[Cite as State v. Dixon, 2019-Ohio-1385.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-80
:
v. : Trial Court Case No. 2015-CR-241
:
BRANDON R. DIXON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of April, 2019.
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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOHN A. FISCHER, Atty. Reg. No. 0068346, 70 Birch Alley, Suite 240, Dayton, Ohio
45440
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Brandon R. Dixon appeals from the trial court’s denial of a post-sentence
motion to withdraw his guilty plea to charges of felonious assault and felony operating a
motor vehicle while under the influence (OVI).
{¶ 2} In his sole assignment of error, Dixon challenges the trial court’s denial of his
motion. He contends that he demonstrated a manifest injustice warranting withdrawal of
his plea and that res judicata did not preclude him from raising his arguments.
{¶ 3} The facts and history of Dixon’s case are summarized in our May 2016
opinion disposing of his direct appeal from his conviction:
* * * Dixon originally was charged by indictment with aggravated
vehicular assault, felony OVI, and failure to comply with an order or signal
of a police officer. The charges stemmed from his act of fleeing from a traffic
stop and driving a Corvette approximately 100 miles per hour through a
residential area at 2:00 a.m. After running red lights and jumping railroad
tracks, he eventually lost control and struck a tree. His passenger, Madison
Burkitt, was ejected from the vehicle and nearly died. She suffered 47
broken bones and was in a coma for 33 days. At the time of the accident,
Dixon was intoxicated and was driving with three prior OVI convictions and
with 15 open driver’s license suspensions. Following his indictment, he pled
guilty to a bill of information charging him with felonious assault and fourth-
degree felony OVI. The trial court sentenced him to statutory-maximum
terms of eight years for felonious assault and 30 months for OVI. It ordered
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the terms to be served consecutively.
State v. Dixon, 2d Dist. Clark No. 015-CA-67, 2016-Ohio-2882, ¶ 3.
{¶ 4} In his direct appeal, Dixon challenged the trial court’s imposition of maximum,
consecutive sentences. We affirmed. Id. at ¶ 4-16. After we rejected his sentencing
challenge, Dixon filed a pro se February 2017 motion to withdraw his guilty plea. (Doc.
#13). As grounds for the motion, Dixon claimed his attorney never told him that the original
charges of aggravated vehicular assault and felony OVI would have merged as allied
offenses. Dixon argued that this omission constituted ineffective assistance and tainted
his plea to the bill of information charging him instead with felonious assault and felony
OVI, on which the trial court imposed consecutive sentences. Therefore, he asserted that
a manifest injustice existed warranting withdrawal of his guilty plea.
{¶ 5} The trial court overruled Dixon’s motion in an August 2, 2017 entry. (Doc.
#16). It reasoned:
The defendant’s motion must be denied on two grounds. First, the
defendant is incorrect in stating that the convictions for Aggravated
Vehicular Assault and OVI would have to merge for the purpose of imposing
a sentence. The Supreme Court of Ohio has decided that Aggravated
Vehicular Assault and OVI do not have to merge. See State v. Earley, 145
Ohio St.3d 281 (Ohio 2015). Therefore, the defendant’s attorney did not
incorrectly advise him regarding the potential penalties.
Second, this case has been appealed to the Second District Court of
Appeals, 15-CA-0067. In that appeal, the defendant raised two issues: 1)
whether the trial court was required to state it had considered the proper
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sentencing statutes when imposing the sentence and 2) whether the trial
court erred in failing to consider mitigating factors. The decision of the trial
court was affirmed. The defendant did not raise the issue of ineffective
assistance of counsel during his appeal nor the issue of failure to merge the
offenses for the purpose of sentencing even though the issues could have
been raised at that time. Therefore, this motion is barred by res judicata.
Therefore, after reviewing the record of this case and the written
arguments, the Court finds the motion not to be well taken and the same is
DENIED.
(Id. at 2-3).
