[Cite as State v. Bozek, 2016-Ohio-1365.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      MEMORANDUM OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2015-P-0055
        - vs -                                  :

LAWRENCE J. BOZEK,                              :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2010 CR
0295.

Judgment: Appeal dismissed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Lawrence J. Whitney, Lawrence J. Whitney Co., L.P.A., 137 South Main Street, #201,
Akron, OH 44308 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Lawrence Bozek, appeals the judgment of the Portage County

Court of Common Pleas denying his joint motion for a new trial and to vacate his

sentence following his guilty plea to two counts of attempted murder. The issue before

us is whether the instant appeal is moot. For the reasons that follow, we hold that it is

and dismiss.
       {¶2}   Appellant was charged in an indictment and a supplemental indictment

with two counts of purposely attempting to murder his wife, Melinda Bozek; two counts

of attempted felony murder; two counts of felonious assault; and one count of

kidnapping, each count including a firearm specification. Appellant pled not guilty.

       {¶3}   On August 13, 2010, pursuant to the parties’ plea bargain, appellant pled

guilty to one count of attempted murder (committed purposely) and one count of

attempted felony murder and to the firearm specification included in each of these

counts.   As part of the plea bargain, the parties also entered a joint sentencing

agreement. In exchange for appellant’s guilty plea, the state agreed to move to nolle

the remaining counts. The trial court accepted the plea; found appellant guilty; and

dismissed the remaining counts pursuant to the state’s motion. Pursuant to the parties’

joint sentencing agreement, the court sentenced appellant to seven years in prison for

each count of attempted murder and three years in prison for each specification. Each

term was ordered to be served consecutively to the other, for a total of 20 years in

prison.   Appellant did not file a direct appeal.

       {¶4}   On November 23, 2011, appellant filed his first petition for post-conviction

relief. He argued that while his petition was untimely, he was unavoidably prevented

from discovering facts on which he needed to rely to timely present his claim. With

respect to his substantive claim, appellant argued his trial attorney was ineffective

because he did not adequately advise him regarding his eligibility for judicial release.

       {¶5}   Further, while appellant’s petition was pending in the trial court, on

December 1, 2011, 16 months after his conviction, appellant filed a motion for delayed




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appeal in this court, attempting to appeal the trial court’s August 13, 2010 sentencing

entry.

         {¶6}   In State v. Bozek, 11th Dist. Portage No. 2011-P-0101, 2012-Ohio-870

(“Bozek I”), discretionary appeal not allowed by the Supreme Court of Ohio at 2012-

Ohio-3054, this court denied appellant’s motion for delayed appeal. Bozek at ¶7.

         {¶7}   Meanwhile, on December 5, 2014, the trial court held a status conference

on appellant’s petition for post-conviction relief.      At that conference, the parties

discussed State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, in which the Supreme

Court of Ohio had recently held that attempted felony murder is not a cognizable crime

in Ohio because it is impossible to commit. Id. at ¶5.

         {¶8}   On December 9, 2014, the trial court granted appellant’s motion to

withdraw his petition for post-conviction relief. Two months later, on January 29, 2015,

appellant filed his second petition for post-conviction relief. In it, appellant incorporated

his first petition by reference and added a second claim for re-sentencing under Nolan,

supra. The trial court overruled the petition without a hearing. Appellant appealed the

trial court’s judgment denying his second petition for post-conviction relief in State v.

Bozek, 11th Dist. Portage No. 2015-P-0018 (“Bozek II”), arguing the trial court erred

when it failed to re-sentence him since he pled guilty to a crime that is not legally

cognizable.

         {¶9}   While Bozek II was pending, on June 25, 2015, appellant filed a motion for

new trial/motion to vacate sentence in the trial court. The court entered judgment on

July 1, 2015, denying said motion without a hearing. Appellant now appeals the trial




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court’s denial of his motion for new trial/motion to vacate sentence, asserting the

following for his sole assignment of error:

       {¶10} “The trial court erred when it failed to grant appellant’s motion to vacate

his sentence and grant him a new trial for reason [sic] that the appellant plead guilty to a

crime that is not cognizeable.”

       {¶11} The state argues the trial court lacked jurisdiction to rule on appellant’s

motion for new trial/motion to vacate sentence because it was inconsistent with this

court’s jurisdiction in Bozek II. We agree.

