[Cite as State v. McBride,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 16 MA 0002 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) CHRISTOPHER McBRIDE ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case Nos. 02 CR 900 A; 02 CR 943 A

JUDGMENT: Affirmed.

APPEARANCES: For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Richard J. Hura P.O. Box 467 Columbiana, Ohio 44408

Christopher McBride, Pro se #444-136 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, Ohio 44430-0901 JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated: June 9, 2017 [Cite as State v. McBride,

.] WAITE, J.

{¶1} Appellant Christopher McBride appeals the judgment of the Mahoning

County Common Pleas Court denying a motion to withdraw his guilty plea to multiple

counts of aggravated burglary, robbery and burglary. Appellant’s counsel filed a no

merit brief requesting leave to withdraw. A review of the record reveals there are no

appealable issues. Appellant’s appointed counsel’s motion to withdraw is granted

and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} On March 25, 2003, Appellant pleaded guilty in Mahoning County

Common Pleas Court to burglary, in violation of R.C. 2911.12(A)(2), a felony of the

second degree; three counts of aggravated burglary, in violation of R.C.

2911.01(A)(1); and two counts of robbery, in violation of R.C. 2911.02(A)(3), a felony

of the third degree. The three aggravated burglary charges were accompanied by

firearm specifications, in violation of R.C. 2941.145(A). This matter was assigned

case number 2002 CR 900 A.

{¶3} Also on March 25, 2003, in Mahoning County Common Pleas Case No.

2002 CR 943 A, Appellant pleaded guilty to aggravated burglary, in violation of R.C.

2911.01(A)(1), a felony of the first degree; and robbery, in violation of R.C.

2911.02(A)(3), a felony of the third degree. The two cases proceeded to a single

sentencing hearing on June 3, 2003. In case number 02 CR 900 A, the trial court

sentenced Appellant to three years of incarceration on the burglary charge in count

one; three years on the aggravated burglary charge in count two; three years on the

aggravated burglary charge in count three; three years on the aggravated burglary -2-

charge in count four with three years for the firearm specification on this count; three

years on the robbery charge in count five; and three years on the robbery charge in

count six. These sentences were all to be served consecutively. In case number 02

CR 943 A, Appellant was sentenced to seven years of incarceration for aggravated

burglary to be served consecutively to the sentences imposed in case number 02 CR

900 A; and three years for robbery to be served concurrently with the sentence

imposed in this case for aggravated burglary. The sentence ordered for Appellant in

both cases totaled 28 years. The trial court ordered this 28-year sentence to be

served consecutively to a sentence earlier imposed in the Trumbull County Court of

Common Pleas in another matter. Appellant did not appeal.

{¶4} Instead, on June 22, 2005, Appellant filed a motion to withdraw his

guilty plea. The trial court denied the motion on August 25, 2005 and again Appellant

did not appeal. On October 18, 2007, Appellant filed a delayed appeal of the trial

court's June 6, 2003 judgment entry of conviction and sentence. This Court denied

Appellant's delayed appeal because it was improperly filed. State v. McBride, 7th

Dist. No. 07 MA 185. On November 2, 2010, Appellant filed a second motion to

withdraw his guilty plea. The trial court denied this motion on November 22, 2010.

Appellant did not appeal. On October 5, 2015, Appellant filed a third motion seeking

to withdraw his 2003 guilty plea. On December 3, 2015, the trial court denied that

motion. Appellant has now filed this timely appeal of the trial court’s judgment

denying his third motion to withdraw his plea.

No Merit Brief -3-

{¶5} Appellate counsel seeks to withdraw from representation after

reviewing the record and finding no potentially meritorious arguments for appeal.

This filing of a no merit brief is made pursuant to Anders v. California,

,

,

(1967). This Court has addressed no merit briefs in

State v. Toney,

,

(7th Dist. 1970). In Toney, this

Court established the procedure to be undertaken when appellate counsel wishes to

withdraw from a case based on a frivolous appeal.

3. Where a court-appointed counsel, with long and extensive

experience in criminal practice, concludes that the indigent's appeal is

frivolous and that there is no assignment of error which could be

arguably supported on appeal, he should so advise the appointing court

by brief and request that he be permitted to withdraw as counsel of

record.

4. Court-appointed counsel's conclusions and motion to withdraw as

counsel of record should be transmitted forthwith to the indigent, and

the indigent should be granted time to raise any points that he chooses,

pro se.

5. It is the duty of the Court of Appeals to fully examine the

proceedings in the trial court, the brief of appointed counsel, the

arguments pro se of the indigent, and then determine whether or not

the appeal is wholly frivolous. -4-

***

7. Where the Court of Appeals determines that an indigent's appeal is

wholly frivolous, the motion of court-appointed counsel to withdraw as

counsel of record should be allowed, and the judgment of the trial court

should be affirmed.

at syllabus.

{¶6} Appellate counsel filed a no merit brief in this matter on June 10, 2016.

On June 14, 2016, we issued a judgment entry informing Appellant of counsel’s no

merit brief and granting him 45 days to file his own written brief. On July 11, 2016,

Appellant filed a pro se brief. On September 8, 2016, Appellee filed a reply brief in

the matter.

{¶7} The no merit brief filed by appointed appellate counsel suggests

Appellant may arguably raise an issue regarding whether his plea was knowingly or

voluntarily made due to the effects of medications Appellant was taking at the time he

entered the plea. In reviewing this possible argument, however, counsel concludes it

has no merit and the appeal is frivolous. Appellant does not raise the issue in his pro

se brief to us, raising other possible issues, instead. However, Toney requires that

we independently examine the record to determine whether any potentially

meritorious issues exist for appeal.

Res Judicata

{¶8} In his pro se brief, Appellant argues that the basis for his motion to

withdraw his guilty plea was that the offenses were allied offenses of similar import -5-

and the trial court did not inform him of this fact. Thus, Appellant claims the trial court

did not substantially comply with Crim.R. 11 prior to accepting his guilty plea and, as

a result, Appellant’s plea was not made knowingly, voluntarily and intelligently.

{¶9} In response, Appellee argues that res judicata precludes Appellant from

raising any issues relating to alleged allied offenses. Appellee also states that should

this Court decide res judicata does not operate as a bar to Appellant’s claim, the

matter is subjected to a review for only plain error, as Appellant failed to raise an

issue regarding allied offenses at the time of his guilty plea in case number 2002 CR

900 A and seems to concede merger was warranted to the extent the issue was

addressed. While Appellant did raise the issue in case number 2002 CR 943 A,

counsel appeared to acknowledge to the trial court that it was questionable whether

merger might be possible. While counsel mentioned merger, it was in the nature of a

mere suggestion that the court might consider.

{¶10} Whether to grant a motion to withdraw a guilty plea is within the sound

discretion of the trial court. State v. Xie,

,

(1992). In order to find an abuse of discretion, a reviewing court must find that the

trial court’s decision was arbitrary, unconscionable or unreasonable. State v. Adams,

,

(1980).

{¶11} 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.” This rule establishes a fairly stringent -6-

standard for deciding a postsentence motion to withdraw a guilty plea. Xie,

.

{¶12} The burden of establishing the existence of manifest injustice is on the

individual seeking to vacate the plea. State v. Smith,

,

(1977), paragraph one of the syllabus. A motion to withdraw a guilty plea made

after sentencing is allowed only in extraordinary cases.

.

Manifest injustice is determined by examining the totality of the

circumstances surrounding the guilty plea. Paramount in this

determination is the trial court’s compliance with Crim.R. 11(C),

evidence of which must show in the record that the accused understood

his rights accordingly.

State v. Padgett, 8th Dist. No. 64846,

, *1 (Jul. 1, 1993).

{¶13} While there is no time limit for filing a motion to withdraw after a

sentence is imposed, an undue delay between the time the motion is filed and the

reason for such late filings is a factor which may adversely affect the credibility of the

movant. Smith at paragraph three of the syllabus.

{¶14} The state asserts Appellant’s argument is barred by res judicata and

that Appellant is precluded from raising the issue in this third, successive, withdrawal

of plea motion when it could and should have been raised on direct appeal.

{¶15} We have noted that a “defendant cannot raise any issue in a post-

sentence motion to withdraw a guilty plea that was or could have been raised at trial

or on direct appeal.” State v. Reed, 7th Dist. No. 04 MA 236,

. -7-

Moreover, “Ohio courts of appeals have applied res judicata to bar the assertion of

claims in a motion to withdraw a guilty plea that were or could have been raised at

trial or on appeal.” State v. Ketterer,

,

,

.

{¶16} The instant case involves Appellant’s third motion to withdraw his guilty

plea. We have held that “res judicata applies to the second and all successive

postsentence motions to withdraw a plea under Crim.R. 32.1.” State v. Burnside, 7th

Dist. No. 09 MA 179,

. The doctrine of res judicata acts to bar

the making of piecemeal claims in successive motions to withdraw a plea that could

have been raised in a single motion.

