[Cite as State v. Godfrey,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 14 CA 39 LARRY GODFREY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case Nos. 97 CR 46 and 97 CR 71

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 23, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT LARRY GODFREY PROSECUTING ATTORNEY PRO SE 20 South Second Street, Fourth Floor 15708 McConnelsville Road Newark, Ohio 43055 Caldwell, Ohio 43724 Licking County, Case No. 14 CA 39 2

Wise, P. J.

{¶1}. Appellant Larry Godfrey appeals the decision of the Licking County Court

of Common Pleas denying his pro se motion to withdraw an Alford plea, which he

entered in 1997. Appellee is the State of Ohio. The relevant facts leading to this appeal

are as follows.1

{¶2}. On February 7, 1997, in common pleas case number 97CR0046, the

Licking County Grand Jury indicted appellant on one count of rape (R.C.

2907.02(A)(1)(b)), six counts of felonious sexual penetration (R.C. 2907.12(A)(1)(b)),

and seven counts of gross sexual imposition (R.C. 2907.05(A)(4)). At his arraignment,

appellant entered pleas of not guilty to the charges contained in the indictment.

{¶3}. On February 21, 1997, in common pleas case number 97CR0071, the

Licking County Grand Jury indicted appellant on three additional counts of gross sexual

imposition (R.C. 2907.05(A)(4)). At his arraignment, appellant also entered pleas of not

guilty to these additional charges.

{¶4}. The trial court scheduled a jury trial for October 14, 1997. Prior to trial, the

trial court granted the State's request to amend the indictments to reflect eight counts of

gross sexual imposition, in violation of R.C. 2907.05(A)(4); and two counts of attempted

felonious sexual penetration, in violation of R.C. 2923.02 and 2907.12(A)(1)(b).

Thereafter, appellant entered Alford pleas of guilty to the amended charges. The trial

court deferred sentencing in the matter until November 14, 1997, pending receipt of a

pre-sentence investigation.

1 Appellant has pursued numerous challenges to his 1997 plea and conviction over the past seventeen years in the trial and appellate courts, as well as in the federal courts. In the interest of judicial economy, we will not herein recite a full history of this litigation or the particulars of appellant's sentence. Licking County, Case No. 14 CA 39 3

{¶5}. After hearing testimony and receiving evidence in mitigation, the trial court

announced its sentence. After imposing the sentence, the trial court conducted a

hearing pursuant to R.C. 2950.09(A). The trial court thereupon concluded that appellant

should be classified as a sexual predator.

{¶6}. The trial court memorialized appellant's sentence and its adjudication of

appellant as a sexual predator in a judgment entry dated November 14, 1997.

{¶7}. Appellant then filed a direct appeal from his conviction and sentence,

raising two assigned errors concerning his sexual predator classification. On August 28,

1998, this Court affirmed the trial court's decision of November 14, 1997. See State v.

Godfrey, 5th Dist. Licking No. 97CA0155,

("Godfrey I ").

{¶8}. On November 25, 1998, appellant filed a motion to reopen his appeal

pursuant to App.R. 26. This Court granted the motion and reopened appellant's appeal.

Appellant again limited his arguments to sexual predator issues. On September 2, 1999,

this Court overruled the assigned errors in the reopened appeal and again affirmed the

trial court's decision. See State v. Godfrey, 5th Dist. Licking No. 97CA0155,

("Godfrey II ").

{¶9}. In the meantime, on July 6, 1999, while his re-opened appeal was still

pending, appellant filed a motion to withdraw guilty plea and an “alternative petition to

vacate or set aside sentence pursuant to R.C. 2953.21.” On August 11, 1999, the trial

court dismissed the motion/petition for want of jurisdiction because of appellant's

pending appeal. Appellant thereupon appealed this decision. On February 28, 2000, this

Court affirmed the trial court's denial of appellant's motion/petition for want of Licking County, Case No. 14 CA 39 4

jurisdiction. See State v. Godfrey, 5th Dist. Licking No. 99 CA 95,

("Godfrey III ").

{¶10}. On March 14, 2007, appellant filed a motion to withdraw guilty plea

pursuant to Crim.R. 32.1. By judgment entry filed April 10, 2008, the trial court denied

appellant's motion for want of jurisdiction. This Court affirmed. See State v. Godfrey,

5th Dist. Licking No. 2008CA0056,

("Godfrey IV ").

{¶11}. The Ohio Supreme Court has not overturned any of our decisions outlined

above.

{¶12}. On March 24, 2014, appellant filed a ninety-six page "Motion to Withdraw

Alford Plea Pursuant to Ohio Crim.R. 32.1." He contemporaneously filed a "Motion for

Pre-Hearing Discovery" and a "Motion for Evidentiary Hearing in Support of Motion to

Withdraw Alford Plea." The State of Ohio filed responses to these motions on April 4,

2014.

{¶13}. On April 10, 2014, the trial court issued a judgment entry "procedurally

and substantively" denying appellant's motion to withdraw plea, and denying his request

for discovery and an evidentiary hearing as moot.

