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State v. Mayes

Court of Appeals of Ohio, Second District, Montgomery

December 29, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DERRICK E. MAYES Defendant-Appellant

         Criminal Appeal from Common Pleas Court No. 2010-CR-851/1

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, Attorney for Defendant-Appellant

          DERRICK E. MAYES, Inmate No. 676-598, Defendant-Appellant-Pro Se

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, Derrick E. Mayes, appeals pro se from the trial court's decision of July 8, 2016, overruling his motion to withdraw pursuant to Crim.R. 32.1. Presenting three assignments of error, Mayes argues that he should be permitted to withdraw his pleas of no contest to a series of charges under R.C. Chapter 2907 because he entered the pleas in reliance on the allegedly deficient advice of his defense counsel; he also argues that the trial court failed to notify him of the applicable sex-offender registration requirements. We find that Mayes's assignments of error are frivolous, and therefore, we affirm the decision of the trial court.

         I. Facts and Procedural History

         {¶ 2} Mayes was arrested on June 15, 2010, and charged with one count of gross sexual imposition. In an order entered on January 14, 2011, the trial court appointed an attorney to defend Mayes, and on February 17, 2011, Mayes executed a time waiver of unlimited duration with respect to "every offense and specification [with] which [he] could [have] be[en] charged" as a result of the investigation that led to his arrest.

         {¶ 3} The first of three indictments followed on May 27, 2011; the second on July 18, 2011; and the third on March 7, 2012. Mayes executed a second time waiver of unlimited duration on November 23, 2011, which applied to all charges set forth in the first and second indictments, and a third time waiver of unlimited duration on March 16, 2012, which applied to all charges set forth in the third indictment. All told, the three indictments comprised 56 charges under R.C. Chapter 2907.

         {¶ 4} Having reached a plea agreement with the State, Mayes appeared before the trial court on December 7, 2012, and pleaded no contest to a total of 25 offenses, including 1 count of disseminating matter harmful to juveniles; 8 counts of gross sexual imposition; 2 counts of importuning; 12 counts of rape; and 2 counts of unlawful sexual contact with a minor. On December 28, 2012, the court sentenced Mayes to a mandatory term of life for one of the counts of rape and, running concurrently, to the maximum term for every other count.[1]

         {¶ 5} Mayes did not take a direct appeal from his convictions, but on August 5, 2013, he moved for post-conviction relief, contending that he pleaded no contest in reliance on his defense counsel's erroneous assurances that he would be eligible for parole after 10 years and would likely be released on parole after no more than 14 years. Following a hearing at which Mayes and counsel testified, the trial court found that counsel's advice did not constitute ineffective assistance. The court accordingly overruled Mayes's motion.

         {¶ 6} On February 25, 2014, Mayes appealed from the decision overruling his motion for post-conviction relief. We affirmed, stating that "we agree[d] [with the trial court] that Mayes [did] not establish that [his defense counsels performance fell below an objective standard of reasonable representation when he assessed [Mayes's] prospects of parole." State v. Mayes, 2d Dist. Montgomery No. 26095, 2014-Ohio-4409, ¶ 8.

         {¶ 7} Mayes filed a motion to withdraw his pleas on January 5, 2016. In its decision of July 8, 2016, the trial court overruled the motion to withdraw, finding that Mayes's "claim of ineffective assistance of counsel is barred by the doctrine of res judicata, " given that he "asserted the [same] issue in his [p]etition for [p]ost-[c]onviction [r]elief." Decision Overruling Def.'s Mot. to Withdraw 4, July 8, 2016. Two weeks later, Mayes timely filed his notice of appeal in the instant case.

         {¶ 8} On October 25, 2016, we appointed counsel to represent Mayes. Counsel filed an Anders brief on February 23, 2017, after which we notified Mayes that he had 60 days in which to submit a brief pro se. Mayes availed ...


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