[Cite as State v. Fisher, 2015-Ohio-4922.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLERMONT COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2015-03-029

                                                    :           OPINION
    - vs -                                                      11/30/2015
                                                    :

JOHN FISHER,                                        :

        Defendant-Appellant.                        :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2013-CR-0639



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati,
Ohio 45202, for defendant-appellant



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, John Fisher, appeals from a decision of the Clermont

County Court of Common Pleas denying his motion to withdraw his guilty plea. For the

reasons stated below, we affirm the decision of the trial court.

        {¶ 2} In 2013, Fisher was charged with multiple counts of rape, felonious assault, and

gross sexual imposition. The charges related to sexual crimes Fisher committed against his

daughter and a neighbor child throughout the 1990s. Fisher pled guilty to two counts of rape
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and one count of gross sexual imposition and the remaining charges were dismissed.

Thereafter, the trial court sentenced Fisher to serve 7 to 25 years on the first rape count, 8 to

25 years on the second rape count, and 2 years on the gross sexual imposition charge. The

court ordered the rape charges to be served consecutively to one another and ordered the

gross sexual imposition charge to be served concurrently to the rape charges, for a total

aggregate sentence of 15 to 50 years.

       {¶ 3} Fisher appealed to this court, arguing the trial court did not make the required

findings in imposing consecutive sentences in regards to the rape charges. We agreed and

remanded the case for the trial court to make the requisite statutory findings under R.C.

2929.14(C)(4) for consecutive sentences. State v. Fisher, 12th Dist. Clermont No. CA2014-

05-036, 2015-Ohio-572, ¶ 2-4 (Fisher I).

       {¶ 4} On remand, the trial court held a resentencing hearing. Prior to resentencing,

Fisher moved to withdraw his guilty plea. Fisher argued that the trial court should consider

the motion under the more liberal standard applicable to presentence motions to withdraw

guilty pleas. The trial court disagreed, determined that the motion was a post-sentence

motion to withdraw a guilty plea, and overruled the motion reasoning that Fisher's claims

were barred by res judicata and did not show a manifest injustice. The trial court then made

statutory findings under R.C. 2929.14(C)(4) for consecutive sentences and again sentenced

Fisher to an aggregate prison term of 15 to 50 years, with credit for time served.

       {¶ 5} Fisher now appeals, asserting a sole assignment of error:

       {¶ 6} THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING

APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA.

       {¶ 7} Fisher argues the trial court erred in denying his motion to withdraw his guilty

plea. Fisher maintains the trial court incorrectly treated the motion as a post-sentence

motion subject to the "manifest injustice" standard under Crim.R. 32.1, rather than as a

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presentence motion which should be "freely and liberally granted." Fisher asserts his motion

to withdraw was a presentence motion because we declared his original sentence void in

Fisher I and on remand the trial court conducted a de novo resentencing hearing.

       {¶ 8} Crim.R. 32.1 provides that "[a] motion to withdraw a plea of guilty * * * may be

made only before sentence is imposed; but to correct manifest injustice the court after

sentence may set aside the judgment of conviction and permit the defendant to withdraw his

or her plea." Crim.R. 32.1 requires a defendant making a post-sentence motion to withdraw

a plea to demonstrate manifest injustice because it is designed "to discourage a defendant

from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the

sentence was unexpectedly severe." State v. Caraballo, 17 Ohio St.3d 66, 67 (1985).

       {¶ 9} A trial court has no authority to consider a motion to withdraw a plea after a

conviction has been affirmed on appeal, or, if there was no appeal, after the time for filing the

original appeal has passed. State v. Carter, 3d Dist. Allen No. 1-11-36, 2011-Ohio-6104, ¶

11. Specifically, the Ohio Supreme Court has held that "'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.'" State v. Ketterer, 126

Ohio St.3d 448, 2010-Ohio-3831, ¶ 61, quoting State ex rel. Special Prosecutors v. Judges,

Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978). While Crim.R. 32.1 enlarges "the

power of the trial court over its judgments without respect to the running of the court term, it

does not confer upon the trial court the power to vacate a judgment which has been affirmed

by the appellate court * * *." Id., quoting Special Prosecutors at 98.

       {¶ 10} This court has recently held that when a case is remanded to the trial court

solely for the limited purpose of resentencing, and the sentence is not void, the trial court

does not have jurisdiction to entertain a motion to withdraw a plea. State v. Simon, 12th Dist.

Butler No. CA2015-05-081, 2015-Ohio-4448, ¶ 20. In Simon, we rejected the defendant's

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argument that his motion to withdraw should be treated as a presentence sentence motion

because it was filed before the resentencing hearing. Id. at ¶ 14-20. Instead, the trial court

did not have jurisdiction to entertain the motion because the defendant's case was remanded

solely for the purpose to correct an allied-offense sentencing error and no other aspect of the

defendant's convictions were modified by the appeal. Id. at ¶ 20. Therefore, the guilty

verdict underlying the defendant's sentence was unaffected by our remand, remained the law

of the case, and was not subject to review. Id. at ¶ 19, citing State v. Wilson, 129 Ohio St.3d

214, 2011-Ohio-2669, ¶ 15.

       {¶ 11} In Fisher I, this court remanded the case to the trial court solely for the court to

make the requisite statutory findings under R.C. 2929.14(C)(4) in imposing consecutive

sentences on the rape counts. Like Wilson, the guilty verdict underlying Fisher's sentence

was unaffected by our remand, remained the law of the case, and was not subject to review.

Fisher did not appeal any other aspect of his sentence, and because only the rape sentences

were ordered to be served consecutively to one another, our decision in Fisher I did not affect

the gross sexual imposition sentence. Further, the trial court's failure to make the required

statutory findings before imposing consecutive sentences on the rape counts did not render

Fisher's sentence void and did not require a de novo resentencing hearing. See State v. Nia,

8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 22; State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, paragraph three of the syllabus. Consequently, the trial court lacked

jurisdiction to consider Fisher's post-remand motion to withdraw his guilty plea.

       {¶ 12} Therefore, the trial court did not err in denying Fisher's motion to withdraw his

guilty plea. Fisher's sole assignment of error is overruled.

       {¶ 13} Judgment affirmed.


       PIPER, P.J., and M. POWELL, J., concur.


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