[Cite as State v. Coleman, 2012-Ohio-2847.]


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

STATE OF OHIO                                         C.A. No.       11CA0070-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DELVON K. COLEMAN                                     COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   04CR0072

                                 DECISION AND JOURNAL ENTRY

Dated: June 25, 2012



        CARR, Judge.

        {¶1}    Appellant, Delvon Coleman, appeals the judgment of the Medina County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}    On February 20, 2004, the Medina County Grand Jury indicted Coleman on one

count of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(f), a felony of the first

degree with a major drug offender specification and a firearm specification; one count of

possession of marijuana in violation of R.C. 2925.11(A)(C)(3)(c), a felony of fifth degree; one

count of possession of criminal tools in violation of R.C. 2923.24, a felony of the fifth degree;

and two forfeiture specifications relating to a car and cash. After initially pleading not guilty to

the charges at arraignment, Coleman appeared before the trial court on January 3, 2005, to enter

pleas of no contest to the charges of possession of cocaine with a major drug offender

specification, possession of marijuana, and possession of criminal tools with the two forfeiture
                                                 2


specifications. The trial court accepted Coleman’s pleas, found him guilty, and sentenced him to

a total term of ten years imprisonment. Coleman appealed to this Court and argued, among other

things, that his plea of no contest to possession of cocaine with a major drug offender

specification was not knowing, voluntary, and intelligent because the trial court did not inform

him of the mandatory penalty associated with a plea. On October 16, 2006, the Court affirmed

Coleman’s convictions. State v. Coleman, 9th Dist. No. 05CA0074-M, 2006-Ohio-5363.

       {¶3}    On October 26, 2005, Coleman filed a pro se motion to withdraw his plea. The

State responded in opposition to the motion on November 10, 2005. More than a year later, on

December 13, 2006, Coleman supplemented his motion to withdraw his plea. Also on December

13, 2006, Coleman filed a pro se petition for post-conviction relief. In support of his petition,

Coleman argued (1) that he was not guilty of the charges to which he pled; (2) that defense

counsel was incompetent; (3) that he was not informed of the mandatory penalty associated with

the charges; (4) that he did not understand he was giving up his right to a jury trial; and (5) that

the search that led to his arrest was improper. The trial court issued separate journal entries on

March 14, 2007, in which it denied both the motion to withdraw as well as the petition for post-

conviction relief.

       {¶4}    On October 14, 2009, Coleman filed a pro se “petition to vacate or set aside void

sentence” pursuant to R.C. 2953.21. In support of his petition, Coleman again argued that he

should be permitted to withdraw his pleas pursuant to Crim.R. 32.1 because the trial court failed

to inform him of the mandatory sentence associated with his plea. Coleman further stated that he

needed the assistance of an attorney in order to produce evidence in support of his claim. On

July 13, 2010, Coleman filed a separate motion for appointment of counsel. After a hearing on

July 30, 2010, the trial court appointed counsel to represent Coleman for the purposes of his
                                                 3


post-conviction petition. On August 25, 2010, counsel for Coleman filed a notice of appeal from

the “hearing for post-conviction relief, on July 30, 2010.” On October 22, 2010, counsel filed a

motion to withdraw his appeal with this Court on the basis that it was premature. This Court

issued a journal entry dismissing the appeal on November 23, 2010.

       {¶5}    After a hearing on December 17, 2010, Coleman’s attorney was dismissed as

counsel of record. The trial court subsequently issued a journal entry appointing a different

attorney to represent Coleman “in post-conviction motions.” On April 6, 2011, Coleman filed a

“post-conviction petition” in which he argued that the trial court failed to comply with Crim.R.

11(C) at his plea colloquy. Coleman relied on Crim.R. 32.1 in support of his position that he

should be permitted to withdraw his plea to correct a manifest injustice. The State filed a brief in

opposition on May 3, 2011. On May 18, 2011, the trial court issued a journal entry indicating

that the motion was denied.

       {¶6}    Coleman filed a notice of appeal on June 17, 2011. On appeal, he raises one

assignment of error.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT
       DENIED COLEMAN’S PETITION TO WITHDRAW HIS FORMER PLEA OF
       NO CONTEST TO THE CHARGES IN THE INDICTMENT IN ORDER TO
       CORRECT A MANIFEST INJUSTICE.

       {¶7}    In his sole assignment of error, Coleman argues that the trial court erred and

abused its discretion in denying his petition to withdraw his former plea of no contest. This

Court disagrees.

       {¶8}    In support of his assignment of error, Coleman argues that the trial court should

have set aside his judgment of conviction and permitted him to withdraw his plea to correct a
                                                4


manifest injustice pursuant to Crim.R. 32.1. Coleman’s position is premised on his assertion that

his plea colloquy did not comport with the requirements of Crim.R. 11(C) because the trial court

failed to adequately ensure that he understood the maximum penalty he faced; that he would

serve a mandatory sentence; and that he understood the effect of his plea of no contest.

       {¶9}    Crim.R. 32.1, which governs the withdrawal of a guilty plea, states:

       A motion to withdraw a plea of guilty or no contest may be made only before
       sentence is imposed; but to correct manifest injustice the court after sentence may
       set aside the judgment of conviction and permit the defendant to withdraw his or
       her plea.

       {¶10} The Supreme Court of Ohio has 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, at ¶ 59, citing State v.

Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. “This prohibition extends to

claims made in support of motions to withdraw a plea.” State v. Brown, 9th Dist. Nos. 25353

and 25355, 2011-Ohio-1043, ¶ 6, citing Ketterer at ¶ 59. Moreover, the Supreme Court has held,

       “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.”

State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97-98.

       {¶11} Coleman has attempted to challenge the validity of his plea colloquy through a

variety of avenues since the time of his conviction. On direct appeal, Coleman assigned as error

that the trial court had failed to adequately advise him of the mandatory penalty associated with

his plea. This Court rejected Coleman’s argument and affirmed his convictions, specifically
                                                5


concluding that “[b]ased upon our review of the plea hearing, the trial court did not err in

administering and accepting [Coleman’s] plea.” Coleman at ¶ 17. Immediately following his

appeal, Coleman filed a petition for post-conviction relief where he advanced a variety of

arguments, including that he was unaware of the maximum penalty associated with entering his

plea. His petition was denied by the trial court. While Coleman’s current motion was styled a

“post-conviction petition,” his substantive argument was not couched within the parameters of

R.C. 2953.21. Instead, Coleman again challenged the validity of his plea colloquy and argued

that the trial court should set aside his judgment of conviction and permit him to withdraw his

plea pursuant to Crim.R. 32.1. Pursuant to Special Prosecutors, 55 Ohio St.2d at 97-98, the trial

court did not have authority to grant Coleman’s motion to withdraw his plea on the basis of a

deficient plea colloquy because that issue had already been addressed on direct appeal.

Moreover, as Coleman has previously raised issues relating to the validity of his plea colloquy on

numerous occasions, he is now barred from raising those issues under the doctrine of res

judicata. Ketterer at ¶ 59. To the extent that Coleman’s motion might be construed as a petition

for post-conviction relief, it was an untimely petition and Coleman failed to demonstrate that he

was unavoidably prevented from discovering the facts necessary to support his claim pursuant to

R.C. 2953.23(A)(1)(a).     Thus, the trial court did not err in denying Coleman’s motion.

Accordingly, Coleman’s assignment of error is overruled.

                                               III.

       {¶12} Coleman’s assignment of error is overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.
                                                 6


                                                                              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 Medina, 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 Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT


WHITMORE, P. J.
CONCURS.

BELFANCE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

MICHAEL J. ASH, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.
