State v. GodfreyState v. Godfrey
For Plaintiff-Appellee: KENNETH W. OSWALT, 20 South Second Strеet, 4th Floor, Newark, OH 43055
For Defendant-Appellant: DENNIS PUSATERI, 492 City Park Avenue, Columbus, OH 43215
Farmer, P.J.
{¶1} On October 14, 1997, appellant, Larry Godfrey, entered Alford pleas of guilty to two counts of attempted felonious sexual penetration in violation of
{¶2} Appellant filed an appeal (Aрp. No. 97CA0155). This court affirmed appellant‘s case, presuming regularity in the proceedings because of the lack of a complete transcript. State v. Godfrey (August 28, 1998), Licking App. No. 97CA0155, (Godfrey I).
{¶3} On November 25, 1998, appellant filed a motion to re-open his appeal pursuant to
{¶4} On July 6, 1999, while his re-opened appeal was pending, appellant filed a motion to withdraw guilty plea or in thе alternative, postconviction relief to vacate or set aside his sentence pursuant to
{¶5} On September 2, 1999, this court affirmed appellant‘s re-opened appeal. See, State v. Godfrey (September 2, 1999), Licking App. No. 97CA0155, (Godfrey II).
{¶6} On February 28, 2000, this court affirmed the trial court‘s denial of aрpellant‘s motion/petition for want of jurisdiction. See, State v. Godfrey (February 28, 2000), Licking App. No. 99 CA 95, (Godfrey III).
{¶8} Appellant filed an appeal and this matter is now before this court for considеration. Assignments of error are as follows:
I
{¶9} “THE TRIAL COURT ERRED IN RULING THAT IT DID NOT HAVE JURISDICTION TO CONSIDER DEFENDANT-APPELLANT‘S MOTION TO WITHDRAW HIS PLEAS PURSUANT TO CRIMR 32.1.”
II
{¶10} “THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-APPELLANT‘S MOTION TO WITHDRAW HIS PLEAS PURSUANT TO CRIMR 32.1 WITHOUT AN EVIDENTIARY HEARING.”
I
{¶11} Appellant claims the trial court erred in denying his
{¶12}
{¶13} In its judgment entry filed April 10, 2008, the trial court found it lacked jurisdiction to review appellant‘s motiоn. Appellant argues the entry is “terse” and contains insufficient reasoning. We find the entry focuses on the single and salient issue sub judice: Does a trial court lose jurisdiction to entertain a
{¶14} Appellant argues his motion to withdraw is not barred by the holding in State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94, 97-98, wherein the Supreme Court of Ohio held the following:
{¶15} “Furthermore,
Crim. R. 32.1 does not vest jurisdiction in the trial court to maintain and determine a motion to withdraw the guilty pleas subsequent to an appeal and affirmance by the appellate court. WhileCrim. R. 32.1 apparently enlarges the power of the trial court over its judgments without respect to the running of the court term, it does not confer upon the trial court the power to vacate a judgment which has been affirmed by the appellate court, for this action would affect the decision of the reviewing court, which is not within the power of the trial court to do. Thus, we find a total and complete want of jurisdiction by the trial court to grant the motion to withdraw appellee‘s plea of guilty and to proceed with a new trial.”
{¶16} In suрport of his argument, appellant cites the Supreme Court of Ohio‘s intervening ruling in State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993. The syllabus states, ”
{¶17} “Our precedent distinguishes postsentence
Crim.R. 32.1 motions from postconviction petitions. See State ex rel. Tran v. McGrath (1997), 78 Ohio St.3d 45, 47, 676 N.E.2d 108 (unanimous court describing postconviction relief petitiоn and postsentence motion to withdraw a guilty pleas as ‘alternative remedies‘); State ex rel. WLWT-TV5 v. Leis (1997), 77 Ohio St.3d 357, 360, 673 N.E.2d 1365 (unanimous court identifying postsentenceCrim.R. 32.1 motion to withdraw a guilty plea and postconviction pеtition as separate remedies). We have continued to recognize aCrim.R. 32.1 postsentence motion to withdraw a guilty plea as a distinct аvenue for relief following our decision in Reynolds [State v. (1997), 79 Ohio St.3d 158]. See State ex rel. Stovall v. Jones (2001), 91 Ohio St.3d 403, 404, 746 N.E.2d 601 (unanimous court describing a postsentenceCrim.R. 32.1 motion as an ‘adequate legal remed[y]‘); State ex rel. Chavis v. Griffin (2001), 91 Ohio St.3d 50, 51, 741 N.E.2d 130 (unanimous court summarizing trial court‘s obligations in addressing a postsentenceCrim.R. 32.1 motion); Douglas v. Money (1999), 85 Ohio St.3d 348, 349, 708 N.E.2d 697 (unanimous court citing Tran in identifying postsentence motiоn to withdraw a guilty plea as separate from postconviction relief petition); State v. Ashworth (1999), 85 Ohio St.3d 56, 70, 706 N.E.2d 1231 (discussing the operation ofCrim.R. 32.1 without mentioning postconviction relief statutes); Shie v. Leonard (1998), 84 Ohio St.3d 160, 161, 702 N.E.2d 419 (unanimous court citing Tran for proposition that alternative legal remediеs of postconviction relief petition and postsentence motion to withdraw a guilty plea existed). And we confirm today that our holding in Reynolds continues to be narrow.”
{¶19} Under any normal course of evеnts, the lack of any Supreme Court holdings on this narrow jurisdictional issue is not surprising. Generally speaking, sentences pursuant to pleas were not aрpealable until S.B. No. 2 allowed appellate review. However, S.B. No. 2 specifically excluded appellate review of sentences imposed pursuant to negotiated pleas [
{¶20} In this case, appellant‘s re-opened dirеct appeal concluded on September 2, 1999 with an affirmance of the trial court‘s November 14, 1997 sentencing entry.
{¶21} We find the holding of Special Prosecutors to be on all fours with the issue presented in this case. Once an appellate court has affirmed a case, a trial court‘s jurisdiction is limited to taking “action in aid of the appeal“:
{¶22} ” ‘But, 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.’ [7 Moore‘s Federal Practice (2 Ed.) 419, Paragraph 60.30[2]]
{¶23} “Yet, it has been stated that the trial court does retain jurisdiction over issues not inconsistent with that of the appellate court to review, affirm, modify or reverse the appealed judgment, such as the collateral issues like contempt,
appointment of a receiver and injunction. In re Kurtzhalz (1943), 141 Ohio St. 432; Goode v. Wiggins (1861), 12 Ohio St. 341; Fawick Airflex Co. v. United Electrical Radio & Machine Workers (1951), 90 Ohio App. 24. However, in the instant cause, the trial court‘s granting of the motion to withdraw the guilty plea and the order to proceed with a new trial would be inconsistent with the judgment of the Court of Appeаls affirming the trial court‘s conviction premised upon the guilty plea. The judgment of the reviewing court is controlling upon the lower court as to all mаtters within the compass of the judgment. Accordingly, we find that the trial court lost its jurisdiction when the appeal was taken, and, absent a remand, it did not regain jurisdiction subsequent to the Court of Appeals’ decision.” Special Prosecutors, at 97.
{¶24} Upon review, we conclude the trial court was correct in finding it lacked jurisdiction to еntertain appellant‘s
{¶25} Assignment of Error I is denied.
II
{¶26} Based upon our decision in Assignment of Error I, this assignment is moot.
By Farmer, P.J.
Gwin, J. and
Hoffman, J. concur.
JUDGES
SGF/sg 0309
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to appellant.
JUDGES