{¶ 6} On appeal, Dixon contends res judicata does not apply to the arguments
raised in his plea-withdrawal motion. He also asserts that ineffective assistance of
counsel properly may be raised in a post-sentence plea-withdrawal motion. He reiterates
his argument about a manifest injustice resulting from his attorney’s failure to advise him
that two of the original charges against him—aggravated vehicular assault and felony
OVI—would have merged as allied offenses. Dixon asserts that prejudice exists because
he received a longer aggregate sentence by pleading guilty to felonious assault and
felony OVI in a bill of information than he would have if he had rejected the plea deal and
proceeded on the indicted charges.
{¶ 7} Upon review, we find Dixon’s assignment of error to be unpersuasive. This
court has held that, strictly speaking, res judicata does not apply to a plea-withdrawal
motion. State v. Cochran, 2d Dist. Clark No. 2006 CA 87, 2007-Ohio-4545, ¶ 17. Res
judicata applies in “subsequent actions,” whereas a plea-withdrawal motion does not
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involve a subsequent action. Rather, it is filed “in the same criminal proceeding as the
criminal conviction[.]” Id.1
{¶ 8} As a practical matter, however, the foregoing distinction is largely academic
in the context of a post-sentence plea-withdrawal motion because our jurisprudence
achieves the same result. In State v. Minkner, 2d Dist. Champaign No. 2009 CA 16, 2009-
Ohio-5625, we noted that a defendant who seeks to withdraw his plea after sentencing
must establish a “manifest injustice.” Id. at ¶ 25. We also recognized that a manifest
injustice cannot be established where a defendant could have sought redress “through
another form of application,” including a direct appeal. Id. at ¶ 25-32. Thus, much like res
judicata, the manifest-injustice standard precludes relief under Crim.R. 32.1 when an
issue could have been raised on direct appeal.
{¶ 9} In the present case, Dixon contends his attorney failed to tell him that two of
the original charges against him—aggravated vehicular assault and felony OVI—would
have merged as allied offenses. Dixon suggests that if he had known this, he would not
have entered a guilty plea to a bill of information charging him with felonious assault and
felony OVI, which were not merged at sentencing. Having reviewed the record, it does
not appear to us that Dixon could have raised this argument on direct appeal. Nothing in
the trial court record reflects what, if anything, counsel told him about the originally
indicted charges being allied offenses. Because the record below fails to portray the error
1 The author questions the accuracy of the Cochran decision. At least seven other
districts have held that res judicata does apply to a Crim.R. 32.1 motion. State v. Coley-
Carr, 8th Dist. Cuyahoga No. 11101611, 2014-Ohio-5556, ¶ 11 citing State v.
Bryukhanova, 6th Dist. Fulton No. F-10-002, 2010-Ohio-5504, ¶ 12, which in turn cites
cases from six other districts that apply res judicata to post-judgment Crim.R. 32.1
motions to withdraw a plea.
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Dixon alleges, a direct appeal would not have been an effective way to raise the issue.
{¶ 10} Even though Dixon could not have raised his argument on direct appeal,
another obstacle precludes relief under Crim.R. 32.1. This court repeatedly has held “that
matters outside the record that allegedly corrupted the defendant’s choice to enter a guilty
or no contest plea so as to render that plea less than knowing and voluntary, such as
ineffective assistance provided by a defendant’s trial counsel, are proper grounds for
post-conviction relief pursuant to R.C. 2953.21 and that the availability of that relief
removes defendant’s claims from the type of extraordinary circumstances that
demonstrate a manifest injustice, which is required for Crim.R. 32.1 relief.” State v.
Nawman, 2d Dist. Clark No. 2016-CA-43, 2017-Ohio-7344, ¶ 15, citing State v. Hartzell,
2d Dist. Montgomery No. 17499, 1999 WL 957746, *2 (May 10, 2002) and State v. Moore,
2d Dist. Montgomery No. 24378, 2011-Ohio-4546, ¶ 13-15; see also State v. Graham, 2d
Dist. Montgomery No. 27033, 2017-Ohio-4093, ¶ 22.
{¶ 11} In Nawman, the defendant argued that withdrawal of his guilty plea was
required because his attorney had failed to give him certain information about a purported
plea offer. The trial court overruled his post-sentence plea-withdrawal motion, and we
affirmed. After noting that the defendant had produced no evidence to support his claim
other than his own “bare assertion,” we held that relief under Crim.R. 32.1 was unavailable
because a petition for post-conviction relief was the proper remedy. Nawman at ¶ 14-15.
In Moore, we addressed alleged representations counsel made to the defendant with
regard to a suppression motion and his guilty plea. We reasoned that those matters
involved things outside the record, that they could have been the subject of a petition for
post-conviction relief, and that the availability of relief under R.C. 2953.21 prevented the
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matters from qualifying as an “extraordinary circumstance” demonstrating a “manifest
injustice” under Crim.R. 32.1. Moore at ¶ 13-15. In Graham, the defendant sought to
withdraw a no-contest plea based on an allegation that his attorney had advised him not
to accept a more favorable plea deal. The defendant alleged that this advice constituted
ineffective assistance of counsel and rendered his plea not knowing, intelligent, and
voluntary. Graham at ¶ 15. We rejected his argument and affirmed the denial of his
motion, reasoning in part:
In the instant case, Graham argues that he should be able to
withdraw his no contest pleas because his trial counsel was ineffective for
failing to investigate a previously offered plea deal. Graham alleges that the
State offered him the same plea deal as one of his co-defendants who was
sentenced to four years in prison. Graham further alleges that his trial
counsel advised him not to accept the plea because the main witnesses
were known prostitutes, and he would therefore win at trial. Other than his
bare assertion, however, Graham has produced no evidence that such an
offer was ever made by the State, not even a self-serving affidavit, to
substantiate his claim that counsel failed in that regard.
Moreover, Graham’s allegations regarding his trial counsel’s advice
to reject the plea deal in favor of going to trial rely on matters outside the
record. This court has held that matters outside the record that allegedly
corrupted the defendant’s choice to enter a guilty or no contest plea so as
to render that plea less than knowing and voluntary, such as ineffective
assistance provided by a defendant’s trial counsel, are proper grounds for
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post-conviction relief pursuant to R.C. 2953.21 and that the availability of
that relief removes defendant’s claims from the type of extraordinary
circumstances that demonstrate a manifest injustice, which is required for
Crim.R. 32.1 relief.
(Citations omitted). Id. at ¶ 21-22.
{¶ 12} As in the foregoing cases, Dixon’s argument raises a matter outside the
record—namely an allegation that his attorney failed to tell him the original charges of
aggravated vehicular assault and felony OVI would have merged for sentencing. As in
the foregoing cases, Dixon alleges that this omission constituted ineffective assistance
and rendered his guilty plea less than knowing, intelligent, and voluntary. As in the
foregoing cases, Dixon’s motion lacked any evidentiary support (not even his own
affidavit). Finally, as in the foregoing cases, Dixon’s claim could have been raised in a
statutory petition for post-conviction relief. Therefore, he cannot establish the requisite
“manifest injustice” under Crim.R. 32.1. Hartzell at *2 (observing that “[a] ‘manifest
injustice’ comprehends a fundamental flaw in the path of justice so extraordinary that the
defendant could not have sought redress from the resulting prejudice through another
form of application reasonably available to him or her”).
{¶ 13} Our analysis would not be complete without comment on Dixon’s reply brief.
There he argues that the focus of our review should be limited to the manifest injustice
issue and should disregard that portion of the State’s brief that refers to the victim’s
debilitating and chronic injuries. In support of his argument, he attaches to his reply brief
a statement he says is from the victim which claims her letter to the trial court before
sentencing was coerced and not indicative of her true feelings. We conclude that Dixon
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has not demonstrated manifest injustice irrespective of the victim’s injuries. Moreover,
attachments that are not part of the record below are not properly before us for purposes
of this appeal and are ignored. See State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500
(1978), paragraph one of the syllabus.
