[Cite as State v. Kirklin, 2022-Ohio-435.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0089
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
DELMAR V. KIRKLIN,
Trial Court No. 1988 CR 00182 A
Defendant-Appellant.
OPINION
Decided: February 14, 2022
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Delmar V. Kirklin, pro se, PID# A201-478, Marion Correctional Institution, P.O. Box 57,
Marion, OH 43301(Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Delmar V. Kirklin, appeals the judgment denying his post-
sentence motion to withdraw his plea. We affirm.
{¶2} In a prior appeal, we set forth the relevant procedural history as follows:
In 1989 Kirklin was indicted on one count of aggravated
murder, a capital offense, with three aggravating
specifications; one count of kidnapping; and one count of
rape. The kidnapping and rape counts each came with
specifications for possession of a firearm and previous
conviction of an aggravated felony. Later that year, Kirklin
accepted a plea deal in front of a single judge. The terms of
the plea deal, which were accepted by the trial court, had
Kirklin sentenced to life with parole eligibility after 20 years for
aggravated murder; a consecutive term of 3 years of actual
incarceration on the gun specification; and a consecutive term
of 5 to 25 years on the kidnapping count.
State v. Kirklin, 11th Dist. Portage No. 2013-P-0055, 2013-Ohio-5840, ¶ 2. In exchange,
the state agreed it would move to dismiss the rape count and the remaining specifications,
and it would not seek the death penalty. Kirklin did not pursue a direct appeal. Id.
{¶3} In 2019, Kirklin filed a “motion to correct/dismiss a void sentencing judgment
entry in the entitled case Crim.R.11(C)(2)(3), Crim.R. 32(C), Crim.R. 36.” In his motion,
Kirklin argued, in part, that the trial court failed to comply with Crim.R. 11(C) prior to
accepting his plea. In a judgment entry dated September 20, 2019, the trial court denied
the motion. Kirklin untimely appealed the judgment, and we dismissed the appeal. State
v. Kirklin, 11th Dist. Portage No. 2019-P-0107, 2019-Ohio-5416. Thereafter, Kirklin
sought leave to file a delayed appeal of the September 2019 judgment entry, which we
granted. Subsequently, we affirmed the trial court’s judgment. State v. Kirklin, 11th Dist.
Portage No. 2020-P-0040, 2021-Ohio-896, appeal not allowed, 164 Ohio St.3d 1421,
2021-Ohio-2923, 172 N.E.3d 1049.
{¶4} In 2021, Kirklin moved to withdraw his plea, arguing that the trial court failed
to comply with Crim.R. 11(C) when accepting his plea, preventing him from entering a
knowing, intelligent, and voluntary plea and creating a manifest injustice. The trial court
overruled Kirklin’s motion without hearing, concluding that it found “no evidence based
upon Defendant’s motion that his pleas were not entered into intelligently, knowingly and
voluntarily,” and further finding “no manifest injustice.”
{¶5} Kirklin assigns the following error:
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{¶6} “The trial court committed prejudice error by accepting the defendant guilty
plea that was entered knowingly, voluntarily, and intelligent given in violation of the
defendant united states constitutional r[i]ghts to due process amendment 14[.]” (Sic.)
{¶7} First, although the trial court overruled Kirklin’s present motion on its merits,
in his appeal of the trial court’s judgment denying his September 2019 motion, we held:
“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.” State v. Ketterer, 126 Ohio St.3d 448,
2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citing State v. Perry, 10
Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the
syllabus. In other words, “any issue that could have been
raised on direct appeal and was not is res judicata and not
subject to review in subsequent proceedings.” (Citations
omitted.) State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-
1245, 846 N.E.2d 824, ¶ 16.
“Res judicata is applicable to issues asserted in a post-
sentence motion to withdraw a guilty plea; i.e., if an issue
could have been reviewed in a direct appeal from the
sentencing judgment, it is barred from consideration in a post-
sentence motion.” State v. Reyes, 11th Dist. Portage No.
2016-P-0010, 2016-Ohio-5673, ¶ 14, citing State v. Curry,
11th Dist. Ashtabula No. 2014-A-0056, 2015-Ohio-1768, ¶ 8.
“This court has expressly followed the doctrine when the
defendant has used a post-sentence motion to withdraw as a
means of challenging the trial court’s compliance with Crim.R.
11(C) in the taking of the guilty plea.” Id., citing State v.
Lorenzo, 11th Dist. Lake No. 2007-L-085, 2008-Ohio-1333, ¶
21 and State v. Combs, 11th Dist. Portage No. 2007-P-0075,
2008-Ohio-4158, ¶ 30. Accord State v. Walker, 11th Dist.
Trumbull No 2018-T-0024, 2018-Ohio-3964, ¶ 23.
Kirklin, 2021-Ohio-896, at ¶ 8-9. Accordingly, we held that “because Kirklin could have
raised his argument that the trial court failed to comply with Crim.R. 11(C)(2) on direct
appeal, it is now barred by the doctrine of res judicata.” (Citations omitted.) Id. at ¶ 7.
{¶8} In his 2021 motion, Kirklin again maintained that the trial court failed to
comply with Crim.R. 11(C). As with his September 2019 motion that Kirklin partially
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premised on similar grounds, the doctrine of res judicata precludes review, as Kirklin
could have raised his arguments on direct appeal. Therefore, the judgment of the trial
court is properly affirmed on this basis alone.
