[Cite as State v. Ford, 2012-Ohio-4597.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98049



                                      STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           NATHAN FORD
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-464709 and CR-469583

        BEFORE: Stewart, P.J., Jones, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                    October 4, 2012
FOR APPELLANT

Nathan Ford, Pro Se
Inmate No. 513-816
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, OH 44430


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Kristen L. Sobieski
          T. Allan Regas
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} Defendant-appellant Nathan Ford brought this appeal after the court denied

his third motion to withdraw his July 2006 no contest plea to 53 counts of rape, gross

sexual imposition, kidnapping, felonious assault, and aggravated robbery. We need not

consider any of Ford’s 11 assignments of error because they have all been raised and

decided adversely to him in prior judicial proceedings. They are res judicata.1

       {¶2} Principles of res judicata “bar the assertion of claims in a motion to withdraw

a guilty plea that were or could have been raised at trial or on appeal.” State v. Ketterer,

126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, citing State v. McGee, 8th Dist. No.

91638, 2009-Ohio-3374, ¶ 9; State v. Totten, 10th Dist. Nos. 05AP-278 and 05AP-508,

2005-Ohio-6210, ¶ 7. What is more, “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.” State ex rel. Special Prosecutors v.



         Ford also complains that in 2006, the court failed to give him proper notification that a
       1


hearing to be held on the provisions of R.C. Chapter 2950 would pertain to a sexual offender
classification. In State v. Clayborn, 125 Ohio St.3d 450, 2010-Ohio-2123, 928 N.E.2d 1093, the
syllabus states: “An appeal from an R.C. Chapter 2950 sexual-offender classification judgment is an
appeal in a criminal case that must be filed pursuant to App.R. 4(A) within 30 days after judgment is
entered.” Ford did not appeal from the 2006 sexual offender classification, so his attempt to raise
the issue in this appeal is untimely and we have no jurisdiction to address it.
Judges of Belmont Cty. Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162

(1978).

       {¶3} The gist of the motion to withdraw the no contest plea at issue here, like those

motions before it, is that Ford entered his no contest plea conditionally. He claims to

have been given assurances from the court and defense counsel that if he pleaded no

contest, he would be subjected to medical testing to determine whether he had an organic

brain anomaly that caused him to lack the capacity to commit the charged crimes. Ford

was the subject of extensive medical testing during the discovery stage of the proceedings

to determine his competence at the time of the offense and his competence to stand trial.

All of the experts found him competent to stand trial.

       {¶4} In October 2006, prior to sentencing, Ford sought to withdraw his no contest

plea because one of the medical doctors found that Ford “suffers from a condition of FTD

[frontotemporal dementia] and that the behaviors he has exhibited are strongly as a result

of this entity.”   He also cited a psychologist’s opinion that Ford’s frontotemporal

dementia could have caused a “lowered threshold for behavior dyscontrol and

criminality” and that Ford’s “crimes may meet the legal criteria of behavior driven by

irresistible impulse.”

       {¶5} The court denied the motion to withdraw the no contest plea and Ford

appealed, complaining that he was denied the effective assistance of counsel for failing to

argue the presence of frontotemporal dementia and that the court abused its discretion by

refusing to permit him to withdraw his no contest plea. We affirmed the conviction,
finding that counsel was not ineffective because an “irresistible impulse” could not

excuse the actions of a person who did not otherwise meet the legal definition of insanity.

 See State v. Ford, 8th Dist. Nos. 88946 and 88947, 2007-Ohio-5722, ¶ 15. We also

found that the court did not abuse its discretion by denying the motion to withdraw the no

contest plea. Id. at ¶ 30.

       {¶6} Ford filed a second motion to withdraw his no contest plea in December

2009, again arguing that his no contest plea was conditional because he was told by

defense counsel during plea negotiations that no further medical testing would be

conducted unless Ford entered the plea. These assurances, he claimed, amounted to a

“contract” that his plea would not be binding if further medical testing did not occur and

that counsel was ineffective for failing to raise this point to the court. The second

motion to withdraw relied on the same medical reports contained in the October 2006

motion to withdraw. The court denied the second motion and Ford did not appeal.

       {¶7} In September 2010, Ford filed a petition for postconviction relief, raising the

issue of his conditional no contest plea. The motion was functionally identical to the

second motion to withdraw the no contest plea in that it claimed that Ford’s agreement to

plead no contest in exchange for further medical testing constituted a contract and that

defense counsel was ineffective for failing to advise the court that the contract had been

breached.   The petition for postconviction relief relied on the same evidence and

arguments offered in support of the second motion to withdraw the no contest plea. The

court summarily denied it. Ford attempted to appeal from this ruling, but we dismissed
the appeal for failure to file the record. See State v. Ford, 8th Dist. No. 95881, Motion

No. 440049 (Dec. 13, 2010).

       {¶8} In January 2012, Ford filed his third motion to vacate the no contest plea.

That motion, like the second motion to withdraw the no contest plea and the petition for

postconviction relief, again relied on the alleged conditional nature of the no contest plea,

claiming that he had been denied the effective assistance of counsel because counsel

promised that Ford would be given additional medical testing in exchange for his no

contest plea.

       {¶9} The court did not err by summarily rejecting the third motion to withdraw the

no contest plea.     Application of Special Prosecutors meant that the court lacked

jurisdiction to consider the second motion to withdraw the no contest plea because that

motion was filed after we affirmed Ford’s no contest plea and conviction on direct appeal.

 It follows that a third motion to withdraw the no contest plea was likewise barred under

Special Prosecutors.

       {¶10} Even if Special Prosecutors did not apply, this is the fourth time that Ford

has raised the issue of ineffective assistance of counsel, and the third time in which he has

claimed that counsel was ineffective for failing to ensure that Ford’s “contract” to plead

no contest plea was enforced. The third motion to withdraw the no contest plea is

identical in all material respects to the second motion to withdraw the no contest plea and

the petition for postconviction relief. These issues have been previously adjudicated and

are res judicata.
      {¶11} Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

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

County Court of Common Pleas 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.




MELODY J. STEWART, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
SEAN C. GALLAGHER, J., CONCUR
