State v. Rangel

2019 Ohio 1845

• Court: Ohio Court of Appeals
• Decided: May 13, 2019
• Docket: 2018-L-102
• Status: Published

Opinion

[Cite as State v. Rangel, 2019-Ohio-1845.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2018-L-102 - vs - :

GILBERTO RANGEL, :

Defendant-Appellant. :

Civil Appeal from the Lake County Court of Common Pleas, Case No. 2014 CR 000846.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

G. Michael Goins, 13609 Shaker Boulevard, Suite 3-A, Cleveland, OH 44120 (For Defendant-Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, Gilberto R. Rangel, appeals the trial court’s denial of his

successive motion to withdraw his guilty plea without hearing. He argues the trial court

erred in not holding a hearing as his evidentiary materials were sufficient to establish that

he was denied effective assistance of trial counsel prior to pleading guilty. We affirm.

{¶2} In October 2014, appellant was involved in a motor vehicle accident. His

vehicle collided with a minivan carrying four persons. After the collission, he failed field sobriety tests, admitted to drinking a few beers immediately before driving, and had a

breath-alcohol concentration of 0.184. Two of the minivan occupants suffered serious

physical injures, and the remaining two sustained psychological harm.

{¶3} In August 2015, the state filed an information charging appellant with two

counts of aggravated vehicular assault, under R.C. 2903.08(A)(1)(a), and one count of

operating a motor vehicle under the influence of alcohol, under R.C. 4511.19(A)(1)(a).

Two weeks later, appellant entered a guilty plea to all three charges. After accepting the

guilty plea, finding him guilty of all charges, and holding a sentencing hearing, the trial

court imposed thirty-month terms on the aggravated vehicular assault counts and six-

months on the OVI count, consecutive, for an aggregate prison term of 66 months.

{¶4} Appellant pursued a direct appeal of his conviction and sentence, asserting

two sentencing assignments and ineffective assistance of trial counsel during sentencing.

We affirmed in all respects. State v. Rangel, 11th Dist. Lake No. 2015-L-119, 2016-Ohio-

7148.

{¶5} In June 2017, after serving approximately nineteen months, appellant

moved the trial court to vacate and/or change his guilty plea, arguing that he was denied

effective assistance of counsel prior to entering the guilty plea and due process during

the plea hearing because he was not provided with an interpreter. The trial court denied

the motion primarily because appellant failed to demonstrate manifest injustice. In so

doing, the trial court addressed both arguments raised. Appellant did not pursue an

appeal from that decision.

{¶6} On May 21, 2018, appellant filed a successive motion to withdraw his guilty

plea under Crim.R. 32.1. In the motion, he asserts the same arguments that formed the

2 bases of his June 2017 motion to vacate, lack of an interpreter and ineffective assistance

of trial counsel. The only difference between the two motions is that the successive

motion is supported with affidavits of his employer and various family members.

{¶7} The state opposed and thereafter, the trial court denied the motion. The

trial court repeated much of the analysis contained in its prior judgment denial. The trial

court also found his successive motion barred by res judicata because appellant’s

arguments either were, or could have been raised, in his prior motion.

{¶8} Appellant asserts one assignment for review:

{¶9} “The trial court abused its discretion when it denied appellant’s post-

sentence motion to withdraw his guilty plea in violation of the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution.”

{¶10} Appellant does not argue that the trial court erred in finding his successive

motion to withdraw is barred under res judicata.

{¶11} Even though appellant’s June 2017 motion was not captioned as a motion

to withdraw his guilty plea under Crim.R. 32.1, it requested that the guilty plea be vacated.

Moreover, although the June 2017 motion was submitted by a different attorney and was

worded slightly differently than the motion to withdraw, both motions assert the same

arguments.

{¶12} “[R]es judicata bars claims raised in a Crim.R. 32.1 post-sentence motion

to withdraw a guilty plea that were raised or could have been raised in a prior proceeding

such as a direct appeal or a prior motion to withdraw a guilty plea. State v. Jordan, 12th

Dist. Warren No. CA2014-04-051, 2015-Ohio-575, ¶ 14; State v. Swinson, 12th Dist.

Clermont No. CA2016-05-024, 2017-Ohio-150, ¶ 12. Thus, res judicata will apply when

3 a defendant raises piecemeal claims in successive Crim.R. 32.1 post-sentence motions

to withdraw a guilty plea that could have been raised on direct appeal or in a previous

Crim.R. 32.1 motion. State v. Colvin, 7th Dist. Mahoning No. 15 MA 0162, 2016-Ohio-

5644, ¶ 47; State v. Hughes, 8th Dist. Cuyahoga No. 97311, 2012-Ohio-706, ¶ 9.” State

v. Green, 12th Dist. Butler No. CA2016-09-187, 2017-Ohio-2800, ¶ 13.

{¶13} The sole difference between the first motion to vacate and the successive

motion to withdraw is that the latter is supported by seven affidavits. To the extent that

the averments in these affidavits relate to appellant’s “interpreter” and “ineffective

assistance” arguments, they were known since the time appellant pleaded guilty.

Appellant, moreover, does not allege in his successive motion that he could not have

obtained these affidavits to support his first motion to withdraw. Thus, the May 2018

motion to withdraw was not predicated upon any newly discovered evidence. It was

merely a re-assertion of the same arguments the trial court had already considered and

rejected in the first motion.

{¶14} The trial court did not err in overruling his successive motion to withdraw

due to res judicata. Appellant’s sole assignment is overruled.

{¶15} The judgment of the Lake County Court of Common Pleas is affirmed.