State v. Bradford

[Cite as State v. Bradford, 2022-Ohio-1503.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

Nos. 110907, 110908,

v. : 110909, 110910, and

110912

RICARDO M. BRADFORD A.K.A. :

RICARDO RAY,

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 5, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case Nos. CR-03-442476-ZA, CR-03-443132-B, CR-03-445457-B,

CR-CR-04-451985-ZA, CR-04-455917-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Tasha L. Forchione, Assistant Prosecuting

Attorney, for appellee.

Robey & Robey and Gregory Scott Robey, for appellant.

LISA B. FORBES, J.:

Ricardo M. Bradford (“Bradford”) appeals the trial court’s denial of

his motion to withdraw guilty pleas in five cases involving numerous felonies. After

reviewing the facts of the case and pertinent law, we affirm the trial court’s decision.

I. Facts and Procedural History

In August 2004, Bradford pled guilty to various felonies in five cases,

and the court sentenced him to an aggregate term of 23 years in prison. Bradford

did not file a direct appeal. In April 2006, Bradford filed a motion to withdraw his

guilty plea in all five cases. The court denied Bradford’s motions on May 16, 2006.

From 2006 through 2011, Bradford filed no fewer than ten

postconviction motions for various forms of relief including correcting the record,

setting aside the conviction, and resentencing. The court either denied or did not

rule on these motions.

In August 2011, Bradford filed a motion to “dismiss all further

proceedings,” which the court denied. In September 2011, the trial court

resentenced Bradford to properly include postrelease control under State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. In 2012, this court affirmed

the trial court’s denial of Bradford’s motion to “dismiss all further proceedings” and

affirmed Bradford’s convictions and prison sentence in the five underlying cases,

including the court’s jurisdiction to resentence Bradford to properly include

postrelease control. State v. Bradford, 8th Dist. Cuyahoga No. 97283, 2012-Ohio-

1058 (“Bradford I”).

On July 8, 2021, Bradford filed another motion to withdraw his guilty

pleas in all five cases. The trial court denied these motions on September 22, 2021,

and it is from this order that Bradford appeals raising two assignments of error:

The trial court erred when it failed to hold a hearing on a motion to

withdraw plea, where the accused demonstrated that his pleas were not

made in a knowing, intelligent and voluntary fashion.

The trial court erred when it failed to issue findings of fact and

conclusions of law, where the record demonstrates that the plea was

not made in a knowing, intelligent and voluntary fashion, that resulted

in a manifest injustice.

Within these two assignments of error, Bradford makes three sub-

arguments. First, he argues that his plea was not made knowingly, intelligently, or

voluntarily because “he was promised by his original lawyers that he would be

eligible to file for judicial release after serving 13 years in prison (3 years of the gun

specification and 10 years on the remaining 20 year prison term).”

Second, Bradford argues that he “was originally promised a 20 year

prison term, which improperly induced him to plead.”

Third, Bradford argues that had he been properly advised of

postrelease control at the time of his plea, he would not have pled guilty.

II. Res Judicata

Under the doctrine of res judicata, “[a] valid, final judgment rendered

upon the merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject to the previous action.” Grava v.

Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995). Res judicata

“prevents repeated attacks on a final judgment and applies to issues that were or

might have been previously litigated.” State v. Sneed, 8th Dist. Cuyahoga

No. 84964, 2005-Ohio-1865, ¶ 16, citing State v. Brown, 8th Dist. Cuyahoga

No. 84322, 2004-Ohio-6421, ¶ 7.

To the extent that Bradford’s arguments could have been raised in a

direct appeal after conviction and sentencing in 2004, which he did not file, or his

first motion to withdraw his guilty pleas, these arguments are barred by the doctrine

of res judicata. See State v. Cain, 6th Dist. Lucas No. L-20-1126, 2021-Ohio-1841,

¶ 12 (Defendant’s “arguments, and the information upon which they rely, are based

entirely on the record from the plea hearing and sentencing hearing, [which was]

available to him at the time of a direct appeal, and his failure to raise those

arguments on direct appeal precludes him from raising them * * * in a post-sentence

motion to withdraw his guilty plea.”). Bradford’s argument that he was “promised”

a 20-year sentence but was given a 23-year sentence,” and this “improperly induced

him to plead,” could have been raised in a direct appeal. Additionally, Bradford’s

argument involving postrelease control is barred by res judicata in light of his appeal

in Bradford I.

Furthermore, even if res judicata did not bar Bradford’s arguments in

this appeal, as discussed in section III of this opinion, they fail on the merits as well.

III. Withdrawal of Guilty Plea

Pursuant to Crim.R. 32.1, 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.” Ohio courts have held that

“manifest injustice relates to some fundamental flaw in the proceedings which result

in a miscarriage of justice or is inconsistent with the demands of due process.” State

v. Wooden, 10th Dist. Franklin No. 03AP-368, 2004-Ohio-588, ¶ 10. A defendant

seeking to withdraw his or her plea has the burden of establishing manifest injustice.

Id. “We review a trial court’s ruling on a motion to withdraw a guilty plea for an

abuse of discretion.” State v. Hines, 8th Dist. Cuyahoga No. 108326, 2020-Ohio-

663, ¶ 7.

