[Cite as State v. Burkes, 2014-Ohio-3311.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        SCIOTO COUNTY

STATE OF OHIO,                                       :
                                                     :
        Plaintiff-Appellee,                          :
                                                     :              Case No. 13CA3582
        v.                                           :
                                                     :              DECISION AND
AARON C. BURKES,                                     :              JUDGMENT ENTRY
                                                     :
        Defendant-Appellant.                         :              Released: 07/29/2014

                                             APPEARANCES:
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 R.C. 2925.03(A)(2) & (C)(4)(f), one count of
Scioto App. No. 13CA3582                                                                       2


Possession of Drugs, a first degree felony, in violation of R.C. 2925.11(A)/(C)(4)(e), and one

count of Conspiracy, a second degree felony, in violation of R.C. 2923.01/2925.03. The trial

court sentenced Burkes to 8 years for each of the three offenses. The trial court ordered the

sentences for the offenses of Trafficking in Drugs and Possession of Drugs to be served

concurrently. The trial court also ordered that the sentence for the Conspiracy offense be served

consecutively to the others for a total of 16 years in prison.

       {¶ 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 Crim.R. 11. The trial court

overruled both motions.

       {¶ 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 R.C. 2953.21. The trial court

concluded that the petition was untimely and that no exception found in R.C. 2953.23(A)(1)

applied.

       {¶ 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
Scioto App. No. 13CA3582                                                                      3


       AND SENTENCE BASED UPON INEFFECTIVE ASSISTANCE OF

       COUNSEL AND IN FAILING TO HOLD AN EVIDENTIARY HEARING ON

       HIS MOTION TO WITHDRAW HIS GUILTY PLEAS AND VACATE HIS

       CONVICTIONS AND SENTENCE.

       {¶ 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

Crim.R. 32.1 when it denied his motion. Burkes contends that a motion under Crim.R. 32.1 has

no time limit and Crim.R. 32.1 and R.C. 2953.21 are wholly separate remedies. He also contends

that the trial court erred in failing to hold an evidentiary hearing on the motion. On the merits,

Burkes argues that due to the ineffective assistance of counsel he received during his initial court

proceedings, his plea should be vacated along with his convictions and sentences.

       {¶ 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 Crim.R.32.1, but the motion also sets forth a collateral attack on his conviction and

sentence. The motion itself asks the trial court to “***permit defendant to withdraw his guilty

pleas in this case and/or vacate his convictions, forthwith.” (Emphasis Added.) The motion also

cites, in addition to the acts of Burkes’s counsel, “***the misapplication of law as to imposition
Scioto App. No. 13CA3582                                                                        4


of duplicative sentences which are contrary to the Ohio Revised Code***” as requiring his pleas

to be withdrawn and his convictions vacated.

       {¶ 9} The trial court found the motion to be a “petition for postconviction relief.” The

trial court then cited to 2953.21(A)(1) and found no exception applied in order for it to entertain

the untimely petition.

       {¶ 10} R.C. 2953.21 and R.C. 2953.23 do not govern a Crim.R. 32.1 postsentence motion

to withdraw a guilty plea. State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522 ¶

14. “Postsentence motions to withdraw guilty or no contest pleas and postconviction relief

petitions exist independently.” Id. R.C. 2953.21(J) provides that “the remedy set forth in this

section is an exclusive remedy by which a person may bring a collateral challenge to the validity

of a conviction or sentence in a criminal case***.” “Given that a postsentence Crim.R. 32.1

motion is not collateral but is filed in the underlying criminal case and that it targets the

withdrawal of a plea, it is not a “collateral challenge to the validity of a conviction or sentence.

Bush at ¶ 13. Crim.R. 32.1 itself does not prescribe a time limitation. Bush at ¶ 14. “Although,

timeliness ‘is a factor adversely affecting the credibility of the movant and militating against the

granting of the motion,’ the rule itself does not impose a time limit for filing a motion to

withdraw a guilty plea after the trial court has sentenced the defendant.” State v. Darget, 4th

Dist. Scioto No. 12CA3487, 2013-Ohio-603, ¶ 19 quoting Bush at ¶ 14.

