Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Johnson

Court of Appeals of Ohio, Twelfth District, Butler

June 5, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DONALD LEE JOHNSON, Defendant-Appellant.

         CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-02-0199

          Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, for plaintiff-appellee

          Donald Lee Johnson, #A655188, Allen Correctional Institution, defendant-appellant, pro se

          OPINION

          S. POWELL, J.

         {¶ 1} Defendant-appellant, Donald Lee Johnson, appeals from the decision of the Butler County Court of Common Pleas denying his pro se post-sentence motion to withdraw his no contest plea to a charge of aggravated possession of drugs.[1] For the reasons outlined below, we affirm.

         {¶ 2} As relevant here, on September 19, 2011, Johnson entered a no contest plea to a charge of aggravated possession of drugs in violation of R.C. 2925.11, a first-degree felony. According to the bill of particulars, the charge arose after Johnson was discovered with 1, 919 tablets of morphine on the morning of December 8, 2010 while in Hamilton, Butler County, Ohio. Unfortunately, prior to accepting Johnson's plea, the trial court did not inform Johnson that the prison sentence to be imposed for this charge would be mandatory. Instead, while the transcript of this hearing is incomplete, it is undisputed the trial court incorrectly stated that there was merely a presumption of prison. The no contest plea form, however, did explicitly state that the sentence to be imposed for aggravated possession of drugs was mandatory. Johnson's signature appears on the no contest plea form.

         {¶ 3} On October 31, 2011, the trial court held a sentencing hearing wherein it sentenced Johnson to an aggregate term of 13 years in prison, eight of which were to be served on the aggravated possession of drugs offense. The trial court also ordered Johnson to pay $19, 000 in fines, $10, 000 of which were mandatory. The trial court's sentencing entry correctly stated that the eight-year prison sentence imposed for the aggravated possession of drugs offense was "a mandatory prison term" in accordance with R.C. 2929.13(F).

         {¶ 4} On September 2, 2014, this court affirmed Johnson's conviction and sentence on direct appeal in State v. Johnson, 12th Dist. Butler No. CA2011-11-212, 2014-Ohio-3776. As part of this appeal, Johnson did not allege the trial court erred when it did not specifically inform him at the plea hearing that the sentence to be imposed resulting from his no contest plea to aggravated possession of drugs was a mandatory prison term. Instead, Johnson merely argued "the trial court erred in imposing fines upon him because he is indigent, and that his trial counsel was ineffective for failing to argue against the fines." Id. at ¶ 8.

         {¶ 5} Over a year later, on March 7, 2016, Johnson filed a pro se post-sentence motion to withdraw his no contest plea to the aggravated possession of drugs charge. In support of this motion, Johnson alleged his no contest plea was not entered knowingly, intelligently, and voluntarily since the trial court had not specifically informed him that the sentence imposed for that charge would be mandatory, thus making him ineligible for early judicial release. After holding a hearing on the matter, during which time Johnson was represented by counsel, the trial court denied Johnson's motion upon finding his claim was barred by the doctrine of res judicata. In so holding, the trial court found "the issue raised in [Johnson's motion] to withdraw plea is not an issue that was beyond the knowledge of [Johnson]" for he "was put on notice of the mandatory nature of the sentence, as well as the contradictory information provided by the trial judge, prior to the filing of his direct appeal in 2014."

         {¶ 6} Johnson now appeals from the trial court's decision, raising a single assignment of error for review.

         {¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S CRIM. R. 32.1 MOTION TO WITHDRAW HIS GUILTY [sic] PLEA UNDER THE DOCTRINE OF RES JUDICATA THEREBY DENYING HIS RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTION BECAUSE APPELLANT'S GUILTY [sic] PLEA WAS LESS THAN KNOWING AND INTELLIGENTLY MADE.

         {¶ 8} In his single assignment of error, Johnson argues the trial court erred by denying his pro se post-sentence motion to withdraw his no contest plea to the aggravated possession of drugs charge. In support of this claim, Johnson argues the trial court erred by finding the doctrine of res judicata barred his claim since his plea was not entered knowingly, intelligently, and voluntarily when the trial court failed to inform him that the sentence imposed for that charge would be mandatory, thus making him ineligible for early judicial release. We disagree.

         Standard of Review

         {¶ 9} Pursuant to Crim.R. 32.1, "[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." A defendant who seeks to withdraw a plea after the imposition of a sentence, such as the case here, has the burden of establishing the existence of a manifest injustice. State v. Williams, 12th Dist. Clermont No. CA2012-08-060, 2013-Ohio-1387, ¶ 11, citing State v. Smith,49 Ohio St.2d 261 (1977), paragraph one of the syllabus. A manifest injustice is defined as "a fundamental flaw in the proceedings that results in a miscarriage of justice or is inconsistent with the demands of due process." State v. Hobbs, 12th Dist. Warren No. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.