[Cite as State v. Kelly,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2013-01-020 Plaintiff-Appellee, : OPINION : 8/26/2013 - vs - :

OTIS M. KELLY, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2008-11-1918

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Otis M. Kelly, #A615475, London Correctional Institution, P.O. Box 69, London, Ohio 43140, defendant-appellant, pro se

S. POWELL, J.

{¶ 1} Defendant-appellant, Otis M. Kelly, appeals pro se from the Butler County Court

of Common Pleas decision denying his motion to withdraw his no contest plea. For the

reasons outlined below, we affirm.

{¶ 2} On November 5, 2008, Kelly was indicted on one count of trafficking in cocaine

and one count of possession of cocaine. Each charge also included a major-drug-offender Butler CA2013-01-020

specification and three forfeiture specifications. The charges stemmed from Kelly's

involvement in the transportation of seven kilos of cocaine from Chicago to the Butler County

area in conjunction with his co-defendant, Sudinia Johnson. The investigation into the

alleged drug trafficking began after officers from the Butler County Sheriff's Office received

word from several confidential informants that Johnson had recently sold several kilos of

cocaine and had arranged to pick up an additional seven to ten kilos of cocaine for sale and

distribution. After receiving this information, officers conducted a trash pull at Johnson's

home and placed a global-positioning system ("GPS") on Johnson's van.

{¶ 3} A few days later, the GPS unit placed on Johnson's van indicated the vehicle

was located at a shopping center near Chicago. After several unsuccessful attempts to

contact Chicago law enforcement, Rudy Medellin, the brother of a Butler County Sheriff's

Office employee and retired immigration and customs enforcement officer living in the

Chicago area, confirmed the van was located at the shopping center. Medellin then followed

the van to a nearby residence where he saw two men, later identified as Johnson and Kelly,

exit the van and enter the home.

{¶ 4} Shortly thereafter, Medellin saw Johnson exit the house carrying a box before

getting into the van and driving away. At that same time, Medellin also saw Kelly pull out of

the garage in a car displaying Ohio plates. Medellin then followed Johnson and Kelly as they

drove their separate vehicles from Chicago to Butler County. After entering Butler County,

both vehicles were stopped and Johnson and Kelly were arrested after officers located seven

kilos of cocaine in a hidden compartment within Kelly's vehicle. Kelly entered a plea of not

guilty to all charges.

{¶ 5} Prior to trial, Kelly filed a motion to suppress, claiming the traffic stop on his

vehicle was unlawful, that the stop was unreasonably long, and that the warrantless search of

the trunk was improper. Kelly also challenged the constitutionality of the placement of a GPS -2- Butler CA2013-01-020

unit on Johnson's van without a warrant. After a hearing on the matter, the trial court denied

Kelly's motion in its entirety.

{¶ 6} Following the denial of his motion to suppress, Kelly entered a no contest plea

to the pending charges and accompanying specifications. As a result of his no contest plea,

the trial court found Kelly guilty of all charges. The trial court then merged the charges into a

single count of cocaine possession and sentenced Kelly to an aggregate 11-year prison term.

The trial court also imposed a $10,000 fine and ordered the forfeiture of three vehicles.

{¶ 7} On October 8, 2009, Kelly, with the assistance of counsel, appealed from his

conviction arguing that the trial court erred in denying his motion to suppress. In support of

this claim, Kelly argued that the traffic stop was invalid because the police lacked reasonable

articulable suspicion justifying the stop, he was arrested without probable cause when

officers placed him in a cruiser during the search of his vehicle, and the length of the stop

was unreasonable. Kelly did not appeal from the trial court's decision finding the warrantless

placement of the GPS unit on Johnson's van was constitutionally permissible. This court

affirmed Kelly's conviction on August 2, 2010. See State v. Kelly,

,

(12th Dist.). It is undisputed that Kelly did not appeal from that decision to

the Ohio Supreme Court.

