[Cite as State v. Lauharn, 2012-Ohio-1572.]




               IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :            C.A. CASE NO. 2011 CA 10

v.                                                       :            T.C. NO.     2010CR47

GARY D. LAUHARN                                          :            (Criminal appeal from
                                                                      Common Pleas Court)
        Defendant-Appellant                    :

                                                         :

                                              ..........

                                              OPINION

                         Rendered on the           6th       day of        April        , 2012.

                                              ..........

ROBERT E. LONG III, Atty. Reg. No. 0066796, Assistant Prosecuting Attorney, 201 West
Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, 131 North Ludlow Street, Suite 386
Talbott Tower, Dayton, Ohio 45402
       Attorney for Defendant-Appellant

                                              ..........

FROELICH, J.

                {¶ 1} In September 2010, Gary D. Lauharn pled no contest to six counts of

rape, three counts of pandering obscenity involving a minor, and one count of pandering

sexually oriented matter involving a minor. Two of the rape counts and one pandering
                                                                                                 2

obscenity charge related to conduct prior to 1996 and were governed by the pre-Senate Bill 2

criminal sentencing statutes. In exchange for his pleas, the State dismissed seven additional

charges. At sentencing, the trial court imposed an aggregate sentence of 40 years in prison.

       {¶ 2}      Lauharn timely appealed from his conviction, claiming that a sentencing

error occurred as to one of the pre-1996 rapes. On April 1, 2011, while his direct appeal

was pending, Lauharn filed a motion to withdraw his pleas, claiming that his attorney had

told him that he would receive a sentence between five and eight years and that he did not

know that he could be given consecutive sentences. The trial court overruled the motion.

In its decision, the court stated that it had reviewed the transcript of the plea hearing and that

the transcript reflected that the trial court had told Lauharn about the possibility of

consecutive sentences and that Lauharn had understood.

       {¶ 3}      Lauharn subsequently moved for reconsideration of the trial court’s denial

of his motion to withdraw his plea. He emphasized that he was under the influence of

several “medical and psychotropic medications” during the plea hearing and that his defense

counsel had not reported that fact to the trial court. He argued that he was “in a drug

induced stupor” during the plea hearing, and that his pleas were based on the terms set forth

in the three plea forms and his counsel’s representation that he would receive five to eight

years in exchange for his pleas. The trial court overruled the motion for reconsideration.

       {¶ 4}      In August 2011, four months after the denial of Lauharn’s motions, we

reversed Lauharn’s sentence on the one rape conviction at issue on appeal and remanded

solely for the trial court to “correct its sentencing entry with respect to Count 6 to reflect that

the sentence, by operation of R.C. 5145.01, is deemed to be an indeterminate sentence with
                                                                                               3

an 8-year definite term as the minimum and 25 years the maximum.” State v. Lauharn, 2d

Dist. Miami No. 2010-CA-35, 2011-Ohio-4292, ¶ 12.

       {¶ 5}     Lauharn appeals from the denial of his motion to withdraw his pleas and

the denial of his motion for reconsideration, claiming that his pleas were not made

knowingly, intelligently, and voluntarily. Prior to the appointment of appellate counsel,

Lauharn filed a pro se brief, which focused on his understanding that he would receive a

sentence between five and eight years and on his mental health issues. Appointed appellate

counsel subsequently filed a brief on Lauharn’s behalf, which raised the same issues.

       {¶ 6}     In response to Lauharn’s arguments, the State asserts that the trial court

lacked jurisdiction to consider Lauharn’s motions while his case was pending on direct

appeal; the State does not address the merits of Lauharn’s arguments. We find the State’s

argument to be dispositive.

       {¶ 7}     The Supreme Court of Ohio has long held that “[o]nce an appeal is taken,

the trial court is divested of jurisdiction except ‘over issues not inconsistent with that of the

appellate court to review, affirm, modify or reverse the appealed judgment, such as the

collateral issues like contempt * * *.’” State ex rel. State Fire Marshal v. Curl, 87 Ohio

St.3d 568, 570, 722 N.E.2d 73 (2000), quoting State ex rel. Special Prosecutors v. Judges,

Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). Following Special

Prosecutors, we have repeatedly held that the filing of a notice of appeal from a conviction

and sentence divests the trial court of jurisdiction to address a motion to withdraw the

defendant’s plea during the pendency of the appeal. E.g., State v. Champion, 2d Dist.

