State v. Robertson ( 2013 )

[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.
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{¶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.
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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.
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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.
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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.