[Cite as State v. Churchill,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : JOSEPH P. CHURCHILL : Case No. 17 CAA 10 0068 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 14 CR 1 08 0352

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 19, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN JOSEPH P. CHURCHILL, pro se Delaware County Prosecuting Attorney #716-040 5900 B.I.S. Road By: CORY J. GOE Lancaster, Ohio 43130 Assistant Prosecuting Attorney 140 N. Sandusky St., 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 17 CAA 10 0068 2

Baldwin, J.

{¶1} Appellant, Joseph P. Churchill, appeals the decision of the Delaware

County Court of Common Pleas denying his second motion to withdraw his guilty plea.

The appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} On August 7, 2014, the Delaware County Grand Jury returned an indictment

against the Appellant for two counts of Breaking and Entering pursuant to R.C.

2911.13(A), two counts of possessing criminal tools pursuant to R.C. 2923.24(A), two

counts of theft pursuant to R.C. 2913.02(A)(1), and one count of failure to comply

pursuant to R.C. 2921.331(B). A warrant was issued for appellant’s arrest on the same

date. Appellant was incarcerated in the Franklin County Jail on another matter on the date

the indictment was filed. He was transferred to Orient Correction Center on June 10, 2015.

The record does not contain any evidence reflecting that the appellant was arrested

pursuant to the indictment.

{¶3} On June 11, 2015, appellant was notified by corrections center personnel

that a warrant had been issued for his arrest for the Delaware County charges and, on

June 22, 2015, appellant entered a not guilty plea to all counts. On August 27, 2015, the

appellant amended his plea to guilty to two counts of Breaking and Entering pursuant to

R.C. 2911.13(A), felonies of the fifth degree, and one count of Failure to Comply pursuant

to R.C. 2921.331(B), a felony of the fourth degree. The remaining charges were

dismissed as part of a plea agreement.

{¶4} Appellant appeared for sentencing on September 26, 2015 and was

sentenced to a total of 3 years prison imprisonment, one year for each count. The court Delaware County, Case No. 17 CAA 10 0068 3

ordered the sentences to run consecutive to each other and consecutive to the sentence

appellant was serving in an unrelated matter.

{¶5} Appellant filed a notice of appeal and a request for appointment of counsel.

Counsel was appointed and appellant argued error in sentencing regarding the

description of post release control. The appellant did not claim ineffective assistance of

counsel in that appeal. This court remanded the case to the trial court for re-sentencing

consistent with proper imposition of post-release control but affirmed the balance of the

trial court’s ruling. State v. Churchill, 5th Dist., Delaware App. No. 15CAA10084, 2017 -

Ohio- 581. A re-sentencing hearing was conducted on March 28, 2017, the sentence was

re-imposed with the corrected post-release control language and all other terms remained

the same. No appeal was taken from the re-sentencing.

{¶6} In State vs. Churchill, Delaware App No 15CAA100084 appellant filed an

application for reopening his appeal pursuant to App.R. 26 (B). Within that filing appellant

argued his appellate counsel was ineffective for failing to raise a claim of ineffective

assistance of trial counsel and that his trial counsel was ineffective for failing to request

dismissal of the indictment on speedy trial grounds. Appellant contended his arrest on the

charges in the indictment occurred 315 days after the filing of the indictment. He asserted

he was imprisoned in an adjoining county during that period of time.

{¶7} In our judgment entry of April 3, 2017, we considered the appellant’s

allegations of ineffective assistance of counsel and denied the application for reopening,

holding that the law did not impose a duty of reasonable diligence on the state to find and

inform appellant of the indictment in the instant case. We further held appellant did not

demonstrate a reasonable probability of a change in the outcome of the appeal had Delaware County, Case No. 17 CAA 10 0068 4

appellate counsel raised a claim of ineffective assistance of trial counsel.(State v.

Churchill, Delaware App. No. 15CAA10084, Judgment Entry, Apr. 3, 2017).

{¶8} On July 10, 2017, the Appellant filed a motion for appointment of counsel

and a Motion to Withdraw Plea in State vs. Churchill, Delaware County Court of Common

Pleas, Case No. 14 CR 1 08 0352 arguing that he received ineffective assistance of

counsel because trial counsel did not perform adequate investigation, did not file a motion

to dismiss for violation of speedy trial rights and did not provide correct legal advice. The

state filed a memorandum in opposition on July 21, 2017. The trial court denied both

motions on July 26, 2017. The Appellant attempted to withdraw his motion to withdraw

his guilty plea in a pleading filed August 3, 2017, but this request was moot because the

motion had been denied. Appellant did not appeal the trial court’s decision.

