      [Cite as State v. Gilbert, 2013-Ohio-238.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-110382
                                                       TRIAL NO. B-091283
     Plaintiff-Appellee,                           :

      vs.                                          :

KAREEM GILBERT,                                    :        O P I N I O N.

     Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded with Instructions

Date of Judgment Entry on Appeal: January 30, 2013



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Ravert J. Clark, for Defendant-Appellant.


Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




CUNNINGHAM, Presiding Judge.

       {¶1}     Defendant-appellant Kareem Gilbert appeals from the trial court’s May

2011 judgment of conviction for murder, an accompanying firearm specification, and

having weapons under a disability.

       {¶2}     Previously appointed counsel for Gilbert filed a no-error brief stating that

no meritorious issues existed to support Gilbert’s appeal. See Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Contrary to appellate counsel’s position,

this court found that legal points arguable on the merits existed, including the trial court’s

authority to set aside Gilbert’s prior final judgment of conviction upon the state’s motion,

and the subsequent resentencing of the defendant. Thus, we granted counsel’s motion to

withdraw, and we appointed new counsel for additional briefing. State v. Gilbert, 1st Dist.

No. C-110382, 2012-Ohio-1366, ¶ 7-11.

                          Procedural and Factual Posture
       {¶3}     This court summarized the procedural and factual posture of the case in

its March 30, 2012, opinion:

               In May 2010, after entering into a detailed agreement with the

       state, Gilbert entered pleas of guilty to voluntary manslaughter with an

       accompanying firearm specification, having a weapon while under a

       disability, and witness intimidation. In exchange, the state dismissed other

       weapons charges and a count of aggravated murder with an accompanying

       firearm specification. The trial court accepted Gilbert’s guilty pleas and

       sentenced him to an aggregate sentence of 18 years’ imprisonment.

               A year later, in May 2011, the state moved to vacate Gilbert’s pleas,

       contending Gilbert had breached his 2010 plea agreement by failing to give

       truthful testimony in a criminal case against his father, Reuben Jordan.

       Gilbert’s trial counsel informed the court that Gilbert did not object to the




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        state’s motion to vacate his pleas. Gilbert admitted he had breached the

        plea agreement but maintained he had testified truthfully in the Jordan

        case.

                  The trial court granted the state’s motion to vacate Gilbert’s pleas.

        At the same hearing, Gilbert then pleaded guilty to murder with an

        accompanying firearm specification and to having a weapon while under a

        disability. The trial court accepted Gilbert’s guilty pleas, withdrew the prior

        sentence, and imposed a new aggregate sentence of 18 years to life in

        prison.

Gilbert at ¶ 2-4.

        {¶4}        Gilbert now raises three assignments of error, which all concern the trial

court’s authority to set aside the final judgment of conviction and resentence him. First,

he argues that after the May 2010 judgment of conviction had been journalized, the trial

court lacked the authority to grant the state’s 2011 motion to vacate his pleas and then to

reconsider its own valid judgment and resentence him. We agree.

            Reconsideration of Final Judgments in Criminal Cases
        {¶5}        Generally, Ohio trial courts lack the authority to reconsider their own valid

final judgments in criminal cases. See, e.g., State v. Raber, ___ Ohio St.3d ___, 2012-

Ohio-5636, ___ N.E.2d ___, paragraph one of the syllabus; State v. Carlisle, 131 Ohio

St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671, ¶ 9; Brook Park v. Necak, 30 Ohio App.3d

118, 120, 506 N.E.2d 936 (8th Dist.1986).

        {¶6}        There are both judicially and legislatively created exceptions to this

general rule, none of which apply in this case. The judicially created exceptions, for

example, provide the trial courts with continuing jurisdiction “to correct a void sentence”

and “to correct a clerical error in a judgment.” Raber at ¶ 20, citing State ex rel. Cruzado

v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. In addition, under

Crim.R. 32.1, the trial court retains jurisdiction to review and grant a defendant’s



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postsentence motion to withdraw a plea when he has not taken a direct appeal. See State

ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97-98,

378 N.E.2d 162 (1978). Further, the trial court retains jurisdiction to decide a motion for

a new trial based on newly discovered evidence as permitted by Crim.R. 33, when that

“specific issue has not been decided upon direct appeal.” State v. Davis, 131 Ohio St.3d 1,

2011-Ohio-5028, 959 N.E.2d 516, ¶ 37.

       {¶7}     The legislatively created exceptions include habeas corpus and

postconviction remedies as set forth by statute. See R.C. 2725.01 et seq. and 2953.21 et

seq.

       {¶8}     The state argues that the general rule relating to the finality of judgments

in criminal cases does not apply in this case. Instead, the state contends that the facts

implicate the distinction between a trial court’s lack of subject-matter jurisdiction and a

trial court’s improper exercise of jurisdiction or authority. See Pratts v. Hurley, 102 Ohio

St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992.

