[Cite as State v. Gilbert, 2012-Ohio-1366.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :       APPEAL NO. C-110382
                                                      TRIAL NO. B-0901283
          Plaintiff-Appellee,                 :

        vs.                                   :

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

          Defendant-Appellant.                :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment of Court: Motion to Withdraw As Counsel for Appellant is Granted, New
                  Counsel for Appellant is Appointed, Further Briefing Ordered,
                  and Appeal is Ordered to be Resubmitted.

Date of Judgment Entry on Appeal: March 30, 2012




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

Timothy J. McKenna, 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 while under a disability.        Gilbert’s appointed

appellate counsel has filed a no-error brief stating that no meritorious issues exist to

support Gilbert’s appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967).

              I. The Trial Court Reconsiders Its Final Judgment

       {¶2}   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.

       {¶3}   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 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.

       {¶4}   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

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                    OHIO FIRST DISTRICT COURT OF APPEALS



accepted Gilbert’s guilty pleas, withdrew the prior sentence, and imposed a new

aggregate sentence of 18 years to life in prison. This appeal followed.

           II. The No-Error Brief and This Court’s Sole Obligation

       {¶5}    Gilbert’s appointed appellate counsel has advised this court that, after a

conscientious examination of the record, he can discern no error in the trial proceedings

that would arguably support Gilbert’s appeal. See Freels v. Hills, 843 F.2d 958, 960

(6th Cir.1988); see also Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Appellate

counsel communicated this conclusion to Gilbert but has received no response. See Loc.R.

16.2(C)(1). Counsel has moved this court for permission to withdraw as counsel. See

Anders at 744.
      {¶6} At counsel’s urging, this court now “assume[s] its sole obligation of

conducting ‘a full examination of all the proceedings[ ] to decide whether the case is

wholly frivolous.’ ” State v. Williams, 183 Ohio App.3d 757, 2009-Ohio-4389, 918 N.E.2d

1043, ¶ 11 (1st Dist.), quoting Anders at 744. If this court determines that the appeal is

wholly frivolous, then the court may proceed to a decision on the merits. See In re

Booker, 133 Ohio App.3d 387, 390, 728 N.E.2d 405 (1st. Dist.1999), citing Anders at

744. If, however, this court determines that any legal points arguable on their merits

and prejudicial to the defendant exist, we must ensure, prior to decision, that the

indigent defendant receives the assistance of counsel to argue the appeal. See id. at

390-391.

    III. Arguable Issue of the Trial Court’s Authority to Reconsider Its
                       May 2010 Judgment of Conviction
       {¶7}    Based upon our review of the record and the applicable law, we do not

agree with appointed counsel’s assertion that Gilbert’s appeal is wholly frivolous. We



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                     OHIO FIRST DISTRICT COURT OF APPEALS



find that an arguable issue exists as to whether, after the 2010 judgment of

conviction had been journalized, the trial court had authority to grant the state’s 2011

motion to vacate Gilbert’s pleas, and then to reconsider its own valid final judgment

and resentence Gilbert.

         {¶8}   It is well-established law in Ohio that “trial courts lack authority to

reconsider their own valid final judgments in criminal cases.” State ex rel. White v.

Junkin, 80 Ohio St.3d 335, 338, 686 N.E.2d 267 (1997); see also State ex rel.

Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18. No

matter what term we attach to it—subject-matter jurisdiction or authority—the trial

court’s power to hear and its authority to decide cases is conferred “by law,” and not by

the parties. Ohio Constitution, Article IV, Section 18; see also Morrison v. Steiner, 32

Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph one of the syllabus; Ohio Constitution,

Article IV, Section 4(B) (a common pleas court’s jurisdiction is fixed by statute). Thus

“[a]bsent statutory authority,” the trial court was not empowered to modify its May

2010 criminal sentence, and its attempt to do so may have been improper. State v.

Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671, ¶ 1.

                    Assistance of Counsel to Argue the Appeal
         {¶9}   The appeal is not, therefore, wholly frivolous. Since legal points arguable

on their merits remain to be resolved, this court cannot now reach a decision on the merits

of the appeal. See Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Without the

assistance of counsel to argue these matters for Gilbert, and without the state’s response,

we are ill-equipped to determine whether the court had jurisdiction or authority to act.

See In re Booker, 1st Dist. No. C-980214, 1999 Ohio App. LEXIS 3378, *9 (July 23,

1999).



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} We, therefore, grant counsel’s motion to withdraw.             We appoint

attorney Ravert J. Clark, Attorney Registration Number 0042027, to serve as counsel

for Gilbert. We order him to present, in accordance with App.R. 12 and 16(A), an

assignment of error on the issue of whether the trial court had authority to grant the

state’s motion to vacate Gilbert’s pleas and to reconsider and modify its May 2010

criminal sentence, and on any other matter counsel may discover in a diligent review

of the record.

       {¶11} We further order new counsel to file a brief on or before May 29, 2012,

and counsel for the state to file a responsive brief on or before June 29, 2012.

                                                                 Judgment accordingly.


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

FISCHER, J., concurring separately.

       {¶12} I concur with the result of the lead opinion in so far as I believe that an

arguable issue exists as to whether the trial court had authority to grant the state’s

motion to vacate Gilbert’s pleas and resentence Gilbert, but I write separately to note

that, because Carlisle was concerned with a trial court’s exercise of its authority, as

opposed to subject-matter jurisdiction, Gilbert may have waived any error with

regard to the trial court’s exercise of authority. See Pratts v. Hurley, 102 Ohio St.3d

81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12 (distinguishing between a court’s

subject-matter jurisdiction and the court’s exercise of jurisdiction); see, e.g., State v.

Fugate, 6th Dist. No. F-07-003, 2007-Ohio-6126, ¶ 10 (determining that

“[p]urported errors in a court’s decision in the exercise of its jurisdiction may be

waived and are waived by failure to interpose timely objections.”); but see Crim.R.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



52(B) (discussing plain error). Therefore, I would have ordered appointed counsel

for Gilbert to address whether, assuming that the trial court erred, such an error can

be waived, and whether Gilbert waived such error, if any.


DINKELACKER, J., dissenting.

       {¶13} I do not agree that the record supports the appointment of counsel in

this case. Having thoroughly reviewed the record, I agree with the determination of

both appointed counsel and the state that Gilbert has no meritorious arguments to

present to this court. I therefore dissent.




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




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