State v. Coleman ( 2012 )


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  • [Cite as State v. Coleman, 
    2012-Ohio-2847
    .]
    STATE OF OHIO                    )                    IN THE COURT OF APPEALS
    )ss:                 NINTH JUDICIAL DISTRICT
    COUNTY OF MEDINA                 )
    STATE OF OHIO                                         C.A. No.       11CA0070-M
    Appellee
    v.                                            APPEAL FROM JUDGMENT
    ENTERED IN THE
    DELVON K. COLEMAN                                     COURT OF COMMON PLEAS
    COUNTY OF MEDINA, OHIO
    Appellant                                     CASE No.   04CR0072
    DECISION AND JOURNAL ENTRY
    Dated: June 25, 2012
    CARR, Judge.
    {¶1}    Appellant, Delvon Coleman, appeals the judgment of the Medina County Court of
    Common Pleas. This Court affirms.
    I.
    {¶2}    On February 20, 2004, the Medina County Grand Jury indicted Coleman on one
    count of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(f), a felony of the first
    degree with a major drug offender specification and a firearm specification; one count of
    possession of marijuana in violation of R.C. 2925.11(A)(C)(3)(c), a felony of fifth degree; one
    count of possession of criminal tools in violation of R.C. 2923.24, a felony of the fifth degree;
    and two forfeiture specifications relating to a car and cash. After initially pleading not guilty to
    the charges at arraignment, Coleman appeared before the trial court on January 3, 2005, to enter
    pleas of no contest to the charges of possession of cocaine with a major drug offender
    specification, possession of marijuana, and possession of criminal tools with the two forfeiture
    2
    specifications. The trial court accepted Coleman’s pleas, found him guilty, and sentenced him to
    a total term of ten years imprisonment. Coleman appealed to this Court and argued, among other
    things, that his plea of no contest to possession of cocaine with a major drug offender
    specification was not knowing, voluntary, and intelligent because the trial court did not inform
    him of the mandatory penalty associated with a plea. On October 16, 2006, the Court affirmed
    Coleman’s convictions. State v. Coleman, 9th Dist. No. 05CA0074-M, 
    2006-Ohio-5363
    .
    {¶3}    On October 26, 2005, Coleman filed a pro se motion to withdraw his plea. The
    State responded in opposition to the motion on November 10, 2005. More than a year later, on
    December 13, 2006, Coleman supplemented his motion to withdraw his plea. Also on December
    13, 2006, Coleman filed a pro se petition for post-conviction relief. In support of his petition,
    Coleman argued (1) that he was not guilty of the charges to which he pled; (2) that defense
    counsel was incompetent; (3) that he was not informed of the mandatory penalty associated with
    the charges; (4) that he did not understand he was giving up his right to a jury trial; and (5) that
    the search that led to his arrest was improper. The trial court issued separate journal entries on
    March 14, 2007, in which it denied both the motion to withdraw as well as the petition for post-
    conviction relief.
    {¶4}    On October 14, 2009, Coleman filed a pro se “petition to vacate or set aside void
    sentence” pursuant to R.C. 2953.21. In support of his petition, Coleman again argued that he
    should be permitted to withdraw his pleas pursuant to Crim.R. 32.1 because the trial court failed
    to inform him of the mandatory sentence associated with his plea. Coleman further stated that he
    needed the assistance of an attorney in order to produce evidence in support of his claim. On
    July 13, 2010, Coleman filed a separate motion for appointment of counsel. After a hearing on
    July 30, 2010, the trial court appointed counsel to represent Coleman for the purposes of his
    3
    post-conviction petition. On August 25, 2010, counsel for Coleman filed a notice of appeal from
    the “hearing for post-conviction relief, on July 30, 2010.” On October 22, 2010, counsel filed a
    motion to withdraw his appeal with this Court on the basis that it was premature. This Court
    issued a journal entry dismissing the appeal on November 23, 2010.
    {¶5}    After a hearing on December 17, 2010, Coleman’s attorney was dismissed as
    counsel of record. The trial court subsequently issued a journal entry appointing a different
    attorney to represent Coleman “in post-conviction motions.” On April 6, 2011, Coleman filed a
    “post-conviction petition” in which he argued that the trial court failed to comply with Crim.R.
    11(C) at his plea colloquy. Coleman relied on Crim.R. 32.1 in support of his position that he
    should be permitted to withdraw his plea to correct a manifest injustice. The State filed a brief in
    opposition on May 3, 2011. On May 18, 2011, the trial court issued a journal entry indicating
