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State v. Rock

Court of Appeals of Ohio, Eleventh District, Lake

July 8, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DAVID V. ROCK, JR., Defendant-Appellant.

          Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR 000525.

          Charles Coulson, Lake County Prosecutor, and Teri R. Daniel, (For Plaintiff-Appellee).

          David V. Rock, Jr., pro se, (Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, David V. Rock, Jr. ("Rock"), appeals from the October 30, 2018 order of the Lake County Court of Common Pleas, denying his motion to vacate his guilty plea pursuant to Crim.R. 32.1. For the following reasons, the trial court's judgment is affirmed.

         {¶2} On March 30, 2015, the Lake County Court of Common Pleas convicted Rock of one count of operating a vehicle under the influence ("OVI"), a third-degree felony in violation of R.C. 4511.19(A)(1)(a), and an accompanying R.C. 2941.1413 specification for having been convicted of five or more OVI offenses within the previous twenty years.

         {¶3} Subsequently, Rock filed several postconviction motions and appeals. See State v. Rock, 11th Dist. Lake No. 2015-L-047, 2015-Ohio-4639 (appealing his sentence as excessive); State v. Rock, 11th Dist. Lake No. 2016-L-011, 2016-Ohio-8516 (appealing the length of his sentence and imposition of consecutive sentencing); State v. Rock, 11th Dist. Lake No. 2017-L-010, 2017-Ohio-7294 (appealing denial of his motion to vacate conviction); State v. Rock, 11th Dist. Lake No. 2016-L-118, 2017-Ohio-7955 (appealing denial of a request to modify the transcript of the sentencing hearing); State v. Rock, 11th Dist. Lake No. 2017-L-119, 2017-Ohio-9339 (appealing denial of a motion for reconsideration of a denied motion to withdraw his guilty plea pursuant to Crim.R. 32.1 and request for change of venue); State v. Rock, 11th Dist. Lake No. 2018-L-021, 2018-Ohio-4175 (appealing denial of a motion to withdraw his guilty plea pursuant to Crim.R. 32.1);and State v. Rock, 11th Dist. Lake No. 2018-L-107 (appealing jailtime credit).

         {¶4} On October 9, 2018, Rock filed another motion to vacate his guilty plea as void, which the trial court denied on October 30, 2018. The basis of Rock's motion was that he was not informed of the requirement under R.C. 5502.10 that the department of public safety publish information related to Rock's OVI convictions on an online public registry for habitual OVI offenders who have had five or more OVI convictions in the previous twenty years.

         {¶5} In denying the motion, the trial court held that (1) there was no evidence presented that Rock was placed on the cited registry; (2) even if he had been placed on the registry, there was no requirement to inform him of his required placement on the registry; and (3) the issue should have been raised previously on appeal. The trial court ultimately concluded that no manifest injustice had occurred, as required under Crim.R. 32.1, to allow for the withdraw of a guilty plea after sentencing has been imposed.

         {¶6} Rock noticed a timely appeal and raises two assignments of error. His first assignment of error states:

         {¶7} "The Court failed to inform defendant of the increased penalty set out by the GENERAL ASSEMBLY in ORC §5502.10, thus making defendant's plea unknowing, involuntary, and unintelligent, thus void by law."

         {¶8} Rock previously filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1, which was denied by the trial court on July 19, 2017. The trial court found Rock's arguments were barred by res judicata, and this court affirmed that judgment. Rock's current Crim.R. 32.1 motion before the court on appeal argues that his plea was unknowing, involuntary, and unintelligent because he was not made aware of the habitual OVI offender registry. Rock argues that this additional requirement is contrary to law as a "shame sanction," an increased penalty to his sentence, and that had he been informed of the registry requirement, he would have insisted on going to trial.

         {¶9} Crim.R. 32.1 provides that "[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." "Pursuant to Crim.R. 32.1, to withdraw a guilty plea after the imposition of sentence, a defendant bears the burden of proving that such a withdrawal is necessary to correct a manifest injustice." State v. Taylor, 11th Dist. Lake No. 2002-L-005, 2003-Ohio-6670, ¶8, citing State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus.

         {¶10} Motions filed pursuant to Crim.R. 32.1 are subject to the doctrine of res judicata. State v. Gegia, 11th Dist. Portage No. 2003-P-0026, 2004-Ohio-1441, ¶24 (citations omitted). "Thus, 'when presented with a motion to withdraw a guilty plea * * *, [trial courts and appellate courts] should consider first whether the claims raised in that motion are barred by res judicata.'" Id., quoting State v. Reynolds, 3d Dist. Putnam No. 12-01-11, 2002-Ohio-2823, ¶27. "Res judicata bars claims raised in a Crim.R. 32.1 post-sentence motion to withdraw guilty plea that were raised or could ...


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