Visit the Archive

Bookmark this page on your mobile

QR Code image

What is this?

Toledo Legal News - News Drug dealer who said lawyer 'tricked' him into plea deal has appeal denied

 

A three-judge panel recently affirmed a Scioto County Court of Common Pleas decision denying a man’s post-sentence motion to withdraw a guilty plea in his drug trafficking case.

The 4th District Court of Appeals ruled that Anthony Owens could have raised his argument and filed his request to withdraw his guilty plea in a direct appeal.

However, because he failed to do so until eight months after he entered the plea, the court held that his actions were not timely.

“Because we conclude that the arguments raised under Owens’ sole assignment of error are barred by the doctrine of res judicata, we overrule the assignment of error,” Presiding Judge Marie Hoover wrote for the court.

The facts of the case state that Owens was indicted in March 2013 on counts of trafficking in drugs, possession of drugs and tampering with evidence.

He pleaded not guilty to all charges and filed a demand for discovery, a request for a bill of particulars and a motion to preserve evidence.

The state provided those items in April 2013 and also provided supplemental discovery in June 2013.

One month later, Owens’ attorney filed a motion to withdraw as counsel.

In that motion, the attorney asserted that Owens was not cooperating or communicating.

Further, it was alleged that Owens failed to appear for an appointment to discuss his defense and that counsel had not heard from him in nearly a month.

The common pleas court did not rule upon the motion to withdraw and instead scheduled a jury trial to begin in early August 2013.

Owens failed to appear on the set date and a bench warrant was issued for his arrest.

In September 2013, Owens entered into a plea deal with the state in which he pleaded guilty to one count of trafficking in oxycodone.

The trial court sentenced him to seven years in prison on that offense and he did not file a direct appeal to challenge either his conviction or his sentence.

However, in May 2014, Owens made a motion to withdraw his guilty plea on the grounds that his counsel was ineffective.

He asserted that his trial counsel should have moved to suppress evidence against him, which he argued was seized in violation of his Fourth Amendment rights.

The trial court denied that motion without a hearing and he appealed to the 4th District.

Again, he argued that his trial counsel was ineffective for failing to file a motion to suppress and for “tricking” him into taking the plea deal.

“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,’” Hoover wrote.

Based on that statute, the judges held that Owens had the burden of establishing the existence of a manifest injustice, defined as a “clear and openly unjust act.”

In his argument before the appellate panel, Owens contended he should be granted his motion to withdraw his guilty plea because his counsel proved ineffective by failing to file a motion to suppress the evidence against him.

“Such an alleged impropriety is not properly before us,” Hoover stated in response.

The judges noted they have consistently ruled that the doctrine of res judicata bars a defendant from raising any argument after sentencing that could have been raised in a direct appeal.

In Owens’ case, they determined that he was aware of his counsel’s actions or inaction at the time they occurred and he could have raised his argument at sentencing or in a direct appeal. His failure to do so rendered his post-sentence motion untimely.

“Thus, under the doctrine of res judicata, Owens cannot raise the issue now, when he could have raised it in a first appeal of right,” Hoover wrote.

“For the foregoing reasons we overrule Owens’ assignment of error and affirm the trial court’s judgment.”

Judge William Harsha and Administrative Judge Matthew McFarland joined Hoover to form the majority.

The case is cited State v. Owens, 2015-Ohio-1509.

JESSICA SHAMBAUGH, Daily Reporter Staff Writer

A+ advice for a successful school year

(BPT) The first days of school are filled with excitement and pangs of anxiety, but it doesn't take long for high school and college students to fall into a routine. Adjusting to the new reality of school can be difficult, but it's the steps students take now that determine their success throughout the school year.

Date Published: September 22, 2017

Statewide investments to create more than $115 million in new payroll

Governor John R. Kasich recently announced the approval of assistance for 8 projects set to create 3,792 new jobs and retain 459 jobs statewide. During its monthly meeting, the Ohio Tax Credit Authority (TCA) reviewed economic development proposals brought to the board by JobsOhio and its regional partners. Collectively, the projects are expected to result in more than $115 million in new payroll, and spur more than $377 million in investments across Ohio.

Date Published: September 22, 2017

UT Rockets rally to tame Tulsa, 54-51

On a night in which the University of Toledo honored some of the greatest players in its 100-year history, the Rockets and senior quarterback Logan Woodside came through with a performance worthy of the ages.

Date Published: September 22, 2017

Bill designed to protect public from pyramid schemes

As state lawmakers make their return to the Ohio Statehouse at the conclusion of the summer recess, members of the Ohio House of Representatives are expected to consider a bill designed to strengthen consumer protection and protect the public from pyramid schemes.

Date Published: September 21, 2017

Doctor, wife plead guilty to running pill mill

David Kirkwood, 61, and Beverly Kirkwood, 50, of Dayton, pleaded guilty in U.S. District Court to health care fraud. David Kirkwood also pleaded guilty to one count of unlawful drug trafficking.

Date Published: September 20, 2017

Fentanyl, Carfentanil and Cocaine drive increase in drug overdose deaths in 2016

Ohio’s opioid epidemic continued to evolve in 2016 with stronger drugs driving an increase in unintentional overdose deaths, according to a new report released by the Ohio Department of Health (ODH). The report shows a sharp rise in overdose deaths involving the opioid fentanyl, the emergence of more deadly fentanyl-related drugs like carfentanil, and indications that cocaine is now being used with fentanyl and other opiates. The report also contains some promising news – the fewest prescription opioid overdose deaths since 2009.

Date Published: September 20, 2017

7 'little' upgrades that can mean a lot to homebuyers

(BPT) Anyone who's ever bought or sold a home knows how even little things can sway a buyer to feel a particular house is "just right." While major features such as a good location, a big kitchen, and a certain number of bedrooms and bathrooms all drive a home's price and how attractive it is to buyers, small details like fresh paint and new faucets can also help clinch a sale.

Date Published: September 19, 2017

Attorney General DeWine highlights need for more foster families due to opioid crisis; unveils new resources for prospective foster families

Ohio Attorney General Mike DeWine is urging Ohioans to consider becoming foster parents as the need for foster families has dramatically increased in the face of the opioid epidemic. DeWine's call to action came at a news conference this morning where he also announced several efforts to help becoming a foster parent easier, including expediting background checks.

Date Published: September 19, 2017

Credit union or bank: What's right for you?

(BPT) The banking and credit union worlds are as much the same as they are different. Both are eager to earn your business and to provide you with loans, mortgages, savings and checking accounts. With that said, there are some significant differences between the two financial institutions. In today's world, with cutthroat competition for your money, it's worth understanding the advantages of both, and perhaps making a switch to one or the other to put yourself in a better financial position.

Date Published: September 19, 2017

How the state you live in affects your college savings strategy

(BPT) The cost of a four-year college degree now hovers around the $100,000 mark, according to data from the National Center for Education Statistics. While high college costs seem universal these days, college savings strategies are far from a one-size-fits-all. Many factors influence how you'll save for college, including your children's ages when you start saving, what schools they might want to attend, and how old you'll be when they enter college.