{¶ 14} For the reasons set forth above, we hold that the trial court did not err in
denying Dixon’s post-sentence motion to withdraw his guilty plea on the basis of his
attorney’s alleged failure to advise him about merger of the original charges.2 Although
2 In light of this determination, we need not resolve two additional issues implicated by
Dixon’s argument. The first concerns whether the trial court even would have had
authority to allow him to withdraw his guilty plea. The Ohio Supreme Court has determined
that “Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and determine a
motion to withdraw [a] guilty plea subsequent to an appeal and an affirmance by the
appellate court.” State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55
Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). On a number of occasions, this court has cited
Special Prosecutors and found that a trial court lacked jurisdiction to entertain a plea-
withdrawal motion after a defendant’s conviction had been affirmed on appeal. See, e.g.,
State v. Ramey, 2d Dist. Clark No. 2017-CA-99, 2019-Ohio-398, ¶ 13-15 (citing cases).
However, in State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 37, the
Ohio Supreme Court stated that its decision in Special Prosecutors “does not bar the trial
court’s jurisdiction over posttrial motions permitted by the Ohio Rules of Criminal
Procedure.” Davis, however, involved a post-trial, post-appeal motion for a new trial under
Crim.R. 33 and not a Crim. R. 32.1 motion. Davis’s impact on a trial court’s jurisdiction
over a post-sentence, post-appeal plea-withdrawal motion is subject to debate given that
such a motion is not a “posttrial motion” (because there is no ‘trial’ on a plea) and Special
Prosecutors suggests a trial court lacks jurisdiction over a post-appeal plea-withdrawal
motion. In Ramey, this court recently “express[ed] no opinion as to whether a trial court
retains jurisdiction to entertain a post-affirmance motion to withdraw a guilty plea when
the defendant was unavoidably prevented from discovering the basis for such motion.”
Ramey at ¶ 14, fn. 5. We similarly need not resolve Davis’s impact in Dixon’s case, given
our determination above that no “manifest injustice” has been shown. Finally, in light of
our analysis above we also need not decide whether Dixon’s original charges of
aggravated vehicular assault and felony OVI actually would have been subject to merger
as he alleges. In State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,
the Ohio Supreme Court held that aggravated vehicular assault and misdemeanor OVI
did not merge as allied offenses of similar import. Although Dixon contends the rationale
of Earley does not apply to aggravated vehicular assault and felony OVI, our analysis
above renders that issue moot.
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the trial court technically erred in citing the doctrine of res judicata, we are not authorized
to reverse a correct judgment merely because erroneous reasons were given as a basis
for it. State v. Ramey, 2d Dist. Clark No. 2017-CA-99, 2019-Ohio-398, ¶ 16.
{¶ 15} Dixon next argues that a manifest injustice exists because his guilty plea to
felonious assault and felony OVI resulted in a lifetime driver’s license suspension,
whereas a guilty plea to the original charges would have resulted in at most a ten-year
suspension. Finally, he alleges a manifest injustice based on his attorney’s purportedly
promising him an aggregate three-year prison term if he pled guilty to felonious assault
and felony OVI. As the State correctly notes, however, Dixon did not raise either of these
arguments in his Crim.R. 32.1 motion. His only argument was that a manifest injustice
existed based on his attorney’s failure to tell him that the original charges of aggravated
vehicular assault and felony OVI would have merged as allied offenses.
{¶ 16} Because Dixon’s plea-withdrawal motion did not allege a manifest injustice
based on the length of his driver’s license suspension or an alleged promise of a three-
year prison sentence, the trial court did not err in failing to find a manifest injustice based
on either of those issues.
{¶ 17} Dixon’s assignment of error is overruled, and the judgment of the Clark
County Common Pleas Court is affirmed.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
Andrew P. Pickering
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John A. Fischer
Hon. Richard J. O’Neill