STATE OF OHIO, Plаintiff-Appellee, v. BRADLEY COLLINS, Defendant-Appellant.
CASE NO. CA2012-11-115
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
8/12/2013
2013-Ohio-3485
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 10CR27056
Thomas W. Kidd, Jr., P.O. Box 231, Harveysburg, Ohio 45032, for defendant-appellant
O P I N I O N
M. POWELL, J.
{¶ 1} Defendаnt-appellant, Bradley Collins, appeals from the Warren County Common Pleas Court‘s judgment that overruled his request to be resentenced under the provisions in House Bill 86 and dismissed, for lack of jurisdiction, his motion to withdraw his guilty plea. For the reasons that follow, we affirm the trial court‘s decision not to apply the provisions in H.B. 86 in resentencing Collins but reverse its decision to dismiss his motion to withdraw his guilty plea, and remand this matter to the trial court with instructions that it rule
{¶ 2} On July 28, 2011, Collins pled guilty to a reduced charge of trafficking in marijuana, a third-degree felony. The trial court accepted Collins’ plea and sentenced him to five years in prison and imposed court costs agаinst him. However, at the sentencing hearing, the trial court did not advise Collins that his failure to pay the court costs could result in the trial court‘s ordering him to perform community service in lieu of those costs.
{¶ 3} Collins appealed to this court, arguing thаt his sentence was clearly and convincingly contrary to law because the trial court failed to advise him, as required under
{¶ 4} On remand, this court noted that, under
{¶ 5} During the pendency of Collins’ first appeal, H.B. 86 went into effect on September 30, 2011. Under it, the maximum term for third-degree felonies was reduced from five years to 36 months.
{¶ 6} Shortly before he was to be resentenced, Collins filed a motion to withdraw his guilty plea, arguing that his plea had not been made knowingly, intelligently and voluntarily and that his trial counsel provided him with ineffective assistance when he advised him that he would be permitted to file for judicial release. Additionally, Collins argued that his motion to withdraw his guilty plea “should be treated as being made prior to sentencing.”
{¶ 7} At his October 16, 2012 resentencing hearing, Collins argued that, under
{¶ 8} On January 24, 2013, the trial court issued an order denying Collins’ motion to withdraw his guilty plea on the ground that, under State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978) and its progeny, once an appeal is taken from its judgment, a trial court is divested of jurisdiction over the matter except as to issues not inconsistent with the appellate court‘s authority to review, affirm, modify or reverse the judgment. The trial court concluded that, in light of the procedural
{¶ 9} Collins now appeals, assigning the following as error:
{¶ 10} Assignment of Error No. 1:
{¶ 11} “THE TRIAL COURT ERRED IN NOT SENTENCING MR. COLLINS PURSUANT TO THE NEW SENTENCING RANGE FOR FELONIES OF THE THIRD DEGREE.
{¶ 12} Assignment of Error No. 2:
{¶ 13} “THE TRIAL COURT ERRED IN FAILING TO RULE ON MR. COLLINS‘S MOTION TO WITHDRAW A GUILTY PLEA PRIOR TO HIS SENTENCING HEARING.”
{¶ 14} In his first assignment оf error, Collins argues his original sentence was void in its entirety because he was not given the
{¶ 15}
{¶ 16} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Ohio Supreme
{¶ 17} Fischer appealed to the Ninth District Court of Appeals, arguing that, since his original sentence was void under Bezak, his first direct appeal was “not valid” and that his current appeal was in fact his first direct appeal in which he was permitted to raise any and all issues relating to his conviction. Id. at ¶ 4. The Ninth District rejected Fischer‘s claim on the basis of the law-of-the-case doctrine. Id.
{¶ 18} Fischer appealed to the Ohiо Supreme Court, which rejected the Ninth District‘s reasoning regarding the law-of-the-case doctrine because that doctrine “is rooted in principles of res judicata and issue preclusion, and [the court has] expressly disfavored aрplying res judicata to sentences that do not conform to statutory postrelease-control mandates.” Id. at ¶ 35. Nevertheless, the Ohio Supreme Court overruled a key portion of its previous decision in Bezak:
[O]ur decision today revisits only one component of the holding in Bezak, and we overrule only that portion of the syllabus that requires a complete resentencing hearing rather than a hearing restricted to the void portion of the sentence. In light of our holding, the court of аppeals in this case correctly held that Fischer‘s remaining claims, which did not involve a void sentence or judgment, were barred by res judicata.
In so holding, we reject Fischer‘s claim that there was no final, appealable order in this case.
Fischer‘s theory is that because the trial court did not properly apply postrelease-control sanctions, his sentence was void under
Bezak. Because his sentence was void, he contends, there was no sentence, аnd without a sentence, no conviction and no final order. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182 (“a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty” [emphasis sic]); State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus (to be a final, appealable order, a judgment of conviction must include the sentence). In Fischer‘s view, the absence of a conviction means the absеnce of a final, appealable order, and the absence of such an order deprived the court of appeals of its jurisdiction over the initial appeal, thereby rendering that appeal invalid. The argument, though сreative, fails. Nothing in Baker discusses void or voidable sentences. Rather, the syllabus speaks only to the requirement that the judgment of conviction set forth “the sentence” in addition to the other necessary aspects of the judgment. The judgment in this casе did set forth the sentence. The fact that the sentence was illegal does not deprive the appellate court of jurisdiction to consider and correct the error. In fact,
R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court to modify оr vacate any sentence that is “contrary to law.” Clearly, no such authority could exist if an unlawful sentence rendered a judgment nonfinal and unappealable.
Fischer at ¶ 36-39.
{¶ 19} In this case, Collins’ argument is substantially similar to the argument the Ohio Supreme Court rejected in Fischer. In light of Fischer, we conclude that Collins’ original sentence was not rendered void in its entirety as a result of the trial court‘s failure to properly inform him, as required under
{¶ 20} In light of the foregoing, Collins’ first assignment of error is overruled.
{¶ 21} In his second assignment of errоr, Collins argues the trial court erred in failing
{¶ 22} As explained in our response to the first assignment of error, Collins’ original sentence was not void in its entirety. Therefore, his motion to withdraw his guilty plea filed during the resentеncing proceeding could not be treated as a presentence motion to withdraw his guilty plea since it was clearly a postsentence motion to withdraw his guilty plea.
{¶ 23} Nevertheless, we conclude that the trial court erred in dismissing Cоllins’ motion to withdraw his guilty plea. The trial court based its decision on the principle in Special Prosecutors that once a defendant like Collins files a notice of appeal, it divests a trial court of jurisdiction to rule over any aspect of the case except as to matters that would not be inconsistent with an appellate court‘s authority to review, affirm, modify or reverse the judgment from which the appeal was taken. However, now that this court has ruled on Collins’ appeal, the trial court will be free to rule on Collins’ motion to withdraw his guilty plea once we remand this case to it for that purpose. See id. at 97, quoting 7 Moore‘s Federal Practice (2 Ed.) 419, Paragraph 60.30 [2] (“‘the general rule is that when an appeal is taken from the district court the latter court is divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by the appellate court.‘“).
{¶ 24} Accordingly, Collins’ second assignment of error is sustained to the extent indicated.
{¶ 25} The judgment of the trial court is affirmed in part and reversed in part, and this
S. POWELL, P.J., and PIPER, J., concur.