[Cite as State v. Brown, 2017-Ohio-2854.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104573




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  JEFFREY L. BROWN
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             DISMISSED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-13-580090-A

        BEFORE: Celebrezze, J., Boyle, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: May 18, 2017
FOR APPELLANT

Jeffrey L. Brown, pro se
Inmate No. 664-316
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Brett Hammond
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

          {¶1} Appellant, Jeffrey L. Brown, appeals the denial of his motion to withdraw

his guilty plea to one count of drug trafficking. The trial court’s subsequent grant of

another motion to withdraw his guilty plea and a motion by the state to vacate the

conviction and dismiss the charges with prejudice renders this appeal moot. Therefore,

this appeal is dismissed.

                              I. Factual and Procedural History

          {¶2} Appellant was indicted in 2013 and charged with multiple counts, including

drug trafficking and drug possession. Appellant eventually pled guilty to a single count

of drug trafficking, a third-degree felony, for which he was sentenced to six months in

prison.        Appellant appealed his conviction to this court, which was affirmed on

December 31, 2014. State v. Brown, 8th Dist. Cuyahoga No. 101427, 2014-Ohio-5795.1

          {¶3} On May 5, 2016, appellant filed a motion to withdraw his guilty plea, and

the state filed a brief in opposition. The trial court denied the motion on May 16, 2016.

Appellant then filed the instant appeal assigning the following errors for review:

          I. The trial court erred in denying [appellant’s] motion to withdraw guilty
          plea when [he] sufficiently demonstrated he was denied effective assistance
          of counsel in violation of the Sixth Amendment to the United States
          Constitution.

          II. The trial court erred in denying [appellant’s] motion to withdraw guilty
          plea when the state of Ohio violated Crim.R. 16 and Brady v. Maryland,
          373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to divulge
          material exculpatory evidence prior to [appellant] pleading guilty thereby

          1   A more detailed recitation of the facts can be found therein.
       violating [his] right to due process under the Fourteenth Amendment to the
       United States Constitution.

       III. The trial court acted bias [sic] and vindictive towards [appellant] when

       it denied his motion to withdraw guilty plea although the state of Ohio

       waived and forfeited all affirmative defenses and conceded all arguments

       when the state failed to oppose [his] motion in compliance with Cuyahoga

       Cty. Gen. Div. L. Rule 11.0(C), thereby violating Brown’s right to the Due

       Process Clause under the Fourteenth Amendment to the United States

       Constitution.

                                   II. Law and Analysis

       {¶4} All of appellant’s assigned errors are rendered moot by events that occurred

in the trial court following the filing of the instant appeal.

                                        A. Mootness

       {¶5} The trial court initially denied appellant’s motion to withdraw his guilty

plea in this case on May 16, 2016. After it came to light that police officers may have

committed acts of misconduct during the investigation of appellant’s case, the state

moved to vacate the conviction and appellant moved to withdraw his plea a second time.

The trial court held a hearing on the motions and granted them. On December 29, 2016,

the trial court vacated appellant’s guilty plea, vacated the conviction, and dismissed the

charges with prejudice. However, this occurred while an appeal was pending.

       {¶6} This court remanded the matter to the trial court on February 15, 2017, to

give the trial court jurisdiction to rule on those motions. See State ex rel. Special
Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162

(1978). Appellant also filed an appeal from the trial court’s December 29, 2016 order

granting the motions. On April 13, 2017, this court then extended the earlier remand and

remanded the newly filed appeal so there would be no jurisdictional impediment barring

the trial court from ruling on the motions. On April 16, 2017, the trial court issued an

entry again granting appellant’s and the state’s motions, and dismissed the charges with

prejudice. This later action renders the present appeal moot.

       {¶7} An appeal becomes moot when “the subject matter of the litigation or

dispute is somehow finally resolved, thereby precluding further action by a court.”

Wheeling Corp. v. Columbus, 147 Ohio App.3d 460, 2001-Ohio-8751, 771 N.E.2d 263, ¶

175 (10th Dist.) (Tyack, J., dissenting). Here, appellant raised issues surrounding the

trial court’s denial of a motion to withdraw his guilty plea. The subsequent granting of a

similar motion made by appellant renders the issues raised in the present appeal moot.

       {¶8} Appellant has filed various motions arguing that the trial court erred when it

granted his motion without withdrawing his guilty pleas in another case that he alleges

was part of a package plea agreement with the present case. However, those arguments

are unrelated to the present appeal. Appellant has already filed an appeal from the grant

of the subsequent motion to withdraw where those issues can properly be addressed.

There is no justiciable controversy left in the present case, which relates solely to the

denial of a motion to withdraw appellant’s guilty plea.

                                    III. Conclusion
       {¶9} The trial court granted a subsequent motion to withdraw appellant’s guilty

plea in this case following a limited remand by this court. The granting of appellant’s

motion to withdraw his guilty plea renders moot the issues he currently raises in his

appellate brief about the denial of his motion to withdraw his guilty plea. Therefore, no

justiciable controversy exists in the present appeal, and the appeal is dismissed.

       {¶10} Accordingly, the appeal is dismissed.

       It is ordered that appellee recover of appellant costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR
