STATE OF OHIO, Plaintiff-Appellee, v. AARON C. BURKES, Defendant-Appellant.
Case No. 13CA3582
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Released: 07/29/2014
[Cite as State v. Burkes, 2014-Ohio-3311.]
Hoover, J.
DECISION AND JUDGMENT ENTRY
James H. Banks, Dublin, Ohio for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney and Pat Apel, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio for Appellee.
Hoover, J.:
{1} Defendant-appellant, Aaron C. Burkes, appeals a judgment of the Scioto County Court of Common Pleas denying his Motion to Withdraw Guilty Pleas and Vacate Convictions and Sentences. On August 6, 2007, Burkes was sentenced to sixteen (16) years in prison after pleading guilty to two first degree felonies and one second degree felony. On appeal, Burkes raises one assignment of error. Burkes argues that the trial court erred when it denied his motion to withdraw his guilty pleas and/or vacate his sentence. For the following reasons, we sustain his sole assignment of error and remand this cause for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
{2} On August 6, 2007, appellant Burkes pleaded guilty to one count of Trafficking in Drugs, a first degree felony, in violation of
{3} Burkes did not file a direct appeal of his sentence or convictions. Then in July 2012, he filed, a pro se Motion to Prepare Sentencing Transcripts at State Expense and a Motion to Vacate Void Sentence. In Burkes‘s Motion to Vacate Void Sentence, he argued that the trial court failed to notify him of mandatory post release control and the consequences if he shall fail to comply with it. The motion contended that the sentence is void because of the failure of the trial court to advise the offender of post release control under
{4} In May 2013, Burkes, this time represented by counsel, filed a Motion to Withdraw Guilty Pleas and Vacate Convictions and Sentences. The trial court scheduled an oral hearing on the matter for October 3, 2013. A day before, on October 2, 2013, the trial court overruled the motion, finding it to be a petition for postconviction relief under
{5} In October 2013, Burkes timely filed this appeal of the trial court‘s dismissal.
APPELLANT‘S SOLE ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN REFUSING TO ALLOW APPELLANT TO WITHDRAW HIS GUILTY PLEAS AND/OR VACATE HIS CONVICTIONS
{6} Although Burkes presents only one assignment of error, multiple issues comprise that assignment of error. First, Burkes argues that the trial court erroneously failed to consider
{7} The nature of Burkes‘s Motion to Withdraw Guilty Pleas and Vacate Convictions and Sentence is the prevailing issue in this appeal. The basis of the motion was that Burkes‘s counsel failed to inform him or the trial court that the counts of Trafficking in Drugs and Possession of Drugs were allied offenses of similar import. Also, Burkes argued that he could not have been convicted of both Trafficking in Drugs and Conspiracy. Therefore, Burkes argued, because of the ineffective assistance of counsel, the guilty pleas were not made knowingly and voluntarily.
{8} Examining Burkes‘s trial court motion, it presents a motion to withdraw his guilty plea under
{9} The trial court found the motion to be a “petition for postconviction relief.” The trial court then cited to
{10}
{11} In some instances, “[c]ourts may recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. However, since
{12} We have previously stated the legal standard for
Under
Crim.R. 32.1 , a trial court may grant a post-sentence motion to withdraw a guilty or no contest plea only to correct a manifest injustice. State v. Dotson, 4th Dist. Washington No. 03CA53, 2004-Ohio-2768, ¶ 5. The Supreme Court of Ohio has defined “manifest injustice” as a clear or openly unjust act. Id. citing State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). This standard permits a defendant to withdraw his plea only in extraordinary cases. Dotson, supra; State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).
{13} Here, the trial court erred when it found the Motion to Withdraw the Guilty Pleas and Vacate Convictions and Sentences to be a petition for post conviction relief. Burkes cites
{15} To the extent that the motion is partially a petition for postconviction relief, we find that the trial court correctly determined the petition to be untimely. This Court reviews a trial court‘s decision granting or denying a postconviction relief petition, filed pursuant to
{16}
{17}
Both of the following apply: - Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petition asserts a claim based on that right.
- The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{18} Burkes has failed to demonstrate the applicability of an exception that would allow that trial court to consider his petition for postconviction relief. Therefore, insofar as Burkes‘s motion contained an argument constituting a petition for postconviction relief, the trial court had no jurisdiction to consider the petition. Consequently, the trial court lacked jurisdiction to address the merits of the petition and should have dismissed it for lack of jurisdiction.
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS REVERSED and the cause is REMANDED for proceedings consistent with this decision. The trial court‘s judgment entry denying the petition for postconviction relief is VACATED. The trial court is ordered to enter a DISMISSAL of only the petition for postconviction relief for lack of jurisdiction. Appellee shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, P.J. & McFarland, J.: Concur in Judgment & Opinion.
For the Court
By:
Marie Hoover, Judge
NOTICE ΤΟ COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.