[Cite as State v. Kwambana, 2019-Ohio-1197.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                        CLERMONT COUNTY




STATE OF OHIO,                                 :

        Appellee,                              :       CASE NO. CA2018-10-074

                                               :              OPINION
    - vs -                                                     4/1/2019
                                               :

KABINGA KWAMBANA,                              :

        Appellant.                             :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                       Case No. TC 2013-CR 000238



D. Vincent Faris, Prosecuting Attorney, Nicholas Horton, 76 south Riverside Drive, 2nd Floor,
Batavia, Ohio, 45103, for appellee

Kabinga Kwambana, A695696, Chillicothe Correctional Institution, 15802 State Route 104,
North Chillicothe, Ohio,45601, appellant, pro se



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Kabinga Kwambana, appeals a decision of the Clermont

County Court of Common Pleas denying his motion for relief from judgment under Civ.R.

60(B). For the reasons detailed below, we affirm.

        {¶ 2} Kwambana and his accomplice robbed a Golden Corral Restaurant in Clermont

County. During the robbery, the duo restrained four employees by gunpoint, using zip ties to
hogtie the employees by their hands and feet. After stealing money from the safe and

attempting to flee the premises, Kwambana and his accomplice were apprehended by police.

       {¶ 3} Kwambana was indicted on one count of aggravated burglary and four counts

of kidnapping. Each of the four counts carried firearm specifications. Kwambana entered

plea negotiations with the state and agreed to plead guilty to the four counts of kidnapping in

return for the state dismissing the aggravated burglary charge and all five firearm

specifications. After a plea hearing, during which the trial court accepted Kwambana's valid

guilty plea, Kwambana was sentenced to 32 years in prison.

       {¶ 4} Kwambana's conviction was affirmed on direct appeal. State v. Kwambana,

12th Dist. Clermont No. CA2013-12-092, 2014-Ohio-2582, ¶ 16 ("Kwambana I"). Kwambana

then sought a motion to withdraw his plea, which the trial court denied. This court dismissed

Kwambana's subsequent appeal. State v. Kwambana, 12th Dist. Clermont No. CA2016-08-

060, 2017-Ohio-1406, ¶ 8 ("Kwambana II").

       {¶ 5} On August 20, 2018, Kwambana filed a Civ.R. 60(B) motion for relief from

judgment. The trial court denied the motion and Kwambana now appeals, raising a single

assignment of error for review:

       {¶ 6} ONCE AN APPEAL IS FILED, A TRIAL COURT LOSES JURISDICTION TO

CONSIDER A CIV.R. 60(B) MOTION UNLESS AN APPELLATE COURT REMANDS THE

CASE FOR THE PURPOSE OF GRANTING A TRIAL COURT JURISDICTION TO DECIDE

THE MOTION.

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

denying his motion for relief from judgment. In so doing, Kwambana argues there was

ambiguity during the plea hearing and his plea was not voluntary. We disagree.

       {¶ 8} The law in Ohio is well-established that "[c]ourts may recast irregular motions

into whatever category necessary to identify and establish the criteria by which the motion
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should be judged." State v. Braunskill, 12th Dist. Clermont No. CA2018-03-006, 2018-Ohio-

3738, ¶ 16. The Ohio Supreme Court definitively declared that "the plain language of

Crim.R. 57(B) permits a trial court in a criminal case to look to the Rules of Civil Procedure

for guidance when no applicable Rule of Criminal Procedure exists." State v. Schlee, 117

Ohio St.3d 153, 2008-Ohio-545, ¶10. Therefore, the civil rules may be invoked where

appropriate to fill a void in the rules of criminal procedure in a criminal case. State v. Strunk,

12th Dist. Warren No. CA2010-09-085, 2011-Ohio-417, ¶ 8.

       {¶ 9} The state maintains that Kwambana's motion should be denied because it is

either an untimely petition for postconviction relief or an improper motion to withdraw his

guilty plea under Crim. R. 32.1. We agree with the state's position.

       {¶ 10} First, Kwanbana's motion, construed as a petition for postconviction relief, is

untimely. The postconviction relief statute mandates that a petition "shall be filed no later

than three hundred sixty five days after the date on which the trial transcript is filed in the

court of appeals in the direct appeal of the judgment of conviction or adjudication." R.C.

2953.21(A)(2); State v. Conway, 10th Dist. Franklin No. 17AP-90, 2019-Ohio-382, ¶ 11. This

restriction is jurisdictional, as "a court may not entertain a petition filed after the expiration of"

that time period, "or a second petition or successive petitions for similar relief" by the

petitioner. R.C. 2953.23(A); State v. Apanovitch, Slip Opinion No. 2018-Ohio-4744, ¶ 36.

Here, Kwambana filed his motion for relief from judgment more than four years following the

date on which the transcripts in his direct appeal were filed and is therefore untimely as

construed as a petition for postconviction relief.

       {¶ 11} Second, as we noted in Kwambana II, Kwambana cannot withdraw his guilty

plea because, absent a remand from a higher court, a trial court is without jurisdiction to

decide a motion to withdraw a guilty plea once the appellate court has affirmed the

appellant's conviction on direct appeal. State v. Asher, 12th Dist. Butler No. CA2013-12-234,
                                                 -3-
2015-Ohio-724, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas,

55 Ohio St.2d 94 (1978). As Kwambana's conviction has been affirmed on direct appeal, the

trial court has no jurisdiction to vacate the related judgment. This issue was already settled

in Kwambana's prior appeal. Kwambana II 2017-Ohio-1406 at ¶ 8 (dismissing appeal).

Kwambana may not use Civ.R. 60(B) as a vehicle for advancing a position that is plainly

barred under Crim.R. 32.1.

       {¶ 12} Since there is no error in the underlying proceedings and Kwambana is not

entitled to any relief, we find the trial court did not err by denying the motion for relief from

judgment under Civ.R. 60(B). There is no void in the criminal rules requiring the invocation of

the civil rules. As a result, Kwambana's sole assignment of error is overruled.

       {¶ 13} Judgment affirmed.


       S. POWELL and M. POWELL, JJ., concur.




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