Court of Appeals of Ohio, Twelfth District, Butler
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
Michael T. Gmoser, Butler County Prosecuting Attorney,
Michael Greer, Government Services Center, for
Lee Johnson, #A655188, Allen Correctional Institution,
defendant-appellant, pro se
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. 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.
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