[Cite as State v. Davis,
2023-Ohio-910.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. Nos. 30202
30212
Appellant 30213
v.
DAQUAN M. DAVIS APPEAL FROM JUDGMENT
ENTERED IN THE
Appellee COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. CR 2013-12-3484-A
CR 2014-06-1723-B
CR 2014-09-2832
DECISION AND JOURNAL ENTRY
Dated: March 22, 2023
SUTTON, Presiding Judge.
{¶1} Plaintiff-Appellant, State of Ohio, appeals from the judgment of the Summit
County Court of Common Pleas. For the following reasons, this Court reverses.
I.
Relevant Background
{¶2} In State v. Davis, 9th Dist. Summit Nos. 27725, 27726, 27727, 2016-Ohio-1521, ¶
2-5, this Court set forth the relevant factual and procedural history as follows:
[Mr. Davis’s] convictions resulted from guilty pleas entered in three cases. On
January 12, 2014, an indictment was filed in Summit C.P. No. CR-2013-12-3484
charging [Mr. Davis] with numerous crimes involving drug trafficking, felonious
assault, and resisting arrest. [Mr. Davis] was assigned counsel and he pled not
guilty. While that case was pending, [Mr. Davis] was released on bond and capias
warrants were issued twice for his failure to appear at pretrials. Also while this case
was pending, [Mr. Davis] was indicted in two other cases. On June 26, 2014, an
indictment was filed in Summit C.P. No. CR-2014-06-1723 charging [Mr. Davis]
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with three counts involving drug possession. On October 2, 2014, an indictment
was filed in Summit C.P. No. CR-2014-09-2832 charging [Mr. Davis] with
numerous counts involving drug trafficking, felonious assault, and resisting arrest.
These cases resulted from criminal acts committed while [Mr.] Davis was out on
bond in the first case.
These three cases were consolidated for a single trial. On October 20, 2014, [Mr.
Davis’s] newly retained counsel entered a notice of appearance, replacing
appointed counsel. On November 19, 2014, counsel filed a motion to continue the
December 18, 2014 trial date. The trial court denied the motion on December 1,
2014. [Mr. Davis’s] counsel then filed a motion to sever, which the trial court
indicated was still under consideration at the last pretrial conference. On December
17, 2014, the day before trial, [Mr. Davis] agreed to retract his former not guilty
pleas and pled guilty to amended charges in the three cases as part of a plea
agreement offered by the [S]tate. Specifically, in CR-2013-12-3484, [Mr. Davis]
pled guilty to one first-degree felony count of drug trafficking, a violation of R.C.
2925.03(A) and (C)(4); one first-degree felony count of felonious assault, a
violation R.C. 2903.11(A)(2); one third-degree felony count of failure to comply
with the order or signal of a police officer, a violation of R.C. 2921.13(F); one fifth-degree felony count of drug possession, a violation of R.C. 2925.11(A) and (C)(6);
one fifth-degree felony count of receiving stolen property, a violation of
R.C.2913.51(A); and one second-degree misdemeanor count of resisting arrest, a
violation of R.C. 2921.33(A).
In CR-2014-06-1723, [Mr. Davis] pled guilty to one fifth-degree felony count of
deception to obtain a dangerous drug, a violation of R.C. 2925.22. Finally, in CR-
2014-09-2832, [Mr. Davis] pled guilty to one second-degree felony count of drug
trafficking, a violation of R.C. 2925.03(A) and (C)(6); one third-degree felony
count of failure to obey the order or signal of a police officer, a violation of R.C.
2921.31(B); and one second-degree misdemeanor count of resisting arrest, a
violation of R.C. 2921.33(A). As part of a plea agreement multiple charges were
dismissed in each case. [Mr. Davis] received an aggregate prison sentence of 14
years, 6 months.
[Mr. Davis’s] counsel filed a brief in compliance with [Anders v. California, 386
U.S. 738 (1967)], asserting that, after a review of the record, she was unable to find
any issues that might support an appeal. See Anders at 744. Counsel identified a
possible issue with allied offenses, but explained that two offenses in two casesresisting arrest and failure to obey the order or signal of a police officer-were not
allied in these cases as they resulted from different conduct. [Mr. Davis] filed a pro
se document in response wherein he argued, without specifically setting forth an
assignment of error, that the trial court should have granted a continuance.
