[Cite as State v. Wilson, 2015-Ohio-4808.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 14 MA 138
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
SHAWN WILSON                                  )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 12 CR 919

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Shawn Wilson, Pro se
                                                   Inmate No. 640-014
                                                   Trumbull Correctional Institution
                                                   P.O. Box 901
                                                   Leavittsburg, Ohio 44430


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: November 17, 2015
[Cite as State v. Wilson, 2015-Ohio-4808.]
WAITE, J.


        {¶1}     Appellant Shawn Wilson has appealed the Mahoning County Common

Pleas Court judgment entry of September 3, 2014 denying his Crim.R. 32.1 motion to

withdraw his plea. Appellant argues that his uncontrolled mental illness prevented

him from entering a knowing, intelligent, and voluntary plea. He further contends that

he is entitled to a new competency evaluation because the doctor who performed his

earlier evaluation later pleaded guilty to fraud in an unrelated worker’s compensation

matter.

        {¶2}     The state responds that this Court has already ruled in the underlying

appeal that Appellant entered his plea knowingly, intelligently, and voluntarily. State

v. Wilson, 7th Dist. No. 13 MA 10, 2014-Ohio-942 (“Wilson I”). As Appellant has

already raised this issue on appeal following his plea, and as Appellant raises no new

evidence since we decided Wilson I, the state contends that our prior ruling should

stand. For the reasons provided, Appellant’s arguments are without merit and the

judgment of the trial court is affirmed.

                                  Factual and Procedural History

        {¶3}     Appellant pleaded guilty to a number of charges:        one count of

aggravated murder, in violation of R.C. 2903.01(C)(F); two counts of improperly

discharging firearm at or into habitation, in violation of R.C. 2923.161(A)(1)(C); one

count of felonious assault, in violation of R.C. 2903.11(A)(2)(D); and one count of

tampering with evidence, in violation of R.C. 2921.12(A)(1)(B).         Appellant also

pleaded guilty in regard to the firearm specifications attached to the aggravated

murder and improper discharge counts. In exchange for Appellant’s plea, the state
                                                                                    -2-

dismissed one count of aggravated murder, one count of murder, and the capital

specification attached to the aggravated murder count.

      {¶4}   Appellant was sentenced to life in prison without parole on the

aggravated murder count.      He was also sentenced to eight years per improper

discharge count, eight years on the felonious assault count, thirty-six months on

tampering with evidence, and five years on the firearm specifications. His sentences

were ordered to run concurrently.

      {¶5}   Before entering the plea agreement, Appellant’s attorney requested a

competency examination be performed on his client. Counsel specifically requested

that Dr. Anil C. Nalluri perform the evaluation. The state stipulated to both requests.

Dr. Nalluri examined Appellant and found him competent to stand trial.         Shortly

thereafter, Dr. Nalluri was charged with fraud on an unrelated worker’s compensation

matter.

      {¶6}   Appellant filed a timely appeal after sentencing. In Wilson I, Appellant

challenged his plea on the grounds of ineffective assistance of counsel. Appellant

argued that his attorneys pressured him into accepting the state’s plea offer and that

his mental state and related medications affected his ability to understand the

process so that the plea was not entered knowingly, on his part. He also raised

issues regarding his competency evaluation. Based on the record, we found that

Appellant entered his plea knowingly, intelligently, and voluntarily, and overruled his

arguments. Wilson, supra, at ¶5-6.
                                                                                       -3-

       {¶7}   After filing his direct appeal, Appellant filed two Crim.R. 32.1 motions to

withdraw his plea. The first motion was filed during the pendency of his appeal. The

second motion was filed shortly after our Opinion in Wilson I was released. The trial

court denied both motions based on lack of jurisdiction. Appellant did not appeal the

trial court’s denial of his first motion, but now appeals the denial of his second motion.

                                        Exhibits

       {¶8}   As a preliminary matter, Appellant has attached numerous exhibits to

his brief. Most of these exhibits are not part of the trial court record. Thus, we

cannot consider them. “[I]t is axiomatic that a court of appeals is a court of review

and that we will not and may not consider any evidence not properly before the lower

court.” Tinlin v. White, 7th Dist. No. 680, 1999 WL 1029523 (Nov. 5, 1999).

                        First and Second Assignments of Error

       TRIAL COURT WAS IN ABUSE OF THEIR [SIC] DISCRETION

       RULING THAT THEY ARE WITHOUT JURISDICTION TO RULE ON

       THE DEFENDANTS [SIC] MOTION TO WITHDRAW HIS GUILTY

       PLEA PRO, SE.


       TRIAL COURT ERRED RULING THE MOTION WAS FILED IN A [SIC]

       UNTIMELY MANNER BEFORE THE COURT OF COMMON PLEAS.

       {¶9}   Appellant argues that the trial court erred in dismissing his Crim.R. 32.1

motion based on lack of jurisdiction. Additionally, Appellant argues that the trial court

erred in finding his motion untimely.       As to the issue of jurisdiction, Appellant

contends that his attorney advised him that once a decision was released in Wilson I,
                                                                                     -4-

he could file a second Crim.R. 32.1 motion. As to timeliness, Appellant argues that

he was also advised that there were no time limits within which to file a Crim.R. 32.1

motion.   Appellant urges that his uncontrolled mental illness limited his ability to

assist in the preparation of the motion, making any delay inherently reasonable. The

state does not respond to Appellant’s arguments, but it is clear that Appellant is

confused as to the reasons for denial of his motion.

      {¶10} Pursuant to Crim.R. 32.1, “[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.”

      {¶11} Generally, once an appeal is filed, a trial court loses jurisdiction to take

action in a case. Labate Chrysler, Jeep, Dodge, Inc. v. Fifth Third Bank, 7th Dist. No.

05CO57, 2006-Ohio-3480, ¶12, citing State ex rel. Special Prosecutors v. Judges,

Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). However,

there is an exception to this rule. Despite a pending appeal, a trial court retains

jurisdiction over matters “not inconsistent with that of the appellate court to review,

affirm, modify or reverse the appealed judgement, such as the collateral issues like

contempt, appointment of a receiver and injunction.” Labate at ¶12.

      {¶12} Turning to this case, in order for the trial court to properly rule on

Appellant’s Crim.R. 32.1 motion, the court would first have to determine that any such

decision presented no potential conflict with our decision in his direct appeal.

Appellant’s issue on direct appeal involved whether his plea was knowingly,
                                                                                       -5-

voluntarily, and intelligently entered based on various claims of ineffective assistance

of counsel. As the issues in his Crim.R. 32.1 motion were substantially similar to the

issues presented in his direct appeal, the trial court correctly determined that it lacked

jurisdiction to hear his first motion to withdraw.      Appellant did not appeal that

decision. But Appellant seems to labor under the belief that his second such motion,

filed after we decided his direct appeal, was denied by the trial court, at least in part,

because it was untimely. However, it is clear that Appellant’s motion was denied

because the issue it raised had already been decided by us in the underlying appeal.

Since the issue resolved on appeal in Wilson I involved the voluntary nature of

Appellant’s plea, the very matter raised in both of Appellant’s motions to withdraw,

the matter became res judicata once our decision on direct appeal was filed. The

trial court correctly dismissed Appellant’s motion for this reason.         Accordingly,

Appellant’s first and second assignments of error are without merit and are overruled.

                               Third Assignment of Error

       THE TRIAL COURT ABUSED THEIR [SIC] DISCRETION IN RULING

       THAT THE PROCEDURE OF THIS APPLICATION 32.1 MOTION TO

       WITHDRAW GUILTY PLEA WAS AN IMPROPER MOTION.

       {¶13} Appellant contends that the medication he was taking at the time he

entered his plea affected his ability to understand the process. Appellant claims he

suffered from auditory hallucinations and had been prescribed the psychotic drug

“Haldol.” Appellant says that at the pre-trial hearing, he told the court that he did not

know what was happening. Despite this, the trial court forced him to sign the plea
                                                                                     -6-

agreement form indicating that he was not under the influence of any drugs.

Appellant also alleges that the trial court threatened him with the death penalty and

pressured him into accepting the state’s offer.      Additionally, he alleges that Dr.

