[Cite as State v. McFarland,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24418

v. : T.C. NO. 08CR4486

ALFRED D. McFARLAND : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 17th day of May , 2013.

..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

R. JASON HOWARD, Atty. Reg. No. 0074662, 4130 Lindon Avenue, Claypool Bldg., Suite 304, Dayton, Ohio 45432 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Alfred D. McFarland appeals a decision of the 2

Montgomery County Court of Common Pleas, Criminal Division, overruling his motion to

withdraw his no contest pleas to one count of rape, in violation of R.C. 2907.02(A)(2), a

felony of the first degree, and one count of gross sexual imposition (GSI), in violation of

R.C. 2907.05(A)(4), a felony of the third degree. McFarland filed a timely notice of appeal

with this Court on January 4, 2011.

{¶ 2} We set forth the history of the case in State v. McFarland, 2d Dist.

Montgomery No. 23411,

(hereinafter McFarland I) and repeat it herein in

pertinent part:

Detective Phillip Olinger of the Special Assault Unit of the Dayton

Police Department was the State’s sole witness at the suppression hearing.

His testimony established the following facts:

On November 17, 2008, Detective Olinger was called to McFarland’s

residence in Dayton on a report that McFarland, who was 52 years old, had

raped his nine-year-old step-daughter. When Olinger arrived at the

residence, several other officers were already present and McFarland was

standing on the porch. Olinger had met McFarland a couple of months

before during a theft investigation. Olinger asked McFarland if they could

go into the residence and talk privately. McFarland agreed, and the two went

into the kitchen. Olinger advised McFarland of the allegation and asked for

consent to search the house. McFarland gave his permission. Olinger read

a consent to search form to McFarland; McFarland indicated that he

understood the form and signed it. Olinger did not see any indication that 3

McFarland was under the influence of drugs or alcohol.

After McFarland gave consent to search the house, Olinger asked

McFarland if he could interview him (McFarland) at the police station.

McFarland agreed. Olinger had another officer transport McFarland to the

detective section of the police station located at 335 West Third Street.

Olinger testified that McFarland “consensually went with the police” and he

was not under arrest. Olinger stayed at the residence and obtained

information from other officers and family members who were there.

When Olinger arrived at the police station, he greeted McFarland in

an interview room, shook his hand, asked him if he needed anything to eat or

drink and if he needed to use the bathroom or the telephone, and provided

him with a cup of water. Olinger did not have a weapon when he went into

the room. Olinger asked McFarland about his education and if he could read

and write. McFarland responded that he had an eighth grade education and

could read and write, but not very well. Because of McFarland’s answer,

Olinger went “a little slower” to make sure that McFarland understood

everything. McFarland also said that he had a driver’s license.

Olinger reviewed McFarland’s constitutional rights with him using a

pre-interview form. The interview form was dated November 17, 2008, at

6:40 p.m. Olinger advised McFarland that he was being interviewed

regarding the crime of rape, and the detective wrote “rape” on the form.

Olinger then read each of the rights to McFarland; McFarland indicated that 4

he understood his rights. McFarland initialed each of the rights, wrote in his

years of education, and signed the form. Olinger also signed the form.

Olinger stated that he spent five to ten minutes reviewing the form with

McFarland.

McFarland was cooperative during the interview and did not ask to

stop the interview. At several points, Olinger left the interview room to

gather additional information; one break lasted approximately 40 minutes.

Every time Olinger left, he asked if McFarland needed anything, and upon

returning, Olinger always asked if the interview could continue; McFarland

stated that it could. Olinger checked on McFarland several times.

Toward the end of the interview, Olinger asked McFarland if he

would make a written statement. McFarland declined. Olinger asked

McFarland if he would write answers if the detective wrote out a couple of

questions. McFarland agreed. Olinger left the room and wrote four

questions. Upon returning, he asked McFarland if he could read the

questions; McFarland indicated that he could read the detective’s writing.

McFarland told Olinger the answers, wrote the answers (“yes” or “no”),

initialed by his answers, and signed the paper. At the conclusion of the

interview, Olinger took a saliva DNA sample from McFarland.

Olinger denied that he had made any threats or promises to McFarland

during the interview. Olinger further stated that a female officer who had

briefly entered the room also did not coerce McFarland in any way. Olinger 5

acknowledged that he told McFarland that he did not believe McFarland and

that McFarland needed to “tell [him] the truth.” The entire interview lasted

for approximately 95 minutes, including breaks totaling about 50 minutes.

The interview was not recorded. It is unclear whether McFarland was

arrested at the conclusion of the interview.

McFarland also testified at the suppression hearing. He testified that

he cannot read or write, and can only spell his name. McFarland agreed that

Olinger left the room three or four times. He testified, however, that Olinger

would return, saying, for example, “You need to answer me some questions,

because my boss, he’s much meaner than me.” McFarland denied that he

had written the answers to questions on the sheet of paper.

On cross-examination, McFarland agreed that he had signed a consent

to search form at his house, saying “they was going to get a search warrant

anyway. I didn’t have nothing to hide.” He acknowledged that Olinger read

the consent and pre-interview forms to him and that he understands when

someone reads something to him. McFarland also conceded that he had paid

attention to Olinger when the detective reviewed his rights with him and that

he had initialed and signed the form. Upon questioning by the court,

McFarland clarified that the detective had read his rights at the beginning of

the interview, but said he did not initial or sign the pre-interview form until

the end of the interview. McFarland stated that he was not under the

influence of drugs or alcohol and that Olinger offered water and an 6

opportunity to use the bathroom. He believed that the interview had lasted

approximately one and one-half hours. McFarland stated that he had told

Olinger, at some point during the interview, that he wanted the interview to

stop.

