[Cite as State v. Patterson, 2018-Ohio-872.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 27423
                                                    :
 v.                                                 :   Trial Court Case No. 2010-CR-812/1
                                                    :
 TROY PATTERSON                                     :   (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                               OPINION

                              Rendered on the 9th day of March, 2018.

                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

TROY PATTERSON, Inmate No. 695-830, Warren Correctional Institution, P.O. Box 120,
Lebanon, Ohio 45036
     Defendant-Appellant-Pro Se

                                               .............




TUCKER, J.
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       {¶ 1} Defendant-appellant, Troy Patterson, appeals pro se from the trial court’s

decision of January 5, 2017, in which the court overruled his motion to withdraw his guilty

pleas pursuant to Crim. R. 32.1. Patterson argues that the court should have sustained

his motion because he entered into the underlying plea agreement entirely as the result

of the deficient advice of his defense counsel. Finding that Patterson’s assignment of

error has no merit, we affirm.

                            I. Facts and Procedural History

       {¶ 2} A Montgomery County grand jury issued an indictment against Patterson on

August 11, 2011, charging him with two counts of aggravated burglary; five counts of

aggravated robbery; five counts of felonious assault; and five counts of kidnapping, with

firearm specifications attached to all 17 counts. On August 20, 2013, Patterson pleaded

guilty to one count of aggravated burglary and one count of aggravated robbery. The

court sentenced him to a term of eight years’ imprisonment for each of the offenses, to

be served concurrently.

       {¶ 3} Patterson mailed the trial court a motion to withdraw his pleas on September

18, 2013, which the court caused to be docketed on September 23, 2013. Decision,

Order & Entry Overruling Def.’s Mot. to Withdraw Plea 1, Nov. 18, 2013. Prompted by

its receipt of Patterson’s motion, the court entered an order on September 20, 2013,

appointing substitute defense counsel.

       {¶ 4} In his motion, Patterson accused his original defense counsel of completely

neglecting his case and of deceiving him into pleading guilty by promising that he would

have to serve no more than three years in prison. See Def.’s Mot. to Withdraw Plea 2-
                                                                                            -3-


3, Sept. 23, 2013. On October 8, 2013, Patterson’s substitute counsel filed another

motion to withdraw, presenting essentially the same arguments in more diplomatic

language.     Def.’s Second Mot. to Withdraw Plea 2, Oct. 8, 2013.            The trial court

overruled both of the motions. See Decision, Order & Entry Overruling Def.’s Mot. to

Withdraw Plea 1 and 17.

         {¶ 5} Patterson timely initiated a direct appeal, Case No. CA 26015, by filing a

notice of appeal on December 3, 2013.1 Relying on our decision in State v. Preston, 2d

Dist. Montgomery No. 25393, 2013-Ohio-4404, Patterson argued that the trial court

should have permitted him to withdraw his pleas; in the alternative, he argued that the

ineffective assistance of his original defense counsel rendered his pleas unknowing and

involuntary. State v. Patterson, 2d Dist. Montgomery No. 26015, 2014-Ohio-4962, ¶ 5-

10 and 18. We affirmed the trial court. Id. at ¶ 22.

         {¶ 6} On March 24, 2015, Patterson moved for a new trial under Crim.R. 33, citing

his discovery of new evidence. The trial court overruled the motion in its decision of May

14, 2015, and Patterson timely filed a notice of appeal on June 9, 2015.2 In a single

assignment of error, Patterson argued that the trial court abused its discretion by

overruling his motion without holding an evidentiary hearing. Brief of Appellant at 1,

State v. Patterson, 2d Dist. Montgomery No. 26723, 2016-Ohio-839. We held that his

“guilty pleas preclude[d] his right to [move] for [a] new trial” and affirmed the trial court’s

decision. State v. Patterson, 2d Dist. Montgomery No. 26723, 2016-Ohio-839, ¶ 11-12.


