Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Montgomery County
Prosecutor's Office, Appellate Division, Montgomery
County Courts Building, Attorney for Plaintiff-Appellee.
A. SCHOENLEIN, Attorney for Defendant-Appellant.
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). 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
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. 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