[Cite as State v. Rogers, 2014-Ohio-3924.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 101063




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  BRIANNA S. ROGERS
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-576556-A

        BEFORE: Keough, P.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED: September 11, 2014
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino, Mancino & Mancino
75 Public Square Building, Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
      Steven McIntosh
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Brianna Rogers, appeals the trial court’s decisions

denying her postsentence motion to vacate her guilty plea and her motion to reconsider

her sentence. Finding that the trial court lacked jurisdiction to consider the merits of

Rogers’s motions, we reverse the judgments of the trial court.

       {¶2} In 2013, Rogers was charged with two counts each of attempted murder,

felonious assault, aggravated menacing, and improperly handling of firearms in a motor

vehicle, and one count of discharge of a firearm on or near prohibited premises. The

attempted murder and felonious assault charges also contained one-, three-, and five-year

firearm specifications.

       {¶3} Following discovery, Rogers agreed to plead guilty to two amended counts of

felonious assault, two counts of aggravated menacing, one count of improperly handling

of firearms in a motor vehicle, and the charge of discharge of a firearm on or near

prohibited premises. All other counts were nolled. The court sentenced Rogers to five

years in prison. The day after she was sentenced, Rogers moved the trial court to

reconsider her sentence, and the following week, Rogers filed a postsentence motion to

withdraw her guilty plea. However, on January 17, 2014, Rogers timely filed a direct

appeal from her conviction. See State v. Rogers, 8th Dist. Cuyahoga No. 100903. On

January 31, 2014, and after the direct appeal was filed, the trial court denied Rogers’s

motion to reconsider her sentence. On February 5, 2014, the trial court denied Rogers’s

postsentence motion to withdraw her guilty plea.
       {¶4} Rogers now appeals from these decisions, raising the following two

assignments of error:

       I. The trial court denied her due process in overruling her motion to
       withdraw her guilty plea without a hearing.

       II. The trial court erred in imposing more than the minimum sentence
       based on judicial factfinding in violation of the Sixth Amendment of the
       United States Constitution.

       {¶5} We find that the trial court lacked jurisdiction to consider these motions after

the direct appeal was filed. The filing of a notice of appeal divests the trial court of

jurisdiction to act inconsistently with the appellate court’s jurisdiction to review, affirm,

modify, or reverse the appealed judgment. State ex rel. Special Prosecutors v. Judges,

Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978); In re S.J., 106

Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9; State v. Maholtz, 8th Dist.

Cuyahoga No. 51096, 1991 Ohio App. LEXIS 2776, *6 (June 13, 1991) (“If the trial

court in the within action vacated the guilty plea, this court’s jurisdiction would have been

usurped as the trial court’s action would have interfered with this court’s jurisdiction and

power to review, affirm, modify, reverse, or remand the case.”).

       {¶6} In this case, had the trial court granted either one of Rogers’s motions, the

trial court’s decision would have interfered with this court’s jurisdiction to consider

Rogers’s direct appeal of her convictions in accordance with App.R. 12. Accordingly,

the trial court lacked jurisdiction to consider Rogers’s motions once the appellant filed

her notice of appeal. The trial court’s ruling on the motions are a nullity. Maholtz,
citing State v. Hughes, 8th Dist. Cuyahoga No. 57165, 1990 Ohio App. LEXIS 2949 (July

19, 1990).

       {¶7} Judgments reversed; case remanded for the trial court to vacate its rulings on

Rogers’s motions and hold the motions in abeyance until this court decides Rogers’s

direct appeal in Rogers, 8th Dist. Cuyahoga No. 100903.

       It is ordered that the parties share equally in 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 common

pleas court to carry this judgment into execution.

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

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR
