[Cite as State v. Coats, 2010-Ohio-4822.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MERCER COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 10-10-05

        v.

DOUGLAS N. COATS,                                          OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 10-10-06

        v.

DOUGLAS N. COATS,                                          OPINION

        DEFENDANT-APPELLANT.


                 Appeals from Mercer County Common Pleas Court
                  Trial Court Nos. 05-CRM-077 and 05-CRM-078

                                      Judgments Affirmed

                             Date of Decision: October 4, 2010



APPEARANCES:

        Joseph A. Benavidez for Appellant

        Matthew K. Fox for Appellee
Case No. 10-10-05 and 10-10-06


ROGERS, J.

        {¶1} Defendant-Appellant, Douglas Coats, appeals from the judgments of

the Court of Common Pleas of Mercer County resentencing him to a twelve-year

prison term and denying his Crim.R. 32.1 motion to withdraw his guilty pleas. On

appeal, Coats argues that the trial court erred in denying his motion to withdraw

his guilty pleas, and that the State failed to assert the sentencing recommendation

as agreed upon in his plea deal. Based on the following, we affirm the judgments

of the trial court.

        {¶2} This case comes before us as a consolidated appeal of trial court

cases numbered 05-CRM-077 and 05-CRM-078.1 In June 2005, in trial court case

number 05-CRM-077, the Mercer County Grand Jury indicted Coats on thirteen

counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of

the third degree, and, in trial court case number 05-CRM-078, the Mercer County

Grand Jury indicted Coats on one additional count of gross sexual imposition in

violation of R.C. 2907.05(A)(4), also a felony of the third degree.

        {¶3} In August 2005, Coats entered pleas of not guilty to all counts in

both indictments.

        {¶4} In September 2005, pursuant to a plea agreement, Coats withdrew

his not guilty pleas and entered a plea of guilty to counts one, seven, and thirteen


1
 We note that appellate case number 10-10-05 corresponds to trial court case number 05-CRM-077, and
appellate case number 10-10-06 corresponds to trial court case number 05-CRM-078.


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Case No. 10-10-05 and 10-10-06


of the indictment in trial court case number 05-CRM-077, and entered a plea of

guilty to the one count indictment in trial court case number 05-CRM-078. The

State then entered a nolle prosequi on the remaining counts. Additionally, as part

of the plea agreement, the State agreed to recommend a three-year prison term on

each count in case number 05-CRM-077, to be served consecutively to each other,

and a three-year prison term in case number 05-CRM-078, to be served

concurrently to the sentence in 05-CRM-077, for an aggregate nine-year prison

term.   Prior to accepting Coats’ guilty pleas, the trial court conducted a full

Crim.R. 11 plea colloquy, specifically stating:

        [Trial Court]: Despite the jointly recommended plea agreement,
        I need to advise you of the maximum penalty that the court
        could impose. For each charge of gross sexual imposition, a
        felony of the third degree, you could be sentenced to five years in
        prison and be fined $10,000. Do you understand that?

        [Coats]: Yes, your Honor.

        [Trial Court]: So the maximum penalty for these four charges,
        three in Case No. 77 and one in Case No. 78, would be four times
        that or twenty years in prison plus a fine of $40,000. Do you
        understand that?

        [Coats]: Yes, your Honor.

        ***

        [Trial Court]: Are you now under the influence of any kind of
        medication, drugs, alcohol, or anything that would cause you not
        to understand what we’re doing here today?

        [Coats]: No, your Honor.


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       ***

       [Coats]: They’ve got me on some anti-depressant medicine, but
       that’s not what you’re talking about now. Right?

       [Trial Court]: If that doesn’t have any affect on you
       understanding what we’re doing here today.

       [Coats]: Okay.

(Sept. 2005 Change of Plea Hearing, pp. 7-11). At no time did the trial court

advise Coats on the record that he would be subject to a mandatory term of

postrelease control at the conclusion of his prison sentence. However, prior to the

change of plea hearing, Coats signed a waiver of constitutional rights which

provided, in part:

       That if the Defendant is being sentenced for a felony of the first
       degree, or a felony of the second degree, for a felony sex offense,
       as defined in Section 2967.28 of the Revised Code, or for a felony
       of the third degree that is not a felony sex offense and in the
       commission of which the Defendant caused or threatened to
       cause physical harm to a person, that a period of post-release
       control pursuant to Section 2967.28 of the Revised Code will be
       imposed following the Defendant’s release from prison.

(Sept. 2005 Waiver of Constitutional Rights, p. 2).

