[Cite as State v. Brown, 2016-Ohio-1066.]


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

STATE OF OHIO                                       C.A. No.      27749

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JESS R. BROWN                                       COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 2005 12 4604

                                 DECISION AND JOURNAL ENTRY

Dated: March 16, 2016



        WHITMORE, Judge.

        {¶1}    Defendant-Appellant, Jess Brown, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                I

        {¶2}    This is Brown’s third appeal before this Court. In 2006, Brown incurred his 19th

charge for operating a vehicle while under the influence of drugs or alcohol (“OVI”). While out

on bond, Brown yet again drove while under the influence and collided with another driver,

thereby incurring his 20th OVI charge and several other offenses. Brown came before the court

with counsel and pleaded guilty to multiple counts, including several OVI counts and counts for

driving under suspension. Before his scheduled sentencing hearing, however, Brown filed a pro

se motion to withdraw his plea. The court allowed him to argue the motion at his sentencing

hearing, but ultimately denied the motion and sentenced him to 16½ years in prison. On appeal,
                                                2


this Court affirmed the trial court’s judgment. See State v. Brown (“Brown I”), 9th Dist. Summit

No. 23759, 2007-Ohio-7028.

       {¶3}    Subsequently, Brown filed a motion to vacate his sentence due to an error in the

imposition of his post-release control. He also filed a motion to withdraw his plea. The court

held a hearing on his motion to withdraw, but concluded that it was meritless. The court

resentenced Brown, and Brown once again appealed from the court’s judgment. This Court

affirmed on the basis that the trial court lacked jurisdiction to grant Brown’s successive motion

to withdraw his plea. See State v. Brown (“Brown II”), 9th Dist. Summit Nos. 25353 & 25355,

2011-Ohio-1043, ¶ 7-9, citing State ex rel. Special Prosecutors v. Judges, Court of Common

Pleas, 55 Ohio St.2d 94, 97-98 (1978). We also noted that, due to Brown’s prior appeal, his

arguments were barred by res judicata. Brown II at ¶ 6.

       {¶4}    In 2014, Brown filed another motion to withdraw his plea. He argued that his

trial counsel was ineffective and his plea was not knowingly, voluntarily, and intelligently

entered because, at the time he entered it, his speedy trial time had expired. The State opposed

his motion, and, upon review, the trial court denied it. Brown did not appeal.

       {¶5}    In 2015, Brown filed another motion to withdraw his plea. He once again argued

that his trial counsel was ineffective and his plea was not knowingly, voluntarily, and

intelligently entered because, at the time he entered it, his speedy trial time had expired. The

State once again opposed his motion, and, upon review, the trial court once again denied it.

       {¶6}    Brown now appeals from the court’s judgment and raises two assignments of

error for our review. For ease of analysis, we consolidate his assignments of error.
                                                3


                                                II

                               Assignment of Error Number One

       TRIAL COURT ABUSED IT’S (sic) DISCRETION TO THE PREJUDICE OF
       DEFENDANT-APPELLANT UNDER THE PARTICULAR FACTS AND
       CIRCUMSTANCES OF HIS CASE WHEN THE TRIAL COURT DENIED
       HIM FAIR PROCESS AND THE OPPORTUNITY TO COMPLY WITH THE
       STATES (sic) PROCEDURES AND OBTAIN AN ADJUDICATION ON THE
       MERITS OF HIS CLAIMS IN CONTRAVENTION OF THE FIFTH, SIXTH
       AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
       CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
       CONSTITUTION.

                               Assignment of Error Number Two

       TRIAL COURT ABUSED ITS DESCRETION (sic) TO THE PREJUDICE OF
       D-A (sic) BY FAILING TO HOLD AN EVIDENTIARY HEARING ON D-A’S
       (sic) POST-SENTENCE MOTION TO WITHDRAW PLEAS BASED ON HIS
       AFFIDAVIT OF FACTS AND PREJUDICE SHOWING A MANIFEST
       INJUSTICE.

       {¶7}   In his assignments of error, Brown argues that the court erred when it deprived

him of a merits review on his motion to withdraw and denied his motion without holding a

hearing. We disagree.

       {¶8}   As this Court explained in Brown’s second appeal,

       [Rule] 32.1 [of Ohio Rules of Criminal Procedure] 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 [Rule]
       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.

Brown II, 2011-Ohio-1043, at ¶ 7, quoting State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-

3831, ¶ 61, quoting State ex rel. Special Prosecutors, 55 Ohio St.2d at 97-98. “Moreover, the

Supreme Court has held that ‘[r]es judicata bars the assertion of claims against a valid, final
                                                 4


judgment of conviction that have been raised or could have been raised on appeal.’” State v.

Robertson, 9th Dist. Medina No. 12CA0094-M, 2013-Ohio-4556, ¶ 8, quoting Ketterer at ¶ 59.

       {¶9}    Brown has had two prior direct appeals, both of which resulted in affirmances.

Accordingly, pursuant to Special Prosecutors, the trial court lacked jurisdiction to consider

Brown’s latest motion to withdraw his plea. See Brown II at ¶ 7. Accord State v. Calhoun, 9th

Dist. Summit No. 27059, 2014-Ohio-2628, ¶ 5-6.            Further, the speedy trial and related

ineffective assistance of counsel issues that Brown raised in his fourth motion to withdraw were

issues that he could have raised on direct appeal. As such, his arguments also were barred by the

doctrine of res judicata. See Brown II at ¶ 8; Calhoun at ¶ 7-8. Because the trial court lacked

jurisdiction over Brown’s motion and his arguments were barred by res judicata, the court did

not err by denying his motion without holding a hearing. See, e.g., State v. Stepler, 9th Dist.

Summit No. 23354, 2006-Ohio-6913, ¶ 16. Brown’s assignments of error are overruled.

                                                III

       {¶10} Brown’s assignments of error are overruled. 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.
                                                5


       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.




                                                    BETH WHITMORE
                                                    FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JESS R. BROWN, pro se, Appellant.

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