Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case Nos. CR-07-503651-A and CR-07-504657-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony Thomas Miranda, Assistant Prosecuting
Attorney, for appellee.
A. Dixon, for appellant.
JOURNAL ENTRY AND OPINION
J. BOYLE, PRESIDING JUDGE
1} Defendant-appellant, William Johnson, appeals the
trial court's judgment denying his motion to withdraw his
plea that he entered into in February 2008. He raises two
assignments of error for our review:
1. The lower court erred and denied the appellant due process
and protection of Ohio law which bars his state convictions
based upon his conviction for the same conduct in federal
2.The appellant received ineffective assistance of counsel.
2} Finding no merit to his arguments, we affirm.
Procedural History and Factual Background
3} Johnson was indicted on state charges in two
cases in November and December 2007, including charges of
drug trafficking, resisting arrest, possessing criminal
tools, and two counts of drug possession. The alleged date of
the offenses in the first indictment was September 29, 2007,
and October 6, 2007, in the second indictment.
Johnson pleaded guilty on February 28, 2008, to four of the
five charges. In the first case, he pleaded guilty to drug
trafficking (crack cocaine) in violation of R.C.
2925.03(A)(2), a third-degree felony; resisting arrest in
violation of R.C. 2921.33, a second-degree misdemeanor; and
possessing criminal tools in violation of RC. 2923.24(A), a
fifth-degree felony. In the second case, he pleaded guilty to
possessing drugs (cocaine) in violation of R.C. 2925.11(A), a
5} Approximately one month later, Johnson and 15
other individuals were indicted in federal court on 23
charges. Count 1 of the federal indictment charged Johnson
with conspiracy to possess with the intent to distribute
cocaine and crack cocaine in violation of 21 U.S.C. 841(a)(1)
and 846 from July 2005 through March 2008. The indictment
listed Johnson's "overt acts" in the conspiracy
as occurring on April 20, June 28, July 11, and October 16,
6} In August 2008, Johnson pleaded guilty to the
federal indictment. The United States District Court for the
Northern District of Ohio sentenced Johnson on October 16,
2008, to 57 months in prison.
7} On November 6, 2008, the state court sentenced
Johnson to a total of three years in prison and ordered that
Johnson serve his sentence concurrent to the sentenced
imposed in his federal case.
8} Almost ten years later, in April 2018, Johnson
filed an "emergency motion" to withdraw his guilty
pleas for his drug trafficking and drug possession in both of
his 2008 state-court cases pursuant to Crim.R.
32.1. He alleged that his 2008 state-court
convictions were barred by R.C. 2925.50 due to the fact that
he was convicted of drug charges based upon the same conduct
in federal court. According to Johnson, he pleaded guilty in
February 2018, to a new charge of being "a felon in
possession" in federal court. At the time he filed his
Crim.R. 32.1 motion in state court, he was awaiting
sentencing in the new federal case (which was scheduled for
June 5, 2018). Johnson asserted that if his 2008 state
convictions were vacated, "it would have a significant
impact on his criminal history category and guideline
calculation for his federal sentencing on June 5,
9} The state opposed Johnson's motion. The trial
court held a hearing on Johnson's motion and subsequently
denied it. The trial court found that R.C. 2925.50 did not
bar Johnson's prosecution in state court. Regarding
Johnson's state-court drug possession charge, the trial
court found that it was not barred from prosecution because
it did not have the same elements as Johnson's federal
charge of conspiracy to possess with the intent to distribute
cocaine. With respect to Johnson's state-court
trafficking conviction, the trial court found that the date
of the state trafficking offense was not included as one of
the overt acts listed in the federal conspiracy indictment.
It is from this judgment that Johnson now appeals.
Crim. R. 32.1
10} Crim.R. 32.1 provides, "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." This rule imposes a strict standard for deciding
a postsentence motion to withdraw a plea. State v.
Griffin, 141 Ohio App.3d 551, 553, 752 N.E.2d 310 (7th
Dist.2001). A defendant may only be allowed to withdraw a
plea after sentencing in "extraordinary cases."
State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d
1324 (1977). The defendant bears the burden of showing a
manifest injustice warranting the withdrawal of a plea.
Id. at paragraph one of the syllabus. "The
logic behind this precept is to discourage a defendant from
pleading guilty to test the weight of potential reprisal, and
later withdrawing the plea if the sentence was unexpectedly
severe." State v. Wynn, 131 Ohio App.3d 725,
728, 723 N.E.2d 627 (8th Dist.1998), citing State v.
Caraballo, 17 Ohio St.3d 66, 477 N.E.2d 627 (1985).
11} At the outset, we note that Johnson is
attempting to vacate guilty pleas that he entered into almost
ten years prior to filing his motion. This court has stated
that Crim.R. 32.1 does not contain a time limit for filing a
post-sentence motion to withdraw a plea, but "an undue
delay between the occurrence of the alleged cause for
withdrawal of a guilty plea and the filing of a motion under
Crim.R. 32.1 is a factor adversely affecting the credibility
of the movant and militating against the ...