[Cite as State v. Ramey, 2019-Ohio-398.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-99
                                                 :
 v.                                              :   Trial Court Case No. 2013-CR-776
                                                 :
 SHANE R. RAMEY                                  :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                           Rendered on the 8th day of February, 2019.

                                            ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 N. Pioneer Boulevard,
Springboro, Ohio 45066
      Attorney for Defendant-Appellant

                                           .............
                                                                                           -2-


FROELICH, J.

         {¶ 1} Shane R. Ramey appeals the Clark County Common Pleas Court’s denial of

his post-conviction motion to withdraw his guilty pleas to one count of trafficking in cocaine

and one count of having weapons while under disability. The judgment of the trial court

will be affirmed.

                      Factual Background and Procedural History

         {¶ 2} On November 12, 2013, a Clark County grand jury indicted Ramey on five

counts: Count One, trafficking in cocaine, with a firearm specification; Count Two,

possession of cocaine, with a firearm specification; Count Three, trafficking in marijuana,1

with a firearm specification; Count Four, having weapons while under disability;2 and

Count Five, aggravated possession of drugs, with a firearm specification. Forfeiture

specifications also attached to each count. Ramey appeared with counsel and entered a

plea of not guilty to all counts.

         {¶ 3} On January 15, 2014, Ramey moved to suppress all evidence seized during

a search of his residence, as well as any statements he made incident to what he

characterized as his “illegal arrest.” Following an evidentiary hearing held on January 24,

2014, the trial court denied that initial motion to suppress.

         {¶ 4} On February 3, 2014, Ramey filed a supplemental motion to suppress,

arguing that the warrant underlying the search of his residence was invalid and that all

“fruits” of that warrant should be suppressed. On February 4, 2014, the trial court denied



1
    Spelled in the indictment as “marihuana.” (Emphasis added.)
2
  The indictment states that Ramey had prior convictions for aggravated robbery and
felonious assault.
                                                                                           -3-


Ramey’s supplemental motion to suppress; the court’s entry stated in its entirety as

follows:

       The matter is before the Court on the motion of the Defendant to suppress

       evidence seized as a result of a search conducted pursuant to a search

       warrant. Following the denial of the defendant’s supplemental request for a

       Franks 3 hearing, the parties submitted the motion to the Court on the

       affidavit and search warrant filed on November 1, 2013. (Joint Exhibit A)

       Upon review of the affidavit and warrant, the Court finds that the issuing

       judge had sufficient evidence to grant the warrant and that the terms of the

       warrant are consistent with the information provided to the judge. The Court

       having reviewed the evidence presented and the written arguments of

       counsel finds the motion is not [ ] well taken and the same is OVERRULED.

(Emphasis sic.) (Trial Court Docket (“Doc.”) #22).4

       {¶ 5} On March 5, 2014, Ramey entered pleas of guilty to the Count One offense

of trafficking in cocaine in violation of R.C. 2925.03(A)(2), a second-degree felony, and

the Count Four offense of having weapons while under disability in violation of R.C.

2923.13(A)(2), a third-degree felony, with the firearm specification to Count One and all

remaining counts to be dismissed. The trial court advised Ramey, both orally during the



3
 Presumably a reference to Franks v. Delaware, 438 U.S. 154, 99 S.Ct. 2674, 57 L.Ed.2d
667 (1978).
4 It is unclear from the record whether or not the trial court held a hearing on Ramey’s
supplemental motion to suppress before denying that motion. Although the record
suggests that a transcript of such a hearing is missing (see 6/19/18 Affidavit of Judith L.
Pierce, Official Court Reporter), there is no indication in the trial court’s decision on that
motion or elsewhere in the record that such a hearing actually occurred.
                                                                                         -4-


plea hearing and in writing in the plea entry, that the maximum penalties for Counts One

and Four were eight years and three years of imprisonment, respectively. During Ramey’s

April 17, 2014 sentencing hearing, the trial court sentenced Ramey to a prison term of six

years on Count One and three years on Count Four, to be served consecutively. The

court also ordered the forfeiture of certain items of property.

       {¶ 6} On May 9, 2014, Ramey’s trial counsel filed a notice of appeal from Ramey’s

conviction and sentence. Appellate counsel appointed for purposes of that appeal filed a

brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), stating that he had identified no appellate issues with arguable merit. We

thereafter granted Ramey 60 days – plus an extension that he requested – to file a pro

se brief. No pro se brief was filed. We therefore conducted an independent review, found

no issues with arguable merit, and affirmed the trial court’s judgment. State v. Ramey, 2d

Dist. Clark No. 2014-CA-62, 2015-Ohio-1399.