Appellant filed no direct appeal from his

2003 conviction and sentence, nor did he file an appeal from the denial of either of

his previous two motions to withdraw. Appellant’s issue, that he was not informed

that his offenses constituted allied offenses, could have been raised in any of these

three previous opportunities. This Court has recently held, “[a]pplication of res

judicata in such a situation protects the finality of the judgment of conviction and

eliminates the bringing of piecemeal withdrawal motions.” State v. Colvin, 7th Dist.

No. 15 MA 0162,

,

, ¶ 49.

{¶17} There are multiple hurdles to overcome before we can reach

Appellant’s arguments. Both the timeliness and repetitiveness of his motions weigh

heavily against the remedy he seeks. The original conviction and sentence occurred

in 2003. Appellant filed no direct appeal. Instead, he filed a motion to withdraw that

guilty plea just over two years later. The trial court denied the motion and again -8-

Appellant failed to appeal. In 2007, Appellant elected to file a delayed appeal of his

conviction. After it was denied as improperly filed, Appellant waited for three years to

file a second motion to withdraw his guilty plea, in 2010. The trial court denied that

motion and Appellant still did not appeal. Finally, five years later, in 2015, Appellant

filed a third motion seeking to withdraw his guilty plea which was overruled and from

which the instant appeal arises. There is no better example of the dangers in taking

a piecemeal approach to motions to withdraw than the record before us. Not only

has Appellant filed multiple motions to withdraw his guilty plea, he has failed to

appeal any of them until now. Appellant also failed to appeal the underlying

conviction and sentence. Res judicata operates to preclude this third motion to

withdraw his guilty plea.

{¶18} Despite the fact that Appellant is clearly barred by res judicata from this

appeal, nevertheless, it is apparent from this record that Appellant was properly

convicted and sentenced.

Plea Hearing

{¶19} A plea of guilty or no contest must be made knowingly, intelligently and

voluntarily in order for it to be deemed valid and enforceable. State v. Clark,

,

,

. Crim.R. 11(C)(2) requires

the trial judge to address the defendant personally to review the rights that defendant

is waiving and to discuss the consequences of the plea. Moreover, a defendant is

unable to knowingly, intelligently and voluntarily plead guilty to an offense if he lacks

the capacity to understand the nature and object of the proceedings against him. -9-

State v. Davis, 7th Dist. No.

,

, ¶ 3. However, a defendant’s

plea is not void solely because he may be taking medication. R.C. 2945.37(F). A

defendant is presumed to be competent and has the burden of rebutting that

presumption. State v. Filiaggi,

,

(1999); R.C.

2945.37(G).

{¶20} A review of this record demonstrates the trial court strictly complied

when advising Appellant of his constitutional and other rights associated with

entering a guilty plea. In both the written plea agreement and at the hearing,

Appellant was advised of the constitutional rights he would waive by pleading guilty,

including the right to a jury trial; the right to confront witnesses against him; the right

to obtain witnesses of his own; the state’s burden to prove its case against him

beyond a reasonable doubt; and his right against self-incrimination. The court also

informed Appellant about other, nonconstitutional rights, including the maximum

potential penalty and fine that could be imposed as well as the mandatory prison term

due to the firearm specifications for each respective case.

{¶21} The trial court here inquired as to whether Appellant was under the

influence of any drugs or alcohol at the time he entered his plea. Appellant

responded in the negative. The transcript of proceedings is devoid of any evidence

that Appellant was impaired in any way from understanding the proceedings or the

consequences of his guilty plea. Accordingly, there are no appealable issues

regarding Appellant’s guilty plea. -10-

Sentencing

{¶22} In reviewing a felony sentence, “an appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing

evidence that the record does not support the trial court's findings under relevant

statutes or that the sentence is otherwise contrary to law.” State v. Marcum,

,

,

, ¶ 1.

{¶23} Appellant contends the trial court erred in denying his motion to

withdraw his guilty plea because at sentencing the trial court did not assess whether

any of the counts were allied offenses. R.C. 2941.25 governs allied offenses of

similar import.

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant

may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses

of the same or similar kind committed separately or with a separate

animus as to each, the indictment or information may contain counts for

all such offenses, and the defendant may be convicted of all of them.

{¶24} R.C. 2941.25 pertains to both the conviction and the sentence. State v.

Whitfield,

,

,

, ¶ 12. The statute’s

“mandate that a defendant may be ‘convicted’ of only one allied offense is a -11-

protection against multiple sentences rather than multiple convictions.” Id. at ¶ 18.

Moreover, “it is the state that chooses which of the allied offenses to pursue at

sentencing.” Id. at ¶ 20. Thus, “[w]hen the state elects which of the two allied

offenses to seek sentencing for, the court must accept the state's choice and merge

the crimes into a single conviction for sentencing.” Id. at ¶ 24.

