[Cite as State v. Smith,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 14 MA 65 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) SANJUAN SMITH ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 11 CR 647

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Donna McCollum 3685 Stutz Dr., Suite 100 Canfield, Ohio 44406

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: November 17, 2015 [Cite as State v. Smith,

.] WAITE, J.

{¶1} On August 30, 3012, Appellant Sanjuan Smith was sentenced in the

Mahoning County Court of Common Pleas following a Crim.R. 11 guilty plea

agreement on attempted rape, kidnapping, and felonious assault. Appellant was

sentenced to three prisons terms of six, two and two years, to be served

consecutively, for a total prison term of ten years. He appealed the sentence, and

was partially successful on appeal. The case was remanded for resentencing so that

the trial court could make the proper findings regarding consecutive sentences. State

v. Smith, 7th Dist. No. 12 MA 168,

(Smith I). At the resentencing

hearing on May 2, 2014, Appellant asked to withdraw his plea. The court denied the

request because the case had already been before the court of appeals and was

remanded only for resentencing regarding the consecutive nature of his sentences.

The trial court concluded that it did not have authority to consider the oral motion to

withdraw the plea. The trial court then reimposed the ten-year sentence, making the

appropriate findings. This appeal followed.

{¶2} Appellant's counsel has filed a no merit brief and a motion to withdraw

pursuant to State v. Toney,

,

N.Ed.2d 419 (7th

Dist. 1970) and Anders v. California,

,

,

(1967). The only possible issue raised is whether the trial court correctly ruled on

Appellant’s oral motion to withdraw his plea.

{¶3} “ ‘It is well settled that an attorney appointed to represent an indigent

criminal defendant on his or her first appeal as of right may seek permission to

withdraw upon a showing that the appellant's claims have no merit. To support such -2-

a request, appellate counsel must undertake a conscientious examination of the case

and accompany his or her request for withdrawal with a brief referring to anything in

the record that might arguably support the appeal. The reviewing court must then

decide, after a full examination of the proceedings, whether the case is wholly

frivolous.’ ” (Citations omitted.) State v. Odorizzi,

,

(7th Dist. 1998).

{¶4} In Toney, we set forth the procedure to be used when counsel of record

determines that an indigent's appeal is frivolous:

3. Where a court-appointed counsel, with long and extensive

experience in criminal practice, concludes that the indigent's appeal is

frivolous and that there is no assignment of error which could be

arguably supported on appeal, he should so advise the appointing court

by brief and request that he be permitted to withdraw as counsel of

record.

4. Court-appointed counsel's conclusions and motion to withdraw as

counsel of record should be transmitted forthwith to the indigent, and

the indigent should be granted time to raise any points that he chooses,

pro se.

5. It is the duty of the Court of Appeals to fully examine the

proceedings in the trial court, the brief of appointed counsel, the

arguments pro se of the indigent, and then determine whether or not

the appeal is wholly frivolous. -3-

6. Where the Court of Appeals makes such an examination and

concludes that the appeal is wholly frivolous, the motion of an indigent

appellant for the appointment of new counsel for the purposes of appeal

should be denied.

7. Where the Court of Appeals determines that an indigent's appeal is

wholly frivolous, the motion of court-appointed counsel to withdraw as

counsel of record should be allowed, and the judgment of the trial court

should be affirmed.

Toney at syllabus.

{¶5} The only issue discussed by counsel relates to an oral motion to

withdraw a plea. Counsel questions whether such a motion can be raised after the

direct appeal has affirmed the conviction, but there is a limited remand to the trial

court solely for resentencing due to an error in imposing consecutive sentences

under R.C. 2929.14(C). A motion to withdraw a plea cannot be sustained by the trial

court after the case has been appealed and the conviction affirmed. State v.

Ketterer,

,

; State ex rel. Special Prosecutors

v. Judges,

,

(1978); State v. Robertson, 9th

Dist. No. 12CA0094-M,

; State v. Parks, 7th Dist. No. 08 CA

857,

, ¶8. Even if the appeal deals only with sentencing matters and

the conviction itself is not directly challenged, all matters concerning the conviction

(including the plea) that could have been raised on appeal become res judicata once

the appeal has concluded. State ex rel.

. If the case is -4-

reviewed and partially remanded for some aspect of resentencing, the appellate court

has nevertheless affirmed the underlying conviction and the lower court no longer

has jurisdiction to reconsider matters dealing with that conviction, such as whether

the plea should be vacated. State v. Triplett, 4th Dist. No. 11CA24,

;

State ex rel. Prosecutors at 97-98. The trial court in this case correctly interpreted

the law regarding the scope of the remand and its lack of authority to grant a Crim.R.

32.1 motion to withdraw a plea, and any challenge to the trial court's determination

would be frivolous.

{¶6} Counsel has alleged that there are no other appealable issues, and the

record confirms that any possible issues would be frivolous. As a result of the earlier

appeal, the case was remanded solely for resentencing due to an error regarding

consecutive sentences. Smith I at ¶24. The resentencing occurred and the ten-year

prison term was reimposed. The consecutive sentencing error has been corrected, in

that the court made the three findings required by R.C. 2929.14(C)(4): (1) that

consecutive sentences were needed to protect the public from future crime; (2) that

consecutive sentences were not disproportionate to the seriousness of the offender's

conduct and to the danger the offender posed to the public; and (3) that two of the

offenses were committed as part of one or more courses of conduct, and the harm

caused by two or more of these offenses was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses of

conduct adequately reflects the seriousness of the offender's conduct. The findings

were made both at the sentencing hearing and in the May 6, 2014, resentencing -5-

judgment entry, as required by State v. Bonnell,

, 2014-Ohio-

3177, syllabus. Because there are no non-frivolous issues for appeal, counsel's

motion to withdraw is granted the judgment of the trial court is affirmed.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.