[Cite as State v. Barnett, 2016-Ohio-8070.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : HOn. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. CT2016-0028
WILLIAM BARNETT :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR20080210
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 5, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX WILLIAM J. BARNETT
PROSECUTING ATTORNEY #586573
BY GERALD ANDERSON II Marion Correctional Institution
ASSIST. PROSECUTING ATTORNEY Box 57
27 North Fifth St. Marion, OH 43301
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2016-0028 2
Gwin, P.J.
{¶1} Appellant William J. Barnett [“Barnett”] appeals from the May 26, 2016
Judgment Entry of the Muskingum County Court of Common Pleas denying his motions
which include a motion to withdraw his guilty plea; motion for a new trial; motion on
hearing for newly discovered evidence; and amended motion to suppress DNA evidence.
Facts and Procedural History
{¶2} The change of plea transcript indicates that Barnett entered a plea of guilty
on April 9, 2009, to Rape in violation of R.C. 2907.02, a felony of the first degree, and
Aggravated Burglary in violation of R.C. 2911.11, a felony of the first degree. In exchange
for the plea, the state nolled Count 2 of the indictment alleging kidnapping in violation of
R.C. 2905.01(A)(4) , the sexually violent predator specification to Count 2, the repeat
violent offender specification to Count 2 and the sexually violent predator and repeat
violent offender specifications to Count 3. The state recommended a 10-year sentence
on Count 1 and Count 2 to be served consecutive to one another but concurrent with a
sentence Barnett was currently serving in the Franklin County Court of Common Pleas.
(T. at 3).
{¶3} The facts underlying the allegations were put on the record by the state,
MR. SMITH: Thank you, Your Honor. If this matter had proceeded
to trial, the State believes the evidence would have shown that between
October 8th and October 9th, 2006, in Muskingum County, the defendant
did, by force, stealth, or deception, knowingly trespass in an occupied
structure located at 2926 Brookside Drive, Zanesville, Muskingum County,
Ohio, with purpose to commit in that structure a criminal offense, that being
Muskingum County, Case No. CT2016-0028 3
kidnapping and/or rape, and that he did inflict, attempt to inflict, or threaten
to inflict physical harm upon his victim identified as …., this in violation of
Revised Code Section 2911.11(A)(1).
With regard to Count 3, the State believes the evidence would have
shown on the same date, time, and place the defendant did engage in
sexual conduct with [the victim], who was not his spouse, and he compelled
her to submit by force or threat of force, this in violation of Revised Code
Section 2907.02(A)(2).
These charges stem from a Muskingum County Sheriff's Department
investigation into a complaint filed by [the victim]. That investigation
revealed that the defendant did enter into her apartment while she was
gone, laying in wait for her. When she did come home, he brandished a
knife and did compel her to have sexual conduct with him and escaped.
This investigation later was able to be solved through the use of forensic
technology and DNA evidence.
T. at 11-12.
{¶4} The trial court sentenced Barnett to 10 years on each count consecutive to
each other but concurrent with the sentence Barnett was currently serving in the Franklin
County Court of Common Pleas. (Sent. Entry, filed May 12, 2009).
{¶5} Barnett appealed raising as his four assignments of error:
I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS
AND THE RIGHT TO A GRAND JURY INDICTMENT UNDER ARTICLE I,
SECTION 10 TO THE OHIO CONSTITUTION AND THE FIFTH, SIXTH
Muskingum County, Case No. CT2016-0028 4
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION BY A PROSECUTIO [SIC] AND RESULTING
CONVICTION ON AN INSUFFICIENT INDICTMENT FOR AGGRAVATED
BURGLARY WHICH DID NOT CONTAIN THE RECKLESS MENS REA
ELEMENT AS REQUIRED BY LAW.
II. THE DEFENDANT-APPELLANT’S PLEA WAS NOT
KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED UNDER
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION.
III. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS
AND WAS TWICE PLACED IN JEOPARDY IN VIOLATION OF ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION WHEN HE WAS SENTENCED TO CONSECUTIVE
TERMS OF IMPRISONMENT FOR THE SAME OFFENSE.
IV. THE DEFENDANT-APPELLANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL UNDER ARTICLE I, SECTION
10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
State v. Barnett, 5th Dist. Muskingum No. CT2009-0025, 2010-Ohio-1695, ¶5-¶8. This
court affirmed Barnett’s conviction and sentence. The Ohio Supreme Court declined to
Muskingum County, Case No. CT2016-0028 5
exercise jurisdiction. State v. Barnett, 126 Ohio St.3d 1582, 2010-Ohio-4542, 934 N.E.
355(Table).
{¶6} On November 24, 2009, Barnett filed a petition for post-conviction relief to
vacate or set aside his conviction in the trial court pursuant to R.C. 2953.21, claiming
ineffective assistance of counsel alleging he was forced to accept the plea bargain due
to misrepresentations made by counsel, he was denied a right to a preliminary hearing
and his right to a speedy trial was violated. The trial court denied Barnett’s petition by
Judgment Entry filed November 24, 2009. No appeal was filed from the trial court’s
judgment entry denying Barnett’s petition.
{¶7} On October 23, 2015, Barnett filed: 1). Motion for Hearing on Newly
Discovered Evidence; 2). Crim.R. 33(A)(4)(6) Motion for a New Trial on Evidence Not
Available for Seven Years; 3). Crim.R. 32.1` Motion for Withdrawal of Guilty Plea- Hearing
Requested. On October 30, 2015, Barnett filed a Motion to Dismiss Alleged DNA
Evidence. On November 18, 2015, Barnett filed an Amended Motion to Suppress Alleged
DNA Evidence. The state filed a response to each motion filed by Barnett. The trial court
denied all of Barnett’s motions by Judgment Entry filed May 26, 2016.
Assignments of Error
{¶8} Barnett raises four assignments of error,
{ ¶ 9 } “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT IN DENYING HIS MOTION FOR WITHDRAWAL OF A GUILTY
PLEA, HEARING REQUESTED. THE TRIAL COURT ERRED IN NOT
GRANTING THE DEFENDANT A HEARING ON HIS MOTION. A COMPLAINT
THAT CONTAINS ENOUGH FACTUAL MATTER WHEN TAKEN AS TRUE
Muskingum County, Case No. CT2016-0028 6
SHOULD N O T B E D I S M I S S E D . I N D I S M I S S I N G T H E C O M P L A I N T , T H E
COURT ERRS.
{¶10} “II. IN A MOTION FOR NEW TRIAL ON EVIDENCE NOT AVAILABLE FOR
SEVEN YEARS; IN A MOTION FOR NEW TRIAL ON NEWLY DISCOVERED
EVIDENCE REQUIRED WHEN THAT EVIDENCE PROVES DEFENDANT NOT ONLY
INNOCENT OF THE ALLEGED CRIME, BUT NO PROOF EXISTS SUPPORTING THAT
CRIME OCCURRED. THE TRIAL COURT ERRS BY DISMISSING THE COMPLAINT
WITHOUT A HEARING.
{¶11} “III. A MOTION FOR NEW TRIAL ON EVIDENCE NOT
AVAILABLE FOR SEVEN YEARS. WHEN EVIDENCE KNOWN TO THE STATE
WAS WITHHELD FROM DEFENDANT FOR SEVEN YEARS THAT PREVIOUSLY
UNAVAILABLE EVIDENCE RENDERS THE INDICTMENT INSUFFICIENT, AND A
VERDICT THAT'S NOT SUSTAINED BY SUFFICIENT EVIDENCE IN THE
PRESENCE OF THE PREVIOUSLY UNAVAILABLE, INCLUDING AFFIDAVITS,
REQUIRES DISMISSAL OR GRANTING OF A NEW TRIAL. THE TRIAL
COURT ERRED W HEN IT FAILED TO HOLD A H E A R I N G O N E A C H I S S U E
INSTEAD OF DISMISSING THE MOTIONS.
{¶12} “IV. ALTHOUGH DNA IS CONSIDERED THE SAME
AS FINGERPRINT W HEN IT COMES TO EVIDENCE, CROSS
EXAMINATION IS NOT A PROBLEM W ITH A FINGERPRINT;
HOW EVER, THE MINUTE AMOUNT OF DNA REQUIRED TO BE
USED IN TESTING INCREASES DRAMATICALLY ITS
SUSCEPTIBILITY TO CONTAMINATION FROM OTHER SOURCES
Muskingum County, Case No. CT2016-0028 7
— PARTICULARLY FORM THE SAMPLE THAT IS BEING RUN IN
COMPARISON TO. THE TRIAL COURT ERRED WHEN IT FAILED
TO HOLD A HEARING ON EACH ISSUE INSTEAD OF DISMISSING
THE MOTIONS.”
Pro se appellants
{¶13} We understand that Barnett has filed this appeal pro se. Nevertheless, “like
members of the bar, pro se litigants are required to comply with rules of practice and
procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-
3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11.
We also understand that “an appellate court will ordinarily indulge a pro se litigant where
there is some semblance of compliance with the appellate rules.” State v. Richard, 8th
Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶14} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),
the Supreme Court noted, “a reviewing court cannot add matter to the record before it
that was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”
It is also a longstanding rule "that the record cannot be enlarged by factual assertions in
the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),
citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(1963). New material and factual assertions contained in any brief in this court may
not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858
N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843
Muskingum County, Case No. CT2016-0028 8
N.E.2d 1202, ¶16. In the interests of justice, we shall attempt to consider Barnett’s
assignments of error.