{¶14}. Appellant filed a notice of appeal on May 8, 2014. He herein raises the

following three Assignments of Error:

{¶15}. “I. THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS

DISCRETION WHEN IT DENIED MR. GODFREY'S MOTION TO WITHDRAW

ALFORD PLEA/MEMORANDUM IN SUPPORT, MOTION FOR EVIDENTIARY

HEARING, AND MOTION FOR PRE-HEARING DISCOVERY CONTRARY TO

CONTROLLING LAWS AND RULES. Licking County, Case No. 14 CA 39 5

{¶16}. “II. THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS

DISCRETION WHEN IT FAILED TO CONSIDER THE QUESTIONS OF LAW

CONTAINED WITHIN THE MOTION TO WITHDRAW ALFORD PLEA.

{¶17}. “III. THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS

DISCRETION WHEN IT DENIED MR. GODFREY'S MOTION TO WITHDRAW

ALFORD PLEA WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING.”

I.

{¶18}. In his First Assignment of Error, appellant contends the trial court erred

and/or abused its discretion by denying his motion to withdraw his 1997 Alford plea and

his corresponding motions for discovery and an evidentiary hearing.

{¶19}. Crim.R. 32.1 reads as follows: “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.”

{¶20}. Appellate review of a trial court's decision under Crim.R. 32.1 is limited to

a determination of whether the trial court abused its discretion. See State v. Caraballo

(1985),

,

. Under the manifest injustice standard, a

post-sentence withdrawal motion is allowable only in extraordinary cases. State v.

Aleshire, Licking App.No. 09–CA–132, 2010–Ohio–2566, ¶ 60, citing State v. Smith

(1977),

,

. The length of passage of time

between the entry of a plea and a defendant's filing of a Crim.R. 32.1 motion is a valid

factor in determining whether a “manifest injustice” has occurred. See State v.

Copeland–Jackson, Ashland App. No.

, 2003–Ohio–1043, ¶ 7. Licking County, Case No. 14 CA 39 6

{¶21}. Furthermore, as we reiterated in the appeal of the denial of appellant's

2007 motion to withdraw plea, " ' *** Crim. R. 32.1 does not vest jurisdiction in the trial

court to maintain and determine a motion to withdraw the guilty pleas subsequent to an

appeal and affirmance by the appellate court.' " Godfrey IV at ¶ 15, quoting State ex rel.

Special Prosecutors v. Judges, Court of Common Pleas (1978),

, 97-

98.

{¶22}. Appellant herein apparently seeks to circumvent the rule of Special

Prosecutors by proposing that his conviction and sentence have never been truly

"affirmed" on appeal, because the only issues raised in his 1997 direct appeal and 1999

appeal following reopening concerned his classification as a sexual predator. See

Appellant’s Brief at 10. Such argument has no merit, as the judgment entry under

appeal (and ultimately affirmed) in those cases was the trial court's final sentencing

entry of November 14, 1997, which included the sexual predator finding.

{¶23}. In addition, the doctrine of res judicata is applicable to successive motions

to withdraw a guilty plea under Crim.R. 32.1. See, e.g., State v. McLeod, Tuscarawas

App. No.2004 AP 03 0017, 2004–Ohio–6199, ¶ 12. “Res judicata applies to bar raising

piecemeal claims in successive postconviction relief petitions or motions to withdraw a

guilty plea that could have been raised, but were not, in the first postconviction relief

petition or motion to withdraw a guilty plea.” State v. Kent, Jackson App.No. 02CA21,

2003–Ohio–6156, ¶ 6. The applicability of res judicata is a question of law, which an

appellate court reviews de novo. EMC Mtge. Corp. v. Jenkins,

,

, 2005–Ohio–5799. Appellant herein fails to persuade us that any

of his present claims were not and could not have been raised in his unsuccessful 2007 Licking County, Case No. 14 CA 39 7

motion to withdraw plea. However, even if appellant had new claims for purposes of

Crim.R. 32.1, he cannot get past the rule of Special Prosecutors.

{¶24}. Appellant additionally takes a slightly different tack in his challenge to the

denial of his Crim.R. 32.1 motion to withdraw plea, urging that the trial court never had

subject matter jurisdiction to prosecute him at all nearly seventeen years ago, despite

his entry of Alford pleas. Appellant in essence maintains that the charges against him in

1997 were barred by the statute of limitations and were defectively presented in the

indictment. However, we hold neither of these claims present a subject matter

jurisdictional defect which would overcome appellant's plea. See Daniel v. State (2003),

; Midling v. Perrini (1968),

. Thus, we find

appellant's claims in this regard, as well as his additional arguments as to the

sufficiency of the evidence pertaining to his plea, ineffective assistance of trial counsel,

and alleged actual innocence were barred from being raised in a successive motion to

withdraw plea.

{¶25}. Upon review, we conclude the trial court properly determined it lacked

jurisdiction to entertain appellant's successive Crim.R. 32.1 motion to withdraw his

Alford plea.

{¶26}. Appellant’s First Assignment of Error is therefore overruled. Licking County, Case No. 14 CA 39 8

II., III.

{¶27}. Based on our above determinations, we find the remaining Assignments of

Error to be moot.

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

Licking County, Ohio, is hereby affirmed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

JWW/d 0912