State v. Nicholson
2012 Ohio 1550
Ohio Ct. App.2012Background
- Nicholson pleaded guilty in 2004 to one count of felonious assault, one of attempted murder, and one of attempted felonious assault, with firearm specifications; remaining counts were nolled.
- The trial court sentenced to consecutive terms for the felonious assault, attempted murder, and attempted felonious assault, plus firearm specifications, for an aggregate 20-year term; later appellate remand adjusted some terms.
- This court affirmed the convictions in Nicholson I but found defect in the required findings for departing from the minimum and for issuing consecutive sentences, remanding for resentencing.
- On remand, Nicholson was resentenced and advised about postrelease control; subsequent postrelease-control advisement issue led to Nicholson II, which affirmed conviction but remanded for proper postrelease-control imposition.
- Nearly seven years after pleading, Nicholson moved to vacate his plea as to a purported nonexistent offense (attempted felonious assault); the trial court denied the motion, and Nicholson appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to vacate pleadings was governed by Crim.R. 32.1 | Nicholson argues it is a motion to vacate, not withdraw, requiring Crim.R. 32.1 standard | Nicholson contends for withdrawal mechanics should apply | The trial court lacked jurisdiction on remand; Crim.R. 32.1 governs, but jurisdiction issue controls |
| Whether Nicholson pled guilty to a nonexistent crime (attempted felonious assault) | Nicholson asserts the offense did not exist under R.C. 2903.11 and cannot predicate an attempt | State argues the plea was valid and properly supported as an attempt under R.C. 2923.02 | Merits are unpersuasive; res judicata bars the challenge to the plea once appealed |
| Whether the remand for postconviction matters deprived the court of jurisdiction to entertain the motion | — | — | Remand issues precluded substantive reconsideration; court lacked jurisdiction to entertain the motion at that stage |
Key Cases Cited
- State v. Nicholson, 2005-Ohio-5687 (8th Dist. No. 85635 (2005)) (affirmed conviction but noted sentencing defects on departures and consecutive terms)
- State v. Gross, 2010-Ohio-3727 (8th Dist. No. 93819 (2010)) (Crim.R. 32.1 does not vest jurisdiction to entertain withdrawal after affirmance)
- State v. McGee, 2003-Ohio-1966 (8th Dist. No. 82092 (2003)) (remand issues; lack of jurisdiction to reconsider post-appeal)
- State v. Craddock, 2006-Ohio-5915 (8th Dist. No. 87582 (2006)) (illustrates limits on post-appeal plea-related relief)
- State v. McCornell, 2009-Ohio-1245 (8th Dist. No. 91400 (2009)) (unsupported plea theories under R.C. 2903.11 and R.C. 2923.02)
- State v. Harper, 2007-Ohio-109 (3d Dist. No. 1-05-79 (2007)) (discusses predicates for attempted offenses)