Nalluri, who later pleaded guilty to fraud in a worker’s compensation case, agreed to

testify that Appellant was competent to stand trial so that Nalluri would receive a

lighter sentence in his fraud case. Because of the claimed cumulative effect of these

issues, Appellant argues that he was denied due process and is entitled to a new

competency evaluation.

       {¶14} The state focuses its argument on the lack of manifest injustice shown

by Appellant.    The state notes that a trial court does not have to provide an

evidentiary hearing unless the defendant can show a manifest injustice. In this case,

the record clearly demonstrates that Appellant knowingly, intelligently, and voluntarily

entered his plea. The state highlights that the trial court informed Appellant of his

constitutional and nonconstitutional rights.     The record reflects the trial court

specifically asked Appellant whether he was under the influence of drugs. While

Appellant responded that he had been taking prescription medication, Appellant

acknowledged that the medication did not affect his ability to understand the

proceedings. The state emphasizes that Appellant was represented by two attorneys

during the proceedings and there is no evidence that either of them pressured him

into taking the deal.

       {¶15} Again, Appellant’s motion was clearly barred by the doctrine of res

judicata. We have previously held that res judicata bars a criminal defendant from
                                                                                       -7-

raising “any issue in a post-sentence motion to withdraw a guilty plea that was or

could have been raised at trial or on direct appeal.” State v. Reed, 7th Dist. No. 04

MA 236, 2005-Ohio-2925, ¶11, citing State v. Wright, 7th Dist. No. 01 CA 80, 2002-

Ohio-6096, ¶37.

       {¶16} The voluntary nature of Appellant’s plea agreement was fully addressed

in Wilson I. In Wilson I, we held that Appellant knowingly, intelligently, and voluntarily

entered into his plea. Id. at ¶26. We specifically noted that the trial court informed

Appellant of his constitutional and nonconstitutional rights during the colloquy. Id. at

¶15-16.

       {¶17} The trial court asked Appellant whether he was under the influence of

drugs or alcohol. Id. at ¶19. In response, Appellant stated that he was taking only

the medication that he had been prescribed. Id. When the trial court further inquired

about this medication and whether it affected his ability to understand, Appellant

initially replied “not really, but yes, I understand.” Id. The trial court continued to

question Appellant regarding the medication’s effect on his ability to understand the

proceedings and Appellant repeatedly confirmed that his medication did not affect his

ability to understand. Id.

       {¶18} We also stated in Wilson I that the record is devoid of any evidence

suggesting that Appellant’s attorneys or the judge pressured him into taking the plea.

Id. at ¶24. Appellant continues to raise the identical arguments in this appeal and

attempts to rely on the same self-serving affidavit as in his previous appeal. While

we must again state that this Court is unable to review any documents not found in
                                                                                       -8-

the trial court’s record, it is immediately apparent that Appellant has already had a full

and fair hearing on these same issues and is completely barred by the doctrine of res

judicata from raising them a second time.

       {¶19} This same principle bars Appellant from again raising the argument that

he is entitled to a new competency hearing due to Dr. Nalluri’s guilty plea in a

completely unrelated matter. Appellant advanced this argument on direct appeal.

We have already determined that, among other things, since Appellant’s counsel

specifically requested that Dr. Nalluri conduct the competency examination, this

argument fails. (11/7/12 Hearing, p. 5.)

       {¶20} As Appellant has previously raised the issue of whether his plea was

knowingly, voluntarily, and intelligently entered, he is barred from reasserting this

argument.    Similarly, he is barred from reasserting any argument regarding his

competency hearing. Accordingly, Appellant’s third assignment of error is without

merit and is overruled.

                                        Conclusion

       {¶21} As Appellant’s Crim.R. 32.1 motion raised virtually the identical

arguments he advanced in his direct appeal, the trial court properly determined that it

lacked jurisdiction to hear his motion to withdraw his plea. The matter is barred by

the doctrine of res judicata. The judgment of the trial court is affirmed in full.


Donofrio, P.J., concurs.

DeGenaro, J., concurs.