    that the motion was denied.
    {¶6}    Coleman filed a notice of appeal on June 17, 2011. On appeal, he raises one
    assignment of error.
    II.
    ASSIGNMENT OF ERROR
    THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT
    DENIED COLEMAN’S PETITION TO WITHDRAW HIS FORMER PLEA OF
    NO CONTEST TO THE CHARGES IN THE INDICTMENT IN ORDER TO
    CORRECT A MANIFEST INJUSTICE.
    {¶7}    In his sole assignment of error, Coleman argues that the trial court erred and
    abused its discretion in denying his petition to withdraw his former plea of no contest. This
    Court disagrees.
    {¶8}    In support of his assignment of error, Coleman argues that the trial court should
    have set aside his judgment of conviction and permitted him to withdraw his plea to correct a
    4
    manifest injustice pursuant to Crim.R. 32.1. Coleman’s position is premised on his assertion that
    his plea colloquy did not comport with the requirements of Crim.R. 11(C) because the trial court
    failed to adequately ensure that he understood the maximum penalty he faced; that he would
    serve a mandatory sentence; and that he understood the effect of his plea of no contest.
    {¶9}    Crim.R. 32.1, which governs the withdrawal of a guilty plea, states:
    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.
    {¶10} The Supreme Court of Ohio 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
    , at ¶ 59, citing State v.
    Perry, 
    10 Ohio St.2d 175
     (1967), paragraph nine of the syllabus. “This prohibition extends to
    claims made in support of motions to withdraw a plea.” State v. Brown, 9th Dist. Nos. 25353
    and 25355, 
    2011-Ohio-1043
    , ¶ 6, citing Ketterer at ¶ 59. Moreover, the Supreme Court has held,
    “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. While Crim.R. 32.1 apparently enlarges the
    power of the trial court over its judgments without respect to the running of the
    court term, it 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.”
    State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 
    55 Ohio St.2d 94
    , 97-98.
    {¶11} Coleman has attempted to challenge the validity of his plea colloquy through a
    variety of avenues since the time of his conviction. On direct appeal, Coleman assigned as error
    that the trial court had failed to adequately advise him of the mandatory penalty associated with
    his plea. This Court rejected Coleman’s argument and affirmed his convictions, specifically
    5
    concluding that “[b]ased upon our review of the plea hearing, the trial court did not err in
    administering and accepting [Coleman’s] plea.” Coleman at ¶ 17. Immediately following his
    appeal, Coleman filed a petition for post-conviction relief where he advanced a variety of
    arguments, including that he was unaware of the maximum penalty associated with entering his
    plea. His petition was denied by the trial court. While Coleman’s current motion was styled a
    “post-conviction petition,” his substantive argument was not couched within the parameters of
    R.C. 2953.21. Instead, Coleman again challenged the validity of his plea colloquy and argued
    that the trial court should set aside his judgment of conviction and permit him to withdraw his
    plea pursuant to Crim.R. 32.1. Pursuant to Special Prosecutors, 55 Ohio St.2d at 97-98, the trial
    court did not have authority to grant Coleman’s motion to withdraw his plea on the basis of a
    deficient plea colloquy because that issue had already been addressed on direct appeal.
    Moreover, as Coleman has previously raised issues relating to the validity of his plea colloquy on
    numerous occasions, he is now barred from raising those issues under the doctrine of res
    judicata. Ketterer at ¶ 59. To the extent that Coleman’s motion might be construed as a petition
    for post-conviction relief, it was an untimely petition and Coleman failed to demonstrate that he
    was unavoidably prevented from discovering the facts necessary to support his claim pursuant to
    R.C. 2953.23(A)(1)(a).     Thus, the trial court did not err in denying Coleman’s motion.
    Accordingly, Coleman’s assignment of error is overruled.
    III.
    {¶12} Coleman’s assignment of error is overruled. The judgment of the Medina County
    Court of Common Pleas is affirmed.
    6
    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 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.
    DONNA J. CARR
    FOR THE COURT
    WHITMORE, P. J.
    CONCURS.
    BELFANCE, J.
    CONCURS IN JUDGMENT ONLY.
    APPEARANCES:
    MICHAEL J. ASH, Attorney at Law, for Appellant.
    DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
    Attorney, for Appellee.
    

Document Info

Docket Number: 11CA0070-M

Judges: Carr

Filed Date: 6/25/2012

Precedential Status: Precedential

Modified Date: 10/30/2014