{¶9} The appellant filed a second motion to withdraw his plea on September 5,

2017 and a motion for appointment of counsel. The Motion included an assertion that trial

counsel was ineffective for failure to conduct pretrial investigation on his behalf but lacks

any reference to the record or other facts in support of that argument. Appellee filed its

opposition on September 12, 2017. The trial court denied the motion for appointment of

counsel and the motion to withdraw the plea on September 18, 2017.

{¶10} On October 2, 2107, appellant filed a notice of appeal, motion for

preparation of the transcript at state expense and motion for appointment of counsel. The

motion for transcript was denied by the trial court on October 13, 2017 because the

transcript for the prior hearings had been provided and the matter subject to appeal, the

denial of the September 5, 2017 motion to withdraw plea, was decided without a hearing.

The motion for appointment of counsel was denied by this court on October 16, 2017. Delaware County, Case No. 17 CAA 10 0068 5

{¶11} Appellant submits two assignments of error:

{¶12} I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISMISSED

APPELLANT’S MOTION BASED ON RES JUDICATA.

{¶13} II. DEFENDANTS GUILTY PLEA WAS NOT KNOWINGLY AND

INTELLIGENTLY MADE BECAUSE TRIAL COUNSEL KNEW OR SHOULD HAVE

KNOWN THAT THE INDICTMENT/CHARGES WERE NO LONGER VALID DUE TO A

VIOLATION OF DEFENDANT’S DUE PROCESS AND SPEEDY TRIAL RIGHTS.

{¶14} Appellant filed his first motion to withdraw his plea of guilty, asserting

ineffective assistance of counsel, and that motion was denied on July 26, 2017. No appeal

was taken from that judgment. Appellant’s motion to re-open his appeal in State vs.

Churchill, Delaware App No 15CAA100084 raised the issue of ineffective assistance of

trial counsel and appellate counsel. This court denied that motion on April 3, 2017 and no

appeal was taken from that decision. Final, appealable orders were issued by the trial

court and this court regarding the motion to withdraw the guilty plea and the issue of

ineffective assistance of counsel and appellant failed to appeal those orders. Appellant

has had ample opportunity to present his arguments and he has taken advantage of those

opportunities. However, he may not continue to revisit those issues; the trial court was

correct to dismiss the motion based upon the doctrine of res judicata.

{¶15} This court has addressed application of res judicata to multiple filings of

motions to withdraw a guilty plea:

Res judicata bars the assertion of claims against a valid, final

judgment of conviction that have been raised or could have been raised on Delaware County, Case No. 17 CAA 10 0068 6

appeal. State v. Perry (1967),

,

,

, paragraph nine of the syllabus.

Numerous courts have applied the doctrine of res judicata to

successive motions to withdraw a guilty plea. (Citations omitted).

***

As succinctly stated in State v. Kent, Jackson App. No. 02CA21,

2003–Ohio–6156: ‘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.

{¶16} State v. Green, 5th Dist. Stark No. 2011 CA 00127,

, ¶¶ 24-

25.

{¶17} The Sixth District Court of Appeals came to the same conclusion in State v.

Kelm, 6th Dist. Wood No. WD-11-024,

, ¶ 10 where it held “Ohio courts

have recognized that res judicata bars successive Crim.R. 32.1 motions to withdraw guilty

pleas, where the grounds to withdraw the plea were raised or could have been raised in

the initial motion to withdraw.”(Citations omitted).

{¶18} The two motions filed by the appellant, requesting leave to withdraw his plea

of guilty, fall squarely within the precedent cited above. The argument raised in the

second motion was known and, in fact, presented, in the first motion. Each motion

contains assertions of ineffective assistance of counsel with no material modification.

This issue was previously decided by the trial court in its July 26, 2017 order and by this

court in response to appellant’s motion to reopen his appeal. Appellant has had sufficient Delaware County, Case No. 17 CAA 10 0068 7

opportunity to present any and all arguments in support of his motion to withdraw his plea

and his argument that he received ineffective assistance of counsel before the trial court

or appeals of the trial court’s rulings. State v. Devore, 5th Dist. Richland No. 15CA22,

. Appellant’s argument that he has reviewed the law and discovered

a more appropriate legal basis for his motion is unpersuasive. Res judicata bars any

further review of his matter.

{¶19} Because we have determined that the trial court correctly applied the

doctrine of res judicata, we hold that the second assignment of error is moot. However,

assuming arguendo we were to consider the second assignment of error we would find

that appellant failed to present this argument to the trial court and raises it for the first time

on appeal. We hold that appellant has waived review of this issue by failing to raise it at

the trial level in his second motion to withdraw his guilty plea. State v. Green, 5th Dist.

Stark No. 2011 CA 00127,

.

{¶20} The decision of the Delaware County Court of Common Pleas is affirmed. Delaware County, Case No. 17 CAA 10 0068 8

{¶21} Costs assessed to appellant.

By: Baldwin, J.

John Wise, P.J. and

Gwin, J. concur.