[Cite as Smith v. Buchanan, 138 Ohio St.3d 364, 2014-Ohio-459.]




            SMITH, APPELLANT, v. BUCHANAN, WARDEN, APPELLEE.
       [Cite as Smith v. Buchanan, 138 Ohio St.3d 364, 2014-Ohio-459.]
Habeas corpus—Res judicata and prior opportunity for appeal preclude relief—
        Judgment denying writ affirmed.
  (No. 2013-0696—Submitted October 18, 2013—Decided February 13, 2014.)
               APPEAL from the Court of Appeals for Noble County,
                          No. 13-NO-399, 2013-Ohio-1746.
                                  ________________
        Per Curiam.
        {¶ 1} General Smith appeals the denial of his habeas corpus petition.
We find that Smith’s claim is barred by res judicata and that even if it were not
barred, he has failed to show that he is entitled to habeas relief. For these reasons,
we affirm the judgment of the court of appeals.
The 2003 Case
        {¶ 2} On December 5, 2003, Smith pled guilty to aggravated robbery
with a firearm specification. As part of the plea agreement, the state voluntarily
dismissed several other counts in the indictment, including a charge of attempting
to possess a weapon while under disability. The trial court imposed a sentence of
nine years for the robbery and one year for the firearm specification, to be served
consecutively. State v. Smith, Franklin C.P. No. 03CR-3195 (Feb. 26, 2004). The
court gave Smith 86 days of jail-time credit.
        {¶ 3} Smith filed an appeal, in which he argued that the state violated his
speedy-trial rights. The Tenth District Court of Appeals affirmed the conviction.
State v. Smith, 10th Dist. Franklin No. 04AP-326 (Feb. 24, 2005). This court
declined jurisdiction. State v. Smith, 106 Ohio St.3d 1463, 2005-Ohio-3490, 830
N.E.2d 1170.
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       {¶ 4} Smith then filed a motion to withdraw his guilty plea. The parties
resolved the motion by agreement: Smith withdrew his guilty plea and instead
pled guilty to aggravated robbery without a firearm specification and to one count
of an attempt to have weapons while under a disability (a count that was
dismissed in the first plea agreement). Pursuant to the new agreement, the court
imposed a sentence of nine years on the first count and six months on the second,
again to run consecutively. In other words, the agreement decreased Smith’s
sentence by six months.
       {¶ 5} The trial court imposed the new sentence on December 6, 2007.
The judgment entry indicated that Smith now had 1,825 days of jail credit.
       {¶ 6} On December 1, 2008, the trial court granted Smith judicial release
and placed him on community control for two years.
The 2009 Case
       {¶ 7} Smith was subsequently indicted on four new charges. He pled
guilty to attempted felonious assault, and the trial court sentenced him to four
years in prison, to run consecutively to the sentence from the 2003 case. State v.
Smith, Franklin C.P. No. 09CR-2547 (Jan. 27, 2010). The trial court filed a
separate entry, revoking Smith’s community-control release in the 2003 case and
returning Smith to prison, with 2,312 days of jail credit. Smith, Franklin C.P. No.
03CR-3195 (Jan. 27, 2010).
       {¶ 8} Smith appealed. He challenged his guilty plea in the 2009 case on
a number of bases, which the Tenth District Court of Appeals rejected. State v.
Smith, 10th Dist. Franklin Nos. 10AP-143 and 10AP-144, 2010-Ohio-4744.
       {¶ 9} However, the appellate court found merit in one of Smith’s
assignments of error. Smith challenged the trial court’s calculation of his jail-
time credit when it revoked his community control. Id. at ¶ 28. He claimed that
he was entitled to an additional 154 days of credit. Id. The appellate court




