State v. O'Neal

[Cite as State v. O'Neal, 2012-Ohio-3442.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26119
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEVEN J. O'NEAL COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 98 02 0316(B)
DECISION AND JOURNAL ENTRY
Dated: August 1, 2012
BELFANCE, Judge.
{¶1} Steven O’Neal appeals the trial court’s denial of his motion to withdraw his guilty
plea. For the reasons set forth below, we affirm.
I.
{¶2} In 1998, Mr. O’Neal was indicted for attempted aggravated murder and felonious
assault, each with an underlying firearm specification. Mr. O’Neal subsequently pleaded guilty
to felonious assault and the underlying firearm specification, and the State dismissed the
attempted aggravated murder charge. The trial court sentenced Mr. O’Neal to an aggregate
prison-term of nine years and ordered both terms be served consecutive to his federal prison
sentence. Mr. O’Neal appealed, alleging that his plea was not voluntary, knowing, and
intelligent, that he had received ineffective assistance of counsel, and that the trial court failed to
follow the sentencing guidelines. See State v. O’Neal, 9th Dist. No. 19255, 1999 WL 771917,
*1-3 (Sept. 29, 1999). This Court affirmed his convictions. Id. at *1.
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{¶3} Mr. O’Neal filed a motion to correct the record in January 2011, in which he
alleged that the trial court had not intended to run his sentences consecutive to his federal
sentences. He subsequently filed a motion to withdraw his guilty plea in August 2011, alleging
that his plea was not voluntary because the trial court had not informed him that he would be
subject to post-release control upon his release. The trial court overruled his motion to withdraw
his guilty plea, and Mr. O’Neal has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
TO WITHDRAW GUILTY PLEA BECAUSE HE WAS NOT NOTIFIED OF
POST RELEASE CONTROL AND BECAUSE PRIOR TO HIS PLEA HE WAS
TOLD THAT HIS FEDERAL AND STATE INCARCERATION WOULD BE
RUN CONCURRENT BUT RESULTED IN A CONSECUTIVE FEE (sic).
{¶4} Mr. O’Neal argues that the trial court did not inform him that he would be subject
to post-release control, and, therefore, he must be allowed to withdraw his plea under State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509. He also asserts that he should be allowed to
withdraw his plea because he was unaware that the trial court would run his sentence consecutive
to his federal sentence. However, Mr. O’Neal develops no argument on the latter point, and this
Court will not create one for him. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. No.
18349, 1998 WL 224934, *8 (May 6, 1998). Accordingly, we confine ourselves to Mr. O’Neal’s
arguments regarding the post-release control notification.
{¶5} In Mr. O’Neal’s prior appeal, he asserted that the trial court failed to follow
Crim.R. 11 in accepting his guilty plea. See O’Neal, 1999 WL 771917, *1. “The judgment of
the reviewing court is controlling upon the lower court as to all matters within the compass of the
judgment.” State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d
3
94, 97 (1978). A trial court loses its jurisdiction when an appeal is taken and does not regain
jurisdiction absent a remand. Id.Crim.R. 32.1 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. * * * [I]t 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.
Id. at 97-98. This Court has applied Special Prosecutors when a defendant has challenged the
legitimacy of his plea in a prior appeal. See, e.g., State v. Coleman, 9th Dist. No. 11CA0070-M,
2012-Ohio-2847, ¶ 11. Thus, as this Court had considered and decided Mr. O’Neal’s challenge
to his plea, the trial court was without jurisdiction to grant Mr. O’Neal’s motion to withdraw his
plea. See id. See also State v. Molnar, 9th Dist. No. 25267, 2011-Ohio-3799, ¶ 30 (Belfance, J.,
concurring in judgment only) (The holding in Special Prosecutors applies “if an appellate court
has already considered and decided the issue.”).
{¶6} Accordingly, Mr. O’Neal’s assignment of error is overruled.
III.
{¶7} Mr. O’Neal’s assignment of error is overruled, and 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.
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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.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
JANA DELOACH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.