       {¶ 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 Crim.R. 32.1

and R.C. 2953.21 exist independently, it would not be appropriate for the trial court to recast a

Crim.R. 32.1 motion to withdraw a guilty plea into a petition for postconviction relief pursuant to
Scioto App. No. 13CA3582                                                                      5


R.C. 2953.21 Schlee at ¶ 13; see also State v. McCann, 4th Dist. Lawrence No. 12CA18, 2013-

Ohio-2992, ¶ 15 (“Thus, because the motion was clearly grounded in Crim.R. 32.1, even if a

petition for post-conviction had not been time-barred, the trial court would not have been

permitted to recast the motion as a petition for post-conviction relief***”); State v. Parks, 7th

Dist. Carroll No. 11CA873, 2012-Ohio-3011, ¶ 23.

       {¶ 12} We have previously stated the legal standard for Crim.R. 32.1 motion in State v.

Morrison, 4th Dist. Adams No. 13CA959, 2013-Ohio-5684, ¶ 9:

       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

Crim.R. 32.1 and argues that ineffective assistance of counsel constituted manifest injustice.

Burkes also argues that the guilty plea was not made knowingly and voluntarily. Pursuant to

Bush and Schlee, the court was incorrect in recasting the motion as solely a petition for post

conviction relief and judging it only under R.C. 2952.21. We will remand this cause in order for

the trial court to consider the motion under the proper Crim.R. 32.1 legal standard. In addition

the trial court will have to rule on Burkes’s request for a hearing.
Scioto App. No. 13CA3582                                                                         6


        {¶ 14} However, as previously described, Burkes also presents a collateral attack on his

convictions and sentences. See e.g. State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131,

1133 (1997). The motion stated: “Further, the acts of defendant Burkes’ counsel, coupled with

the misapplication of law as to imposition of duplicative sentences which are contrary to the

Ohio Revised Code, require that his pleas be withdrawn and his convictions be vacated.” The

title of the motion also contains language associated with a petition for post conviction relief.

        {¶ 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 R.C.

2953.21, under an abuse of discretion standard. See Knauff at ¶ 19; see also State v. Lewis, 4th

Dist. Ross No. 10CA3181, 2011-Ohio-5224, ¶ 8; State v. Gondor, 112 Ohio St.3d 377, 2006–

Ohio–6679, 860 N.E.2d 77, ¶ 58. “A trial court abuses its discretion when its decision is

unreasonable, arbitrary, or unconscionable.” Knauff at ¶ 19 citing Cullen v. State Farm Mut.

Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 19. Furthermore, “a

reviewing court should not overrule the trial court's finding on a petition for postconviction relief

that is supported by competent and credible evidence.” Id. quoting Gondor at ¶ 58.

        {¶ 16} R.C. 2953.21(A)(2) provides that a petition for postconviction relief must be filed

no later than 180 days after the date on which the trial transcript is filed with the court of appeals

in the direct appeal. If no direct appeal is filed, then the petitioner has 180 days after the

expiration of the time in which a direct appeal could have been filed. R.C. 2953.21(A)(2). It is

clear that Burkes’s motion was filed well after the 180-day time period had already elapsed.

        {¶ 17} R.C. 2953.23(A)(1) allows a trial court to entertain an untimely filed petition for

postconviction relief if:
Scioto App. No. 13CA3582                                                                       7


       (1) Both of the following apply:

       (a) 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.

       (b) 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.

       R.C. 2953.23(A)(1)(a)-(b).1

       {¶ 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.




1
  R.C. 2953.23(A)(2) provides another circumstance where an untimely petition may be heard,
but it is wholly inapplicable to this case. In order to meet R.C. 2953.23(A)(2), a petitioner must
have undergone DNA testing and the results establish, by clear and convincing evidence, actual
innocence.
Scioto App. No. 13CA3582                                                                    8


       {¶ 19} For these reasons, the judgment of the Scioto County Court of Common Pleas is

reversed. The trial court's judgment entry denying appellant's petition for postconviction relief is

vacated. Upon remand, the trial court shall enter a dismissal of appellant’s petition for

postconviction relief since it is time barred. However, with respect to the Motion to Withdraw

the Guilty Pleas and Vacate Convictions and Sentences, the trial court shall review the motion

and consider the merits using the legal standard for Crim.R. 32.1 motions, including ruling on

the issue of whether an oral hearing shall be held.

                                         JUDGMENT REVERSED AND CAUSE REMANDED.
Scioto App. No. 13CA3582                                                                   9


                                      JUDGMENT ENTRY


        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 Rule 27 of the
Rules of Appellate Procedure.

Abele, P.J. & McFarland, J.: Concur in Judgment & Opinion.

                                                              For the Court

                                                              By:
                                                                    Marie Hoover, Judge


                                    NOTICE TO 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.