I.
{¶15} After reviewing Barnett’s brief including his contentions, we have interpreted
Barnett’s first assignment of error in the following manner: The trial court erred in denying
his post-sentence motion to withdraw his guilty plea without a hearing.
{¶16} The entry of a plea of guilty is a grave decision by an accused to dispense
with a trial and allow the state to obtain a conviction without following the otherwise difficult
process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,
368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete
admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not
simply stating that he did the discreet acts described in the indictment; he is admitting
guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102
L.Ed.2d 927(1989).
{¶17} Crim.R. 32.1 provides that a trial court may grant a defendant’s post
sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore,
“[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence has
the burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio
St.2d 261,361 N.E.2d 1324(1977), paragraph one of the syllabus. Although no precise
definition of “manifest injustice” exists, in general, “‘manifest injustice relates to some
fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is
inconsistent with the demands of due process.’” State v. Wooden, 10th Dist. Franklin No.
03AP–368, 2004–Ohio–588, ¶ 10, quoting State v. Hall, 10th Dist. Franklin No. 03AP–
Muskingum County, Case No. CT2016-0028 9
433, 2003–Ohio–6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP–708,
2005–Ohio–4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699
N.E.2d 83(1998) (“[a] manifest injustice has been defined as a ‘clear or openly unjust
act’”) Under this standard, a post-sentence withdrawal motion is allowable only in
extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.
{¶18} “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.” Smith at
paragraph two of the syllabus. Thus, we review a trial court’s denial of a motion to
withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that denial
only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005–Ohio–4926.
{¶19} Barnett has failed to demonstrate that the evidence he presented to the trial
court in the form of a test result from Ohio Bureau of Criminal Identification and
Investigation [“BCI & I”] was “newly discovered.”
{¶20} A review of the court’s files reveals that trial counsel filed a motion to obtain
a DNA expert, naming Genetic Technologies, Inc. on September 30, 2008. The grounds
for the motion as described by counsel was discovery had indicated DNA testing was
performed in Barnett’s case. The trial court granted defense counsel’s motion on October
3, 2008.
{¶21} On October 15, 2008, defense counsel filed a demand for specific
discovery, including all lab reports, DNA test results, protocols, manuals and procedures
utilized by the state’s experts.
Muskingum County, Case No. CT2016-0028 10
{¶22} On December 22, 2008, defense counsel filed a motion to compel
discovery. In addition, defense counsel filed his response to discovery identifying
Stephanie Beine of Genetic Technologies as a witness at trial. In his motion to compel,
defense counsel informed the trial court of the following,
On January 12, 2009, the undersigned counsel received some of the
specific DNA evidence that was requested on October 15, 2008. The
undersigned counsel forwarded the evidence received to Defendant's
expert on January 14, 2009. Once Defendant's expert received the specific
DNA evidence produced by the State of Ohio, she immediately notified the
undersigned counsel that it was not complete and that she needed the
Procedure Manuals for both labs, the Quality Assurance Manuals for both
labs, and the electronic data for both labs.
***
On February 19, 2009, the undersigned counsel received the
additional BCI information that was requested but to date has not received
the LabCorp information. On February 19, 2009, the undersigned counsel
forwarded the additional BCI information to Defendant's expert for her
review.
{¶23} The trial court granted defense counsel’s motion to compel on March 4,
2009, ordering the state to provide specific discovery within five days.
{¶24} On March 31, 2009, the trial court approved payment to Genetic
Technologies, Inc. for services performed for the defense from October 31, 2008 through
March 27, 2009.
Muskingum County, Case No. CT2016-0028 11
{¶25} Barnett plead guilty on April 9, 2009.
{¶26} Barnett produced no evidence that the state failed to comply with the trial
court’s March 4, 2009 order. No affidavit was presented from either counsel or Genetic
Technologies, Inc. that the reports Barnett submitted with his motion were not produced
and reviewed by the defense and the defense expert prior to the date on which he entered
his negotiated guilty plea.
{¶27} Further, Barnett submitted in support of his motions a letter from his trial
attorney dated September 30, 2014, in which counsel inform Barnett,
Once Genetics Technologies completed their review and analysis,
they called me with their opinion. Since their opinion was not favorable to
you, they did not send me a written report nor did they feel it was necessary
to perform their own DNA test.
{¶28} Accordingly, Barnett did not establish that the evidence was “newly
discovered.” The trial court did not abuse its discretion in denying Barnett’s motion to
withdraw his guilty plea without a hearing.
{¶29} Barnett’s first assignment of error is overruled.
II. & III.
{¶30} After reviewing Barnett’s brief including his contentions, we have interpreted
Barnett’s second and third assignments of error in the following manner: the trial court
erred in overruling his motion for a new trial.
{¶31} In State v. Aleshire, this court observed,
Pleas of guilty that are knowingly, voluntarily, and intelligently
entered waive the defendant’s right to trial on the criminal charge or charges
Muskingum County, Case No. CT2016-0028 12
involved. It necessarily follows, therefore, that “[a] plea of guilty in a criminal
case precludes the defendant from thereafter making a motion for a new
trial.” State v. Frohner (1948), 150 Ohio St. 53, 80 N.E.2d 868, paragraph
thirteen of the syllabus; State, ex rel. Batten v. Reece, 70 Ohio St.2d 246,
436 N.E.2d 1027; State v. Franklin, Greene App. No.2002-CA-7, 2003-
Ohio-3831 at ¶ 10.
Moreover, allowing a defendant to file a motion for new trial instead
of a motion to withdraw the plea permits the defendant to circumvent the
more stringent standard set forth in seeking a withdrawal of a plea. State
v. Frohner, supra. See, also State v. Woodley, Cuyahoga App. No. 83104
at n. 2. (Citing State v. Burke (Mar. 9, 2001), 2nd Dist. No. 17955; State v.
Vincent, 4th Dist. No. 02CA2654, 2003-Ohio-473, at ¶ 20; State v. Franklin,
2nd Dist. No. 2002 CA 77, 2003-Ohio-3831).
Accordingly, because appellant entered guilty pleas to all the
charges and waived his right to have a jury determine his guilt or innocence,
the trial court correctly determined that it did not have jurisdiction to rule
upon appellant’s motion for a new trial. Therefore, we affirm the trial court’s
decision dismissing his motion for a new trial and overrule the appellant’s
assignment of error related to his filing of a motion for a new trial.
5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, ¶54-55; Accord, State v. Armstrong,
8th Dist., Cuyahoga No. 103088, 2016-Ohio-2627, ¶63; State v. Temaj-Felix, 1st Dist.,
Hamilton No. C-140138, 2015-Ohio-3967, ¶7.
Muskingum County, Case No. CT2016-0028 13
{¶32} Accordingly, because Barnett entered guilty pleas to all the charges and
waived his right to have a jury determine his guilt or innocence, the trial court did not have
jurisdiction to rule upon his motion for a new trial. Barnett filed a separate motion to
withdraw his guilty plea, which the trial court addressed.
{¶33} To the extent Barnett argues his plea was not knowing, intelligent and
voluntary, Barnett was represented by different counsel on his direct appeal. Barnett did
raise an assignment of error concerning whether his plea was knowing, intelligent and
voluntary and an assignment of error concerning whether he was denied the effective
assistance of counsel. Barnett did further raise these issues based upon similar
arguments in his petition for post-conviction relief; however, he did not appeal the trial
court’s denial of his petition. Accordingly, the issues are barred by res judicata.
{¶34} Therefore, we affirm the trial court’s decision dismissing his motion for a
new trial and overrule the Barnett’s second and third assignments of error related to his
filing of a motion for a new trial.
IV.
{¶35} After reviewing Barnett’s brief including his contentions, we have interpreted
Barnett’s fourth assignment of error in the following manner: The trial court erred in not
conducting a hearing on Barnett’s claim of contamination of the DNA evidence in his case.
{¶36} “The possibility of contamination goes to the weight of the evidence, not its
admissibility.” State v. Richey, 64 Ohio St.3d 353, 360, 595 N.E.2d 915 (1992), overruled
on other grounds, State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997). In other
words, Barnett could have, but did not, chose to go to trial and argue that the DNA
evidence was flawed. All of the evidence that Barnett cites to in his brief was available at
Muskingum County, Case No. CT2016-0028 14
the time he entered his negotiated guilty plea. Hence, the argument and the evidence
were available to him before his plea, direct appeal and his petition for post-conviction
relief.
{¶37} “Under the doctrine of res judicata, a final judgment of conviction bars the
defendant from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that the defendant raised or
could have raised at the trial which resulted in that judgment of conviction or on appeal
from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Res
judicata also implicitly prohibits a defendant from “re-packaging” evidence or issues that
either were, or could have been, raised in the context of the petitioner's trial or direct
appeal. State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362(12th Dist. 1995).
{¶38} Barnett’s arguments do not raise any issues that are dependent upon
evidence outside the trial court record.
Muskingum County, Case No. CT2016-0028 15
{¶39} Barnett’s fourth assignment of error is overruled.
{¶40} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur