[Cite as State v. Robertson, 2013-Ohio-4556.]


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

STATE OF OHIO                                         C.A. No.       12CA0094-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LEONARD ROBERTSON                                     COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   05CR0539

                                 DECISION AND JOURNAL ENTRY

Dated: October 15, 2013



        MOORE, Presiding Judge.

        {¶1}     Defendant, Leonard Robertson, appeals from the judgment of the Medina County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     In 2006, Mr. Robertson pleaded guilty to a fifty-seven count indictment, and the

trial court sentenced him to a total of fifteen years of incarceration. Mr. Robertson filed a notice

of appeal from the sentencing entry; however, his attempted appeal was dismissed due to his

failure to timely file an appellate brief. In 2009, Mr. Robertson moved to reopen his appeal, and

we granted his application. Thereafter, we vacated Mr. Robertson’s sentence due to an error in

the imposition of postrelease control, and we remanded the case to the trial court for resentencing

in accordance with then applicable case law. See State v. Robertson, 9th Dist. Medina No.

07CA0120-M, 2009-Ohio-5052.
                                                2


         {¶3}   At the resentencing hearing, Mr. Robertson orally moved to withdraw his guilty

pleas.   The trial court denied Mr. Robertson’s motion and proceeded to resentence.            Mr.

Robertson appealed from the resentencing entry on March 17, 2010, arguing that the trial court

improperly denied his motion to withdraw his guilty pleas. This Court affirmed the trial court’s

decision to deny Mr. Robertson’s motion to withdraw his pleas. See State v. Robertson, 9th Dist.

Medina No. 10CA0030-M, 2011-Ohio-4300, ¶ 17.

         {¶4}   Thereafter, Mr. Robertson attempted to appeal our 2011 decision to the Ohio

Supreme Court. Prior to the Court determining whether to accept the appeal, Mr. Robertson filed

a post-sentence motion to withdraw his plea in the trial court. The trial court declined to rule on

the motion until the Supreme Court made a determination of whether to accept jurisdiction. On

January 18, 2012, the Supreme Court declined to accept jurisdiction. In a journal entry dated

June 25, 2012, the trial court denied Mr. Robertson’s motion. Mr. Robertson did not appeal from

this journal entry.

         {¶5}   On September 21, 2012, Mr. Robertson filed a new motion to withdraw his guilty

plea. The trial court denied the motion in a journal entry dated October 16, 2012. Mr. Robertson

timely appealed from the October 16, 2012 entry, and he now presents three assignments of error

for our review. We have consolidated the assignments of error to facilitate our discussion.

                                                II.

                                 ASSIGNMENT OF ERROR I

         THE TRIAL COURT ABUSED IT[]S DISCRETION IN APPLYING RES
         JUDICATA TO DENY [MR. ROBERTSON]’S MOTION TO WITHDRAW HIS
         PLEA.
                                                  3


                                 ASSIGNMENT OF ERROR II

       [MR. ROBERTSON]’S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY,
       AND VOLUNTARILY ENTERED BEING THAT THE TRIAL COURT DID
       NOT ADVISE HIM PRIOR THAT PRC WAS MANDATORY FOR FIVE (5)
       YEARS UPON RELEASE, PURSUANT TO R.C. 2967.28(B). (Emphasis sic.)

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT INCORRECTLY EXPLAINED THE MAXIMUM
       PENALTIES INVOLVED WHEN VIOLATING [T]HE TERMS OF PRC AS
       REQUIRED PURSUANT TO R.C. 2943.032.

       {¶6}    In his assignments of error, Mr. Robertson argues that the trial court erred by

denying his post-sentence motion to withdraw his guilty plea because the            plea was not

knowingly, voluntarily and intelligently made due to the trial court’s failure to correctly advise

him of the mandatory nature of, and the maximum penalties for violation of, postrelease control

prior to his entering of his plea. We disagree.

       {¶7}    In its October 16, 2012 journal entry, the trial court concluded that it was without

jurisdiction to entertain Mr. Robertson’s motion and that his arguments were barred by res

judicata.

       {¶8}    “In State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio

St.2d 94, 97 (1978), the [Ohio] Supreme Court determined that a trial court loses jurisdiction

over a case when an appeal is taken and, absent a remand, does not regain jurisdiction

subsequent to the court of appeals’ decision.”        State v. Hillman, 9th Dist. Wayne Nos.

12CA0028, 12CA0029, 2013-Ohio-982, ¶ 7. See also State v. Phillips, 9th Dist. Summit No.

25408, 2011-Ohio-1348. The Ohio Supreme Court further explained that, because a motion to

withdraw a plea is “inconsistent with the judgment of the Court of Appeals affirming the trial

court’s conviction premised upon the guilty plea,” the trial court has no jurisdiction to consider

such a motion after an appellate court has affirmed the conviction. Special Prosecutors at 97.
                                                 4


Moreover, the Supreme Court 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, ¶ 59, citing State v. Perry, 10 Ohio St.2d

175 (1967), paragraph nine of the syllabus.

       {¶9}    Here, Mr. Robertson appealed from his resentencing entry, and this Court

affirmed the trial court’s denial of his oral motion to withdraw his plea in Robertson, 2011-Ohio-

4300, ¶ 17. Therefore, pursuant to Special Prosecutors, the trial court lacked jurisdiction to

consider Mr. Robertson’s September 21, 2012 motion to withdraw his guilty plea. Moreover,

Mr. Robertson’s arguments pertain to the sufficiency of the plea colloquy. Any errors in the

colloquy would have been apparent on the record, and could have been raised on appeal from his

resentencing entry. Consequently, his arguments are now barred by res judicata. See Ketterer at

¶ 59 (“[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” (Emphasis added.)).

       {¶10} Accordingly, the trial court did not err in denying Mr. Robertson’s motion to

withdraw his plea.

                                                III.

       {¶11} Mr. Robertson’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 5


       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.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, J.
CONCURS.

BELFANCE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

LEONARD ROBERTSON, pro se, Appellant.

DEAN HOLMAN, Prosecuting Attorney, and LAUREN M. HASE, Assistant Prosecuting
Attorney, for Appellee.