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remanded for the trial court to recalculate Smith’s jail-time credit. Id. at ¶ 31.
The record does not indicate whether the recalculation was done.
       {¶ 10} Smith sought review in this court, but this court declined to accept
jurisdiction. State v. Smith, 127 Ohio St.3d 1536, 2011-Ohio-376, 940 N.E.2d
988.
Smith’s Habeas Corpus Action
       {¶ 11} Smith sought a writ of habeas corpus in the Seventh District Court
of Appeals, arguing that his 2007 plea and resentencing are void and that he is
therefore entitled to immediate release.     The appellate court denied the writ
because (1) Smith could not establish that he was entitled to immediate release
even if he prevailed on the merits of his legal argument and (2) Smith had already
pursued an adequate legal remedy to challenge the validity of his 2007 conviction
and, having been unsuccessful, could not use habeas corpus to try again. Smith v.
Buchanan, 7th Dist. Noble No. 13-NO-399, 2013-Ohio-1746, ¶ 9-11.
       {¶ 12} Smith timely appealed to this court.
       Legal Analysis
       {¶ 13} Smith’s claim is barred by res judicata. He has been litigating his
argument for years in multiple courts, and each time he loses in one forum, he
commences litigation on the same issue in another court.
       {¶ 14} In State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas, 55 Ohio St.2d 94, 378 N.E.2d 162 (1978), this court held that Crim.R. 32.1
does not vest jurisdiction in a trial court to grant a motion to withdraw a guilty
plea after the court of appeals has reviewed and affirmed the case. Based on
Special Prosecutors, Smith argues that the trial court had no jurisdiction to accept
his modified plea in 2007 or to resentence him.
       {¶ 15} The Franklin County Court of Common Pleas has considered and
rejected this argument twice. On February 3, 2011, Smith filed a motion to vacate
his 2007 sentence based on Special Prosecutors.        The trial court denied the




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motion. Smith, Franklin C.P. No. 03CR-3195 (Oct. 5, 2011). On May 22, 2012,
Smith filed a “common law motion to vacate void judgment” and again argued
the applicability of Special Prosecutors. And again the trial court denied the
motion. Smith, Franklin C.P. No. 03CR-3195 (June 14, 2012).
       {¶ 16} The Tenth District Court of Appeals has denied motions to vacate
Smith’s 2003 sentence based on Special Prosecutors at least three times: State v.
Smith, 10th Dist. Franklin Nos. 10AP-143 and 10AP-144 (Apr. 26, 2011), ¶ 3;
State v. Smith, 10th Dist. Franklin No. 10AP-143 (June 28, 2011); State v. Smith,
10th Dist. Franklin Nos. 12AP-532 and 12AP-533 (Mar. 19, 2013).
       {¶ 17} The Seventh District Court of Appeals has considered this
argument twice. In addition to the order from which Smith now appeals, that
court previously ruled against him on the Special Prosecutors argument in 2012,
stating that he had already challenged the validity of his 2007 conviction in an
appeal and thus could not relitigate its validity in a habeas corpus action. Smith v.
State, 7th Dist. Noble No. 11-NO-384, 2012-Ohio-1148, ¶ 11.
       {¶ 18} In addition to multiple appeals to this court, Smith has commenced
two prior original actions seeking writs of prohibition in this court, based on the
same legal theory. The first, Smith v. Sheward, 130 Ohio St.3d 1483, 2011-Ohio-
6277, 958 N.E.2d 175, he voluntarily dismissed. This court dismissed the second
case, Smith v. Sheward, 131 Ohio St.3d 1454, 2012-Ohio-648, 961 N.E.2d 1133,
on the merits. That dismissal operates as a judgment on the merits. See State ex
rel. O’Donnell v. Vogelgesang, 91 Ohio App.3d 585, 587-588, 632 N.E.2d 1367
(12th Dist.1993).
       {¶ 19} In its 2013 decision, the Tenth District Court of Appeals expressed
the view that “any further challenges to the validity of those judgments would
likely be frivolous in nature.” Smith, 10th Dist. Franklin Nos. 12AP-532 and
12AP-533, at ¶ 25. And in the order appealed from in this case, the Seventh




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District expressly commented that Smith already had multiple opportunities to
litigate his Special Prosecutors claim. Smith v. Buchanan, 2013-Ohio-1746, ¶ 11.
       {¶ 20} Smith has had ample opportunity to litigate this claim, and res
judicata now bars his latest attempt.
       {¶ 21} We affirm the judgment of the Seventh District Court of Appeals.
                                                             Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                          _________________________
       General Smith III, pro se.
       Michael DeWine, Attorney General, and Maura O’Neill Jaite, Assistant
Attorney General, for appellee.
                          _________________________




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