[Cite as State v. Green,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

THE STATE OF OHIO, JUDGES: Hon. William B. Hoffman, P. J. Appellee, Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. v. Case No. 2011 CA 00127 MARCUS ANTWAN GREEN,

Appellant. OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2000 CR 00890(A)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 31, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO MARCUS A. GREEN PROSECUTING ATTORNEY PRO SE RONALD MARK CALDWELL GRAFTON CORR. INSTITUTION ASSISTANT PROSECUTOR 2500 South Avon-Beldon Road 110 Central Plaza South, Suite 510 Grafton, Ohio 44044 Canton, Ohio 44702-1413 Stark County, Case No. 2011 CA 00127 2

Wise, J.

{¶ 1} Appellant Marcus A. Green appeals the May 5, 2011, decision of the Stark

County Court of Common Pleas denying his motion to rescind his plea agreement.

{¶ 2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶ 3} On September 1, 2000, the Stark County Grand Jury indicted Appellant,

Marcus Green, on one count of murder with a firearm specification in violation of R.C.

§2903.02 and R.C. §2941.145, and one count of tampering with evidence in violation of

R.C. §2921.12. Thereafter, the murder count was reduced to involuntary manslaughter

in violation of R.C. §2903.04.

{¶ 4} On November 3, 2000, Appellant pled guilty to both counts. By judgment

entry filed November 8, 2000, the trial court sentenced Appellant to a total term of

seventeen years in prison.

{¶ 5} On June 16, 2010, Appellant filed a motion to withdraw his guilty pleas

and a motion to correct a void sentence and request for resentencing based upon a

defect in the imposition of post-release control. By judgment entries filed July 6, 2010,

the trial court denied both motions.

{¶ 6} Appellant filed an appeal with this Court, raising the following two

assignments of error:

{¶ 7} "The trial court erred by dismissing Defendant-Appellant's motion to

correct a void sentence and request for resentencing, where the trial court incorrectly

stated, at Defendant-Appellant's change of plea and sentencing hearing and recorded in Stark County, Case No. 2011 CA 00127 3

the judgment entry that post-release control was a discretionary period of up to a

maximum of 5 years contrary to the provisions of R.C. 2967.28."

{¶ 8} "II. The trial court erred in dismissing Defendant-Appellant's motion to

withdraw guilty plea where the negotiated plea agreement was rendered null and void,

as the agreed sentence as stated in the negotiated plea agreement terms and

conditions was unauthorized by law and the sentence imposed by the trial court was

outside of the terms and conditions, as well as being unauthorized by law, in itself. The

plea agreement would be unenforceable and in violation of Defendant-Appellant's rights

of Due Process and Equal Protection under the Sixth and Fourteenth Amendments to

the United States Constitution."

{¶ 9} By Opinion and Entry filed March 31, 2011, this Court sustained

Appellant’s first assignment of error, finding that Appellant was entitled to a de novo

sentencing hearing as mandated in State v. Singleton,

, 2009-Ohio-

6434, but noted that the new sentencing hearing was limited to proper imposition of

post-release control.

{¶ 10} This Court overruled Appellant’s second assignment of error, finding:

{¶ 11} “Appellant had not demonstrated that but for the trial court's error, he

would not have entered the guilty plea and gone to trial instead. Appellant has not

shown "a prejudicial effect." We do not find a manifest injustice mandating a withdrawal

of Appellant's guilty plea.

{¶ 12} “Upon review, we find the trial court did not abuse its discretion in denying

Appellant's Crim.R. 32.1 motion to withdraw his guilty plea.”

{¶ 13} On May 2, 2011, Appellant filed a Motion to Rescind Plea Agreement. Stark County, Case No. 2011 CA 00127 4

{¶ 14} By Judgment Entry filed May 5, 2011, the trial court denied Appellant’s

Motion to Rescind Plea Agreement.

{¶ 15} On May 23, 2011, with Appellant present, the trial court re-sentenced

Appellant on post-release control pursuant to this Court’s order and State v. Fischer,

,

. (See Judgment Entry, June 2, 2011).

{¶ 16} Appellant now appeals, assigning the following errors for review:

ASSIGNMENT OF ERROR

{¶ 17} “I. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S REQUEST

TO RESCIND THE PLEA AGREEMENT, IN CASE NO. 2000CR0890A, BETWEEN

THE STATE OF OHIO AND MARCUS A. GREEN ENTERED INTO ON NOVEMBER 3,

2000, WHERE:

{¶ 18} “1) THE PLEA AGREEMENT WAS BASED UPON AN UNFULFILLABLE

PROMISE OF A SENTENCE THAT WAS CONTRARY TO LAW, CONTAINING NO

PROVISION FOR POST RELEASE CONTROL;

{¶ 19} “2) THE SOLE TERMS AND CONDITIONS, OF THE PLEA

AGREEMENT, AS OUTLINED AND AGREED TO, WERE MATERIALLY BREACHED

BY THE STATE OF OHIO;

{¶ 20} “3) THE PLEA AGREEMENT LIIEGALLY [SIC] INDUCED A WAIVER OF

DEFENDANT’S CONSTITUTIONALLY GUARANTEED RIGHTS.

