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State v. Bush

Court of Appeals of Ohio, Seventh District, Mahoning

June 21, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ZARYL BUSH DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 13 CR 249

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Zaryl Bush, Pro se #643-499 Lake Erie Correctional Institution

          JUDGES: Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant Zaryl Bush appeals the judgment of the Mahoning County Common Pleas Court denying his motion to withdraw a guilty plea. Appellant contends the trial court erred in failing to address the issue of allied offenses of similar import during the plea colloquy and in failing to advise him on the issue of postrelease control. Appellant also claims that trial counsel was constitutionally ineffective due to a failure to raise the issue of allied offenses. A review of the instant appeal in concert with the history of Appellant's conviction and sentence reveals that Appellant is barred from raising these issues by the doctrine of res judicata. Assuming arguendo that these issues were properly before us, Appellant fails to establish plain error in his Crim.R. 11 plea and sentencing hearing. Appellant's assignments of error are without merit and the judgment and sentence of the trial court is affirmed.

         Factual and Procedural History

         {¶2} On June 19, 2013, Appellant pleaded guilty to murder, second and third degree felony child endangering, intimidation, and tampering with evidence in an incident involving his girlfriend's minor child, T.F.

         {¶3} On September 22, 2014, this Court affirmed Appellant's convictions and sentence in State v. Bush, 7th Dist. No. 13 MA 110, 2014-Ohio-4434 after Appellant's counsel filed a no merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist. 1970).

          {¶4} Appellant filed a petition to vacate or set aside his plea and conviction pursuant to R.C. 2953.21 on May 5, 2014. The trial court denied Appellant's motion on June 4, 2014 and no appeal was taken. On December 8, 2015, Appellant filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1 which was denied by the trial court on January 12, 2016. Appellant timely appeals that decision.

         ASSIGNMENT OF ERROR NO. 1

         TRIAL COURT DID NOT COMPLY WITH THE MANDATORY REQUIREMENTS OF CRIMINAL RULE 11 WHEN IT ACCEPTED APPELLANT'S GUILTY PLEAS WITHOUT MAKING A PROPER FINDING UNDER R.C. 2941.25.

         {¶5} In his first assignment of error, Appellant contends the trial court erred because it failed to address the issue of allied offenses of similar import during his Crim.R. 11 plea colloquy.

         {¶6} R.C. 2941.25 governs allied ...


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