1   The trial court filed its termination entry on November 19, 2013.
2 Patterson filed a duplicate notice of appeal on the same date, initiating Case No. 26724.
Effective July 10, 2015, we dismissed the appeal on the State’s motion, which Patterson
did not oppose.
                                                                                          -4-


       {¶ 7} Patterson filed another motion to withdraw his pleas on March 30, 2016,

relying on the new evidence that he had cited in his motion for a new trial. The trial court

dismissed the motion on jurisdictional grounds, finding that it lacked jurisdiction because

this court had “already affirmed [Patterson]’s conviction.”       Decision, Order & Entry

Dismissing Def.’s Mot. to Withdraw Plea 9, Jan. 5, 2017. Additionally, the court indicated

that if it had jurisdiction, then it would have overruled the motion because Patterson failed

to authenticate the new evidence; because the new evidence itself was improper; and

because the evidence existed “several months before [Patterson] entered his guilty

plea[s],” meaning that he failed to “exercise[] due diligence in discovering [the] evidence”

before electing to plead guilty. Id. at 10. Patterson’s instant appeal timely followed on

January 23, 2017.

                                        II. Analysis

       {¶ 8} For his sole assignment of error, Patterson contends that:

              THE COURT ABUSED ITS DISCRETION WHEN IT DENIED

       APPELLANT’S AS [sic] A RESULT OF COUNSEL’S INEFFECTIVENESS

       TO INVESTIGATE THE PLEA BARGAIN[.]

       {¶ 9} In the first of his two opening briefs, Patterson argues that he should be

permitted to withdraw his pleas because his original defense counsel improperly failed to

inform him of a plea agreement proposed by the State that would have been more

favorable than the agreement into which he actually entered. See Appellant’s Br. 4-5, 8,

10-12 and 15. In the second of his two opening briefs, Patterson adds that he also

should be permitted to withdraw his pleas because his original defense counsel “was
                                                                                              -5-

wholly ineffective for fail[ing] to investigate the entirety of the case in chief.” 3        See

Appellant’s Supplemental Br. 4. Neither of these arguments has merit.

       {¶ 10} Patterson has already brought a direct appeal from his convictions in Case

No. CA 26015. State v. Patterson, 2d Dist. Montgomery No. 26015, 2014-Ohio-4962, ¶

1. In that case, Patterson advanced two assignments of error, contending that: (1) “the

trial court erred in denying his pre-sentence motion to withdraw [his] guilty plea[s]”; and

(2) “ineffective assistance of counsel rendered [his] plea[s] unknowing, unintelligent, and

involuntary.” Id. at ¶ 2. Consequently, we concur with the trial court’s determination

that it lacked jurisdiction to entertain Patterson’s March 30, 2016, motion to withdraw plea.

Decision, Order & Entry Overruling Def.’s Mot. to Withdraw Plea 9.

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

Ohio St.2d 94, 97, 378 N.E.2d 162 (1978), the Ohio Supreme Court held as follows with

respect to motions under Crim.R. 32.1:

              [A] trial court * * * retain[s] jurisdiction [only] over issues not

       inconsistent with that of [an] appellate court to review, affirm, modify, or

       reverse [an] appealed judgment, such as * * * collateral issues like

       contempt, appointment of a receiver and injunction. However, [when a]

       trial court’s [decision] granting [a] motion to withdraw [a] guilty plea * * * [is]

       inconsistent with [a] judgment of [an appellate court] affirming the * * *

       conviction premised upon the guilty plea, [t]he judgment of the [appellate]



3 On July 10, 2017, Patterson submitted a “supplemental brief” without seeking leave.
Although the Rules of Appellate Procedure do not address the propriety of such a filing,
the State addressed Patterson’s additional arguments and did not move to have the brief
stricken.
                                                                                           -6-


       court is controlling upon the [trial] court as to all matters within the compass

       of the [appellate court’s] judgment.

The Court held further that “Crim.R. 32.1 does not vest jurisdiction in [a] trial court to

maintain and determine a motion to withdraw [a] guilty plea subsequent to an appeal and

an affirmance by the appellate court.” Id. Thus, the trial court found correctly that it

lacked jurisdiction to entertain Patterson’s motion of March 30, 2016, given that this court

has already affirmed Patterson’s convictions. Patterson, 2014-Ohio-4962, ¶ 1-2 and 22;

Decision, Order & Entry Overruling Def.’s Mot. to Withdraw Plea 9.                Patterson’s

assignment of error is overruled.

                                      III. Conclusion

       {¶ 12} Patterson’s assignment of error lacks merit. Therefore, the trial court’s

decision of January 5, 2017, is affirmed.



                                      .............



WELBAUM, P.J. and DONOVAN, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Troy Patterson
Hon. Mary Katherine Huffman
