State v. Johnson
| Citation | 2020 Ohio 3892 |
| Decision Date | 30 July 2020 |
| Docket Number | No. 108937,108937 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. MARVIN F. JOHNSON, SR., Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Patrick Lavelle, Assistant Prosecuting Attorney, for appellee.
Marvin F. Johnson, Sr., pro se.
{¶ 1} Marvin Johnson appeals from a judgment of the trial court denying his motion to withdraw his no-contest plea. After a review of the record and applicable law, we affirm the judgment of the trial court.
{¶ 2} Johnson was indicted in March 2015 for drug trafficking, drug possession, and possession of criminal tools. Johnson filed a motion to suppress the evidence. After a hearing, the trial court denied the motion. Subsequently, Johnson pleaded no contest to the indictment.
{¶ 3} On May 26, 2016, the trial court sentenced Johnson to six years in prison for drug trafficking, after finding drug possession to be an allied offense of drug trafficking. The court also imposed a concurrent six-month prison term for possessing criminal tools. The trial court then deferred execution of the sentence and placed Johnson on supervised release and electronic home detention so that Johnson could undergo a heart procedure on July 22, 2016. The trial court directed Johnson to report to jail on August 1, 2016, and warned him that if he failed to appear, the court would vacate his six-year sentence and impose a longer one. Johnson failed to appear on August 1, 2016, and the trial court resentenced Johnson on February 13, 2017, to eight years in prison.
{¶ 4} Johnson appealed from the trial court's judgment. He argued that the trial court erred in denying his motion to suppress evidence; his eight-year prison term was not supported by the record; the trial court erred when it resentenced him to an increased prison term of eight years after initially imposing a six-year term; and that he was denied the effective assistance of counsel when his trial counsel failed to object to the increased prison term of eight years and had also failed toobject to the issuance of a capias for Johnson's failure to appear in court due to medical reasons.
{¶ 5} On appeal, this court held that the trial court lacked authority to resentence Johnson to an eight-year term in February 2017 and the original sentence was still in effect. This court remanded the case for the limited purpose of executing the original sentence. State v. Johnson, 8th Dist. Cuyahoga No. 105560, 2018-Ohio-169, appeal not accepted, 152 Ohio St.3d 1484, 2018-Ohio-1990, 98 N.E.3d 296 ("Johnson I"). Johnson's ineffective-assistance-of-counsel claim was found moot.
{¶ 6} After Johnson filed the notice of appeal from the trial court's February 13, 2017 judgment, on March 24, 2017, he filed a "Petition to Vacate or Set Aside Judgment of Conviction or Sentence." He argued that his due process rights, the right against cruel and unusual punishment, and the right to effective assistance of counsel were violated. For the ineffective assistance of counsel claim, he alleged that he was denied effective assistance of counsel from each of his trial attorneys at various stages of the proceedings.
{¶ 7} The trial court construed his motion as a petition for postconviction relief and found that the motion was barred by res judicata because the newly raised claims could have been raised in his direct appeal and Johnson offered no evidence outside the record for the claims. On appeal, this court affirmed the trial court's judgment, finding his claims could have been raised on direct appeal because theclaims did not rely on evidence outside of the record, and therefore, they were barred by res judicata. State v. Johnson, 8th Dist. Cuyahoga No. 105855, 2018-Ohio-178 ("Johnson II").
{¶ 8} On remand from Johnson I, the trial court held a hearing on March 29, 2018. The trial court reinstated Johnson's original six-year prison sentence pursuant to the directive given by the court in Johnson I.
{¶ 9} Johnson appealed from the decision. He argued that his no-contest plea was not entered knowingly, intelligently, or voluntarily. This court found the doctrine of res judicata barred his claim because he could have raised the argument regarding his no-contest plea in his direct appeal but did not. State v. Johnson, 8th Dist. Cuyahoga No. 107126, 2019-Ohio-632, appeal not accepted, 156 Ohio St.3d 1445, 2019-Ohio-2498, 125 N.E.3d 928 ("Johnson III"). Johnson also argued the trial court sentenced him to six years in prison out of vindictiveness. The court found his claim that the trial court was vindictive was also barred by res judicata.
{¶ 10} A day before that hearing, on March 28, 2018, Johnson filed a motion to withdraw his no-contest plea. His motion was based on his claim that his plea was not knowing, intelligent, or voluntary because the plea was "induced by an implied statement by the Prosecutor during the plea bargaining process," the trial judge "interfered in the plea bargain discussions," and his counsel failed "to meet a valid legal standard during the plea bargaining process." The trial court denied the motion to withdraw as moot. On appeal, however, this court sustained Johnson'sassignment of error regarding the trial court's denial of his motion to withdraw on the ground that the transcript of the March 29, 2018 hearing reflected that the trial court had not yet seen his motion to withdraw before denying it as moot. This court therefore remanded the case for the trial court to consider his March 28, 2018 motion to withdraw his plea.
{¶ 11} On remand from Johnson III, on August 8, 2019, the trial court held a hearing on Johnson's motion to withdraw the no-contest plea. At the hearing, Johnson stated his motion to withdraw was based on infective assistance of counsel in the plea bargain stage: more specifically, counsel filed a motion to suppress, which caused him to lose out on the opportunity of a plea bargain.
{¶ 12} The trial court noted that Johnson had already raised an ineffective-assistance-of-counsel claim in his direct appeal, Appeal No. 105660 (Johnson I), and he raised another ineffective-assistance-of-counsel claim in Appeal No. 105855 (Johnson II), which the Eighth District found to be barred by res judicata because the claim could have been raised in his direct appeal. The trial court denied his motion to withdraw on the ground of res judicata.
{¶ 13} Johnson appeals from the decision. His assignments of error state:
{¶ 14} For ease of discussion, we address the two assignments together.
{¶ 15} Johnson argues his motion to withdraw should be treated as a presentence motion to withdraw and considered under a more liberal standard. Crim.R. 32.1 governs withdrawals of guilty pleas and provides that "[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." In contrast, a presentence motion to withdraw a guilty plea, generally, should be freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
{¶ 16} We agree with the state, however, that Johnson's March 28, 2018 motion to withdraw the no-contest plea is a postsentence motion. The record reflects that the execution of Johnson's original six-year term imposed by the trial court was stayed to allow him to undergo a heart procedure. When he failed to appear on the scheduled date to begin his sentence, a capias was issued for him and the trial court increased his sentence to eight years. In Johnson I, this court held that the trial court lacked authority to resentence him and the original six-year term was still in effect. Johnson I at ¶ 46. As the original six-year term was imposed on May 26, 2016, the March 28, 2018 motion to withdraw is a postsentence motion.
{¶ 17} More importantly, regardless of whether the motion is considered a presentence or postsentence motion, we note that Johnson's motion to withdraw was based on a claim of ineffective assistance of counsel. This is the third occasion where Johnson raised a claim of ineffective assistance of counsel.
{¶ 18} The Supreme Court of Ohio explained the application of res judicata in criminal cases as follows:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.
(Emphasis sic.) State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
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