       {¶ 7} On March 30, 2016, Ramey moved pro se in the trial court to withdraw his

guilty pleas pursuant to Crim.R. 32.1, asserting that his pleas “were not entered into

knowingly and intelligently because he was deprived of the effective assistance of counsel

during the plea process.” (Doc. #34, p. 1). In his supporting memorandum, Ramey argued

that his trial counsel performed deficiently by failing to advise Ramey that he had a viable

defense based on the fact that the search warrant on Ramey’s residence was not

executed until four days after it was issued. Ramey premised that argument on Crim.R.

41(C)(2), which provides that an officer is to search the specified property “within three

days” after a search warrant is issued.

       {¶ 8} The State opposed Ramey’s motion, acknowledging that the warrant to
                                                                                         -5-


search Ramey’s residence “was issued on November 1, 2013 and executed on November

5, 2013,” but observing that “November 1, 2013 was a Friday,” and that in accordance

with Crim.R. 45(A), Saturdays and Sundays are to be excluded when computing the

three-day period prescribed for executing search warrants. In reply, without disputing the

facts as set out by the State, Ramey “move[d] for summary judgment in lieu of an

evidentiary hearing,” urging that the search warrant that led to his arrest was invalid as a

matter of law.

       {¶ 9} On October 25, 2017, without first holding a hearing, the trial court denied

Ramey’s motion to withdraw his plea, finding that “[t]he time to execute the search warrant

had not lapsed” and that the basis for Ramey’s ineffective assistance of counsel claim

therefore lacked merit. (Doc. #40).

       {¶ 10} Ramey appeals that judgment, setting forth this single assignment of error:

“The trial court erred by in overruling [Ramey]’s motion to withdraw guilty pleas without a

hearing.”

                                   Standard of Review

       {¶ 11} Pursuant to Crim.R. 32.1, after a defendant has been sentenced, a court

may permit him or her to withdraw a guilty plea “only to correct a manifest injustice.” See

State v. Harden, 2d Dist. Montgomery No. 24603, 2012-Ohio-1657, ¶ 13. Crim.R. 32.1

“does not address the circumstances under which the trial court is required to hold an

evidentiary hearing on the motion.” State v. Humphrey, 2d Dist. Montgomery No. 19243,

2002-Ohio-6525, ¶ 12. However, we have determined that “an evidentiary hearing is not

required on every post-sentence motion to withdraw a plea.” Harden at ¶ 14, quoting State

v. Stewart, 2d Dist. Greene No. 2003-CA-28, 2004-Ohio-3574, ¶ 6. “A hearing is required
                                                                                           -6-


only if the facts alleged by the defendant, if accepted as true, would require [that] the plea

be withdrawn.” State v. Minker, 2d Dist. Champaign No. 2009 CA 16, 2009-Ohio-

5625, ¶ 18, quoting State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571, 2009-

Ohio-295, ¶ 19.

       {¶ 12} We review a trial court’s decision on a motion to withdraw a guilty plea for

an abuse of discretion, which means “more than an error of law or judgment; it implies

that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Harris. 2d

Dist. Montgomery No. 19013, 2002-Ohio-2278, ¶ 1, quoting State v. Adams, 62 Ohio

St.2d 151, 157, 404 N.E.2d 144 (1980).

                    Preliminary Issue – Jurisdiction of Trial Court

       {¶ 13} As a preliminary matter, we must examine whether the trial court had

jurisdiction to consider Ramey’s motion to withdraw his guilty pleas. “A defect in subject-

matter jurisdiction cannot be waived or forfeited and may, therefore, be raised at any

time.” NVR, Inc. v. Centerville, 2016-Ohio-6960, 71 N.E.3d 745, ¶ 21 (2d Dist.), quoting

Engelhart v. Hamilton Cty. Bd. of Commrs., 2016-Ohio-4935, 69 N.E.3d 137, ¶ 6 (1st

Dist.). Although the State did not raise a challenge to the trial court’s jurisdiction while

before that court, we nonetheless may consider whether the trial court lacked jurisdiction

to grant the relief requested in Ramey’s motion to withdraw his pleas. Id. at ¶ 20.

