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State v. McCann

Court of Appeals of Ohio, Fourth District

July 2, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
FLOYD C. MCCANN, Defendant-Appellant.

Mark J. Miller, Shaw & Miller, Columbus, Ohio, for Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Matthew W. McFarland Presiding Judge.

{¶1} This is an appeal from the Lawrence County Court of Common Pleas' denial of Floyd McCann's post-sentence motion to withdraw his guilty plea. On appeal, McCann (Appellant herein) raises two assignments of error, arguing that 1) the trial court erred in denying his motion to withdraw his guilty plea because evidence which was potentially exculpatory was never disclosed to him; and 2) the trial court abused its discretion in failing to hold a hearing on his motion to withdraw his guilty plea.

{¶2} Because we conclude that the arguments raised under Appellant's first assignment of error are barred by the doctrine of res judicata, Appellant's first assignment of error is overruled. Likewise, because Appellant's arguments are barred by the doctrine of res judicata, we cannot conclude that the trial court erred in failing to hold a hearing on Appellant's motion and, therefore, his second assignment of error is also overruled. Accordingly, the decision of the trial court is affirmed.

FACTS

{¶3} We recount the facts as set forth in our prior consideration of this matter in State v. McCann, 4th Dist. No. 10CA12, 2011-Ohio-3339. On January 7, 2009, Mark Robinson ("Robinson") heard a loud noise, which he assumed was an animal being struck by a vehicle on the road in front of his home. Robinson went to locate the downed animal, but found nothing. As he turned back toward his home, Robinson was struck in the back by a .22 caliber bullet.

{¶4} At that same time, Appellant had been shooting his .22 caliber rifle at a box he had stationed on his front porch. The backdrop of Appellant's target was Robinson's property. Though ballistics were inconclusive, law enforcement was able to establish the trajectory of a bullet that had traveled from Appellant's porch to the location where Robinson had been shot. Robinson is now paralyzed from the waist down.

{¶5} Law enforcement arrested Appellant and the Lawrence County Grand Jury indicted him for felonious assault and having weapons under disability. Appellant was also serving a term of community control, which the state sought to revoke. Appellant waived his statutory speedy trial rights. The grand jury subsequently indicted Appellant on a single count of felonious assault, with a firearm specification. After consolidating the two indictments, Appellant filed several pre-trial motions. Eventually, Appellant waived his statutory speedy trial rights relating to the second indictment.

{¶6} In exchange for the state agreeing to dismiss the first indictment and the pending motion to revoke Appellant's community control, Appellant entered an Alford plea to the second indictment. Appellant stipulated to the facts within the indictment, but contested that he had knowingly shot Robinson. The trial court questioned Appellant on his motives for entering such a plea, and ultimately accepted his plea, finding him guilty of felonious assault with a firearm specification. The trial court sentenced Appellant to 10 years of incarceration, and Appellant filed a direct appeal of his conviction and sentence.

{¶7} In his direct appeal, Appellant raised two arguments, essentially contending that 1) the trial court erred in accepting his Alford plea, claiming there was no evidence that he intentionally shot the victim; and 2) he was denied the effective assistance of counsel. We found no merit to the assignments of error raised by Appellant and affirmed the decision of the trial court in State v. McCann, supra. Subsequently, however, Appellant filed an application for the reopening of his appeal, raising four assignments of error therein.

{¶8} We found merit in only one of the assigned errors, which asserted that the trial court failed to properly advise Appellant regarding post-release control. Although Appellant argued that such error required that his plea be vacated, we disagreed, stating that "the proper remedy would not be to vacate McCann's plea, as he requests, but rather to find that portion of his sentence is void and remand the case to the trial court to resentence him under R.C. 2929.191." State v. McCann, 4th Dist. No. 10CA12, ¶ 26 (July 6, 2012) (Decision and Judgment Entry on Reopening). As such, the matter was remanded for the limited purpose of properly imposing post release control.

{¶9} After the matter was remanded, Appellant filed a motion in the trial court in the form of a public records request, seeking disclosure of BCI evidence, which motion was denied by the trial court on August 8, 2012.[1] Then, on August 9, 2012, Appellant filed another motion in the trial court seeking to "invalidate his plea agreement as unconstitutional." The trial court denied Appellant's motion without a hearing on August 14, 2012, based upon the reasoning that "a defendant does not have a right to litigate his claim indefinitely, " and that the motion was "outside Appellate Procedures and ...


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