[Cite as State v. Mixon, 2018-Ohio-1059.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 17AP-823 v. : (C.P.C. No. 14CR-2517) Kenneth Mixon, : (ACCELERATED CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on March 27, 2018 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee. On brief: Kenneth A. Mixon, pro se. Argued: Kenneth A. Mixon. APPEAL from the Franklin County Court of Common Pleas BROWN, J. {¶ 1} Kenneth Mixon, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion to vacate his plea of guilty. Because we find that the plea was entered knowingly, voluntarily, and intelligently, we affirm the judgment of the trial court. I. Facts and Procedural History {¶ 2} On September 4, 2014, Mixon was indicted on charges of burglary, in violation of R.C. 2911.12, and tampering with evidence, in violation of R.C. 2921.12. On November 3, 2014, Mixon entered a plea of guilty to attempted burglary and tampering. The parties agreed to a jointly recommended sentence of 15 months incarceration. The trial court journalized a judgment entry imposing the jointly recommended sentence of 15 No. 17AP-823 2 months incarceration, with the first 12 months to be served in prison and the balance on community control sanctions. On May 2, 2017, Mixon filed a motion to vacate his guilty plea pursuant to Crim.R. 32.1. The trial court denied the motion on the basis that the motion was untimely. {¶ 3} Mixon now appeals. II. Assignments of Error {¶ 4} Mixon assigns the following errors for our review: [I.] The Trial Court committed prejudicial error by denying Appellant's, Kenneth A. Mixon's, motion to vacate his plea of guilty entered on November 3, 2014. [II.] Appellant's plea was not made knowingly, intelligently, and voluntarily because his trial counsel gave ineffective assistance of counsel at the time of his plea. III. Discussion {¶ 5} The trial court entered judgment and imposed sentence on November 3, 2014. Mixon moved to vacate his guilty plea on May 2, 2017. {¶ 6} "An appellate court reviews a trial court's decision denying a motion to withdraw a guilty plea for abuse of discretion." State v. Smith, 49 Ohio St.2d 261, 264 (1977). An abuse of discretion implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). {¶ 7} Crim.R. 32.1 provides that "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." However, "[w]here a criminal defendant has entered a guilty plea as part of a negotiated plea agreement and wishes to challenge the conviction based on that plea, he or she must file a motion to withdraw the guilty plea." State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. "[A] trial court lacks jurisdiction to hear and determine a motion to vacate a plea that was previously entered in a case when the motion is not made within the time permitted by Crim.R. 32.1." Id. at paragraph eight of the syllabus. "In determining whether the trial court acted properly in denying the motion, the appellate court must limit its review to whether the court abused its discretion in construing the motion as a postconviction petition." Smith at 264-65. {¶ 8} Mixon concedes that he filed his motion to vacate his guilty plea more than two years after his sentence was imposed. He argues that his motion should not be No. 17AP-823 3 characterized as a motion for postconviction relief because the motion did not seek to withdraw his plea or raise grounds cognizable in a motion to withdraw a plea. He further contends that the trial court had jurisdiction to adjudicate his motion to vacate because the state waived the time limits set forth in Crim.R. 32.1 when it agreed to jointly recommend the sentence. {¶ 9} Generally, "[w]hen a criminal defendant has been afforded a direct appeal and judgment of conviction is rendered, the presumption of regularity and validity attaches to the judgment." State v. Roper, 9th Dist. No. 21230, 2003-Ohio-7004, ¶ 5, citing State v. Carter, 2d Dist. No. CA 2002-12-114, 2003-Ohio-4354, ¶ 14. "A valid guilty plea waives any appealable error arising before the plea except for a claim of ineffective assistance of counsel. Specifically, a defendant who enters a guilty plea waives the opportunity to claim that his plea was not knowing, intelligent, and voluntary and that the trial court violated his constitutional rights by accepting it." State v. Barahona, 10th Dist. No. 10AP-711, 2011-Ohio-1228, ¶ 9, citing State v. Bishop, 2d Dist. No. 23269, 2010- Ohio-4682, ¶ 11; State v. Kidd, 3d Dist. No. 9-08-61, 2009-Ohio-3860, ¶ 9. However, " '[f]orfeited rights may be considered on direct appeal and are not barred by res judicata or collateral estoppel.' " (Emphasis sic.) State v. Smith, 17 Ohio App.3d 390, 392 (12th Dist.1984), quoting State v. Carter, 2 Ohio St.3d 101, 103 (1980). {¶ 10} "The entry of a plea of guilty in a criminal case waives the right to claim error in proceedings prior to the plea." State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio- 3831, ¶ 59. "A defendant who enters a guilty plea waives the right to claim that the plea was not knowing, intelligent, and voluntary, and therefore it waives any potential claim that the trial court erred by failing to give the advisements required by Crim.R. 11(C)(2) at the plea hearing." State v. Pianowski, 10th Dist. No. 08AP-13, 2008-Ohio-4824, ¶ 6. The same applies to a motion to withdraw a guilty plea. Pianowski at ¶ 6; State v. Kimbro, 9th Dist. No. 26065, 2012-Ohio-4542, ¶ 7. "A criminal defendant who knowingly, intelligently, and voluntarily enters a plea of guilty to a felony waives the right to challenge his or her conviction and sentence in any post-plea proceeding except by demonstrating that the plea was either not made voluntarily or was entered without the effective assistance of counsel." State v. Spates, 64 Ohio St.3d 269 (1992), paragraph two of the syllabus. No. 17AP-823 4 {¶ 11} In this case, Mixon was offered a jointly recommended sentence of 15 months incarceration with the understanding that he would agree to plead guilty to the charges. The trial court accepted the guilty plea and imposed the jointly recommended sentence. Mixon contends that his guilty plea was not knowingly, intelligently, and voluntarily made because it was premised on trial counsel's erroneous advice that if he did not accept the recommended sentence he would be found guilty and receive a much harsher sentence. He relies on State v. Smith, 8th Dist. No. 104139, 2016-Ohio-5234. {¶ 12} In Smith, the defendant was indicted on four charges and entered a guilty plea to three of them. The state agreed to recommend sentencing on the first count to a maximum sentence of five years, which was less than the maximum allowed for the first count. In return, the defendant agreed to accept the sentences recommended on the other two counts and to waive a hearing on them. Id. at ¶ 1-2. The trial court accepted the guilty plea and sentenced the defendant in accordance with the agreement. The defendant filed a motion to withdraw his guilty plea. The trial court denied the motion and this court affirmed. Id. at ¶ 3. We found that " '