{¶9} Nonetheless, because the trial court reached the merits of the motion by
determining that Kirklin failed to demonstrate (1) that he did not knowingly, intelligently,
and voluntarily enter his plea or (2) that a manifest injustice required correction, and the
parties have not briefed the issue of the application of res judicata, we proceed to review
the judgment on the merits of the motion.
{¶10} Crim.R. 32.1 provides, “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 permit the defendant to
withdraw his or her plea.” A “manifest injustice” refers to a “clear or openly unjust act.”
(Citation omitted.) State v. Wilfong, 11th Dist. Lake No. 2010-L-074, 2011-Ohio-6512, ¶
12.
“We review a trial court’s decision to grant or deny a post
sentence motion to withdraw a guilty plea pursuant to Crim.R.
32.1 for abuse of discretion. State v. Wilkey, 5th Dist.
Muskingum No. CT2005-0050, 2006-Ohio-3276, ¶ 21.
Regarding this standard, we recall the term ‘abuse of
discretion’ is one of art, connoting judgment exercised by a
court which neither comports with reason, nor the record.
State v. Ferranto, 112 Ohio St. 667, 676-678, * * * (1925). An
abuse of discretion may be found when the trial court ‘applies
the wrong legal standard, misapplies the correct legal
standard, or relies on clearly erroneous findings of fact.’
Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720
[892 N.E.2d 454], ¶ 15 (8th Dist.).”
State v. Massey, 2017-Ohio-706, 86 N.E.3d 30, ¶ 7 (11th Dist.), quoting State v. Banks,
11th Dist. Lake No. 2015-L-128, 2016-Ohio-4925, ¶ 7.
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{¶11} “While a trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made
before sentencing, the same is not true if the request is made after the trial court has
already sentenced the defendant.” State v. Gibson, 11th Dist. Portage No. 2007-P-0021,
2007-Ohio-6926, ¶ 32, quoting State v. Wilkey, 5th Dist. Muskingum No. CT2005-0050,
2006-Ohio-3276, ¶ 25, citing State v. Xie, 62 Ohio St.3d 521 (1992), paragraph one of
the syllabus. “In those situations where the trial court must consider a post-sentence
motion to withdraw a guilty plea, a hearing is only required if the facts alleged by the
defendant, and accepted as true, would require withdrawal of the plea.” Gibson at ¶ 32,
quoting Wilkey at ¶ 25. “‘Generally, a self-serving affidavit or statement is insufficient to
demonstrate manifest injustice.’” Gibson at ¶ 33, quoting Wilkey at ¶ 25, citing State v.
Patterson, 5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, ¶ 20, citing State v. Laster,
2d Dist. Montgomery No. 19387, 2003-Ohio-1564, ¶ 8.
{¶12} Here, Kirklin maintains that his affidavit in support of his motion to withdraw
his plea set forth operative facts entitling him to relief. In his affidavit, Kirklin averred that
the trial court failed to inform him of the rights he was waiving prior to accepting his plea
in accordance with Crim.R. 11(C)(2), which provides:
In felony cases the court * * * shall not accept a plea of guilty
* * * without first addressing the defendant personally either
in-person or by remote contemporaneous video in conformity
with Crim.R. 43(A) and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the imposition
of community control sanctions at the sentencing hearing.
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(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify
against himself or herself.
See also former Crim.R. 11(C) (effective July 1, 1980) (setting forth substantially the same
colloquy requirements as set forth in the current version of the rule).
{¶13} Further, Kirklin averred that he attempted to obtain a copy of the transcript
from the change of plea hearing but was informed that no transcript could be prepared
because the hearing notes from the court reporter that served in 1989 were not available
for transcription.
{¶14} Thus, Kirklin filed his motion to withdraw his plea over thirty years after
having entered it, and his contention that the plea colloquy was insufficient is supported
only by his affidavit. Kirklin’s recollection that the trial court did not advise him of the rights
he was waiving is directly contrary to the trial court’s April 21, 1989 journal entry accepting
Kirklin’s plea. Therein, the trial court stated that Kirklin appeared in court with his counsel.
The entry thereafter provides:
The Court finds that the Defendant is making his guilty plea
voluntarily, with the understanding of the nature of the charge
and of the maximum penalty involved; that the Defendant’s
attorney and the Court have informed the Defendant and the
Defendant understands the effect of his plea of Guilty and that
the Court upon acceptance of his plea may proceed with
judgment and sentence; that the Defendant’s attorney and the
Court have informed the Defendant of and the Defendant
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understands that by his plea of Guilty he is waiving his rights
to jury trial, to trial before the Court, to confront the witnesses
against him, to have compulsory process for obtaining
witnesses in his favor, to require the State to prove his guilt
beyond a reasonable doubt at a trial at which he could not be
compelled to testify against himself, and the right to appeal.
{¶15} Under the circumstances of this case, because the record belies Kirklin’s
allegations as set forth in his affidavit and because the significant passage of time has
resulted in the unavailability of a transcript, Kirklin has not demonstrated on appeal that
the trial court abused its discretion in overruling his motion without a hearing. Accordingly,
Kirklin’s sole assigned error lacks merit.
{¶16} The judgment is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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