       {¶ 14} In this matter, Ramey pled guilty on March 5, 2014, we affirmed the

judgment on April 10, 2015, and Ramey filed his Crim.R. 32.1 motion to withdraw on

March 20, 2016. According to the Ohio Supreme Court, Crim.R. 32.1 “does not confer

upon the trial court the power to vacate a judgment which has been affirmed by the

appellate court.” State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55
                                                                                           -7-


Ohio St. 2d 94, 98, 378 N.E.2d 162 (1978). More precisely, “Crim.R. 32.1 does not vest

jurisdiction in the trial court to maintain and determine a motion to withdraw the guilty plea

subsequent to an appeal and an affirmance by the appellate court.” Id. at 97.5

       {¶ 15} We have applied Special Prosecutors in likewise determining that, once this

court has affirmed a defendant’s conviction, “the lower court no longer has jurisdiction to

reconsider matters dealing with that conviction, such as whether the plea should be

vacated.” State v. Becraft, 2017-Ohio-1464, 89 N.E.3d 183, ¶ 51 (2d Dist.), quoting State

v. Smith, 7th Dist. Mahoning No. 14 MA 65, 2015-Ohio-4809, ¶ 5. Accord State v.

Patterson, 2d Dist. Montgomery No. 27423, 2018-Ohio-872, ¶ 11 (“the trial court found

correctly that it lacked jurisdiction to entertain [defendant’s post-appeal motion to

withdraw guilty pleas], given that this court has already affirmed [defendant]’s

convictions”); State v. Byrd, 2d Dist. Montgomery No. 25591, 2013-Ohio-3751, ¶ 11

(where defendant sought to withdraw guilty plea based on alleged ineffective assistance

of counsel, “the trial court lacked jurisdiction to consider appellant’s motion to withdraw



5
  The Ohio Supreme Court since has made clear that its decision in Special Prosecutors
“does not bar the trial court’s jurisdiction over posttrial motions permitted by the Ohio
Rules of Criminal Procedure.” State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959
N.E.2d 516, ¶ 37. Specifically, the court in Davis found that even after a defendant’s
conviction has been affirmed, the trial court retains jurisdiction to consider that
defendant’s post-appeal motion for a new trial pursuant to Crim.R. 33 based on newly
discovered evidence that the defendant was “unavoidably prevented” from discovering.
Id. at ¶ 40. Although the basis for Ramey’s purported ineffective assistance of counsel
claim was apparent on the trial court record, we express no opinion as to whether a trial
court retains jurisdiction to entertain a post-affirmance motion to withdraw a guilty plea
when the defendant was unavoidably prevented from discovering the basis for such
motion. But see, e.g., State v. West, 2017-Ohio-5596, 93 N.E.3d 1221, ¶ 20 (1st Dist)
(where First District Court of Appeals held “that an appeals court’s decision affirming a
judgment of conviction does not deprive a lower court of jurisdiction to entertain a Crim.R.
32.1 motion to withdraw a guilty plea, when the issue presented by the motion could not
have been raised on direct appeal”).
                                                                                            -8-


his guilty plea, * * * filed * * * approximately three and one-half years after we affirmed his

conviction and sentence”).

       {¶ 16} While the trial court denied Ramey’s motion based not on that court’s lack

of jurisdiction, but rather on its findings as to the merits of that motion, “a reviewing court

is not authorized to reverse a correct judgment merely because erroneous reasons were

assigned as a basis thereof.” State v. Blair, 2018-Ohio-4041, ___ N.E.3d ___ (2d Dist.),

quoting State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 92, 637 N.E.2d 306 (1994).

Because the trial court appropriately denied Ramey’s motion to withdraw his guilty pleas,

Ramey’s assignment of error based on that court’s failure to first hold a hearing is

overruled.

                  Merits of Ramey’s Motion to Withdraw Guilty Pleas

       {¶ 17} Although our foregoing conclusion regarding the trial court’s lack of

jurisdiction obviates the need for further analysis, we nonetheless observe that the trial

court did not err in concluding that Ramey’s motion to withdraw his guilty pleas lacks

substantive merit. The undisputed facts establish that the search warrant was executed

within the time permitted by Crim.R. 41(C)(2), as read in conjunction with Crim.R. 45(A).

The parties agree that the search warrant on Ramey’s residence was issued on

November 1, 2013.6 It is undisputed that November 1, 2013 fell on a Friday. It also is

undisputed that the search based on that warrant occurred on November 5, 2013,7 which


6
 A copy of the subject warrant, dated November 1, 2013, appears in the record as an
attachment to Ramey’s motion to withdraw his guilty pleas. (See Doc. #34).
7
  Ramey’s appellate brief states that the warrant was “executed on November 6, 2013”
(see Brief of Appellant, p. 6), but that unsubstantiated suggestion is contrary to all other
references in the record, which uniformly identify November 5 as the date the search
warrant was executed. (See, e.g., Doc. #34, Ramey’s Motion to Withdraw Guilty Pleas,
                                                                                          -9-


was a Tuesday.