{¶ 21} “II. THE TRIAL COURT ERRED IN CONSIDERING AND DENYING,

WITHOUT HEARING, THE MOTION TO RESCIND THE PLEA AGREEMENT, WHERE

JUDGE FRANCES FORSHIONE [SIC] HAD PREVIOUSLY REPRESENTED THE Stark County, Case No. 2011 CA 00127 5

STATE OF OHIO, AT THE PRELIMINARY HEARING, AS PROSECUTING

ATTORNEY.”

I.

{¶ 22} In his first assignment of error, Appellant claims that the trial court erred in

denying his motion to rescind the plea agreement. We disagree.

{¶ 23} Upon review, we find that Appellant’s motion to rescind the plea

agreement is nothing more than a motion to withdraw his guilty plea, which this Court

addressed and overruled in Appellant’s prior appeal.

{¶ 24} 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. Perry

(1967),

,

,

, paragraph nine of the

syllabus.

{¶ 25} Numerous courts have applied the doctrine of res judicata to successive

motions to withdraw a guilty plea. See State v. Brown, Cuyahoga App. No. 84322,

(determining that a Crim.R. 32.1 motion will be denied when it asserts

grounds for relief that were or should have been asserted in a previous Crim.R. 32.1

motion); State v. McLeod, Tuscarawas App. No. 2004 AP 03 0017,

(holding res judicata barred current challenge to a denial of a motion to withdraw

because the issues could have been raised in a defendant's initial motion to withdraw);

State v. Vincent, Ross App. No. 03CA2713,

(finding res judicata barred

defendant from raising issues that could have been raised in a prior motion for new trial

or Crim.R. 32.1 motion); State v. Reynolds, Putnam App. No. 12-01-11, 2002-Ohio2823

(finding that the doctrine of res judicata applies to successive motions filed under Stark County, Case No. 2011 CA 00127 6

Crim.R. 32 .1); State v. Unger, Adams App. No. 00CA705,

(concluding

that the defendant's Crim.R. 32.1 motion was barred by res judicata because she had

previously filed a motion to withdraw her guilty plea that she did not appeal prior to filing

the second motion to withdraw guilty plea); State v. Jackson (Mar. 31, 2000), Trumbull

App. No. 98-T-0182 (res judicata applies to successive motions to withdraw a guilty plea

filed pursuant to Crim.R. 32.1). As succinctly stated in State v. Kent, Jackson App. No.

02CA21,

: ‘Res judicata applies to bar raising piecemeal claims in

successive post-conviction relief petitions or motions to withdraw a guilty plea that could

have been raised, but were not, in the first post conviction relief petition or motion to

withdraw a guilty plea.’” Sneed at ¶ 17.

{¶ 26} In Appellant's prior appeal, this Court considered the same claims that

Appellant raised in his motion to rescind his plea agreement. This Court rejected such

arguments. We therefore find Appellant’s argument is barred under the doctrine of res

judicata.

{¶ 27} Appellant’s first assignment of error is overruled.

II.

{¶ 28} In his second assignment of error, Appellant claims that the trial court

should have granted his motion to rescind his plea agreement because Judge

Forchione was the prosecutor at the preliminary hearing in August, 2000.1 We disagree.

1 On August 15, 2011, Appellant filed a motion for disqualification with the Ohio Supreme Court, Case No. 11AP084. As of this date, no action has been taken on said motion. We note, however, that Appellant’s case has been transferred from Judge Forchione to Judge Taryn L. Heath. Stark County, Case No. 2011 CA 00127 7

{¶ 29} A review of the record below, however, reveals that Appellant failed to

raise this issue at the trial court level and argues it for the first time on appeal. We find

that Appellant therefore has waived review of this issue by failing to raise it at the trial

level. See State v. Awan (1986),

, at syllabus, wherein the court held

that failure to raise the issue of the constitutionality of a statute's application at the trial

court level constitutes a waiver of such issue.

{¶ 30} Further, this issue is also barred by the doctrine of res judicata as this

issue could also have been raised in Appellant’s prior appeal.

{¶ 31} Appellant’s second assignment of error is overruled.

{¶ 32} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

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JUDGES Stark County, Case No. 2011 CA 00127 8

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

THE STATE OF OHIO, : : Appellee, : : v. : JUDGMENT ENTRY : MARCUS ANTWAN GREEN, : : Appellant. : Case No. 2011 CA 00127

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Stark County, Ohio, is affirmed.

Costs assessed to Appellant.

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JUDGES