The opinion
Bryant, Judge,
concurring separately.
{¶ 15} Although I agree with the majority’s conclusion that the judgment of the trial court be affirmed, I disagree with the majority’s determination that res judicata bars consideration of defendant’s Crim.R. 32.1 motion to withdraw his guilty plea. Accordingly, I concur separately.
{¶ 16} A criminal defendant essentially has three options to obtain review of a guilty plea: a direct appeal, a petition for postconviction relief under R.C. 2953.21, and a motion to withdraw a guilty plea pursuant to Crim.R. 32.1. The majority concludes that if a defendant does not directly appeal a guilty plea, then res judicata bars consideration of any issue that could have been raised in that appeal. In effect, the majority treats a motion under Crim.R. 32.1 and a petition for postconviction relief in the same manner, as established case law provides that res judicata bars a defendant from pursuing in a petition for postconviction relief any issue that could have been addressed on direct appeal. See, e.g.,
State v. Szefcyk
(1996), 77 Ohio St.3d 93 , 671 N.E.2d 233 .
{¶ 17} The Ohio Supreme Court, however, recently clarified that a motion to withdraw a guilty plea is not a form of petition for postconviction relief, but a separate avenue of relief.
State v. Bush,
96 Ohio St.3d 235 , 2002-Ohio-3993 , 773 N.E.2d 522 . As the court explained, “R.C. 2953.21(J), part of the postconviction relief statutory scheme, provides that ‘the remedy set forth in this section is the exclusive remedy by which a person may bring a collateral challenge to the validity of a conviction or sentence in a criminal case * * *.’ Given that a postsentence Crim.R. 32.1 motion is not collateral but is filed in the underlying criminal case and that it targets the withdrawal of a
plea,
it is not a ‘collateral challenge to the validity of a
conviction or sentence.’
See
State v. Calhoun
(1999), 86 Ohio St.3d 279, 281 , 714 N.E.2d 905 (‘a postconviction proceeding is * * * a collateral civil attack on the judgment’); Black’s Law Dictionary (7th Ed.Rev.1999) 255 (defining ‘collateral attack’ as ‘[a]n attack on a judgment entered in a different proceeding’).” (Emphasis sic.) Id. at ¶ 13. Thus, the court concluded that “[p]ostsentence motions to withdraw guilty or no contest pleas and postconviction relief petitions exist independently.” Id. at ¶ 14.
{¶ 18} Although its decision pre-dated
Bush,
the Second District Court of Appeals applied the same rationale in
State v. Wolford
(Sept. 17, 1999), Miami App. No. 99CA10. In
Wolford,
the court acknowledged that the doctrine of res judicata may bar a postconviction relief petition because the petition collaterally challenges, in a separate action, a conviction from a prior criminal action. Distinguishing a Crim.R. 32.1 motion from a petition for postconviction relief,
*246
Wolford
concluded that “[t]he same does not apply to a motion to withdraw a plea that is filed in the identical criminal proceeding which resulted in the conviction, as Crim.R. 32.1 motions are. Therefore, the
res judicata
bar does not apply.”
{¶ 19} Indeed, the Supreme Court in
Bush
was faced with a motion to withdraw a guilty plea filed outside the 30-day appeal period under App.R. 4(A). It nonetheless did not inquire whether a prior appeal or failure to appeal had a res judicata effect on issues raised in the Crim.R. 32.1 motion. Rather, it determined that the passage of time was a factor to be considered in determining the merits of the motion. The Supreme Court never has applied the doctrine of res judicata to a Crim.R. 32.1 motion.
{¶ 20} I nonetheless recognize that, for example, a defendant may attempt to raise in a motion to withdraw a guilty plea an issue raised and determined on direct appeal. In that instance, the appellate ruling bars consideration of the issue a second time, albeit technically due to the law of the case as opposed to res judicata. See, e.g.,
State v. Ikharo,
Franklin App. No. 05AP-167, 2005-Ohio-6616 , 2005 WL 3416177 . To the extent that defendant raises issues in his Crim.R. 32.1 motion that were resolved in his appeal, the prior determination bars reexamination of those issues. The majority opinion, however, does not note any particular issue determined on appeal that reappears in defendant’s Crim.R. 32.1 motion to withdraw his guilty plea.
{¶ 21} In the final analysis, a criminal defendant’s failure to file a direct appeal does not preclude, through res judicata, the option of pursuing a Crim.R. 32.1 motion. Instead, it subjects the defendant to the difficult task of demonstrating the manifest injustice and extraordinary circumstances necessary to prevail in such a motion. Generally, as
Wolford
explained, “ ‘a court’s failure to comply with the requirements of Crim.R. 11(C) is not an extraordinary circumstance demonstrating a form of manifest injustice required for Crim.R. 32.1 relief.’ ” Id., quoting
State v. Hartzell
(Aug. 20, 1999), Montgomery App. No. 17499, 1999 WL 957746 . Thus, as a result of a defendant’s failure to directly appeal, pursuant to App.R. 4(A) or 5(A), the guilty-plea proceedings likely will result in a failure to prevail in the Crim.R. 32.1 motion, not because of res judicata, but because of the defendant’s inability to demonstrate manifest injustice.
{¶ 22} Although I disagree with the majority’s disposition of the state’s res judicata argument, I nonetheless concur, for the reasons set forth in ¶ 13 of the majority opinion, in the majority’s determination to affirm the judgment of the trial court. Accordingly, I concur separately.