{¶25} Whether an offender has been convicted of allied offenses of similar

import is dependent upon the facts of the case, as the statute is focused on the

conduct of the offender. State v. Ruff,

,

,

. An accused may be convicted and sentenced for multiple offenses

if: (1) the offenses each caused separate, identifiable harm; (2) the offenses were

committed separately; or (3) the offenses were committed with separate animus. Id.

at ¶ 25.

{¶26} Once the sentencing court determines that the offender has been found

guilty of allied offenses of similar import that are subject to merger, R.C. 2941.25

prohibits the court from imposing multiple sentences. State v. Damron,

,

,

, ¶ 17. Moreover, “[t]he imposition of

concurrent sentences is not the equivalent of merging allied offenses.”

{¶27} An offender’s failure to raise the issue of allied offenses in the trial court

forfeits all but plain error and a forfeited error is not reversible unless it affected the

outcome of the proceeding and reversal is necessary to correct a manifest injustice.

State v. Rogers,

,

,

.

Moreover, the accused must show there was a reasonable probability that the -12-

convictions are for allied offenses of similar import committed with the same conduct

and without separate animus.

If such a showing is not made, “the accused

cannot demonstrate that the trial court’s failure to inquire whether the convictions

merge for purposes of sentencing was plain error.”

{¶28} The Supreme Court of Ohio has held:

[W]hen a trial court finds that convictions are not allied offenses of

similar import, or when it fails to make any finding regarding whether

the offenses are allied, imposing a separate sentence for each offense

is not contrary to law and any error must be asserted in a timely appeal

or it will be barred by principles of res judicata.

State v. Williams,

,

.

{¶29} Thus, if neither the parties nor the trial court raise the issue of allied

offenses of similar import and the court does not find that the convictions should

merge for purposes of sentencing, the imposition of separate sentences is not

contrary to law. See Rogers at ¶ 3. However, when the trial court concludes that the

offender is guilty of allied offenses of similar import, imposing separate sentences for

those offenses is contrary to law and the sentences are void on the face of the

judgment of conviction. See State v. Underwood,

,

,

, ¶ 26.

{¶30} In the instant matter, Appellant contends he is entitled to withdraw his

guilty plea because the trial court failed to advise him whether any of his offenses

were allied offenses of similar import pursuant to R.C. 2941.25(A). Notwithstanding -13-

that we have already determined Appellant’s claims are barred by res judicata, this

record reflects that no appealable issues exist.

{¶31} The issue of allied offenses was addressed at the June 3, 2003,

sentencing hearing.

[APPELLANT’S COUNSEL]: This is one of those cases, in which, quite

candidly, I spent some time trying to figure out what I would say to the

Court that would appropriately reflect all the things that have happened.

There are a number of victims in this case. Specifically 02 CR 900A

has multiple victims. As a lawyer you ask yourself, well, there could be

some merger argument, and I don’t think, quite candidly, that’s

appropriate in this case because of the different victims for each

particular matter on 02 CR 900A, so I won’t even try to make an

argument to that. But to 02 CR 943, I think that there could be a

merger argument. One is that [it] involves the same victim. As I

understand it, it was a burglary of a home, and for whatever that’s

worth, I would ask the Court to consider that when it comes to Counts 1

and 2 for purposes of sentencing. I would ask that there be a merger.

(6/3/03 Sent. Hrg. Tr., pp. 6-7.)

{¶32} Later during this hearing the trial court noted only that the firearms

specifications merged pursuant to the plea agreement and by stipulation. Thus, at

the sentencing hearing, Appellant’s counsel specifically waived merger in case

number 02 CR 900 A, expressing that because there were multiple victims, there was -14-

separate, identifiable harm precluding merger. While counsel appears to ask that

merger be considered in the other case, no real argument was made and no facts to

support merger were laid out. The court obviously did not find the convictions should

merge for purposes of sentencing and the imposition of separate sentences is not

contrary to law. Appellant was required to assert the issue in a timely appeal,

otherwise it is barred by res judicata. As the trial court made no finding regarding

merger and Appellant failed to file a direct appeal, Appellant’s claim is precluded by

res judicata based on Rogers and its progeny.

{¶33} In sum, appellate counsel seeks to withdraw from representation

pursuant to Toney as a review of the record did not reveal any potentially meritorious

arguments. The issue asserted by Appellant in his pro se brief before us is without

merit and our own independent review of the record reveals Appellant’s appeal is

barred by the doctrine of res judicata and, notwithstanding, no appealable issues

exist. The judgment of the trial court is affirmed and counsel’s motion to withdraw is

granted.

Donofrio, J., concurs.

Robb, P.J., concurs.