Court of Appeals of Ohio, Fourth District, Jackson
Fisher, Lancaster, Ohio, Pro Se Appellant.
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
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.
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.
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.
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
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
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