       {¶9}     In essence, the state argues that the parties were properly before the court

on the state’s motion to vacate the pleas because the common pleas court has subject-

matter jurisdiction over felony cases. According to the state, Gilbert, at best, could have

argued that the trial court improperly exercised its jurisdiction when it granted the state’s

motion to vacate his pleas, but that he “waived” his right to challenge the court’s exercise

of jurisdiction in that instance when he acquiesced in the proceedings below.

       {¶10}     The state’s argument, however, ignores what we believe to be the crux of

Gilbert’s argument. Gilbert does not merely argue that the trial court lacked subject-

matter jurisdiction to rule on a postconviction motion. He argues, rather, that the trial

court lacked the authority to reconsider its final judgment and to grant the relief sought.

See Raber, ___ Ohio St.3d ___, 2012-Ohio-5636, ___ N.E.2d ___; Carlisle, 131 Ohio

St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671, at ¶ 9. The state’s argument is not responsive




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to Gilbert’s argument concerning the finality of the judgment. Nor do we find the state’s

argument persuasive.

            Continuing Jurisdiction to Enforce a Plea Agreement
       {¶11}    The state also suggests that the trial court “expressly retained jurisdiction

to continue proceedings against Gilbert in the event that he breached the plea agreement.”

The plea agreement does state that, in the event of a breach, the state may reinstate the

original charges against Gilbert.

       {¶12}    But the parties’ agreement, even if incorporated into the judgment of

conviction, could not give the trial court the authority to reconsider its final judgment, in

the absence of authority affixed by law. See Ohio Constitution, Article IV, Section 4(B)

(“The courts of common pleas and divisions thereof shall have such original jurisdiction

over all justiciable matters * * * as may be provided by law.”). (Emphasis added.) In this

case, the trial court did not reconsider its final judgment under any statute or under any

judicially recognized source of authority.

                                     Final Judgment
       {¶13}    It is undisputed that the judgment of conviction entered by the trial court

in May 2010 met the requirements of finality set forth in Crim.R. 32(C). See State v.

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the

syllabus, modifying State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163

(holding that a judgment of conviction is final, when the order sets forth “(1) the fact of the

conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating

the entry upon the journal by the clerk [of courts].”). For this reason, the state’s reliance

on the Ninth Appellate District’s decision in State v. Taylor, 9th Dist. No. 92CA005469,

1993 Ohio App. LEXIS 2585 (May 19, 1983), is misplaced.

       {¶14}    Taylor was based on the Ninth District’s earlier decision in State v. Curry,

49 Ohio App.2d 180, 359 N.E.2d 1379 (9th Dist.1976). In Curry, the court initially

considered whether it was the duty of the trial court or the prosecutor to determine



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whether the defendant had complied with his plea agreement. The court decided that it

was the duty of the trial court to make that determination, after a hearing on the issue.

The Curry court then stated that if, on remand, the trial court found that the state had

proven that the defendant had failed to perform under his plea bargain, then the trial

court should either proceed to sentencing—which had not yet occurred—or vacate Curry’s

pleas. Id. at 183. See also State ex rel. White v. Junkin, 80 Ohio St.3d 335, 686 N.E.2d

267 (1997) (holding that, in the absence of formal journalization of a decision, the

municipal court possessed authority to review and reverse its previous decision.).

        {¶15}    In contrast, in this case, the trial court granted the state’s motion to vacate

Gilbert’s pleas after the court had already sentenced Gilbert and after the judgment of

conviction including that sentence had been journalized in accordance with the criminal

rules, resulting in a final judgment of conviction. Because the court below, unlike the trial

court in Curry, reconsidered a final judgment, Curry does not support the state’s position.

        {¶16}    The Ninth Appellate District in Taylor cited Curry to support its

determination that the trial court had jurisdiction to grant the state’s motion to vacate

Taylor’s plea and sentence after the sentence had become final. But the Taylor court did

not reconcile its decision with the general rule that an Ohio trial court lacks the authority

to reconsider its own valid final judgment in a criminal case. And the Taylor court failed

to acknowledge the distinction between Curry’s case and Taylor’s case in that regard.

        {¶17}    Moreover, in Taylor, the state actually reindicted Taylor after the trial

court found that she had breached the plea agreement by feigning amnesia in an attempt

to avoid testifying at her husband’s trial. The defendant again entered a plea and was

again convicted upon the new indictment.            Taylor’s reindictment might well have

influenced the Taylor court’s disposition of the jurisdictional issue in the case. In this

case, the state did not reindict Gilbert.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



         {¶18}   We, therefore, hold that the trial court lacked the authority to reconsider

its own valid final judgment in this case. Accordingly, we sustain the first assignment of

error.

         {¶19}   In his second assignment of error, Gilbert argues that the trial court

violated his Double Jeopardy rights under the United States and Ohio Constitutions, when

it reconsidered its final judgment. In his third assignment of error, Gilbert argues that he

was denied his constitutional right to the effective assistance of trial counsel, when counsel

failed to object to the trial court’s exercise of jurisdiction to reconsider the May 2010 final

judgment.