{¶ 8} Johnson was also indicted on single counts of trafficking in cocaine and

possession of cocaine along with several forfeiture specifications. In preparing his defense,

Johnson filed various motions to suppress. This included a challenge regarding the

constitutionality of attaching the GPS unit to his van without a warrant. The trial court denied

all of Johnson's motions. After his motions to suppress were denied, Johnson entered a no

contest plea and the trial court found him guilty. The trial court then merged the charges for

sentencing and ordered Johnson to serve an aggregate of 15 years in prison. Johnson was

also required to forfeit several vehicles, televisions, shoes, clothing, and a firearm, all of -3- Butler CA2013-01-020

which he admitted to purchasing with drug money.

{¶ 9} Like Kelly, Johnson also appealed from his conviction. See State v. Johnson,

,

(12th Dist.). As part of his appeal, Johnson alleged

the warrantless placement of the GPS unit on the van was unconstitutional. However, in

affirming Johnson's conviction, this court found that attaching a GPS unit to a car was not a

search under the Fourth Amendment, and therefore, did not require a search warrant. Unlike

Kelly, Johnson then appealed to the Ohio Supreme Court. The Ohio Supreme Court

accepted the case for review in State v. Johnson,

,

.

The matter was then held in abeyance while the United States Supreme Court also

considered the constitutionality of the use of GPS units under the Fourth Amendment.

{¶ 10} On January 23, 2012, and while the Johnson case was still pending, the United

States Supreme Court issued its decision in United States v. Jones, ___ U.S. ___,

(2012), which held the attachment of a GPS unit to a vehicle constitutes a search within

the meaning of the Fourth Amendment. In light of that holding, the Ohio Supreme Court

remanded Johnson to the trial court for application of the United States Supreme Court's

decision in Jones. See State v. Johnson,

,

.

{¶ 11} Prior to the United States Supreme Court's decision in Jones, and rather than

filing an appeal with the Ohio Supreme Court, Kelly filed an application for delayed

reconsideration arguing that this court lacked subject matter jurisdiction to consider his

appeal because his sentencing entry failed to correctly incorporate the consequences of

violating postrelease control. However, finding no error in his sentencing entry, this court

denied Kelly's motion for delayed reconsideration on October 19, 2010. State v. Kelly, 12th

Dist. Butler No. CA2009-10-252 (Oct. 19, 2010) (entry denying motion for delayed

reconsideration).

{¶ 12} Thereafter, on December 8, 2010, Kelly filed a petition for a writ of procedendo -4- Butler CA2013-01-020

with the Ohio Supreme Court. As part of this petition, Kelly once again argued that the trial

court erred in denying his motion to suppress as there was "no probable cause shown by

police for the search." This court responded to the writ by filing a motion to dismiss. Kelly

then moved for voluntary dismissal, claiming that he did not fully understand the correct

procedure for seeking a discretionary appeal. The Ohio Supreme Court granted Kelly's

motion and dismissed the petition on February 4, 2011. See State ex rel. Kelly v. Bressler,

Case No. 2010-2128,

.

{¶ 13} Nevertheless, approximately two weeks later, Kelly filed a second petition for a

writ of procedendo arguing the exact same issues as he did in his first petition. This court

filed another motion to dismiss, which the Ohio Supreme Court granted on May 4, 2011. See

State ex rel. Kelly v. Bressler, Case No. 2011-0280,

. Again, Kelly never

appealed this court's August 2, 2010 decision affirming his conviction.

{¶ 14} On April 6, 2011, Kelly filed a petition for a writ of habeas corpus with the

United States District Court for the Southern District of Ohio. As part of that petition, Kelly

again argued that the trial court erred in denying his motion to suppress as no probable

cause existed to make the initial traffic stop, his being placed in the police cruiser during the

search amounted to an unconstitutional seizure, and the warrantless search of his car was

conducted without probable cause or an exception to the warrant requirement.

{¶ 15} On April 30, 2012, a magistrate issued a decision recommending Kelly's petition

be dismissed. See Kelly v. Warden, London Correctional Inst., S.D.Ohio No. 1:11-cv-254,

(Apr. 30, 2012). In so holding, the magistrate determined that Kelly "was

able to fully and fairly litigate his Fourth Amendment claims in the state courts." Id. at *9.

The district court later adopted the magistrate's report and recommendation on July 16, 2012.

Kelly v. Warden, London Correctional Inst., S.D.Ohio No. 1:11-cv-254,

(July 16, 2012). -5- Butler CA2013-01-020

{¶ 16} On June 29, 2012, Kelly filed an additional application for reconsideration and a

request to reopen his appeal. As part of this application, Kelly argued that because the

United States Supreme Court had now decided Jones, he was entitled to have his motion to

suppress reopened and his conviction vacated. This court denied Kelly's application in an

entry dated August 7, 2012 by finding, in pertinent part, the following:

Despite the writs of procedendo, [Kelly] never filed a direct appeal to the Ohio Supreme Court. Therefore, his appellate remedies were exhausted 45 days after this court's August 2, 2010 decision affirming his conviction. [Kelly's] case was not pending at the time the U.S. Supreme Court decided United States v. Jones, and, he is not entitled to retroactive application of Jones.

State v. Kelly, 12th Dist. Butler No. CA2009-10-252 (Aug. 7, 2012) (entry denying application

for reconsideration and application for reopening appeal). The Ohio Supreme Court declined

review in State v. Kelly,

,

.

{¶ 17} Thereafter, on December 17, 2012, Kelly filed a motion to withdraw his plea

pursuant to Crim.R. 32.1. In support of this motion, Kelly again argued that he should be

entitled to withdraw his no contest plea in light of the United States Supreme Court's decision

in Jones. The trial court summarily denied the motion in an entry dated January 7, 2013.

Kelly now appeals from the trial court's decision denying his motion to withdraw his no

contest plea, raising a single assignment of error for review.

{¶ 18} WHETHER APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY

THE TRIAL COURT'S REFUSAL TO ALLOW APPELLANT TO WITHDRAW HIS PLEA.

{¶ 19} Pursuant to Crim.R. 32.1, "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." A defendant who seeks to withdraw a plea after the imposition of

sentence has the burden of establishing the existence of a manifest injustice. State v. -6- Butler CA2013-01-020

Williams, 12th Dist. Clermont No. CA2012-08-060,

, citing State v.

Smith,

(1977), paragraph one of the syllabus. In general, "manifest

injustice relates to a fundamental flaw in the proceedings that results in a miscarriage of

justice or is inconsistent with the demands of due process." State v. Hobbs, 12th Dist.

Warren No. CA2012-11-117,

. Such a motion is "allowable only in

extraordinary cases." State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-

2055, ¶ 6.

{¶ 20} The decision to grant or deny a motion to withdraw a guilty or no contest plea is

within the trial court's sound discretion. State v. Carter, 12th Dist. Clinton Nos. CA2010-07-

012 and CA2010-08-016,

, ¶ 16. In turn, an appellate court reviews a trial

court's decision to deny a motion to withdraw a plea under an abuse of discretion standard.

State v. Ward, 12th Dist. Clermont No. CA2008-09-083,

, citing State v.

Francis,

,

, ¶ 32. An abuse of discretion connotes more

than an error of law or judgment; it implies that the trial court's attitude was arbitrary,

unreasonable, or unconscionable. State v. Hancock,

,

, ¶

130.

{¶ 21} That said, "Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain

and determine a motion to withdraw the [no contest] plea subsequent to an appeal and an

affirmance by the appellate court." (Brackets sic.) State v. Green, 5th Dist. Stark No.

2004CA00229,

, *2 (June 8, 2005), quoting State ex rel. Special Pros. v.

Judges, Court of Common Pleas,

(1978). In fact, as this court has

previously stated, although a trial court is permitted to consider a postsentence motion to

withdraw a plea, "the court lacks jurisdiction to consider such a motion once a higher court

has affirmed the trial court's judgment on appeal." State v. Williams, 12th Dist. Warren No.

CA2010-06-050,

, ¶ 12; State v. Tekulve,

, 2010-Ohio- -7- Butler CA2013-01-020

3604, ¶ 5 (1st Dist.) (finding "a trial court lacks jurisdiction to entertain a Crim.R. 32.1 motion

to withdraw a guilty or no-contest plea when it is made after a defendant has perfected his

direct appeal and his judgment of conviction has been affirmed").

{¶ 22} As noted above, Kelly's conviction was affirmed by this court on direct appeal in

State v. Kelly,

,

(12th Dist.). It is undisputed that Kelly

never appealed this court's August 2, 2010 decision affirming his conviction to the Ohio

Supreme Court. The trial court was therefore without jurisdiction to consider Kelly's

postsentence motion to withdraw his no contest plea. See, e.g., State v. McFarland, 2d Dist.

