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State of Ohio v. Nicholas E. Barrett

September 29, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
NICHOLAS E. BARRETT,
DEFENDANT-APPELLANT.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 07CR-04-2458)

The opinion of the court was delivered by: Sadler, J.

Cite as

State v. Barrett,

(ACCELERATED CALENDAR)

DECISION

{¶1} Defendant-appellant, Nicholas E. Barrett, appeals pro se from the judgment of the Franklin County Court of Common Pleas denying his motion to withdraw guilty plea pursuant to Crim.R. 32.1. For the reasons that follow, we affirm the judgment of the trial court.

{¶2} The following facts were read into the record by the state at the plea hearing held on August 6, 2007. At approximately 3:00 a.m. on March 25, 2007, Sequoia Johnson, Alice Cowan, and Nicolette Woods were outside talking when Johnson threw a cup of water on appellant. Thereafter, appellant retrieved a 0.22 caliber rifle, returned outside, and fired five shots into a car containing two of the women. Only the car was struck. Columbus Police Officers arrived at the scene and were told the shooter went into 445 Cherry Street. After obtaining consent to enter the residence by Sharon Smith, officers found appellant inside the house and a 0.22 caliber rifle behind a bookcase. It was also noted at the hearing that appellant had a June 28, 2006 conviction for trafficking in drugs. No exceptions to the facts were made.

{¶3} On April 4, 2007, appellant was indicted by a Franklin County Grand Jury on two counts of felonious assault with specification, one count of tampering with evidence, and one count of having a weapon while under disability ("WUD"). On August 6, 2007, appellant entered pleas of guilty to one count of tampering with evidence and one count of WUD. Prior to sentencing, appellant filed a motion to withdraw guilty plea, which was granted by the trial court on January 18, 2008.

{¶4} On April 28, 2008, appellant entered pleas of guilty to two counts of felonious assault without specification, both second-degree felonies in violation of R.C. 2903.11, and one count of WUD, a third-degree felony in violation of R.C. 2923.13. A presentence investigation report was waived and the parties jointly recommended a sentence of community control. At the sentencing hearing, the trial court imposed a three-year term of community control, and ordered appellant to pay $500 in restitution to the victim. Additionally, appellant was informed of the sentence that could be imposed if he violated the terms of his community control. A journal entry reflecting such action was filed on May 1, 2008.

{¶5} On January 13, 2009, a request for probation revocation was filed. On January 30, 2009, though finding appellant to be in violation of his probation, the trial court permitted appellant to continue on probation with additional conditions. On October 2, 2009, another request for probation revocation was filed, and on November 6, 2009, a resentencing hearing was held. At this time, the trial court imposed seven years on each of the felonious assault convictions to be served concurrently, and four years on the WUD conviction to be served consecutively, for an aggregate sentence of 11 years to be served consecutively to case No. 08CR-2168. Additionally, appellant was awarded 217 days of jail-time credit.

{¶6} On June 11, 2010, asserting his trial counsel was ineffective, appellant filed a motion to withdraw his previously entered guilty pleas pursuant to Crim.R. 32.1. The state opposed the motion, and on March 17, 2011, finding "no merit" to appellant's motion, the trial court overruled the same. This appeal followed, and appellant brings the following two assignments of error for our review:

[1.] The trial court erred in binding the defendant-appellant over for two (2) counts of felonious assault and one count of having [a] weapon under disability.

[2.] A trial court does have the subject matter jurisdiction over ineffective assistance of counsel.

{ΒΆ7} The arguments made under each assignment of error are unclear. Therefore, we will address both assignments of error as one and treat them as an assertion that the trial court abused its discretion in overruling appellant's motion to withdraw guilty plea. Motions to withdraw pleas of guilty are governed by Crim.R. 32.1, which 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." Here, the ...


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