         {¶20}   We have already determined that the trial court lacked the authority to

reconsider Gilbert’s May 201o judgment of conviction. Thus, our resolution of Gilbert’s

first assignment of error renders his second and third assignments of error moot, and we

decline to address them. See App.R. 12 (A)(1)(c).

                                        Conclusion
         {¶21}   The trial court lacked the authority to reconsider the May 2010 valid final

judgment. Accordingly, we reverse the trial court’s May 2011 judgment, and we remand

this cause to the trial court with instructions to vacate its May 2011 order granting the

state’s motion to vacate the pleas and its May 2011 judgment of conviction and to reinstate

its May 2010 judgment of conviction.

                                Judgment reversed and cause remanded with instructions.

FISCHER, J., concurs separately.
DINKELACKER, J., dissents.
FISCHER, J., concurring separately.

         {¶22}   Given the current state of the law, I am compelled to join the lead

opinion in this case. Regrettably, Kareem Gilbert may escape a conviction because

he was sentenced before he fulfilled a material obligation of his plea agreement. This

case exposes an obvious deficiency in the power of Ohio’s courts to enforce plea

agreements, a central element of our criminal justice system. See, e.g, Missouri v.


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Frye, __ U.S. __, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012) (noting that 97

percent of federal convictions and 94 percent of state convictions are the result of

guilty pleas). Even in civil cases, there is at least some law indicating that a civil

judgment induced by fraud may be void. See generally Ohio Pyro, Inc. v. Ohio Dept.

of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 23.

Unfortunately, the legislature so far has not provided Ohio courts with the statutory

authority in criminal matters for the state to enforce plea agreements when a breach

by the defendant occurs postconviction.          Compare Crim.R. 32.1.        Absent such

specific legal authority, with any attendant constitutional process therein, Ohio law,

as it now stands, commands that I concur.

DINKELACKER, J., dissenting.

       {¶23}    Kareem Gilbert’s scheme of dishonesty and disrespect for the justice

system should not be rewarded.         This court should hold Gilbert to the series of

agreements he made with the state and the trial court. To do otherwise undermines the

entire plea arrangement system.

       {¶24}    In this case, Gilbert entered into a detailed agreement with the state to

provide honest testimony. He did not. Instead, he has gamed the system in the worst

possible way. He clearly lied to the trial court at some point in order to garner his initial

conviction for voluntary manslaughter, as opposed to the indicted offense of aggravated

murder.

       {¶25}    The Ohio Supreme Court has held that the reasons for disfavoring

collateral attacks do not apply in two principle circumstances: (1) when the issuing court

lacked jurisdiction or (2) when the order was the product of fraud. Ohio Pyro, Inc. v.

Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 23.

Gilbert perpetrated a fraud of the highest order. I believe that his conduct places this

case within this narrow line of exceptions to judgment finality that allows courts to


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correct grave injustices like the one that has occurred here. The trial court acted within

its jurisdiction in reconsidering the May 2010 judgment of conviction.

       {¶26}    Since the trial court acted within its jurisdiction, I believe that the

reasoning of the court in State v. Taylor, 9th Dist. No. 92CA005469, 1993 Ohio App.

LEXIS 2585 (May 19, 1993), applies. The facts in that case are similar to the facts in

the present case.      The court in Taylor held that “where a plea is accepted

conditionally and the defendant fails to comply with the condition, the court is

justified in vacating the plea.” Id. at *4. This is exactly the case here. This would

effectuate justice in this case.

       {¶27}    Further, in Taylor, the defendant had objected in the trial court to the

state’s motion to vacate her plea. Here, Gilbert not only did not object to the state’s

motion to vacate the plea, but acquiesced to it. He did not appeal the state’s motion.

Consequently, he has waived any error, and we can reverse only upon a finding of

plain error. See State v. Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d 1332 (1983);

State v. Tibbs, 1st Dist. No. C-100378, 2011-Ohio-6716, ¶ 40.

       {¶28}    “[T]he plain error rule is to be applied with the utmost caution and

invoked only under exceptional circumstances, in order to prevent a manifest

miscarriage of justice.” State v. Cooperrider, 4 Ohio St.3d 226, 227, 448 N.E.2d 452

(1983); State v. Salaam, 1st Dist. Nos. C-070385 and C-070413, 2008-Ohio-4982, ¶

25.   In this case, the manifest miscarriage of justice would be to allow Gilbert to

avoid his conviction for murder through his own lies. Therefore, I cannot join in the

majority opinion.

       {¶29}    My interpretation of the law surrounding the circumstances of this

case does not allow me to join the majority. Gilbert did not seek justice, he thwarted




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it. Left to stand, the decision of this court allows an injustice against the citizens of

Ohio. The state committed no unfair act and broke no rule.

       {¶30}   Therefore, I dissent.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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