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State v. Fisher

Court of Appeals of Ohio, Fourth District, Jackson

August 14, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
GEORGE FISHER, Defendant-Appellant.

          George Fisher, Lancaster, Ohio, Pro Se Appellant.

          Dave Yost, Ohio Attorney General, and Andrea K. Boyd, Special Prosecutor, Assistant Ohio Attorney General, Ohio Attorney General's Office, Columbus, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Matthew W. McFarland, Judge

         {¶1} This is an appeal from the Jackson County Common Pleas Court's denial of Appellant George Fisher's petition for post-conviction relief under R.C. 2953.21. Appellant pleaded guilty to one count of possession of heroin, for which the trial court sentenced him to nine years in prison. Appellant filed a direct appeal of the trial court's judgment, which this Court affirmed. Appellant now contends the trial court erred in denying his subsequent petition for post-conviction relief. Specifically, Appellant argues the petition should have been granted because his counsel was ineffective for failing to (1) withdraw Appellant's plea before sentencing and (2) move the trial court to conduct a hearing on his motion to suppress. Because the doctrine of res judicata bars Appellant from raising these purported constitutional violations in his motion for post-conviction relief, we overrule his assignments of error and affirm the trial court's judgment.

         FACTS

         {¶2} On January 13, 2016, Appellant was indicted for one count of possession of heroin, a felony of the first degree, with a specification that Appellant was a major drug offender. On March 22, 2017, Appellant, with retained counsel, pleaded guilty to the charge pursuant to an agreement with Appellee, the State of Ohio, to drop the major drug offender specification. The parties did not make a joint sentencing recommendation and requested a separate sentencing hearing.

         {¶3} On May 23, 2017, the trial court held a second plea hearing, at which the parties indicated their plea agreement contemplated a sentencing range encompassing the sentence for a felony in the first degree, rather than the eleven-year sentence mandated by a major drug offender specification. Appellee also asked to amend the charge to reduce the amount of heroin alleged to be possessed to avoid a mandatory maximum sentence. The trial court permitted the amendment, vacated the previous plea and proceeded with the new plea hearing. Appellant pleaded guilty to possessing heroin, a felony of the first degree, in violation of R.C. 2925.11(A). Pursuant to the plea agreement, the major drug offender specification was dismissed.

         {¶4} The trial court then heard argument regarding sentencing. Appellee requested the maximum sentence, while Appellant, through his attorney, argued for a lesser sentence. Appellant chose not to speak. After the parties concluded their arguments, the trial court sentenced Appellant to nine years in prison.

         {¶5} Appellant was granted leave to file a delayed appeal of his sentence. This Court held oral argument and then denied the appeal on June 28, 2018. State v. Fisher, 4th Dist. Jackson No. 17CA5, 2018-Ohio-2718, ¶ 42. The Supreme Court of Ohio denied Appellant's petition for jurisdiction on October 24, 2018. State v. Fisher, 153 Ohio St.3d 1505, 2018-Ohio-4285, 109 N.E.3d 1261. On November 9, 2018, Appellant filed a pro se motion for post-conviction relief, which the trial court denied on February 11, 2019. On March 7, 2019, Appellant timely filed this appeal of the trial court's decision.

ASSIGNMENTS OF ERROR
"I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO WITHDRAW THE PETITIONER'S PLEA PRIOR TO SENTENCING.
II. THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO HAVE THE COURT CONDUCT A HEARING ON HIS MOTION TO SUPPRESS EVIDENCE. COUNSEL FAILED TO INSIST THAT A HEARING BE HELD ON THE MOTION TO SUPPRESS THE EVIDENCE, AND THERE WAS NEVER A RULING BY THE COURT."
ASSIGNMENTS OF ERROR I AND II

         {¶6} Both of Appellant's assignments of error are based on the contention that he received ineffective assistance of counsel. In his first assignment of error, he argues that his trial counsel was ineffective for failing to withdraw his plea before sentencing. In the second assignment of error, Appellant argues that his trial counsel was ineffective for failing to insist that the trial court hold a hearing on his pending motion to suppress. Appellant dedicates his brief to arguing the merits of these assignments of error. Appellee argues, in response, that Appellant's claims are both barred by the doctrine of res judicata and fail on their merits. ...


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