraw is forewarned that the continued filing of appeals that are not
reasonably grounded in fact or warranted by existing law shall result in his being
declared a vexatious litigator subject to future filing requirements. State v.
Jefferson, 8th Dist. Cuyahoga No. 108791, 2020-Ohio-3182, ¶ 15-16; State v. Perry, 8th Dist. Cuyahoga No. 107596, 2019-Ohio-547, ¶ 12; Calhoun v. Calhoun, 8th Dist.
Cuyahoga No. 99955, 2014-Ohio-703, ¶ 14.
With this admonition in mind, McGraw’s sole assignment of error is
overruled. The trial court’s decision denying McGraw’s fourth postsentence motion
to withdraw his guilty pleas is affirmed.
It is ordered that appellee recover from 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. Case remanded to the
trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____________________________________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
FRANK DANIEL CELEBREZZE, III, J., and KATHLEEN ANN KEOUGH, J., CONCUR