State v. Toliver
This text of 2021 Ohio 1790 (State v. Toliver) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Toliver, 2021-Ohio-1790.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
STATE OF OHIO, : : Case No. 20CA6 Plaintiff-Appellee, : : v. : DECISION AND JUDGMENT : ENTRY DECHAUN TOLIVER, : : Defendant-Appellant. : RELEASED: 05/18/2021 _____________________________________________________________ APPEARANCES:
Keller J. Blackburn, Athens County Prosecutor, and Merry M. Saunders, Assistant Athens County Prosecutor, for Appellee.
Dechaun Toliver, Appellant pro se. ____________________________________________________________
Wilkin, J.
{¶1} Appellant, Dechaun Toliver (“appellant”), filed an appeal of the trial
court’s February 6, 2020 dismissal entry. Having reviewed appellant’s
arguments, the record, and the applicable law, we conclude that appellant’s
appeal lacks merit. Therefore, we affirm the trial court’s judgment that dismissed
appellant’s motion to withdraw his plea.
BACKGROUND
{¶2} On June 28, 2018, appellant pleaded guilty to two counts of
trafficking in cocaine in violation of R.C. 2925.03(A)(1), and one count of
engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1)
(“RICO”). The trial court sentenced appellant to an aggregate eight-year prison
term. Appellant did not file a direct appeal of his plea. He has subsequently filed Athens App. No. 20CA6 2
numerous post-conviction pleadings, but we only identify the ones relevant to this
appeal.
{¶3} On May 10, 2019, appellant filed a motion to withdraw his plea
alleging that the state failed to set forth an adequate RICO charge under Ohio
law, which the trial court denied on May 28, 2019. Appellant also did not appeal
this decision.
{¶4} On November 12, 2019, appellant filed a “Motion for Leave to
Traverse Motion to Withdraw Plea, Instanter.” On February 6, 2020, the trial
court issued a judgment entry that dismissed appellant’s motion as moot, finding
that it previously denied appellant’s May 10, 2019 motion to withdraw his plea.
{¶5} Appellant filed a notice of appeal of the trial court’s February 6, 2020
dismissal entry. Appellant filed his merit brief, which states: “Now comes
defendant-appellant in pro se, pursuant to Criminal Rule 32.1, and hereby
respectfully moves this Honorable Court to order a withdrawal of his guilty plea[,]”
[and] * * * to vacate the sentence imposed herein.”
{¶6} In response, the state argues that this court lacks jurisdiction to
decide a Crim.R. 32.1 motion. In the alternative, the state argues that the trial
court did not abuse its discretion when it denied appellant’s motion to withdraw
his guilty plea.
Law and Analysis
{¶7} Crim.R. 32.1 states that “[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 Athens App. No. 20CA6 3
permit the defendant to withdraw his or her plea.” “Section 4(B), Article IV of the
Ohio Constitution, provides that ‘courts of common pleas and divisions thereof
shall have such original jurisdiction over all justiciable matters * * * as may be
provided by law[,]’ [w]hile R.C. 2931.03 generally gives courts of common pleas
‘original jurisdiction of all crimes and offenses[.]’ ” (Emphasis added.) State ex
rel. Larkins v. Baker, 73 Ohio St. 3d 658, 660, 1995-Ohio-144, 653 N.E.2d 701,
702-703. This includes the authority to grant or deny a defendant’s post-
sentence-Crim.R. 32.1 motion to withdraw a guilty plea. See State v. Snyder, 4th
Dist. Pike No. 16CA881, 2017-Ohio-8091, 96 N.E.3d 833, ¶ 18.
{¶8} However, the jurisdiction of courts of appeals is more limited, having
authority “as may be provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to the court of appeals
within the district * * *.” (Emphasis added.) Ohio Const. Article IV, Section 3. In
an appeal, our standard of review of a trial court’s decision to grant or deny a
defendant’s motion to withdraw a plea is whether the trial court abused its
discretion. Snyder, at ¶ 18. “ ‘A trial court abuses its discretion when it makes a
decision that is unreasonable, unconscionable, or arbitrary.’ ” Id., quoting State
v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
{¶9} Appellant’s brief states: “Now comes defendant-appellant in pro se,
pursuant to Criminal Rule 32.1, and hereby respectfully moves this Honorable
Court to order a withdrawal of his guilty plea.” He then proceeds to argue the
merits of why his motion should be granted. It is unclear whether appellant is
asking this court to grant his motion to withdraw his plea, or is asking this court to Athens App. No. 20CA6 4
reverse the trial court’s decision that dismissed his November 12, 2019 motion to
withdraw his plea as being moot. However, he is not entitled to relief under
either argument.
{¶10} If appellant is moving this court to grant his motion to withdraw his
plea, we lack original jurisdiction under the Ohio Constitution to order such relief.
See Ohio Const. Article IV, Section 3. Alternatively, if appellant’s pleading herein
is an attempt to appeal the trial court’s decision dismissing his November 12,
2019 motion to withdraw his plea, his argument lacks merit because the trial
court had previously denied appellant’s May 10, 2019 motion to withdraw his
plea, making his November 12, 2019 motion moot.
{11} And to the extent that appellant intended his November 12, 2019
motion as a “new” motion to withdraw his plea for the trial court to consider, “[i]t is
axiomatic that res judicata bars successive Crim.R. 32.1 motions to withdraw
guilty pleas when the grounds for the plea were raised, or could have been
raised, in the initial motion.” State v. Lofton, 4th Dist. Pickaway No. 12CA21,
2013 WL 1195648, * 2, citing State v. Kelm, 6th Dist. Wood No. WD-11-024,
2013-Ohio-202, ¶ 10; State v. Kent, 4th Dist. Jackson No. 02CA21, 2003-Ohio-
6156, ¶ 6. Appellant’s initial motion to withdraw his plea filed on May 10, 2019,
as well as the one that is currently on appeal before the court, were both based
on the same argument, i.e. the state failed to adequately charge appellant with a
RICO offense. Raising the same argument in consecutive motions to withdraw a
plea is precisely the type of endless litigation that res judicata intends to prevent.
State v. Literal, 4th Dist. Scioto No. 12CA3479, 2012-Ohio-6298, ¶ 6, quoting Athens App. No. 20CA6 5
State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–1245, 846 N.E.2d 824, ¶ 18. (“
‘[R]es 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.’ ”).
CONCLUSION
{¶12} Therefore, to the extent that appellant intended to move this court to
grant his motion to withdraw his plea, we lack jurisdiction to do so. Alternatively,
to the extent that appellant intended his pleading herein to be an appeal of the
trial court’s dismissal of his motion to withdraw his plea, we find that the trial court
did not abuse its discretion in dismissing appellant’s motion. Accordingly, we
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2021 Ohio 1790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-toliver-ohioctapp-2021.