Montgomery No. 24418,

(finding trial court lost jurisdiction to consider

motion to withdraw no contest plea once conviction and sentence were affirmed on direct

appeal); State v. Ford, 8th Dist. Cuyahoga No. 98049,

(same); State v.

Kovacek, 9th Dist. Lorain No. 02CA008115,

, ¶ 7 (finding trial court lost its

jurisdiction over a motion to withdraw a no contest plea "once an appeal has been taken and

affirmed"). Accordingly, we find no error in the trial court's decision summarily denying Kelly's

motion to withdraw his no contest plea.

{¶ 23} Furthermore, even if the trial court had jurisdiction to entertain such a motion,

which it did not, we still find no merit to Kelly's claim that he should be entitled to withdraw his

plea. In essence, Kelly argues that he should be permitted to withdraw his plea due to the

United States Supreme Court's decision in Jones. However, as this court already determined

in denying Kelly's application for reconsideration and reopening of his appeal:

Despite the writs of procedendo, [Kelly] never filed a direct appeal to the Ohio Supreme Court. Therefore, his appellate remedies were exhausted 45 days after this court's August 2, 2010 decision affirming his conviction. [Kelly's] case was not pending at the time the U.S. Supreme Court decided United States v. Jones, and, he is not entitled to retroactive application of Jones.

State v. Kelly, 12th Dist. Butler No. CA2009-10-252 (Aug. 7, 2012) (entry denying application -8- Butler CA2013-01-020

for reconsideration and application for reopening appeal).

{¶ 24} It is well-established that "a new judicial ruling may be applied only to cases

that are pending on the announcement date. * * * The new judicial ruling may not be applied

retroactively to a conviction that has become final[.]" State v. Madaffari, 12th Dist. Butler No.

CA2004-08-193,

, quoting Ali v. State,

, 2004-Ohio-

6592, ¶ 6. A final conviction "means a conviction in which the accused has exhausted all his

appellate remedies or as to which the time for appeal as of right has expired." State v. Lynn,

(1966). As noted above, Kelly's appellate remedies were exhausted

45 days after this court's August 2, 2010 decision affirming his conviction, thereby rendering

his conviction final.

{¶ 25} Nevertheless, Kelly claims that he should still be entitled to the retroactive

application of Jones "because Johnson had private counsel; and Kelly did not." According to

Kelly, this is the reason why his case was not pending before the Ohio Supreme Court at the

time Jones was announced. However, "[a] criminal defendant who appears pro se may be

held to the same standard of conforming to legal procedure as attorneys[.]" State v. Lutz,

12th Dist. Clermont No. CA2000-09-7112,

, *1 (Dec. 17, 2001). Moreover,

as the record clearly indicates, Kelly actually did have counsel for his direct appeal to this

court. Kelly's argument is therefore without merit and simply unsupported by the record.

{¶ 26} In addition, Kelly also argues that he was the "victim of selective prospectivity"

where the Ohio Supreme Court held Johnson in abeyance pending the outcome of Jones,

when the Court did not do the same for him. Again, it is undisputed that Kelly never filed a

direct appeal to the Ohio Supreme Court from our August 2, 2010 decision affirming his

conviction on appeal. Johnson did. In turn, contrary to Kelly's claim otherwise, this is not a

case in which the Court "simply pick[ed] and choose between two defendants' which ones

case will remain on direct review; and which will not." -9- Butler CA2013-01-020

{¶ 27} Instead, had Kelly filed a direct appeal to the Ohio Supreme Court, the Court

very well may have accepted it for review. However, unlike Johnson, Kelly did not file a direct

appeal to the Ohio Supreme Court. As a result, the Ohio Supreme Court never had the

opportunity to hold his case in abeyance pending the outcome of the United States Supreme

Court's decision in Jones. Therefore, even if the trial court had jurisdiction in this matter, we

find Kelly's motion to withdraw his no contest plea still fails as a matter of law. Accordingly,

Kelly's single assignment of error is overruled.

{¶ 28} Judgment affirmed

HENDRICKSON, P.J., and RINGLAND, J., concur.

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