[Cite as State v. Carnes, 2018-Ohio-2075.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-T-0088
- vs - :
MARK E. CARNES, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2014 CR 00395.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Gabriel Wildman, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Mark E. Carnes, pro se, PID: A662-583, Madison Correctional Institution, 1851 State
Route 56, London, OH 43140 (Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Mark E. Carnes, appeals from the August 7, 2017 judgment of
the Trumbull County Court of Common Pleas, denying his motion to withdraw his guilty
plea. The trial court’s judgment is affirmed.
{¶2} On May 16, 2014, appellant was indicted by appellee, the state of Ohio, on
five counts of rape, felonies of the first degree, in violation of R.C. 2907.02(A)(2) and (B);
five counts of unlawful sexual conduct with a minor, felonies of the third degree, in
violation of R.C. 2907.04(A) and (B)(3); five counts of compelling prostitution, felonies of
the third degree, in violation of R.C. 2907.21(A)(2)(a) and (C); and eleven counts of illegal
use of a minor in nudity-oriented material or performance, felonies of the second degree,
in violation of R.C. 2907.323(A)(1) and (B). Specifically, the indictments alleged that
appellant had engaged in this conduct with two female minors from 2009 through 2014.
In 2009, the victims were approximately 11 and 13 years old.
{¶3} Appellant signed a written plea of guilty and pled guilty in open court to five
counts of unlawful sexual conduct with a minor, five counts of compelling prostitution, and
eleven counts of illegal use of a minor in nudity-oriented material or performance. The
trial court accepted the plea, and a nolle prosequi was entered on the remaining five
counts of rape. The trial court deferred sentencing and ordered a presentence
investigation report.
{¶4} On November 13, 2014, the trial court held a sentencing hearing. Pursuant
to the November 20, 2014 sentencing entry, the trial court found the five counts of
unlawful sexual conduct with a minor merged with the five counts of compelling
prostitution, respectively, as they were allied offenses of similar import. Appellee elected
to sentence on the five counts of unlawful sexual conduct with a minor. Appellant was
sentenced to 60 months imprisonment for each count of unlawful sexual conduct with a
minor, to be served consecutively to each other. Appellant was also sentenced to eight
years imprisonment for each of the eleven counts of illegal use of a minor in nudity-
oriented material or performance, to be served concurrently with each other but
consecutively to the sentences for unlawful sexual conduct with a minor. This resulted in
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an aggregate prison term of 33 years. Appellant was also fined $10,000.00 and classified
as a Tier II Sex Offender.
{¶5} Appellant filed a direct appeal from this sentencing entry, arguing the trial
court’s imposition of consecutive sentences was both contrary to law and not supported
by the record. The judgment was affirmed in State v. Carnes, 11th Dist. Trumbull No.
2014-T-0120, 2015-Ohio-4429.
{¶6} On May 25, 2017, appellant filed a motion to withdraw his guilty plea, in
which he argued the indictment in this case violated his constitutional right to due process
and unconstitutionally denied him protection against double jeopardy. The trial court
denied this motion without a hearing on May 31, 2017. No appeal was taken from this
order.
{¶7} On July 31, 2017, appellant filed a second motion to withdraw his guilty plea,
in which he raised the same arguments. The trial court again denied the motion without
a hearing on August 7, 2017.
{¶8} Appellant noticed an appeal from this entry and asserts one assignment of
error for our review:
Mr. Carnes’ conviction must be reversed because the guilty plea
entered was manifest injustice where the intelligence aspect were
[sic] based on an invalid indictment due to its duplicitous and multiple
nature denying Mr. Carnes of his constitutional right against double
jeopardy.
{¶9} Although appellant’s brief on appeal is largely undecipherable, it appears
his essential argument is that his pleas were not entered intelligently because of alleged
defects in his indictment. Specifically, he “contest[s] the duplicitous nature of his
Indictment that contained multiple counts of the same offense and where the dates of
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birth made the latter counts incorrect and fictitious.” Appellee responds that appellant’s
argument is barred by res judicata because it could have been raised in his direct appeal
but was not.
{¶10} After a defendant has been sentenced, a court may permit withdrawal of a
guilty plea only to correct a manifest injustice. Crim.R. 32.1. “The burden of establishing
the existence of such injustice is upon the defendant. The logic behind this precept is to
discourage a defendant from pleading guilty to test the weight of potential reprisal, and
later withdraw the plea if the sentence was unexpectedly severe.” State v. Caraballo, 17
Ohio St.3d 66, 67 (1985), citing State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one
of the syllabus, and State v. Peterseim, 68 Ohio App.2d 211, 213 (8th Dist.1980).
{¶11} An appellate court’s “review of this matter is somewhat limited as a motion
made pursuant to Crim.R. 32.1 is left to the sound discretion of the trial court. It is that
court which determines the credibility of a defendant’s claim in support of the motion.” Id.,
citing Smith, supra, paragraph two of the syllabus.
{¶12} Additionally, it is well-established that claims raised in a post-sentence
motion to withdraw a guilty plea that were raised or could have been raised in a direct
appeal may be barred by res judicata. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-
3831, ¶59, citing State v. McGee, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-3374, ¶9,
and State v. Totten, 10th Dist. Franklin No. 05AP-278 & 05AP-508, 2005-Ohio-6210, ¶7;
see also State v. Curry, 11th Dist. Ashtabula No. 2014-A-0056, 2015-Ohio-1768, ¶8
(collecting cases). “Res judicata bars the assertion of claims against a valid, final
judgment of conviction that have been raised or could have been raised on appeal.” Id.,
citing State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.
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{¶13} Appellant’s argument could have been raised in his direct appeal, as he
relies on information that was known or available at that time, to wit: the allegations on
the face of his indictment. Thus, both of his motions to withdraw his guilty plea were
barred by the doctrine of res judicata. Further, even if res judicata did not apply here,
appellant has not established that granting the motion to withdraw his plea is necessary
to correct a manifest injustice.
{¶14} The trial court did not abuse its discretion in denying the instant motion to
withdraw appellant’s guilty plea.
{¶15} Appellant’s assignment of error is without merit.
{¶16} The judgment of the Trumbull County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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