[Cite as State v. Williams, 2015-Ohio-4553.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2015AP060030
MARK A. WILLIAMS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the New Philadelphia
Municipal Court, Trial Court No.
CRB 11 00413
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 29, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
New Philadelphia Prosecutor's Office MARK A. WILLIAMS, PRO SE
150 East High Avenue 484 2nd Dr. N.E.
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2015AP060030 2
Hoffman, P.J.
{¶1} Defendant-appellant Mark A. Williams appeals the June 10, 2015
Judgment Entry entered by the New Philadelphia Municipal Court denying his motion for
new trial. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant was charged with violating the terms of a protection order (R.C.
2919.27) in the New Philadelphia Municipal Court. The trial court appointed a Special
Prosecutor to represent the state of Ohio in prosecuting the case.
{¶3} On July 24, 2012, Appellant entered a plea of guilty to the charge, and the
trial court imposed sentence.
{¶4} Appellant moved to withdraw his plea on September 7, 2012. Via
Judgment Entry of April 1, 2013, the trial court denied his motion to withdraw plea.
{¶5} Appellant filed a notice of appeal from the trial court's denial of his motion
to withdraw his plea of guilty.
{¶6} Via Opinion and Judgment Entry of December 26, 2014, this Court
affirmed the judgment of the New Philadelphia Municipal Court denying Appellant's
motion to withdraw plea.
{¶7} On May 5, 2014, Appellant filed a motion for new trial. The trial court
denied the motion via Judgment Entry of June 10, 2015.
{¶8} Appellant appeals, assigning as error,
{¶9} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING
SPECIAL PROSECUTOR RON COLLINS TO PROSECUTE THE CASE, CREATING
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Tuscarawas County, Case No. 2015AP060030 3
THE SAME CONFLICT OF INTEREST THAT THE COURT SET OUT TO AVOID IN
REMOVING DOUGLAS JACKSON. MR. COLLINS WAS NOT AN INDEPENDENT
PROSECUTOR.
{¶10} "II. THE PROSECUTOR DID ENGAGE [SIC] MISCONDUCT BY
VIOLATING BRADY V. MARYLAND IN NOT DISCLOSING EXCULPATORY
EVIDENCE WHICH HE IS REQUIRED TO GIVE.
{¶11} "III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANTS
MOTION TO CONTINUE PRIOR TO THE DATE OF TRIAL.
{¶12} "IV. THE TRIAL COURT ERRED IN DENYING THE DEFENDANTS'
MOTION TO VACATE A PLEA ON THE GROUNDS OF INEFFECTIVE ASSISTANCE
OF COUNSEL."
I, II, III, and IV
{¶13} We will address Appellant's assigned errors together, as their disposition
is governed by the same legal principal.
{¶14} The trial court herein denied Appellant's motion for new trial finding
Appellant was not entitled to a new trial because he never went to trial originally.
Appellant entered a plea of guilty pursuant to Criminal Rule 11(F),following a negotiated
plea.
{¶15} Ohio Criminal Rule 33 governs motions for a new trial,
A new trial may be granted on motion of the defendant for any of
the following causes affecting materially his substantial rights:
Tuscarawas County, Case No. 2015AP060030 4
(1) Irregularity in the proceedings, or in any order or ruling of the
court, or abuse of discretion by the court, because of which the defendant
was prevented from having a fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses
for the state;
(3) Accident or surprise which ordinary prudence could not have
guarded against;
(4) That the verdict is not sustained by sufficient evidence or is
contrary to law. If the evidence shows the defendant is not guilty of the
degree of crime for which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify the
verdict or finding accordingly, without granting or ordering a new trial, and
shall pass sentence on such verdict or finding as modified;
(5) Error of law occurring at the trial;
(6) When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at the
hearing on the motion, in support thereof, the affidavits of the witnesses by
whom such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing
of the motion for such length of time as is reasonable under all the
Tuscarawas County, Case No. 2015AP060030 5
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.
(B) Motion for new trial; form, time
Application for a new trial shall be made by motion which, except
for the cause of newly discovered evidence, shall be filed within fourteen
days after the verdict was rendered, or the decision of the court where a
trial by jury has been waived, unless it is made to appear by clear and
convincing proof that the defendant was unavoidably prevented from filing
his motion for a new trial, in which case the motion shall be filed within
seven days from the order of the court finding that the defendant was
unavoidably prevented from filing such motion within the time provided
herein.
Motions for new trial on account of newly discovered evidence shall
be filed within one hundred twenty days after the day upon which the
verdict was rendered, or the decision of the court where trial by jury has
been waived. If it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the evidence
upon which he must rely, such motion shall be filed within seven days
from an order of the court finding that he was unavoidably prevented from
discovering the evidence within the one hundred twenty day period.
{¶16} Appellant's arguments are barred under the doctrine of res judicata. State
v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry court explained the
doctrine as follows: “Under the doctrine of res judicata, a final judgment of conviction
Tuscarawas County, Case No. 2015AP060030 6
bars the convicted defendant from raising and litigating in any proceeding, except an
appeal from that judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial which resulted in that
judgment of conviction or on an appeal from that judgment.” Id.
{¶17} Appellant's arguments herein could have been or were raised on direct
appeal from the trial court's sentencing entry and/or on appeal from the denial of
Appellant's first motion to withdraw his guilty plea.We find res judicata applies. State v.
Jones, 5th Dist. No. 12CA22, 2012–Ohio–4957, ¶ 23. Pursuant to Ohio Criminal Rule
33, Appellant is not entitled to a new trial, and the doctrine of res judicata bars
Appellant's arguments raised on appeal.
{¶18} The June 10, 2015 Judgment Entry of the New Philadelphia Municipal
Court denying Appellant's motion for new trial is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur