[Cite as State v. Carter, 2016-Ohio-7240.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-8
:
v. : T.C. NO. 12CR112
:
DEE CARTER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___7th__ day of __ _October____, 2016.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
BYRON K. SHAW, Atty. Reg. No. 0073124, 4800 Belmont Place, Huber Heights, Ohio
45424
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Dee Carter appeals from the trial court’s denial of his post-sentencing motion
to withdraw his guilty plea. For the following reasons, the trial court’s judgment will be
affirmed.
I. Factual and Procedural History
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{¶ 2} In December 2013, Carter pled guilty in the Clark County Court of Common
Pleas to one count of gross sexual imposition, a fourth-degree felony. In exchange for
the plea, the State dismissed one count of rape. The parties agreed to an eleven-month
sentence and that Carter would receive credit for time served in jail while the case was
pending (348 days), which exceeded the eleven-month sentence. The trial court
imposed the agreed eleven-month sentence, informed Carter that he would be subject to
five years of post-release control, and ordered him to pay court costs. Carter was
designated a Tier III sex offender.
{¶ 3} Carter appealed from his conviction, raising two assignments of error. His
first assignment claimed that “[t]he trial court erred by failing to properly inform and ensure
that the defendant-appellant understood his constitutional rights prior to accepting
defendant-appellant’s waiver and guilty plea, and continuing to accept defendant-
appellant’s guilty plea after defendant-appellant made known that he was not aware of
the possible penalties, was not guilty of the criminal offense of which he was pleading
guilty, and did not desire to enter a plea of guilty.” His second assignment of error
asserted ineffective assistance of counsel. We rejected Carter’s assignments of error
and affirmed his conviction. State v. Carter, 2d Dist. Clark No. 2013 CA 115, 2014-Ohio-
4856.
{¶ 4} On December 23, 2015, Carter filed a pro se motion to withdraw his guilty
plea. He asserted that he did not knowingly plead guilty to gross sexual imposition and
that he was not guilty of the offense. Carter further argued that he was and is disabled
due to his “borderline intellectual functioning,” as documented by the Social Security
Administration. Carter attached to his motion documentation of his receiving
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Supplemental Security Income payments “as a disabled person” beginning January 2015
and of a mental health evaluation from 2001.
{¶ 5} On January 14, 2016, the trial court overruled Carter’s motion to withdraw his
plea. The court reasoned:
Upon review of the pleadings, plea agreement and defendant’s
motion, the Court finds, that after the defendant had two competency
examinations finding him competent to stand trial, the defendant entered a
voluntary, knowing and intelligent plea agreement with the State of Ohio.
The defendant has not presented any new information that the court was
not aware of, defendants’ [sic] exhibits from the [S]ocial [S]ecurity
[A]dministration were attached to his competency reports, the defendant is
disabled for SSI benefits but was competent to enter a guilty plea.
THEREFORE, the Court finds the defendant has failed to show a
manifest injustice by virtue of his mental capacity and his motion to withdraw
his guilty plea is DENIED.
{¶ 6} Carter appeals from the trial court’s denial of his motion to withdraw his plea.
II. Manifest Injustice due to Mental Capacity
{¶ 7} On appeal, Carter raises two assignments of error, which state:
1. Appellant should have been allowed to withdraw his guilty plea due to
the manifest injustice that has taken place regarding his lack of mental
capabilities to understand the implications of his plea and sentence in this
matter.
2. Appellant’s conviction should be overturned since the plea may not
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have been knowingly, intelligently, and voluntarily given as required by
statute.
{¶ 8} Under Crim.R. 32.1, a trial court may permit a defendant to withdraw a plea
after imposition of sentence only to correct a manifest injustice. Crim.R. 32.1; State v.
Wilson, 2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 16. “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.” State v. Brooks, 2d Dist. Montgomery
No. 23385, 2010-Ohio-1682, ¶ 8, citing State v. Hartzell, 2d Dist. Montgomery No. 17499,
1999 WL 957746 (Aug. 20, 1999).
{¶ 9} Withdrawal of a plea after sentencing is permitted only in the most
extraordinary cases. State v. Jefferson, 2d Dist. Montgomery No. 26022, 2014-Ohio-
2555, ¶ 17, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “The
defendant bears the burden of establishing the existence of a manifest injustice, and
whether that burden has been met is an issue within the sound discretion of the trial court.”
Wilson at ¶ 18.
{¶ 10} The State asserts that Carter’s claims are barred by the doctrine of res
judicata. “Pursuant to the doctrine of res judicata, a valid final judgment on the merits
bars all subsequent actions based on any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.
Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio
St.3d 379, 653 N.E.2d 226 (1995). Res judicata applies to any defense that was raised
or could have been raised in a criminal defendant’s prior direct appeal from his conviction.
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Id., citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
{¶ 11} In his direct appeal from his conviction, Carter claimed that the trial court
had failed to comply with Crim.R. 11 and failed to ensure that he understood the rights he
was waiving. Carter emphasized that he had repeatedly informed the court at the plea
hearing that he was “slow” and that he did not believe it was in his best interest to enter
the plea.
{¶ 12} On review of his conviction, we began with the legal principle that an
appellate court “must determine whether the record affirmatively demonstrates that a
defendant’s plea was made knowingly, intelligently, and voluntarily.” Carter, 2d Dist.
Clark No. 2013 CA 115, 2014-Ohio-4856, at ¶ 4. We described the plea hearing in detail
and quoted portions of the plea hearing transcript, including portions in which Carter told
the court that he was “a little slow sometimes.” We found no error in the trial court’s
acceptance of Carter’s guilty plea, concluding:
Contrary to Carter’s assertions, the record reflects that the trial court
carefully and patiently reviewed with Carter the consequences of his guilty
plea and took pains to ensure that Carter’s plea was made knowingly,
intelligently, and voluntarily. The court literally complied with Civ.R.
11(C)(2)(c), which concerned Carter’s federal constitutional rights.
Moreover, the court complied with Crim.R. 11(C)(2)(a) and (b) by inquiring
whether Carter’s plea was voluntarily entered, whether he had been
threatened or any promises had been made to him, and explaining the
possible penalties and the effect of his plea. Carter was permitted to (and
did) consult with his attorney throughout the plea hearing, and the court
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made sure that Carter was not entering his plea simply to “get it over with.”
Carter at ¶ 14.
{¶ 13} Carter’s claim in this case that his plea might not have been given
knowingly, intelligently, and voluntarily was previously addressed in his direct appeal, and
he provides no new evidence that would warrant new consideration of that claim.
Although Carter’s documentation of his receiving Supplemental Security Income
payments is from after his conviction, the court was aware of his receipt of SSI income
prior to the plea.
{¶ 14} Regardless, Carter has not demonstrated that a manifest injustice exists
that would warrant the withdrawal of his guilty plea. Carter’s evidence in support of his
motion indicated that Carter receives Supplemental Security Income payments and that
a 2001 mental health evaluation stated that Carter had “borderline intellectual
functioning.” Nothing in Carter’s documentation indicates that Carter was unable to enter
a knowing, intelligent, and voluntary plea, or that his mental capabilities rendered his
conviction a manifest injustice.
{¶ 15} Carter’s assignments of error are overruled.
III. Conclusion
{¶ 16} The trial court’s judgment will be affirmed.
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DONOVAN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Megan M. Farley
Byron K. Shaw
Hon. Douglas M. Rastatter