[Cite as State v. Hillman, 2013-Ohio-982.]


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

STATE OF OHIO                                        C.A. Nos.     12CA0028
                                                                   12CA0029
        Appellant

        v.
                                                     APPEAL FROM JUDGMENT
DERRICK HILLMAN                                      ENTERED IN THE
                                                     COURT OF COMMON PLEAS
and                                                  COUNTY OF WAYNE, OHIO
                                                     CASE Nos. 05-CR-0488
DALLAS HILLMAN                                                  05-CR-0489

        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: March 18, 2013



        CARR, Presiding Judge.

        {¶1}     Appellant, the State of Ohio, appeals the judgment of the Wayne County Court of

Common Pleas. This Court reverses.

                                                I.

        {¶2}     This matter arises out of the arrest of Derrick and Dallas Hillman in November

2005. After receiving a tip from a confidential informant, law enforcement officials stopped the

Hillmans in their black Lincoln Navigator as they traveled from Cleveland to Wooster. The men

gave differing reasons as to why they had traveled to Wooster, and a drug dog alerted to the

presence of drugs inside the vehicle. While police did not discover drugs inside the SUV, the

men agreed to go to the Wayne County Justice Center where they were strip searched. Law
                                                 2


enforcement officials discovered each man to be carrying a baggie of crack cocaine on his

person.

          {¶3}   On December 8, 2005, the Hillmans were each indicted by the Wayne County

Grand Jury on one count of possession of crack cocaine with a forfeiture specification, and one

count of conveying a drug of abuse onto the grounds of a detention facility. The Hillmans

initially pleaded not guilty to the charges, and filed a motion to suppress the evidence seized as a

result of their stop, detention, and search. After a hearing, the trial court denied the motion to

suppress. The Hillmans subsequently withdrew their pleas of not guilty and entered pleas of no

contest to the charges. The trial court accepted the Hillmans’ pleas, found them guilty, and

sentenced each of them accordingly. The Hillmans appealed their convictions to this Court,

asserting that the trial court erred in denying their motion to suppress. On June 30, 2008, this

Court issued its decision affirming their convictions. State v. Hillman, 9th Dist. Nos. 07CA0048,

07CA0049, 2008-Ohio-3204. The Supreme Court of Ohio declined further review. State v.

Hillman, 119 Ohio St.3d 1505, 2008-Ohio-5467.

          {¶4}   On May 20, 2011, Derrick Hillman filed a pro se motion captioned, “Motion for

establishment of a date certain for oral hearing, on defendant’s pre-sentence motion to withdraw

no contest plea.”     After several additional motions were filed by both Derrick and Dallas

Hillman, the trial court issued a journal entry on October 5, 2011, stating that it had met with

counsel for the parties and that the May 20, 2011 motion would be construed as a motion to

withdraw the Hillmans’ pleas. In support of their motion, the Hillmans argued that their pleas

were not knowing, intelligent, and voluntary because the trial court had failed to properly advise

them regarding the imposition of mandatory post-release control at the plea colloquy. On

October 17, 2011, the State filed a brief in opposition to the motion, arguing that any challenge
                                                 3


to the plea colloquy was barred under the doctrine of res judicata because that issue was not

raised on direct appeal.

       {¶5}     On May 23, 2012, the trial court issued a journal entry granting the motion to

withdraw the pleas of both defendants. The State filed a notice of appeal on May 25, 2012. On

appeal, the State raises one assignment of error. We note that the Hillmans have not filed a

responsive brief. Accordingly, this Court may accept the State’s statement of facts and issues as

correct and reverse the judgment if the State’s brief reasonably appears to sustain such action.

App.R. 18(C); see also Akron v. Carter, 9th Dist. No. 22444, 2005-Ohio-4362, ¶ 3; Haley v.

Nomad Preservation, Inc., 9th Dist. No. 26220, 2012-Ohio-4385, ¶ 6.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING THE HILLMANS’ PETITIONS
       FOR POST-CONVICTION RELIEF AS THE TRIAL COURT WAS WITHOUT
       JURISDICTION TO CONSIDER THE MOTIONS AFTER THE APPELLATE
       COURT AFFIRMED THE UNDERLYING CONVICTION.

       {¶6}     In its sole assignment of error, the State contends that the trial court was without

jurisdiction to consider the Hillmans’ motion to withdraw their pleas because the issues raised

therein were apparent on the face of the record and could have been raised on direct appeal. The

State asserts that because the Hillmans did not challenge their pleas until after their convictions

had been affirmed on appeal, the trial court was without authority to consider their motion. This

Court agrees.

       {¶7}     In State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio

St.2d 94, 97 (1978), the Supreme Court determined that a trial court loses jurisdiction over a case

when an appeal is taken and, absent a remand, does not regain jurisdiction subsequent to the

court of appeals’ decision. The high court explained that even though the trial court retains
                                                  4


jurisdiction over issues not inconsistent with the jurisdiction of the court of appeals, the granting

of a motion to withdraw is “inconsistent with the judgment of the Court of Appeals affirming the

trial court’s conviction premised upon the guilty plea.” Id. The court further held that Crim.R.

32.1 does not, independently “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.” Id. The Supreme Court has further held that “[r]es judicata bars the assertion of claims

against a valid, final judgment of conviction that have been raised or could have been raised on

appeal.” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, citing State v. Perry, 10

Ohio St.2d 175 (1967), paragraph nine of the syllabus. After a defendant’s convictions have

been affirmed on appeal, a trial court has “no authority to consider [a] motion to withdraw his

guilty plea, let alone grant him a new trial.” Ketterer at ¶ 62.

       {¶8}    In this case, the Hillmans filed a direct appeal and advanced one assignment of

error challenging the trial court’s denial of their motion to suppress. This Court reviewed the

trial court’s judgment and affirmed. State v. Hillman, 9th Dist. Nos. 07CA0048, 07CA0049,

2008-Ohio-3204. The issues the Hillmans now raise in regard to the plea colloquy were apparent

on the face of the record, and could have been raised at the time of their direct appeal. Pursuant

to Special Prosecutors and Ketterer, the trial court lost jurisdiction to consider the Hillmans’

motion to withdraw their pleas of no contest after this Court affirmed their convictions.

Accordingly, the trial court erred in granting the Hillmans’ motion.

       {¶9}    The State’s assignment of error is sustained.
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                                                III.

       {¶10} The State’s assignment of error is sustained. The judgment of the Wayne County

Court of Common Pleas is reversed and the cause remanded for further proceedings consistent

with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       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 Wayne, 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.

       Costs taxed to Appellees.




                                                       DONNA J. CARR
                                                       FOR THE COURT



WHITMORE, J.
HENSAL, J.
CONCUR.
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APPEARANCES:

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellant.

W. SCOTT RAMSEY, Attorney at Law, for Appellees.