A. Hearing

A “trial court need not hold an evidentiary hearing on a postsentence

motion to withdraw a guilty plea if the record indicates the movant is not entitled to

relief, and the movant has failed to submit evidentiary documents sufficient to

demonstrate a manifest injustice.” State v. Brown, 8th Dist. Cuyahoga No. 108063,

2019-Ohio-3773, ¶ 14.

1. Defense Counsel Promises

This court has held that where the record does not show that the trial

court promised a particular sentence and the defendant did not argue that the trial

court failed to explain his rights on the record, “any promise made by counsel prior

to the trial court’s plea colloquy with [the defendant] would be vitiated and cannot

be used to support the claim that the plea would not have been made.” State v.

Simmons, 8th Dist. Cuyahoga No. 94982, 2010-Ohio-6188, ¶ 13. See also State v.

Blatnik, 17 Ohio App.3d 201, 203, 478 N.E.2d 1016 (6th Dist.1984) (“manifest

injustice, as contemplated by the rule [regarding motions to withdraw guilty pleas],

does not ipso facto result from counsel’s erroneous advice concerning the sentence

that will be imposed”). (Emphasis sic.)

In the case at hand, Bradford attached the following to his motion to

withdraw plea: a partial transcript of his plea hearing; an affidavit from Dallene

Wade stating that “Ricardo Ray * * * was advised by his lawyers * * * to take a plea

deal and he would be out in 13 years on good behavior”; an affidavit from Antonese

Jones stating that “Ricardo Ray * * * was advised by his lawyers * * * to take a plea

deal and he would be out in 13 years on good behavior.”

Bradford additionally supplemented his motion to withdraw plea to

include his affidavit, in which he states that “on the day of my plea deal/sentencing

I was advised by my lawyers * * * to take a plea deal and I would be out in 13 years

on good behavior.” In this appeal, Bradford argues both (1) that “he was promised

by his original lawyers that he would be eligible to file for judicial release after

serving 13 years in prison (3 years of the gun specification and 10 years on the

remaining 20 year prison term),” and (2) that he “was originally promised a 20 year

prison term, which improperly induced him to plead.” These arguments are

inconsistent, with the first acknowledging a promised sentence of 23 years and the

second claiming a promise of a 20-year sentence.

Our review of Bradford’s plea hearing transcript shows that nothing

was stated on the record about 13 years or good behavior. Accordingly, the alleged

“promise” that Bradford refers to was not part of his plea deal. In other words,

Bradford is not entitled to withdraw his plea under Crim.R. 32 based on this

argument. Consequently, we find that Bradford failed to submit evidence that

demonstrates manifest injustice.

2. Failure to Properly Impose Postrelease Control

At Bradford’s plea hearing in 2004, the court asked him the following:

“It is the Court’s understanding * * * that you would be looking at five years post

* * * release control * * * . Do you understand that?” Bradford answered, “Yeah.”

The court then asked him, “Do you understand when sentenced to prison you can

be subject to post release control for up to five years?” Bradford answered, “Yes.”

In the journal entry imposing Bradford’s original sentence in 2004,

the court stated that “post release control is part of this prison sentence for the

maximum period allowed * * *.” In the journal entry regarding Bradford’s

resentencing in 2011, the court imposed three years of postrelease control. This

resentencing complied with Fischer, which required the imposition of postrelease

control to include “the statutorily mandated term * * *.” Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, at ¶ 1.

In State v. Richardson, 8th Dist. Cuyahoga No. 97407, 2012-Ohio-

2771, this court affirmed the trial court’s denial of a motion to withdraw guilty plea

based on the defendant’s argument that, had the court properly imposed postrelease

control, he would not have pled guilty.

If the postrelease control portion of defendant’s sentence was as critical

to his decision to enter a guilty plea as he is now asserting, it logically

follows that he would have inquired about it at that time. It is

undisputed that defendant was repeatedly advised during his plea and

sentencing hearing that his sentence included a term of postrelease

control. Although given the opportunity to question any portion or

aspect of the plea, defendant told the court he understood it and had

no questions.

Simply stating years after that fact that he would not have entered the

plea had he been more thoroughly advised of postrelease control is not

sufficient to satisfy the burden of proving the manifest injustice

required in a post-sentence motion to withdraw the plea.

Id. at ¶ 24-25.

Upon review, we follow Richardson and conclude that the court’s

improper advisement regarding postrelease control at Bradford’s plea hearing

cannot be the basis for withdrawing his plea 17 years later. We note that Bradford’s

argument is particularly unpersuasive given that the court initially told him he

would be subject to postrelease control for up to five years, but at resentencing, the

court imposed the proper term of three years’ postrelease control.

Therefore, the court did not err by failing to hold a hearing on

Bradford’s successive motion to withdraw guilty plea, and his first assignment of

error is overruled.

B. Findings of Fact and Conclusion of Law

“Crim.R. 32.1 does not require a court to issue findings of fact and

conclusions of law when ruling on a motion to withdraw guilty plea.” State ex rel.

Chavis v. Griffin, 91 Ohio St.3d 50, 51, 741 N.E.2d 130 (2001). Accordingly,

Bradford’s second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_________________________

LISA B. FORBES, JUDGE

EILEEN A. GALLAGHER, P.J., and

EMANUELLA D. GROVES, J., CONCUR