       {¶5} Additionally, prior to the change of plea hearing, Coats signed a

negotiated plea agreement which provided:

       POST RELEASE CONTROL. In addition, a period of
       supervision by the Adult Parole Authority after release from
       prison may be mandatory in this case. If I am sentenced to
       prison for a felony 1 or felony sex offense, after my release from


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Case No. 10-10-05 and 10-10-06


       prison I will have a mandatory 5 years of post release control
       under conditions determined by the Parole Board.

(Sept. 2005 Negotiated Plea Agreement, p. 3).

       {¶6} In November 2005, the trial court sentenced Coats to a three-year

prison term on each of the counts in cases numbered 05-CRM-077 and 05-CRM-

078, all to be served consecutively to each other, for a total twelve-year prison

term. At the sentencing hearing, the trial court also advised Coats that he would

be subject to five years of postrelease control upon the conclusion of his prison

sentence. However, the trial court’s sentencing entry failed to include the term of

postrelease control.

       {¶7} In April 2007, Coats appealed to this Court; however, we

subsequently denied his appeal as being untimely and for failing to set forth

sufficient reasons for a delayed appeal pursuant to App.R. 5(A).

       {¶8} In July 2008, Coats filed a motion to withdraw his guilty pleas

pursuant to Crim.R. 32.1, arguing that his pleas were not knowingly, voluntarily,

and intelligently entered because the trial court failed to advise him that it was not

bound by the State’s sentencing recommendation in the plea agreement, and

because it failed to advise him that he would be subject to a mandatory term of

postrelease control upon the conclusion of his prison term.

       {¶9} In January 2009, the trial court denied Coats’ Crim.R. 32.1 motion,

finding the motion to be an untimely petition for postconviction relief pursuant to


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R.C. 2953.21; that his claims were barred by res judicata because he failed to raise

them prior or subsequent to sentencing or on direct appeal; and, that he was aware

that the trial court was not bound by the State’s sentencing recommendation in the

plea agreement.

       {¶10} In July 2009, in State v. Coats, 3d Dist. Nos. 10-09-04, 10-09-05,

2009-Ohio-3534, we remanded the case to the trial court for resentencing, finding

that the trial court’s failure to include a five-year term of post release control in the

sentencing entry rendered Coats’ sentence void, and, therefore, required a de novo

resentencing hearing. Furthermore, we also found that Coats’ claim that the trial

court erred in denying his Crim.R. 32.1 motion to withdraw his guilty pleas was

barred by res judicata, and, in summarily addressing his claim, we found that the

trial court conducted a full Crim.R. 11 plea colloquy, and that his pleas were

knowingly, intelligently, and voluntarily given.

       {¶11} In November 2009, Coats filed a second motion to withdraw his

guilty pleas pursuant to Crim.R. 32.1, again arguing that his pleas were not

knowing, intelligent, and voluntary because he was not properly notified of a

mandatory term of post release control.

       {¶12} In February 2010, following a hearing, the trial court denied Coats’

latest Crim.R. 32.1 motion. Subsequently, the trial court held a resentencing

hearing, at which it resentenced Coats to a three-year prison term on each count of



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gross sexual imposition in case numbers 05-CRM-077 and 05-CRM-078, to be

served consecutively to each other, for a total twelve-year prison term.

       {¶13} It is from the trial court’s resentencing and denial of his motion to

withdraw his guilty pleas that Coats appeals, presenting the following assignment

of error for our review.

       THE TRIAL COURT COMMITTED AN ABUSE OF
       DISCRETION BY NOT PERMITTING THE APPELLANT TO
       WITHDRAW A PREVIOUSLY TENDERED PLEA OF
       GUILTY PRIOR TO SENTENCING.

       {¶14} In his sole assignment of error, Coats argues that the trial court

abused its discretion in denying his motion to withdraw his guilty pleas.

Additionally, although not separately assigned as error, Coats further contends that

his sentence should be vacated and remanded to the trial court due to the State’s

failure to abide by the plea agreement at resentencing by recommending

concurrent sentences.

       {¶15} Appellate review of a trial court’s denial of a motion to withdraw

guilty pleas pursuant to Crim.R. 32.1 is for an abuse of discretion. State v. Nathan

(1995), 99 Ohio App.3d 722, 725, citing State v. Smith (1977), 49 Ohio St.2d 261.

A trial court will be found to have abused its discretion when its decision is

contrary to law, unreasonable, not supported by the evidence, or grossly unsound.

