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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

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