In December 2008, McFarland moved to suppress the statements that

he gave to the police, arguing that he did not knowingly, intelligently, and

voluntarily waive his rights under Miranda v. Arizona (1966),

,

,

, and that his statements were obtained as a

result of coercion by Olinger. A hearing on the motion was held on January

23, 2009.

At the conclusion of the hearing, the court orally overruled the

motion. The court found that, even taking into account McFarland’s

“difficulty with reading and writing, *** [i]t did not appear to the Court that

the Defendant has any kind of mental or intelligence deficiency other than the

ability to read and write. *** And I find that based on the weight of the

evidence that the Defendant was advised of his Miranda rights, that they were

read to him, and that he did make a waiver of those rights. And it’s clear to

the Court that the Defendant understood those rights. ***” The trial court

further found that the interview itself was not “in any way oppressive.” The

court did not consider statements by the detective such as “my boss doesn’t

believe you” to constitute the type of threats that would cause McFarland to

make involuntary statements. An entry overruling the motion to suppress 7

was filed on January 26, 2009.

In March 2009, McFarland pled no contest to one count of rape and

one count of gross sexual imposition. Eleven other counts were dismissed.1

The court sentenced him accordingly.

{¶ 3} On appeal, McFarland argued that the trial court erred when it overruled his

motion to suppress. McFarland also asserted that he received ineffective assistance of

counsel. We affirmed his conviction and sentence in McFarland I issued on May 28, 2010.

On September 22, 2010, McFarland filed a motion to withdraw his pleas. The trial court

overruled McFarland’s motion to withdraw in a decision issued on December 7, 2010.

McFarland’s appellate counsel filed an Anders brief in which he alleged there were no

meritorious issues for review. McFarland filed a pro se appellant brief on January 13, 2012,

in which he reiterated his claims of ineffective assistance of counsel. In an entry issued on

June 1, 2012, we found that one of his assigned errors had arguable merit and appointed new

counsel to represent him.

{¶ 4} In the instant appeal, McFarland contends that the trial court erred because it

failed to conduct a plea colloquy that substantially complied with Crim.R. 11. Specifically,

McFarland argues that the record establishes that the trial court failed to determine that he

waived his rights knowingly and voluntarily during the plea colloquy. In his second and

final assignment, McFarland argues that the he suffered a manifest injustice pursuant to

Crim. R. 32.1 when he pled no contest under duress because of ineffective assistance of

1 In exchange for the plea, the State dismissed one count of rape of a child under the age of thirteen, three counts of gross sexual imposition of a child less than thirteen, three counts of attempted rape of child less than thirteen, two counts of importuning, and two counts of public indecency. 8

counsel.

{¶ 5} Because they are interrelated, McFarland’s assignments of error will be

discussed together as follows:

{¶ 6} “THE LOWER COURT FAILED TO CONDUCT A PLEA COLLOQUY

THAT SUBSTANTIALLY COMPLIED WITH CRIMINAL RULE 11.”

{¶ 7} “THE COURT SHOULD PERMIT MCFARLAND TO WITHDRAW HIS

NO CONTEST PLEA TO CORRECT A MANIFEST INJUSTICE.”

{¶ 8} Initially, we note that in State ex rel. Special Prosecutors v. Judges, Court of

Common Pleas,

,

(1978), the Ohio Supreme Court

stated as follows:

[T]he trial court does retain jurisdiction over issues not inconsistent with that

of the appellate court to review, affirm, modify, or reverse the appealed

judgment, such as the collateral issues like contempt, appointment of a

receiver and injunction. However, *** [when] the trial court’s granting of

the motion to withdraw the guilty plea and the order to proceed with a new

trial [are] inconsistent with the judgment of the Court of Appeals affirming

the trial court’s conviction premised upon the guilty plea, [t]he judgment of

the reviewing court is controlling upon the lower court as to all matters within

the compass of the judgment.

{¶ 9} Accordingly, the trial court loses its jurisdiction when an appeal is taken, and

absent a remand, the trial court does not regain jurisdiction subsequent to the decision of the

court of appeals.

,

. “Furthermore, Crim.R. 32.1 does not vest 9

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.”

{¶ 10} In the instant case, McFarland pled no contest to rape and GSI on March 12, 2009.

The trial court accepted the plea, found McFarland guilty, and sentenced him on April 9,

2009. When McFarland’s conviction and sentence were affirmed by this Court in its

opinion issued May 28, 2010, the trial court subsequently lost jurisdiction to consider a

motion to withdraw his no contest plea. As in Special Prosecutors, the trial court lacked

jurisdiction to consider McFarland’s motion to withdraw his no contest plea which was filed

on September 22, 2010, approximately four months after we issued McFarland I in which

we affirmed his conviction and sentence on direct appeal. State v. Jackson, 2d Dist. Miami

No. 2000-CA-48,

(March 30, 2001).

{¶ 11} Significantly, in our prior decision affirming McFarland’s conviction and

sentence, we did not remand the case to the trial court. Instead, we simply affirmed the

conviction. Accordingly, under controlling authority, the trial court had no jurisdiction to

entertain McFarland’s motion to withdraw. As indicated by the Ohio Supreme Court,

granting a motion to withdraw would be inconsistent with our decision affirming the

conviction.

{¶ 12} Based on the above analysis, the first and second assignments of error are

overruled.

{¶ 13} All of McFarland’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

.......... [Cite as State v. McFarland,

.] FAIN, P.J. and WELBAUM, J., concur.

Copies mailed to:

Kirsten A. Brandt R. Jason Howard Hon. Mary Katherine Huffman