[Cite as State v. Coleman, 2016-Ohio-5309.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                       C.A. No.     28044

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
TROY W. COLEMAN                                     COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 2010-10-2775

                                 DECISION AND JOURNAL ENTRY

Dated: August 10, 2016



        MOORE, Judge.

        {¶1}    Defendant-Appellant Troy W. Coleman appeals from the decision of the Summit

County Court of Common Pleas. We affirm.

                                               I.

        {¶2}    In 2010, Mr. Coleman was indicted on six counts related to a traffic accident.

Ultimately, he pleaded guilty to aggravated vehicular assault, operating under the influence of

alcohol, and driving under suspension. The remaining three counts were dismissed. The trial

court sentenced Mr. Coleman to 7 years in prison, suspended his license for 10 years, and

ordered him to pay $55,000 in restitution.

        {¶3}    Mr. Coleman filed a direct appeal challenging whether he entered into his plea

knowingly, voluntarily, and intelligently. See State v. Coleman (“Coleman I”), 9th Dist. Summit

No. 26008, 2012-Ohio-1712, ¶ 4. This Court affirmed the conviction. See id. at ¶ 14. Mr.

Coleman filed an untimely application to reopen his direct appeal, which this Court denied. See
                                               2


State v. Coleman, 9th Dist. Summit No. 26008 (Apr. 23, 2013). Mr. Coleman then filed a

motion for discovery, which the trial court construed as a motion for post-conviction relief. The

trial court denied the motion, and Mr. Coleman appealed the ruling. This Court affirmed the trial

court’s judgment. See State v. Coleman, 9th Dist. Summit No. 27506, 2015-Ohio-752, ¶ 9.

       {¶4}    In 2015, Mr. Coleman filed a motion to withdraw his plea arguing that he

received ineffective assistance of counsel and the fact that violations of Brady v. Maryland, 373

U.S. 83 (1963), had occurred and the fact that the trial court sentenced him on allied offenses

further demonstrated his counsel’s ineffectiveness and the defectiveness of his plea. The State

opposed the motion. In denying his motion, the trial court relied on State ex rel. Special

Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94 (1978) and the doctrine of res

judicata.

       {¶5}    Mr. Coleman filed a request for a delayed appeal, which this Court granted. Mr.

Coleman, appearing pro se, has raised four assignments of error for our review, which we will

consider together to facilitate our review.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. COLEMAN]
       WHEN IT HELD THAT [MR. COLEMAN’S] MOTION TO WITHDRAW HIS
       GUILTY PLEA WA[S] BARRED BY RES JUDICATA AND BY THE LACK
       OF JURISDICTION[.]

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. COLEMAN]
       WHEN IT DENIED HIS MOTION TO WITHDRAW[] HIS GUILTY PLEA
       WITHOUT HOLDING AN EVIDENTIARY HEARING BECAUSE THE
       FACTS ALLEGED BY [MR. COLEMAN], IF ACCEPTED AS TRUE, WOULD
       HAVE REQUIRED GRANTING A WITHDRAWAL AND SUCH FACTS
       WERE SUFFICIENTLY CORROBORATED AND PRODUCED A
       PREPONDERANCE OF EVIDENCE.
                                                3




                                ASSIGNMENT OF ERROR III

       TRIAL COUNSEL’S NUMEROUS DEFICIENCIES AND FAILURE TO
       INVESTIGATE IN ORDER TO STRUCTURE A PLAUSIBLE DEFENSE
       PRIOR TO ADVISING [MR. COLEMAN] TO CHANGE HIS PLEA OT
       GUILTY NOT ONLY CAUSED CUMULATIVE PREJUDICE BUT
       VIOLATED THE 4TH AND 6TH AMENDMENTS TO THE US
       CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO
       CONSTITUTION AND VIOLATED CRIM[.R.] 16(A) AND (D) AND 12(D) OF
       THE COURT ROOM PROCEDURES AND ADVOCATE RULE 3.1(1), AND
       (2) UNDER THE OHIO RULES OF PROFESSIONAL CONDUCT[.]

                                ASSIGNMENT OF ERROR IV

       TRIAL COURT AND COUNSEL’S FAILURE TO INQUIRE INTO ALLIED
       OFFENSES AT SENTENCING HEARING IS PLAIN ERROR AND
       VIOLATED THE 8TH AMENDMENT TO THE US CONSTITUTION AND
       CRIM[.R.] 52(B)[.]

       {¶6}    Mr. Coleman asserts in his first assignment of error that the trial court erred in

concluding it lacked jurisdiction to consider his motion and in relying on res judicata in denying

his motion. In his second assignment of error, Mr. Coleman asserts that the trial court erred in

failing to hold a hearing on his motion. In his third and fourth assignments of error, Mr.

Coleman argues issues related to the merits of his claims.

       {¶7}    In Special Prosecutors, the Supreme Court of Ohio held that:

       Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and determine
       a motion to withdraw the guilty plea subsequent to an appeal and an affirmance
       by the appellate court. While Crim.R. 32.1 apparently enlarges the power of the
       trial court over its judgments without respect to the running of the court term, it
       does not confer upon the trial court the power to vacate a judgment which has
       been affirmed by the appellate court, for this action would affect the decision of
       the reviewing court, which is not within the power of the trial court to do.

Id. at 97-98; see also State v. Calhoun, 9th Dist. Summit No. 27059, 2014-Ohio-2628, ¶ 5.

       {¶8}    Mr. Coleman filed a direct appeal, and this Court affirmed his convictions.

Coleman I, 2012-Ohio-1712, at ¶ 14. Thus, pursuant to Special Prosecutors, the trial court
                                                 4


lacked jurisdiction to consider Mr. Coleman’s motion to withdraw his guilty plea. See Calhoun

at ¶ 6; State v. Brown, 9th Dist. Summit No. 27749, 2016-Ohio-1066, ¶ 9. Accordingly, the trial

court was without authority to hold a hearing on his motion. Additionally, to the extent that Mr.

Coleman raised issues that were, or could have been, raised on direct appeal, res judicata also

would bar the consideration of those issues. See Calhoun at ¶ 7.

       {¶9}    In light of the foregoing, we cannot conclude that the trial court erred in denying

Mr. Coleman’s motion to withdraw his guilty plea. Mr. Coleman’s assignments of error are

overruled.

                                                III.

       {¶10} The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                      5


      Costs taxed to Appellant.




                                          CARLA MOORE
                                          FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

TROY W. COLEMAN, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