       {¶12} As a general proposition, an appeal of a final order does not deprive a trial

court of all jurisdiction over the subject case. Nemeth v. Nemeth, 11th Dist. Geauga No.

2008-G-2830, 2008-Ohio-4674, ¶3. Despite the filing of a notice of appeal, a trial court

retains all jurisdiction which does not conflict with the ability of the appellate court to

reverse, modify, or affirm the subject judgment. Id., citing Yee v. Erie Cty. Sheriff's

Dept., 51 Ohio St.3d 43, 44 (1990). “On the other hand, a trial court loses the ability to

rule on [a motion to vacate a final order] because the granting of such relief would

conflict with the appellate court’s jurisdiction to fully review the final order.” Nemeth,

supra, citing State ex rel. Newton v. Court of Claims, 73 Ohio St.3d 553, 558 (1995).

“An appeal divests trial courts of jurisdiction to consider * * * motions for relief from

judgment.” Nemeth, supra, citing Howard v. Catholic Social Services, 70 Ohio St.3d

141, 147 (1994).    Since the trial court did not have jurisdiction to rule on appellant’s

motion to vacate his sentence while Bozek II was pending, the trial court’s judgment

denying appellant’s motion was void. State v. Gibbs, 11th Dist. Geauga No. 2014-G-

3232, 2015-Ohio-3215, ¶14.




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       {¶13} Here, appellant’s motion for new trial/motion to vacate sentence was

inconsistent with this court’s jurisdiction in Bozek II because, if that motion was granted,

it would conflict with this court’s ability to vacate appellant’s sentence. Therefore, since

the trial court did not have jurisdiction to rule on appellant's motion for new trial/motion

to vacate, the court’s entry denying the motion was not a final, appealable order.

Nemeth, supra, at ¶6.

       {¶14} In addition, in appellant’s present appeal, he makes the same argument

he asserted in Bozek II, namely, that because he pled guilty to attempted felony murder,

which is not a legally cognizable offense, his conviction is void and should be vacated

and he should be re-sentenced.

       {¶15} However, this court has already granted appellant the relief he requests in

the instant case. Specifically, in Bozek II, this court held: “[A]ppellant’s guilty plea is

void in its entirety and vacated as to all parts. On remand, the parties shall be in the

same position as if no plea agreement had been entered and the trial court had not

taken any action on the plea, and all counts of the indictment and the supplemental

indictment shall be reinstated.” Id. at ¶27.

       {¶16} Generally, courts will not resolve issues that are moot. Actions are moot

“‘when they are or have become * * * hypothetical, academic or dead. The

distinguishing characteristic of such issues is that they involve no actual, genuine, live

controversy, the decision of which can definitely affect existing legal relations. * * *.’”

Grove City v. Clark, 10th Dist. Franklin No. 01AP-1369, 2002-Ohio-4549, ¶11, quoting

Culver v. Warren, 84 Ohio App. 373, 393 (11th Dist.1948). A case is moot when there

is no longer a matter in controversy. State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio




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St.3d 407, 2010-Ohio-1844, ¶10. Under such circumstances, a court should dismiss

the case. Id.

       {¶17} “The doctrine of mootness is rooted both in the ‘case’ or ‘controversy’

language of Section 2, Article III of the United States Constitution and in the general

notion of judicial restraint. * * * While Ohio has no constitutional counterpart to Section

2, Article III, the courts of Ohio have long recognized that a court cannot entertain

jurisdiction over a moot question.” (Citations omitted.) James A. Keller, Inc. v. Flaherty,

74 Ohio App.3d 788, 791 (10th Dist.1991).           A court is required to “‘decide actual

controversies by a judgment which can be carried into effect, and not to give opinions

upon moot questions or abstract propositions, or to declare principles or rules of law

which cannot affect the matter in issue in the case before it.’” BECDIR Construction Co.

v. Proctor, 144 Ohio App.3d 389, 393 (10th Dist.2001), quoting State ex rel. Eliza

Jennings, Inc. v. Noble, 49 Ohio St.3d 71, 74 (1990).

       {¶18} Because this court in Bozek II gave appellant the same relief he now

seeks in the present appeal, there is no longer a matter in controversy before us and

this appeal is moot. Moreover, the trial court’s judgment denying appellant’s motion to

vacate his sentence is not a final, appealable order.

       {¶19} For the reasons stated in the opinion of this court, it is the judgment and

order of this court that the appeal is dismissed.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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