[Cite as State v. Patterson, 2016-Ohio-839.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

STATE OF OHIO                                        :
                                                     :
        Plaintiff-Appellee                           :  C.A. CASE NO. 26723
                                                     :
v.                                                   :  T.C. NO. 10CR812/1
                                                     :
TROY PATTERSON                                       :  (Criminal appeal from
                                                     :   Common Pleas Court)
        Defendant-Appellant                          :
                                                     :
                                                ...........

                                               OPINION

                Rendered on the ____4th           _ day of _____March_____, 2016.

                                                ...........

MICHELE D. PHIPPS, Atty, Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

TROY PATTERSON, #695-830, London Correctional Institute, P. O. Box 69, London,
Ohio 43140
      Defendant-Appellant

                                               .............



DONOVAN, P.J.

        {¶ 1} Defendant-appellant, Troy Patterson is appealing, pro se, the decision of the

Montgomery County Court of Common Pleas, Criminal Division, overruling his motion for
                                                                                          -2-
a new trial.

       {¶ 2} Patterson was indicted on August 11, 2011 on two counts of aggravated

burglary, in violation of R.C. 2911.11 (A) (2), five counts of aggravated robbery, in

violation of R.C. 2911.01 (A) (1), five counts of kidnapping, in violation of 2905.01 (A)

(2), and five counts of felonious assault, in violation of 2903.11 (A) (2). On August 20,

2013 Patterson entered a guilty plea on one count of aggravated burglary and one count

of aggravated robbery. Prior to being sentenced, Patterson filed a pro-se motion to

withdraw his guilty plea. The Montgomery County Court of Common Pleas appointed

Patterson new legal counsel and held an evidentiary hearing on the withdrawal motion.

This motion was subsequently overruled. Patterson was subsequently sentenced to two

concurrent eight year prison terms. Patterson appealed this sentence, but this Court

affirmed the convictions. See State v. Patterson, 2d Dist. Montgomery No. 26015,

2014-Ohio-4962.

       {¶ 3} On March 24, 2015, Patterson simultaneously filed a motion for leave to file

for a new trial and a motion for a new trial pursuant to Crim. R. 33(B). As a basis for these

motions, Patterson asserted newly discovered evidence in the form of a letter from

co-defendant, Jamie Harris. The letter taunts Patterson and admits to fabricating his

(Harris’s) testimony to the grand jury. Patterson further supports his motions with an

affidavit from Shawne McLean. Said affidavit claims that Harris told McLean that he did

not know Patterson and that Patterson was not involved in the crime. This affidavit further

states that Patterson was implicated in an effort to manipulate jail time. Patterson’s

motions were overruled on May 14, 2015 by the Montgomery County Court of Common

Pleas. Patterson filed a timely appeal on June 9, 2015.
                                                                                        -3-
       {¶ 4} It is from this judgment that Patterson now appeals.

       {¶ 5} Patterson’s sole assignment of error is as follows:

       {¶ 6} “TRIAL COURT ERRED IN THE DENIAL OF APPELLANTS CRIM. R. 33

(sic) MOTION BY FAILING TO HOLD A (sic) EVIDENTARY HEARING, BASED ON

NEWLY DISCOVERED EVIDENCE”

       {¶ 7} In his sole assignment of error, Patterson argues the trial court erred by

overruling his motion for a new trial based upon newly discovered evidence. In support of

his motion for new trial, Patterson provided the Court with a letter from Harris that, in

essence, stated he lied to the grand jury when he implicated Patterson. In addition,

Patterson supports his motion for new trial with an affidavit from Shawn McLean that

states Harris told him Patterson was not involved and was merely implicated to

manipulate jail time.

       {¶ 8} As we stated in State v. Franklin, 2d Dist. Greene No. 2002-CA-7,

2003-Ohio-3831:

       The granting of a motion for a new trial is within the sound discretion of the

       trial court, and an appellate court cannot reverse the trial court’s order

       unless there has been an abuse of discretion.

Id. at ¶ 8, citing State v. Shepard, 13 Ohio App.3d 117, 468 N.E.2d 380 (2d Dist. 1983).

       {¶ 9} We further note, Patterson’s convictions stemmed from his own guilty plea in

lieu of trial, which have been affirmed on appeal.

       {¶ 10} This Court presumes:

       “Pleas of guilty that are knowingly, voluntarily, and intelligently entered

       waive the defendant’s right to trial on the criminal charge or charges
                                                                                             -4-
       involved. It necessarily follows, therefore, that ‘[a] plea of guilty in a criminal

       case precludes the defendant from thereafter making a motion for a new

       trial.’”

State v. Franklin, 2d Dist. Greene No. 2002-CA-7, 2003-Ohio-3831, ¶ 10, quoting State v.

Burke, 2d Dist. Montgomery No. 17955, 2001 WL 227350, *1 (Mar. 9 2001), quoting State

v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868 (1948), paragraph thirteen of the syllabus.

       {¶ 11} Thus, Patterson’s guilty pleas preclude his right to file a motion for new trial

pursuant to Crim.R. 33. Accordingly, the trial court did not abuse its discretion in

overruling defendant’s motion for new trial.

       {¶ 12} The judgment of the trial court is affirmed.

                                         ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Michele D. Phipps
Troy Patterson
Hon. Mary Katherine Huffman
