State v. Wilson

[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
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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.
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{¶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,
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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,
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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
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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
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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
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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.