Montgomery No. 22312, 2008-Ohio-3611, ¶ 12 (stating that “the trial court erred in denying
                                                                                              4

Champion’s motion to withdraw his plea while his conviction was under review by this

court.”); State v. Wilson, 2d Dist. Montgomery No. 23167, 2010-Ohio-109, ¶ 16. See also,

e.g., State v. Leach, 8th Dist. Cuyahoga No. 84794, 2005-Ohio-1870, ¶ 16-17; State v.

Dudas, 11th Dist. Lake Nos. 2006-L-267 & 2006-L-268, 2007-Ohio-6739, ¶ 99. A motion

to withdraw a plea is not a collateral issue, because it could directly affect the judgment

under appeal. State v. Winn, 2d Dist. Montgomery No. 17194, 1999 WL 76797 (Feb. 19,

1999).

         {¶ 8}   This also makes sense from the perspective of judicial economy. Assume

that a trial court could consider a motion to withdraw a plea, but only had the jurisdiction to

deny it (since a granting of the motion would moot the appeal.) The trial court would have

to entertain briefs, possibly hold a hearing, and then write a decision that could only deny the

motion (which even itself could be in conflict with the appellate decision if, for example, the

involuntariness of the plea were raised in both forums).

         {¶ 9}   We have not, however, always been consistent in our approach.              For

example, in State v. Summers, 2d Dist. Montgomery No. 21735, 2007-Ohio-4576, we stated

that “the appropriate time to raise the issue of whether the trial court erred in denying [the

defendant’s] motion to withdraw her plea was thirty days from the trial court’s judgment.”

Id. at ¶ 6. We commented, in a footnote, that “the trial court had jurisdiction to deny the

appellant’s motion” because such a denial would not interfere with this court’s appellate

jurisdiction to review, affirm, modify, or reverse judgments or final orders. (Emphasis in

original.) Id., fn. 1. Summers cited to Winn as authority for the proposition that a trial

court may deny a motion to withdraw a plea while an appeal is pending; however, Winn does
                                                                                            5

not support that proposition and, in fact, indicates that the trial court could not consider a

motion to withdraw a plea while an appeal from the conviction was pending. See Winn at

*5.

       {¶ 10}    We have also held, somewhat inconsistently, that a trial court has the

jurisdiction to deny a motion for a new trial while a direct appeal is pending, although the

trial court does not have jurisdiction to grant such a motion. See State v. Rossi, 2d Dist.

Montgomery No. 23682, 2010-Ohio-4534, citing State v. Ferrell, 2d Dist. Montgomery No.

8150, 1983 WL 4891 (Apr. 15, 1983). But see State v. Butler, 2d Dist. Clark No. 2717,

1991 WL 116659 (June 26, 1991) (concluding that the trial court lacked jurisdiction to

decide defendant’s motion to a new trial while his direct appeal was pending, following

Special Prosecutors). We note that several other appellate districts have held that a trial

court lacks jurisdiction to address the merits of a motion for a new trial based on newly

discovered evidence when an appeal from the conviction is pending. E.g., State v. Scheidel,

11th Dist. Ashtabula No. 2004-A-55, 2006-Ohio-198, ¶ 22; State v. Yeager, 9th Dist.

Summit No. 21676, 2004-Ohio-1239, ¶ 8; State v. Loper, 8th Dist. Cuyahoga Nos. 81400,

81297 & 81878, 2003-Ohio-3213, ¶ 104; State v. Lamar, 4th Dist. Lawrence No. 01CA17,

2002-Ohio-6130, ¶ 24 (distinguishing jurisdiction to consider a motion for leave to file a

motion for a new trial from a motion for a new trial).

