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State v. Grimes

Court of Appeals of Ohio, Second District, Montgomery

January 6, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MATTHEW GRIMES Defendant-Appellant

         (Criminal Appeal from Common Pleas Court Trial Court Case No. 04-CR-237/1)

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee.

          BROCK A. SCHOENLEIN, Attorney for Defendant-Appellant.

          OPINION

          HALL, J.

         {¶ 1} Matthew Grimes appeals from the trial court's February 27, 2015, decision, order, and entry overruling his "Motion to overturn the conviction and set aside the sentence, and to provide court records."

         {¶ 2} Grimes filed his pro se motion in August 2014, seeking to overturn his 2004 conviction and sentence following a guilty plea to numerous felony charges and specifications that resulted in an aggregate 50-year prison sentence. The charges stemmed from a crime spree that included Grimes shooting and wounding two police officers. In his motion, he argued that his plea was invalid, that his speedy-trial rights were violated, that he was tortured while in custody, that he received ineffective assistance of counsel, and that the prosecutor engaged in misconduct. Grimes provided no affidavit, transcripts, or any other evidentiary support along with his motion.

         {¶ 3} In its ruling, the trial court found Grimes' motion untimely to the extent that it was an R.C. 2953.21 post-conviction relief petition. To the extent that the motion was a Crim.R. 32.1 plea-withdrawal motion, the trial court found no "manifest injustice" based on Grimes' allegations. Specifically, the trial court found no speedy-trial violation, no evidence to support the torture claim, no evidence of coercion with regard to the guilty plea, no evidence of prosecutorial misconduct, and no evidence of ineffective assistance of counsel. Finally, insofar as Grimes' motion included a public-records request, the trial court concluded that he had not established the necessity of the records to support a justiciable claim as required by R.C. 149.43.

         {¶ 4} Following the trial court's ruling, Grimes filed a pro se notice of appeal. He also filed in this court a "motion to request documents." He sought an order requiring the trial court "to turn over all documents, transcripts and evidence" related to his case. We overruled the motion, finding the document request to be a "merits issue" because the trial court had denied the same request below. Thereafter, the trial court appointed counsel to assist Grimes with his appeal. Counsel proceeded to file a February 5, 2016 motion in this court, seeking to withdraw from further representation. Counsel explained that he could not obtain any relevant records, discovery, or transcripts to support the claims in Grimes' unsuccessful motion. According to counsel, Grimes' trial attorney permissibly long-since had discarded the discovery packet, a public-records request had been denied, and the transcriptionist for the 2004 proceedings no longer possessed complete notes and equipment to transcribe the plea and sentencing hearings. On February 23, 2016, we overruled counsel's motion to withdraw. Counsel subsequently obtained a transcript of the plea and sentencing hearing, and we ordered the record to be supplemented with it. Briefing then proceeded in accordance with the appellate rules.

         {¶ 5} Grimes now advances three assignments of error on appeal. First, he contends the plea-hearing transcript reveals that his guilty plea was not entered knowingly and intelligently. Second, he claims his statutory speedy-trial rights were violated and that his attorney provided ineffective assistance by failing to raise the issue prior to his plea. Third, he asserts that App.R. 9 may require the vacation of his plea and sentence based on deficiencies in the uncertified plea and sentencing hearing transcripts.

         {¶ 6} Upon review, we see no error in the trial court's ruling and no merit in Grimes' arguments. As a threshold matter, we agree with the trial court that Grimes' motion was untimely insofar as it requested post-conviction relief under R.C. 2953.21. The trial court's termination entry in Grimes' case was filed on November 1, 2004. His right to appeal expired one month later on December 1, 2004. His statutory right to seek post-conviction relief expired 180 days after that. See former R.C. 2953.21(A)(2).[1] He did not file the motion at issue, however, until more than nine years later. The trial court also correctly noted that Grimes had not made the showing required to file a petition beyond the 180-day time limit. Among other things, he was required to show that he had been unavoidably prevented from discovering the facts upon which his petition relied. See R.C. 2953.23(A)(1). He made no such showing. Therefore, the trial court did not err in denying statutory post-conviction relief.

         {¶ 7} With respect to Grimes' specific assignments of error, he first argues that his "plea could not have been entered knowingly and intelligently as required by law." He raises several arguments in support. He contends the trial court erred in denying his motion without the benefit of a transcript. He also suggests the transcript he has provided on appeal may be inaccurate, calling into question the viability of his plea. Finally, he asserts that his responses to the trial court's questions at the plea hearing are indicative of a plea that was not entered knowingly and intelligently.

         {¶ 8} We find no merit in Grimes' arguments. Any issues related to the knowing, intelligent, and voluntary nature of his guilty plea could have been raised in a direct appeal. Therefore, res judicata precludes him from raising those issues now.[2] State v. Havens, 2d Dist. Champaign No. 10CA0027, 2011-Ohio-5019, ¶ 9 ("Defendant's claim that his guilty pleas were not entered knowingly, intelligently and voluntarily clearly could have been raised on direct appeal, but was not. Accordingly, that claim is now barred by res judicata."); State v. Kemp, 2d Dist. Clark No. 2014CA32, 2014-Ohio-4607, ¶ 12, 17 (concluding that res judicata barred the defendant from challenging the knowing, intelligent, and voluntary nature of his guilty plea in a post-sentence plea-withdrawal motion). Accordingly, his first assignment of error is overruled.

         {¶ 9} In his second assignment of error, Grimes asserts that his statutory speedy-trial rights were violated and that his trial counsel provided ineffective assistance by failing to raise the issue prior to his guilty plea. As a result, he contends the trial court erred in refusing to allow him to vacate his plea.

         {¶ 10} Once again, we find Grimes' argument to be without merit. This court has recognized that " '[ineffective assistance of counsel can constitute manifest injustice sufficient to allow the post-sentence withdrawal of a guilty plea.' " State v. Banks, 2d Dist. Montgomery No. 25188, 2013-Ohio-2116, ¶ 9, quoting State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.). We also have recognized, however, that "a plea of guilty waives the right to claim that the accused was prejudiced by constitutionally ineffective assistance of counsel, except to the extent the defects complained of caused the plea to be less than knowing and voluntary." State v. Bateman, 2d Dist. Clark No. 2012CA29, 2013-Ohio-4235, ¶ 7. In Bateman, we concluded that the defendant's guilty plea waived his claim of ineffective assistance of counsel based on counsel's failure to seek ...


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