See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-18, citing Black’s

Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of discretion


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Case No. 10-10-05 and 10-10-06


standard, a reviewing court may not simply substitute its judgment for that of the

trial court. State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000 WL 777835,

citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶16} Furthermore, “under the doctrine of res judicata, a final judgment of

conviction bars a convicted defendant who was represented by counsel from

raising and litigating in any proceeding, except an appeal from that judgment, any

defense or any claimed lack of due process that was raised or could have been

raised by the defendant at the trial, which resulted in that judgment of conviction,

or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d 93, 1996-

Ohio-337, syllabus. Accordingly, res judicata will serve to bar all claims raised in

a Crim. R. 32.1 motion that were raised or could have been raised in a prior

proceeding. State v. Sanchez, 3d Dist. No. 4-06-31, 2007-Ohio-218, ¶18; State v.

McDonald, 11th Dist. No. 2003-L-155, 2004-Ohio-6332, ¶22, citing State v.

Young, 4th Dist. No. 03CA782, 2004-Ohio-2711.

       {¶17} In our prior decision of Coats’ initial appeal in Coats, 2009-Ohio-

3534, we specifically found that the claims raised in his Crim.R. 32.1 motion were

barred by res judicata. Additionally, in the interest of justice, we also addressed

Coats’ arguments in his motion and found them to be without merit. See Id. at

¶¶20-23. Although we remanded for resentencing in the matter, it had no impact

upon his pleas or the arguments raised in his Crim.R. 32.1 motion. Accordingly,



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Case No. 10-10-05 and 10-10-06


because Coats asserted the same grounds to withdraw his pleas in his second

Crim.R. 32.1 motion, we find his arguments to be barred by res judicata.

       {¶18} Finally, we have previously held that a trial court has no jurisdiction

to consider a motion to withdraw a plea once a higher court has affirmed a

conviction. See State v. Driskill, 3d Dist. Nos. 10-08-10, 10-08-11, 2009-Ohio-

2100, ¶33; State v. Streeter, 3d Dist. No. 1-08-52, 2009-Ohio-189, ¶14; State v.

Helton, 3d Dist. No. 6-08-01, 2008-Ohio-1146, ¶15.         This position has most

recently been addressed by the Ohio Supreme Court in State v. Ketterer, Slip

Opinion No. 2010-Ohio-3831, where the Court stated:

       In addition, the state invokes State ex rel. Special Prosecutors v.
       Judges, Belmont Cty. Court of Common Pleas (1978), 55 Ohio
       St.2d 94, 97-98, 9 O.O.3d 88, 378 N.E.2d 162, to argue that the
       court lacked jurisdiction to vacate Ketterer’s guilty pleas. In
       Special Prosecutors, this court 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.

Id. at ¶64.

       {¶19} As stated earlier in this opinion, Coats has also included an argument

that the case should be reversed because the prosecutor failed to comply with the



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Case No. 10-10-05 and 10-10-06


original plea negotiations by failing to restate its sentencing recommendation of

concurrent sentences. Although not properly before the court as an assignment of

error, we will address this argument.

       {¶20} We initially note that Coats failed to object to the State’s lack of

sentence recommendation at the resentencing hearing. As such, Coats has waived

all but plain error as to this issue. State v. Montgomery, 4th Dist. No. 07CA858,

2008-Ohio-4753, ¶15, citing United States v. Barnes (C.A.6, 2002), 278 F.3d 644,

646. In order to have plain error under Crim.R. 52(B) there must be an error, the

error must be an “obvious” defect in the trial proceedings, and the error must have

affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.

Plain error is to be used “with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.” Id. Plain error exists only

in the event that it can be said that “but for the error, the outcome of the trial

would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 431, 1997-

Ohio-204; see State v. Johnson, 3d Dist. No. 2-98-39, 1999-Ohio-825.

       {¶21} At the sentencing hearing, Coats’ trial counsel reminded the trial

court of the sentence recommendation by stating that “there are recommendations

concerning the sentence that we’d like the court to follow that would give [Coats]

accumulated nine years on both of these cases.” (Feb. 2010 Resentencing Tr., p.

7). Additionally, when sentencing Coats, the trial court stated that it “has learned



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Case No. 10-10-05 and 10-10-06


nothing that would cause the court to believe that the sentence previously imposed

in this case was not appropriate.” (Id. at p. 9).

       {¶22} Although the State did fail to make a statement on the record at

resentencing in regards to the sentencing recommendation, the trial court was

made aware of the recommendation, and the trial court indicated that there was

nothing that would lead it to impose a sentence other than that which was

previously ordered. Consequently, we find that any error on behalf of the State in

failing to make the agreed upon sentencing recommendation was harmless error

and did not affect the outcome of the sentencing.

       {¶23} Accordingly, we overrule Coats’ assignment of error.

       {¶24} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                               Judgments Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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