       {¶ 11}    In the situation where a party has sought relief from a judgment under

Civ.R. 60(B), which is analogous to a motion to withdraw a plea, we have held that the trial

court lacks jurisdiction to address the Civ.R. 60(B) motion while a direct appeal of the

judgment is pending. Wells Fargo Financial Ohio 1 Mtge. v. Lieb, 2d Dist. Montgomery
                                                                                             6

No. 23855, 2010-Ohio-6111, ¶ 10, citing State ex rel. East Mfg. Corp. v. Ohio Civ. Rights

Comm., 63 Ohio St.3d 179, 181, 586 N.E.2d 105 (1992); Tucker v. Pope, 2d Dist. Miami

No. 2009 CA 30, 2010-Ohio-995, ¶ 28. In Tucker, we followed Howard v. Catholic Social

Services, 70 Ohio St.3d 141, 637 N.E.2d 890 (1994), in which the Supreme Court of Ohio

stated:

                 Appellant’s second proposition of law asserts that the court of appeals

          erred in denying his Civ.R. 60(B)(5) motion for relief from judgment. The

          court of appeals overruled appellant’s motion based on its rationale that

          appellant’s pending appeal in this court from the court of appeals’ judgment

          denying his petition for a writ of habeas corpus divested it of jurisdiction.

          When a case has been appealed, the trial court retains all jurisdiction not

          inconsistent with the reviewing court’s jurisdiction to reverse, modify, or

          affirm the judgment. The issue presented by the court of appeals’ decision is

          whether a trial court retains jurisdiction to consider a Civ.R. 60(B) motion for

          relief from judgment when an appeal from the same judgment is pending.

                 Although some Ohio appellate courts have adopted the view that trial

          courts can consider the merits of Civ.R. 60(B) motions without interfering

          with reviewing courts’ appellate jurisdiction, we have expressly held that an

          appeal divests trial courts of jurisdiction to consider Civ.R. 60(B) motions for

          relief from judgment. Jurisdiction may be conferred on the trial court to

          consider a Civ.R. 60(B) motion while an appeal is pending only through an

          order by the reviewing court remanding the matter for consideration of the
                                                                                             7

       Civ.R. 60(B) motion. Therefore, the court of appeals correctly held that it

       lacked jurisdiction to consider the merits of appellant’s Civ.R. 60(B) motion.

       (Internal citations omitted.) Id. at 147, 637 N.E.2d 890. Howard at 146-47.

       {¶ 12}    In contrast to above-mentioned motions, the Ohio legislature has

specifically authorized trial courts to consider petitions for post-conviction relief while a

direct appeal from a conviction is pending. R.C. 2953.21(C) provides that “[t]he court shall

consider a petition that is timely filed under division (A)(2) of this section even if a direct

appeal of the judgment is pending.”         “This part of the statute became effective in

September, 1995, and allows concurrent processing of direct appeals and post-conviction

petition proceedings. As a result, trial courts do have jurisdiction to hear timely filed

petitions for post-conviction relief, even while direct appeals are pending.” State v. Myers,

2d Dist. Clark No. 2002-CA-73, 2003-Ohio-915, ¶ 8. See also, e.g., State v. Frazier, 10th

Dist. Franklin No. 10AP-966, 2011-Ohio-3316, ¶ 6.

       {¶ 13}    Upon consideration of the foregoing authority, we conclude that the trial

court did not have jurisdiction to address Lauharn’s motions to withdraw his plea and for

reconsideration of the denial of that motion while the case was pending on direct appeal.

Consequently, the trial court’s rulings on Lauharn’s motions to withdraw his plea and for

reconsideration of that denial are nullities. Those motions remain pending in the trial court,

which now has jurisdiction to address them.         See State v. Davis, 131 Ohio St.3d 1,

2011-Ohio-5028, 959 N.E.2d 516, ¶ 37 (“We take this opportunity to specify that the

holding in Special Prosecutors does not bar the trial court’s jurisdiction over posttrial

motions permitted by the Ohio Rules of Criminal Procedure.”).
                                                                                               8

        {¶ 14}      Lauharn’s appeal must be dismissed for lack of a final appealable order.

                                          ..........

FAIN, J., concurring:

        {¶ 15} I concur in the opinion and judgment of the court. I write separately merely

to reiterate my view, first expressed in Post v. Post, 66 Ohio App.3d 765, 770, 586 N.E.2d

185 (2d Dist. 1990), that the better jurisprudential rule would be to treat an order of a trial

court that interferes with appellate review as reversible error, not a lack of subject-matter

jurisdiction.

        {¶ 16}   The Ohio Constitution, Article IV, Section 4(B), enables the Ohio General

Assembly to provide for the jurisdiction of common pleas courts: “The courts of common

pleas and divisions thereof shall have such original jurisdiction over all justiciable matters

and such powers of review of proceedings of administrative officers and agencies as may be

provided by law.”

        {¶ 17}   The General Assembly has provided, in R.C. 2931.03, that: “The court of

common pleas has original jurisdiction of all crimes and offenses, except in cases of minor

offenses the exclusive jurisdiction of which is vested in courts inferior to the court of

common pleas.”       I have not found an exception to this general grant of jurisdiction

pertaining to cases in which an appeal is pending.

        {¶ 18}   Nevertheless, I agree that the jurisprudence of Ohio, as laid down by the

Supreme Court of Ohio, commands the result reached in this case.

                                          ..........

GRADY, P.J., concurring:
                                                                                              9

       {¶ 19}     Section 3(B)(2), Article IV of the Ohio Constitution provides:

                Courts of appeals shall have such jurisdiction as may be

                provided by law to review and affirm, modify, or reverse

                judgments or final orders of the courts of record inferior to the

                court of appeals within the district and shall have such

                appellate jurisdiction as may be provided by law to review and

                affirm, modify, or reverse final orders or actions of

                administrative officers or agencies.

       {¶ 20}     R.C. 2505.03(A) states that “[e]very final order . . . of a court . . . may be

reviewed on appeal by . . . a court of appeals . . .” R.C. 2505.03(B) states that “such an

appeal is governed by this chapter and, to the extent that this chapter does not contain a

relevant provision, the Rules of Appellate Procedure.”

       {¶ 21}     App.R. 3(A) states that “[a]n appeal as of right shall be taken by filing a

notice of appeal with the clerk of the trial court within the time allowed by Rule 4.” App.R.

4 establishes the times within which a notice of appeal must be filed. Filing the notice

triggers the appellate jurisdiction of the court of appeals, so long as the order or judgment

from which the appeal is taken is a “final order” as defined by R.C. 2505.02.

       {¶ 22}     Section 4(B), Article IV of the Ohio Constitution provides that “[t]he courts

of common pleas and divisions thereof shall have such original jurisdiction over all

justiciable matters . . . as may be provided by law.” R.C. 2931.03 confers exclusive original

jurisdiction in criminal cases involving felony offenses in the court of common pleas.

       {¶ 23}     The jurisdiction to review final orders of courts inferior to a court of
                                                                                              10

 appeals conferred by R.C. 2905.03(A) authorizes the appellate court to affirm, modify, or

 reverse those final orders in the exercise of the power conferred on courts of appeals by

 Section 3(B)(2), Article IV. The appellate court’s exercise of that constitutional power

 necessarily precludes the exercise by a court of common pleas of the statutory original

 jurisdiction which resulted in the same final order while the appellate review procedure is

 pending. The only exceptions are in matters remanded by the appellate court to the trial

 court pursuant to App.R. 27 while the appeal remains pending, and matters which are the

 subject of an R.C. 2953.21 petition for post-conviction relief, in which the jurisdiction of the

 two courts is concurrent. App.R. 6(A).

           {¶ 24}   Recently, in State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5128, 959 N.E.2d

 516, ¶ 37, the Supreme Court wrote that “the holding in Special Prosecutors1 does not bar

 the trial court’s jurisdiction over posttrial motions permitted by the Ohio Rules of Criminal

 Procedure.” A careful reading of Davis reveals that the appeal concerned was not pending,

 but instead had been decided. Further, the post-trial motion filed was a Crim.R. 33(A)(6)

 motion for new trial on a claim of newly-discovered evidence, which could not have been an

 issue or claim which the prior appeal determined. Davis held that the relief the posttrial

 motion sought was not subject to the law of the case doctrine. Davis does not change the

 current law governing the trial court’s exercise of its jurisdiction to determine motions

 potentially affecting a final order while an appeal from that final order is pending.

                                           ..........



       1
       State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55
Ohio St.2d 94, 378 N.E.2d 162 (1978).
                       11

Copies mailed to:

Robert E. Long III
James S. Armstrong
Hon. Christopher Gee