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{¶3} Subsequent to this Court’s independent review of the record and proceedings, we
affirmed Mr. Davis’s convictions and sentence, explaining:
A review of the plea hearing transcript reveals that [Mr. Davis] was satisfied with
his attorney’s representation and never indicated any compulsion brought about by
the denial of his motion for continuance. In fact, he indicated he wanted to take
responsibility for his actions. Nothing in the record indicates that [Mr. Davis] did
not voluntarily enter[] his pleas in these cases. [Mr. Davis] claims that during a
pretrial his attorney stated that he was unprepared for trial, but this appears nowhere
in the record. There is nothing to support the argument made in [Mr. Davis’s] brief
that the trial court abused its discretion in denying his motion for a continuance.
Id. at ¶ 9.
{¶4} Following his direct appeal, Mr. Davis filed several pro se motions challenging his
guilty plea and length of sentence. The trial court denied all motions. Mr. Davis then hired counsel
to file a motion to withdraw his guilty pleas and, after a hearing on the matter, the trial court
granted Mr. Davis’s motion.
{¶5} The State now appeals raising a sole assignment of error for our review.1
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
ALLOWED [MR.] DAVIS TO WITHDRAW HIS GUILTY PLEAS.
{¶6} In its sole assignment of error, the State argues the trial court lacked jurisdiction to
consider Mr. Davis’s motion to withdraw his guilty pleas because Mr. Davis’s convictions and
sentence had already been affirmed on appeal by this Court. We agree.
{¶7} The Supreme Court of Ohio, in State ex rel. Special Prosecutors v. Judges, Court
of Common Pleas, 55 Ohio St.2d 94, 97 (1978), determined a trial court loses jurisdiction over a
1
Mr. Davis did not file an appellee’s merit brief in this matter.
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case when an appeal is taken and, absent a remand, does not regain jurisdiction subsequent to the
court of appeal’s decision. Further, the Special Prosecutors Court explained, even though the trial
court retains jurisdiction over issues not inconsistent with the jurisdiction of the court of appeals,
the granting of a motion to withdraw is “inconsistent with the judgment of the [c]ourt of [a]ppeals
affirming the trial court’s conviction premised upon the guilty plea.” Id.
{¶8} Additionally, the Supreme Court of Ohio stated Crim.R. 32.1 does not
independently “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.” Id. Moreover
“[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.
Thus, after a defendant’s convictions have been affirmed on appeal, a trial court has “no authority
to consider [a] motion to withdraw his guilty plea, let alone grant him a new trial.”
Ketterer at ¶
62.
{¶9} Here, Mr. Davis filed a direct appeal, in compliance with Anders, supra, wherein
his counsel brought to light a possible issue with allied offenses. Additionally, Mr. Davis filed a
pro se document wherein he challenged the trial court’s denial of a motion for continuance. This
Court independently reviewed the record and, in so doing, concluded “there are no appealable,
non-frivolous issues in this case.” Davis,
2016-Ohio-1521, at ¶ 10. The alleged issues Mr. Davis
now raises regarding the trial court’s use of the word “required” instead of “mandatory” in
addressing his maximum sentence during his plea colloquy could have been filed in his direct
appeal. Therefore, pursuant to Special Prosecutors and Ketterer, the trial court lost jurisdiction to
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consider Mr. Davis’s motion to withdraw his guilty pleas after this Court affirmed his convictions.
Accordingly, the trial court erred in granting Mr. Davis’s motion to withdraw his guilty pleas.
{¶10} Accordingly, the State’s sole assignment of error is sustained.
III.
{¶11} The State’s sole assignment of error is sustained. The judgment of the Summit
County Court of Common Pleas is reversed and the cause remanded for further proceedings
consistent with this decision.
Judgment reversed;
cause remanded.
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.
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 Appellee.
BETTY SUTTON
FOR THE COURT
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HENSAL, J.
CARR, J.
CONCUR.
APPEARANCES:
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellant.
ALAN M. MEDVICK, Attorney at Law, for Appellee.
