[Cite as State v. O'Neal, 2012-Ohio-3442.]


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

STATE OF OHIO                                          C.A. No.        26119

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
STEVEN J. O'NEAL                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 98 02 0316(B)

                                 DECISION AND JOURNAL ENTRY

Dated: August 1, 2012



        BELFANCE, Judge.

        {¶1}     Steven O’Neal appeals the trial court’s denial of his motion to withdraw his guilty

plea. For the reasons set forth below, we affirm.

                                                 I.

        {¶2}     In 1998, Mr. O’Neal was indicted for attempted aggravated murder and felonious

assault, each with an underlying firearm specification. Mr. O’Neal subsequently pleaded guilty

to felonious assault and the underlying firearm specification, and the State dismissed the

attempted aggravated murder charge. The trial court sentenced Mr. O’Neal to an aggregate

prison-term of nine years and ordered both terms be served consecutive to his federal prison

sentence.      Mr. O’Neal appealed, alleging that his plea was not voluntary, knowing, and

intelligent, that he had received ineffective assistance of counsel, and that the trial court failed to

follow the sentencing guidelines. See State v. O’Neal, 9th Dist. No. 19255, 1999 WL 771917,

*1-3 (Sept. 29, 1999). This Court affirmed his convictions. Id. at *1.
                                                 2


       {¶3}    Mr. O’Neal filed a motion to correct the record in January 2011, in which he

alleged that the trial court had not intended to run his sentences consecutive to his federal

sentences. He subsequently filed a motion to withdraw his guilty plea in August 2011, alleging

that his plea was not voluntary because the trial court had not informed him that he would be

subject to post-release control upon his release. The trial court overruled his motion to withdraw

his guilty plea, and Mr. O’Neal has appealed, raising a single assignment of error for our review.

                                               II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
       TO WITHDRAW GUILTY PLEA BECAUSE HE WAS NOT NOTIFIED OF
       POST RELEASE CONTROL AND BECAUSE PRIOR TO HIS PLEA HE WAS
       TOLD THAT HIS FEDERAL AND STATE INCARCERATION WOULD BE
       RUN CONCURRENT BUT RESULTED IN A CONSECUTIVE FEE (sic).

       {¶4}    Mr. O’Neal argues that the trial court did not inform him that he would be subject

to post-release control, and, therefore, he must be allowed to withdraw his plea under State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509. He also asserts that he should be allowed to

withdraw his plea because he was unaware that the trial court would run his sentence consecutive

to his federal sentence. However, Mr. O’Neal develops no argument on the latter point, and this

Court will not create one for him. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. No.

18349, 1998 WL 224934, *8 (May 6, 1998). Accordingly, we confine ourselves to Mr. O’Neal’s

arguments regarding the post-release control notification.

       {¶5}    In Mr. O’Neal’s prior appeal, he asserted that the trial court failed to follow

Crim.R. 11 in accepting his guilty plea. See O’Neal, 1999 WL 771917, *1. “The judgment of

the reviewing court is controlling upon the lower court as to all matters within the compass of the

judgment.” State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d
                                                   3


94, 97 (1978). A trial court loses its jurisdiction when an appeal is taken and does not regain

jurisdiction absent a remand. Id.

       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. * * * [I]t 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. This Court has applied Special Prosecutors when a defendant has challenged the

legitimacy of his plea in a prior appeal. See, e.g., State v. Coleman, 9th Dist. No. 11CA0070-M,

2012-Ohio-2847, ¶ 11. Thus, as this Court had considered and decided Mr. O’Neal’s challenge

to his plea, the trial court was without jurisdiction to grant Mr. O’Neal’s motion to withdraw his

plea. See id. See also State v. Molnar, 9th Dist. No. 25267, 2011-Ohio-3799, ¶ 30 (Belfance, J.,

concurring in judgment only) (The holding in Special Prosecutors applies “if an appellate court

has already considered and decided the issue.”).

       {¶6}    Accordingly, Mr. O’Neal’s assignment of error is overruled.

                                              III.

       {¶7}    Mr. O’Neal’s assignment of error is overruled, and the judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       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 Summit, 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.
                                                4


       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 Appellant.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



WHITMORE, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