       {¶ 18} In accordance with Crim.R. 45(A), “[w]hen the period of time prescribed or

allowed [for completing some action under the Rules of Criminal Procedure] is less than

seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in

computation.” Under Crim.R. 41(C)(2), the location named in a search warrant is to be

searched “within three days.” We previously have confirmed that because that period is

less than seven days, the provisions of Crim.R. 45(A) are triggered. See State v. Talley,

2d Dist. Montgomery No. 24765, 2012-Ohio-4183, ¶ 11 (“Crim.R. 45(A) applies to

computing time for the execution of warrants”). Accordingly, Saturday, November 2, 2013

and Sunday, November 3, 2013 were to be excluded in computing the three days

permitted for executing the warrant, and the warrant executed on Tuesday, November 5,

2013, was executed within the applicable three-day window.8 Ramey’s trial counsel did

not perform deficiently by allegedly failing to advise Ramey of a facially-meritless defense,

and the trial court was not required to holding a hearing where the undisputed facts

established that no legal basis existed for Ramey’s claim of ineffective assistance of

counsel.

       {¶ 19} Despite the foregoing analysis, Ramey contends that the trial court erred by

“rel[ying] on findings regarding the search warrant that are not part of the record.”

Specifically, he suggests that the trial court’s denial of Ramey’s motion to withdraw his

guilty pleas was based in part on evidence presented during a February 4, 2014 hearing




p. 4; Doc. #13, Bill of Particulars; Doc. #17, Ramey’s original Motion to Suppress, p. 3).
8
 In fact, even if the warrant had been served on November 6, as Ramey’s appellate brief
suggests (see fn.7, above), the search still would have been timely.
                                                                                         -10-


on his supplemental motion to suppress, the transcript of which was omitted from the

current record.9

         {¶ 20} Ramey’s argument to that effect does not dissuade us from our prior

conclusion, for three reasons. First, contrary to Ramey’s suggestion, nothing in the trial

court’s decision denying Ramey’s motion to withdraw his plea indicates that the court

relied on information presented at a February 4, 2014 hearing in reaching that decision.

(See Doc. #40). Second, nowhere does the record establish that an evidentiary hearing

as to the supplemental motion to suppress actually occurred.10 To the contrary, the trial

court’s decision denying that supplemental motion to suppress states that the court

“deni[ed] * * * [Ramey’s] * * * request for a Franks hearing” and “the parties submitted the

motion to the Court on the affidavit and warrant filed on November 1, 2013.” (Doc. #22).

It appears that the purportedly “missing” transcript may relate to a non-existent hearing.

Third, even assuming that a hearing did occur, the dates that the warrant was issued and

executed were not in dispute. We are able to discern the pertinent dates not only from the

trial court’s decision, but from Ramey’s own filings as well as the complete record.11 The

absence of a February 4, 2014 hearing transcript is inconsequential to our conclusion.

         {¶ 21} Finally, although Ramey’s argument on this appeal hinges entirely on the

trial court’s failure to afford Ramey a hearing before denying his motion to withdraw his

guilty pleas, Ramey’s reply memorandum in support of that motion stated that Ramey


9
 The record indicates that a “visiting” court reporter was assigned to cover the February
4, 2014 suppression hearing but failed to produce a transcript, despite multiple requests.
(See 6/19/18 Affidavit of Judith L. Pierce, Official Court Reporter).
10
     See fn.4, above.
11
     See fn. 6, above.
                                                                                          -11-

was “mov[ing] for summary judgment in lieu of an evidentiary hearing,” because “no

genuine issue of fact remain[s].” (Emphasis added.) (Doc. #37, p. 1). Having affirmatively

waived a hearing on that motion, Ramey cannot now fault the trial court for failing to afford

him such a hearing.

       {¶ 22} The trial court did not err by failing to hold a hearing before denying Ramey’s

post-conviction motion to withdraw his guilty pleas, and Ramey’s sole assignment of error

is overruled.

                                        Conclusion

       {¶ 23} The judgment of the trial court will be affirmed.

                                      .............



DONOVAN, J. and HALL, J., concur.


Copies sent to:

Andrew P. Pickering
Marshall G. Lachman
Hon. Richard J. O’Neill
