[Cite as State v. Brown, 2016-Ohio-1066.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

JESS R. BROWN 

 Appellant 

C.A. No. 27749 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 2005 12 4604 

DECISION AND JOURNAL ENTRY 

Dated: March 16, 2016 

 

WHITMORE, Judge. 

{¶1} Defendant-Appellant, Jess Brown, appeals from the judgment of the Summit 

County Court of Common Pleas. This Court affirms. 

I 

{¶2} This is Brown’s third appeal before this Court. In 2006, Brown incurred his 19th 

charge for operating a vehicle while under the influence of drugs or alcohol (“OVI”). While out 

on bond, Brown yet again drove while under the influence and collided with another driver, 

thereby incurring his 20th OVI charge and several other offenses. Brown came before the court 

with counsel and pleaded guilty to multiple counts, including several OVI counts and counts for 

driving under suspension. Before his scheduled sentencing hearing, however, Brown filed a pro 

se motion to withdraw his plea. The court allowed him to argue the motion at his sentencing 

hearing, but ultimately denied the motion and sentenced him to 161⁄2 years in prison. On appeal, 
2 

 

this Court affirmed the trial court’s judgment. See State v. Brown (“Brown I”), 9th Dist. Summit 

No. 23759, 2007-Ohio-7028. 

{¶3} Subsequently, Brown filed a motion to vacate his sentence due to an error in the 

imposition of his post-release control. He also filed a motion to withdraw his plea. The court 

held a hearing on his motion to withdraw, but concluded that it was meritless. The court 

resentenced Brown, and Brown once again appealed from the court’s judgment. This Court 

affirmed on the basis that the trial court lacked jurisdiction to grant Brown’s successive motion 

to withdraw his plea. See State v. Brown (“Brown II”), 9th Dist. Summit Nos. 25353 & 25355, 

2011-Ohio-1043, ¶ 7-9, citing State ex rel. Special Prosecutors v. Judges, Court of Common 

Pleas, 55 Ohio St.2d 94, 97-98 (1978). We also noted that, due to Brown’s prior appeal, his 

arguments were barred by res judicata. Brown II at ¶ 6. 

{¶4} In 2014, Brown filed another motion to withdraw his plea. He argued that his 

trial counsel was ineffective and his plea was not knowingly, voluntarily, and intelligently 

entered because, at the time he entered it, his speedy trial time had expired. The State opposed 

his motion, and, upon review, the trial court denied it. Brown did not appeal. 

{¶5} In 2015, Brown filed another motion to withdraw his plea. He once again argued 

that his trial counsel was ineffective and his plea was not knowingly, voluntarily, and 

intelligently entered because, at the time he entered it, his speedy trial time had expired. The 

State once again opposed his motion, and, upon review, the trial court once again denied it. 

{¶6} Brown now appeals from the court’s judgment and raises two assignments of 

error for our review. For ease of analysis, we consolidate his assignments of error. 
3 

 

II 

Assignment of Error Number One 

TRIAL COURT ABUSED IT’S (sic) DISCRETION TO THE PREJUDICE OF 

DEFENDANT-APPELLANT UNDER THE PARTICULAR FACTS AND 

CIRCUMSTANCES OF HIS CASE WHEN THE TRIAL COURT DENIED 

HIM FAIR PROCESS AND THE OPPORTUNITY TO COMPLY WITH THE 

STATES (sic) PROCEDURES AND OBTAIN AN ADJUDICATION ON THE 

MERITS OF HIS CLAIMS IN CONTRAVENTION OF THE FIFTH, SIXTH 

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO 

CONSTITUTION. 

Assignment of Error Number Two 

TRIAL COURT ABUSED ITS DESCRETION (sic) TO THE PREJUDICE OF 

D-A (sic) BY FAILING TO HOLD AN EVIDENTIARY HEARING ON D-A’S 

(sic) POST-SENTENCE MOTION TO WITHDRAW PLEAS BASED ON HIS 

AFFIDAVIT OF FACTS AND PREJUDICE SHOWING A MANIFEST 

INJUSTICE. 

{¶7} In his assignments of error, Brown argues that the court erred when it deprived 

him of a merits review on his motion to withdraw and denied his motion without holding a 

hearing. We disagree. 

{¶8} As this Court explained in Brown’s second appeal, 

[Rule] 32.1 [of Ohio Rules of Criminal Procedure] 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 [Rule] 

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. 

Brown II, 2011-Ohio-1043, at ¶ 7, quoting State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio3831, ¶ 61, quoting State ex rel. Special Prosecutors, 55 Ohio St.2d at 97-98. “Moreover, the 

Supreme Court has held that ‘[r]es judicata bars the assertion of claims against a valid, final 
4 

 

judgment of conviction that have been raised or could have been raised on appeal.’” State v. 

Robertson, 9th Dist. Medina No. 12CA0094-M, 2013-Ohio-4556, ¶ 8, quoting Ketterer at ¶ 59. 

{¶9} Brown has had two prior direct appeals, both of which resulted in affirmances. 

Accordingly, pursuant to Special Prosecutors, the trial court lacked jurisdiction to consider 

Brown’s latest motion to withdraw his plea. See Brown II at ¶ 7. Accord State v. Calhoun, 9th 

Dist. Summit No. 27059, 2014-Ohio-2628, ¶ 5-6. Further, the speedy trial and related 

ineffective assistance of counsel issues that Brown raised in his fourth motion to withdraw were 

issues that he could have raised on direct appeal. As such, his arguments also were barred by the 

doctrine of res judicata. See Brown II at ¶ 8; Calhoun at ¶ 7-8. Because the trial court lacked 

jurisdiction over Brown’s motion and his arguments were barred by res judicata, the court did 

not err by denying his motion without holding a hearing. See, e.g., State v. Stepler, 9th Dist. 

Summit No. 23354, 2006-Ohio-6913, ¶ 16. Brown’s assignments of error are overruled. 

III 

{¶10} Brown’s assignments of error are overruled. 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. 
5 

 

 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. 

 

 BETH WHITMORE 

 FOR THE COURT 

HENSAL, P. J. 

MOORE, J. 

CONCUR. 

APPEARANCES: 

JESS R. BROWN, pro se, Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellee.