[Cite as State v. Williams, 2015-Ohio-4553.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2015AP060030
MARK A. WILLIAMS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the New Philadelphia
                                               Municipal Court, Trial Court No.
                                               CRB 11 00413


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        October 29, 2015


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


New Philadelphia Prosecutor's Office           MARK A. WILLIAMS, PRO SE
150 East High Avenue                           484 2nd Dr. N.E.
New Philadelphia, Ohio 44663                   New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2015AP060030                                                     2

Hoffman, P.J.


         {¶1}   Defendant-appellant Mark A. Williams appeals the June 10, 2015

Judgment Entry entered by the New Philadelphia Municipal Court denying his motion for

new trial. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   Appellant was charged with violating the terms of a protection order (R.C.

2919.27) in the New Philadelphia Municipal Court. The trial court appointed a Special

Prosecutor to represent the state of Ohio in prosecuting the case.

         {¶3}   On July 24, 2012, Appellant entered a plea of guilty to the charge, and the

trial court imposed sentence.

         {¶4}   Appellant moved to withdraw his plea on September 7, 2012.                  Via

Judgment Entry of April 1, 2013, the trial court denied his motion to withdraw plea.

         {¶5}   Appellant filed a notice of appeal from the trial court's denial of his motion

to withdraw his plea of guilty.

         {¶6}   Via Opinion and Judgment Entry of December 26, 2014, this Court

affirmed the judgment of the New Philadelphia Municipal Court denying Appellant's

motion to withdraw plea.

         {¶7}   On May 5, 2014, Appellant filed a motion for new trial. The trial court

denied the motion via Judgment Entry of June 10, 2015.

         {¶8}   Appellant appeals, assigning as error,

         {¶9}   "I. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING

SPECIAL PROSECUTOR RON COLLINS TO PROSECUTE THE CASE, CREATING


1   A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Tuscarawas County, Case No. 2015AP060030                                               3


THE SAME CONFLICT OF INTEREST THAT THE COURT SET OUT TO AVOID IN

REMOVING DOUGLAS JACKSON.                 MR. COLLINS WAS NOT AN INDEPENDENT

PROSECUTOR.

        {¶10} "II. THE PROSECUTOR DID ENGAGE [SIC] MISCONDUCT BY

VIOLATING      BRADY V.        MARYLAND IN NOT                  DISCLOSING   EXCULPATORY

EVIDENCE WHICH HE IS REQUIRED TO GIVE.

        {¶11} "III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANTS

MOTION TO CONTINUE PRIOR TO THE DATE OF TRIAL.

        {¶12} "IV. THE TRIAL COURT ERRED IN DENYING THE DEFENDANTS'

MOTION TO VACATE A PLEA ON THE GROUNDS OF INEFFECTIVE ASSISTANCE

OF COUNSEL."

                                           I, II, III, and IV

        {¶13} We will address Appellant's assigned errors together, as their disposition

is governed by the same legal principal.

        {¶14} The trial court herein denied Appellant's motion for new trial finding

Appellant was not entitled to a new trial because he never went to trial originally.

Appellant entered a plea of guilty pursuant to Criminal Rule 11(F),following a negotiated

plea.

        {¶15} Ohio Criminal Rule 33 governs motions for a new trial,

               A new trial may be granted on motion of the defendant for any of

        the following causes affecting materially his substantial rights:
Tuscarawas County, Case No. 2015AP060030                                             4


            (1) Irregularity in the proceedings, or in any order or ruling of the

     court, or abuse of discretion by the court, because of which the defendant

     was prevented from having a fair trial;

            (2) Misconduct of the jury, prosecuting attorney, or the witnesses

     for the state;

            (3) Accident or surprise which ordinary prudence could not have

     guarded against;

            (4) That the verdict is not sustained by sufficient evidence or is

     contrary to law. If the evidence shows the defendant is not guilty of the

     degree of crime for which he was convicted, but guilty of a lesser degree

     thereof, or of a lesser crime included therein, the court may modify the

     verdict or finding accordingly, without granting or ordering a new trial, and

     shall pass sentence on such verdict or finding as modified;

            (5) Error of law occurring at the trial;

            (6) When new evidence material to the defense is discovered which

     the defendant could not with reasonable diligence have discovered and

     produced at the trial. When a motion for a new trial is made upon the

     ground of newly discovered evidence, the defendant must produce at the

     hearing on the motion, in support thereof, the affidavits of the witnesses by

     whom such evidence is expected to be given, and if time is required by the

     defendant to procure such affidavits, the court may postpone the hearing

     of the motion for such length of time as is reasonable under all the
Tuscarawas County, Case No. 2015AP060030                                              5


      circumstances of the case. The prosecuting attorney may produce

      affidavits or other evidence to impeach the affidavits of such witnesses.

             (B) Motion for new trial; form, time

             Application for a new trial shall be made by motion which, except

      for the cause of newly discovered evidence, shall be filed within fourteen

      days after the verdict was rendered, or the decision of the court where a

      trial by jury has been waived, unless it is made to appear by clear and

      convincing proof that the defendant was unavoidably prevented from filing

      his motion for a new trial, in which case the motion shall be filed within

      seven days from the order of the court finding that the defendant was

      unavoidably prevented from filing such motion within the time provided

      herein.

             Motions for new trial on account of newly discovered evidence shall

      be filed within one hundred twenty days after the day upon which the

      verdict was rendered, or the decision of the court where trial by jury has

      been waived. If it is made to appear by clear and convincing proof that the

      defendant was unavoidably prevented from the discovery of the evidence

      upon which he must rely, such motion shall be filed within seven days

      from an order of the court finding that he was unavoidably prevented from

      discovering the evidence within the one hundred twenty day period.

      {¶16} Appellant's arguments are barred under the doctrine of res judicata. State

v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry court explained the

doctrine as follows: “Under the doctrine of res judicata, a final judgment of conviction
Tuscarawas County, Case No. 2015AP060030                                                 6


bars the convicted defendant 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.” Id.

       {¶17} Appellant's arguments herein could have been or were raised on direct

appeal from the trial court's sentencing entry and/or on appeal from the denial of

Appellant's first motion to withdraw his guilty plea.We find res judicata applies. State v.

Jones, 5th Dist. No. 12CA22, 2012–Ohio–4957, ¶ 23. Pursuant to Ohio Criminal Rule

33, Appellant is not entitled to a new trial, and the doctrine of res judicata bars

Appellant's arguments raised on appeal.

       {¶18} The June 10, 2015 Judgment Entry of the New Philadelphia Municipal

Court denying Appellant's motion for new trial is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur
