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State v. Johnson

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 13, 2019

STATE OF OHIO, Plaintiff-Appellee,
WILLIAM JOHNSON, Defendant-Appellant.

          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.

          Robert A. Dixon, for appellant.



         {¶ 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 court.
2.The appellant received ineffective assistance of counsel.

         {¶ 2} Finding no merit to his arguments, we affirm.

         I. 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.

         (¶4} 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 fifth-degree felony.

         {¶ 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, 2007.

         {¶ 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.[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, 2018."[2]

         {¶ 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.

         II. 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 ...

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