[Cite as State v. Gray, 2017-Ohio-7969.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 17 AP 000004
CODY GRAY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 16 CR 08-0175


JUDGMENT:                                      Dismissed



DATE OF JUDGMENT ENTRY:                         September 28, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHARLES T. McCONVILLE                          ERIC E. WILLISON
PROSECUTING ATTORNEY                           BRADLEY P. KOFFEL
CHRISTINE C. WILLIAMS                          1801 Watermark Drive
ASSISTANT PROSECUTOR                           Suite 350
117 East High Street, Suite 234                Columbus, Ohio 43215
Mount Vernon, Ohio 43050
Knox County, Case No. 17 CA 000004                                                         2

Wise, John, J.

       {¶1}     Defendant-Appellant Cody Gray appeals following his motion to withdraw

his prior guilty plea to one count of sexual battery, filed in the Court of Common Pleas,

Knox County. Appellee is the State of Ohio. The relevant procedural facts leading to this

appeal are as follows.

       {¶2}     On October 4, 2016, the Knox County Grand Jury indicted appellant on one

count of rape, a felony of the first degree, and one count of sexual battery, a felony of the

third degree.

       {¶3}     On January 27, 2017, appellant entered a plea of guilty to the single count

of sexual battery, R.C. 2907.03(A)(2), a felony of the third degree. At that time, the State

requested leave to enter a nolle prosequi as to the rape count.

       {¶4}     A sentencing hearing was held on March 3, 2017. The trial court, via a

written judgment entry issued March 9, 2017, sentenced appellant inter alia to twenty-

four months in prison, ordered restitution to the victim, and classified appellant as a Tier

III sex offender.

       {¶5}     On March 20, 2017, appellant filed a post-sentence motion to withdraw his

guilty plea. The State filed a response on April 18, 2017.

       {¶6}     In the meantime, on April 6, 2017, appellant filed a notice of appeal of his

conviction and sentence entry of March 9, 2017. However, on his docketing statement

form (see Loc.App.R. 6(A)), appellant stated as follows under “probable issues for

review”: “Defendant sought to withdraw his guilty plea which was based upon inaccurate

information from trial counsel.”
Knox County, Case No. 17 CA 000004                                                         3


       {¶7}   Appellant filed his brief with this Court on June 12, 2017, as further analyzed

infra. On June 16, 2017, the State filed a motion to dismiss the appeal. Appellant filed a

memorandum contra on June 28, 2017, and the State filed a reply thereto on July 6, 2017.

This Court subsequently issued an entry ordering that the matter of dismissal would be

heard at the scheduled oral argument for the within appeal.

       {¶8}   Appellant herein raises the following sole Assignment of Error:

       {¶9}   “I.   THE TRIAL COURT ERRED WHEN IT DID NOT ALLOW THE

APPELLANT TO WITHDRAW HIS GUILTY PLEA.”

                                             I.

       {¶10} In his sole Assignment of Error, appellant contends the trial court erred by

allegedly disallowing his motion to withdraw his guilty plea.

       {¶11} We note that in lieu of filing a response brief, the State has moved for

dismissal of the present appeal.

       {¶12} In Ohio, appellate jurisdiction is limited to the review of final orders,

judgments, or decrees of lower courts. State v. Wyche, 1st Dist. Hamilton No. C–160678,

2017-Ohio-7041, ¶ 2, citing Ohio Constitution, Article IV, Section 3(B)(2). When the record

transmitted for appellate review does not contain a final appealable order, we must

dismiss the appeal for lack of subject-matter jurisdiction. Id., citing State v. Daniels, 1st

Dist. Hamilton No. C–140242, 2014–Ohio–5160, ¶ 5.

       {¶13} Certainly, a denial of a post-sentence motion to withdraw a guilty plea is a

final, appealable order. State v. Bennett, 9th Dist. Summit No. 26241, 2012-Ohio-3664, ¶

15, citing State v. Kerns, 9th Dist. Medina No. 11CA0051–M, 2011–Ohio–6788, ¶ 7.

However, in the case sub judice, the record before us indicates the trial court has yet to
Knox County, Case No. 17 CA 000004                                                           4


rule on appellant’s motion. Appellant concedes this point in his brief, but maintains the

trial court implicitly overruled the motion to withdraw plea by not ruling on it.1 Nonetheless,

notwithstanding that appellant’s notice of appeal came just seventeen days after he filed

his motion to withdraw, the general rule in Ohio is that “when a trial court fails to rule on

a pretrial motion, it may ordinarily be presumed that the court overruled it.” See State v.

Bethea, 8th Dist. Cuyahoga No. 87088, 2006-Ohio-4758, ¶ 15 (emphasis added), citing

State ex rel. Cassels v. Dayton City School Dist. Bd. of Education (1994), 69 Ohio St.3d

217, 223. Similarly, “any pending motions the trial court does not expressly rule on when

it renders a final judgment in a case will be deemed to have been implicitly overruled.”

See American Business Mtge. Services, Inc. v. Barclay, 10th Dist. Franklin No. 04AP–68,

2004–Ohio–6725, ¶ 8 (emphasis added). In the case sub judice, appellant’s conviction

and sentence had already been finalized at the time he filed his motion to withdraw his

plea; as such, we find no merit in appellant’s claim that the trial court has tacitly denied

said motion.

       {¶14} Appellant also suggests that he filed his notice of appeal in order to protect

his right to appeal, urging that a Crim.R. 32.1 motion to withdraw a plea does not toll the

time for filing an appeal. In support, he cites State v. Cooper, 9th Dist. Medina No. 907,

1980 Ohio App. LEXIS 14146. However, we find Cooper inapposite, as the trial court in

that case had actually denied the defendant’s motion to withdraw his no contest plea.

Moreover, if appellant herein indeed has additional potential appellate claims from his



1  Despite this assertion, appellant also asks us, in lieu of dismissing the present appeal,
to “*** stay the sentence *** and order his release pending the outcome of the lower
court’s decision and the possible appeal of that decision, and direct the Trial Court to rule
upon the Motion to Withdraw instead.” Appellant’s Memo Contra Appellee’s Motion to
Dismiss, June 28, 2017, at 4.
Knox County, Case No. 17 CA 000004                                                      5


conviction and sentence to protect, he presently fails to explain why he failed to include

them in the present appeal, which was facially commenced as a direct appeal of the

sentencing judgment entry of March 9, 2017. See App.R. 16(A)(3) and (A)(7).

      {¶15} Under these unusual procedural circumstances, we find the proper remedy

is to dismiss this appeal and remand the matter for the trial court to address appellant’s

Crim.R. 32.1 motion and/or R.C. 2953.21 petition. Cf. State v. Furr, 12th Dist. Butler No.

CA2013–04–066, 2014-Ohio-1319, ¶ 4.

      {¶16} We therefore will not further address appellant's sole Assignment of Error,

on grounds of prematurity.

      {¶17} For the reasons stated in the foregoing opinion, the appeal of the judgment

of the Court of Common Pleas, Knox County, Ohio, is hereby dismissed.


By: Wise, John, J.

Delaney, P. J., and

Baldwin, J., concur.




JWW/d 0914
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