State v. Sulek

2011 Ohio 3289

• Court: Ohio Court of Appeals
• Decided: June 30, 2011
• Docket: 10CA70
• Status: Published

Opinion

[Cite as State v. Sulek, 2011-Ohio-3289.]

IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 10CA70

vs. : T.C. CASE NO. 02CR794

KEITH A. SULEK : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of June, 2011.

Stephen K. Haller, Prosecutor; Elizabeth A. Ellis, Asst. Prosecutor, Atty. Reg. No.0074332, 61 Greene Street, Xenia, OH 45385 Attorneys for Plaintiff-Appellee

William O. Cass, Jr., Atty. Reg. No.0034517, 3946 Kettering Blvd., Suite 202, Kettering, OH 45439 Attorney for Defendant-Appellant

GRADY, P.J.:

{¶ 1} In State v. Sulek, Greene App. No. 2004-CA-2,

2005-Ohio-4514 (“Sulek I”), we overruled the error

Defendant-Appellant Sulek assigned with respect to the trial

court’s denial of his Crim.R. 32.1 motion to withdraw his no contest 2

pleas on a claim of ineffective assistance of counsel. Sulek

contended that his pleas were not knowing, intelligent, and

voluntary because his counsel had misadvised him that the maximum

term of incarceration he faced was thirty-seven and one-half years

when, in fact, due to merger of convictions, the term was seventeen

and one-half years.

{¶ 2} We overruled the error Defendant assigned in Sulek I

on a finding that the record unequivocally demonstrates that Sulek

knew, and acknowledged in his plea colloquy with the court, that

the maximum term he faced was seventeen and one-half years.

Therefore, Defendant could not demonstrate the prejudice required

by Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674, for a claim of ineffective assistance of counsel

to succeed.

{¶ 3} In State v. Sulek, Greene App. No. 09CA75,

2010-Ohio-3919, (“Sulek II), we reversed the aggregate prison term

of thirteen years the court imposed, on the authority of State

v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, because the court

had notified Sulek that he would be subject to a five year term

of post-release control when, in fact, the term that could apply

was no more than three years. We remanded the case for

resentencing.

{¶ 4} On remand, and prior to sentencing, Defendant filed 3

another Crim.R. 32.1 motion to withdraw his no contest pleas.

Defendant argued several grounds for relief, but the only one

that could merit relief pursuant to Crim.R. 32.1 was the same claim

of ineffective assistance of counsel we rejected in Sulek I. The

trial court overruled Defendant’s motion on the authority of that

prior holding. The court then imposed the same thirteen years

aggregate sentence it previously imposed, but with a correct

notification concerning Defendant’s term of post-release control.

Defendant appeals.

ASSIGNMENT OF ERROR

{¶ 5} “THE COURT ERRED WHEN IT DENIED THE APPELLANT’S MOTION

TO WITHDRAW HIS GUILTY PLEAS.”

{¶ 6} While Defendant proffered several grounds for his motion

to withdraw his no contest pleas, which the court rejected, on

appeal Defendant relies on but one: his claim that his trial counsel

was ineffective for misadvising Defendant concerning the maximum

penalty he faced.

{¶ 7} At Defendant’s resentencing hearing, the trial court

heard Defendant’s reasons for asking to withdraw his no contest

pleas. After hearing those reasons, the court stated:

{¶ 8} “What you’re raising today, you’ve raised previously,

and not only has the Trial Court ruled on those areas, but the

Court of Appeals has as well. In fact, on the issue of actual 4

innocence they address that specifically, particularly in – well,

in their decision when they upheld your plea and found no error.

{¶ 9} “Therefore, what I’m saying is, absent having something

new before me, I have no basis to change the decision previously

made in this case and I have no reason to grant you the right to

withdraw your plea.” (T. 7-8).

{¶ 10} Defendant argues that the trial court incorrectly

applied the doctrine of res judicata to deny his motion to withdraw

his pleas. Defendant points out that we have held that a conviction

does not create a res judicata bar to a Crim.R. 32.1 motion. State

v. Spencer, Clark App. No. 2006CA42, 2007-Ohio-2140; State v.

Cochran, Clark App. No. 2006-CA87, 2007-Ohio-4545. That only

stands to reason, because the relief the motion permits nullifies

the plea on which the conviction was entered. However, the trial

court was not referring to Defendant’s prior conviction when the

court denied Defendant’s motion to withdraw his no contest pleas.

The court instead made reference to our holding in Sulek I.

{¶ 11} In Sulek I, we held that the grounds on which Defendant

relied for his claim of ineffective assistance, counsel’s misadvice

concerning the maximum term Defendant faced, were insufficient

as a matter of law to demonstrate the prejudice required by

Strickland v. Washington. The law-of-the-case doctrine holds that

the decision of the reviewing court in a case remains the law 5

of that case on the questions of law involved for all subsequent

proceedings at the trial and appellate levels. Nolan v. Nolan

(1984), 11 Ohio St.3d 1. Our holding in Sulek I was the law of

the case on Defendant’s claim of ineffective assistance of counsel

for purposes of the Crim.R. 32.1 motion he subsequently filed.

The trial court correctly applied the law of the case when it denied

Defendant’s motion.

{¶ 12} The assignment of error is overruled. The judgment of

the trial court will be affirmed.

HALL, J. And DONOFRIO, J., concur.

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting

by assignment of the Chief Justice of the Supreme Court of Ohio.)

Copies mailed to:

Elizabeth A. Ellis, Esq. William O. Cass, Jr., Esq. Hon. Stephen A. Wolaver