[Cite as State v. Pattin, 2018-Ohio-3947.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                    No. 18AP-402
v.                                                 :            (C.P.C. No. 15CR-835)

James L. Battin,                                   :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                   Rendered on September 27, 2018


                 On brief: Ron O'Brien, Prosecuting             Attorney,   and
                 Kimberly M. Bond, for appellee.

                 On brief: James L. Battin, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, James L. Battin, appeals a May 29, 2018 decision of the
Franklin County Court of Common Pleas in which the court denied Battin's motion to
vacate his sentence. Because we find that the trial court, in denying Battin’s motion to
correct a void sentence, acted in accord with our jurisdiction over an appeal from a prior
decision on a prior motion to vacate, we overrule Battin's second assignment of error.
Because Battin was legally permitted to plead guilty to an offense for which he had not been
indicted, we also overrule Battin's first assignment of error. We therefore affirm the trial
court’s decision.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On February 18, 2015, Battin was indicted for one count of kidnapping and
one count of rape, each with associated firearm specifications. (Feb. 18, 2018 Indictment.)
He initially pled "not guilty." (Feb. 20, 2015 Plea Form.) Approximately one year later, on
No. 18AP-402                                                                              2


March 16, 2016, Battin pled to one count of felonious assault with a gun specification as a
"stipulated lesser included offense" of the original rape count, and the kidnapping charge
was dismissed. (Mar. 16, 2016 Plea Form at 1-2.) The parties agreed to jointly recommend
a sentence of four years for the felonious assault and three years for the gun specification
for a total term of seven years imprisonment. Id. at 1. The trial court imposed the
recommended sentence by judgment entry on March 21, 2016. (Mar. 21, 2016 Jgmt. Entry
at 1-2.)
       {¶ 3} One and one-half years later Battin began to file a lengthy series of motions
and other papers in the trial court and this Court all seeking to have his conviction vacated
or overturned and his plea withdrawn. See, e.g., Sept. 26, 2017 Mot. to Vacate; Nov. 28,
2017 Decision & Entry; State v. Battin, 10th Dist. No. 17AP-910 (Jan. 23, 2018)
(memorandum decision); State v. Battin, 10th Dist. No. 17AP-911, 2018-Ohio-2533. One
such motion was a motion to vacate his conviction, filed on September 26, 2017. (Sept. 26,
2017 Mot. to Vacate.) The trial court denied this motion on November 28, 2017. (Nov. 28,
2017 Decision & Entry.) Battin appealed on December 27, 2017, and the appeal was still
pending both when Battin filed a motion to correct an illegal sentence on May 16, 2018, and
when the trial court denied that motion on May 29, 2018. (May 16, 2018 Mot. to Correct
Sentence; May 29, 2018 Decision & Entry.) State v. Battin, 2018-Ohio-2533, ¶ 4.
       {¶ 4} In the May 16, 2018 motion that is the subject of this appeal, Battin argued
that felonious assault is not a lesser-included offense of rape and that he was never indicted
for felonious assault. (May 16, 2018 Mot. to Correct Sentence at 2-5.) Battin asserted this
as a basis for his argument that his conviction was void and subject to challenge at any time
irrespective of the principles of res judicata. Id. The trial court disagreed, and Battin now
appeals on that issue and also challenges the trial court's jurisdiction to have ruled on the
motion while his appeal was still pending on the September 26, 2017 motion to vacate.
(May 29, 2018 Decision & Entry; Battin Brief at ix.)
II. ASSIGNMENTS OF ERROR
       {¶ 5} Battin assigns two errors for review:
              [1.] The trial court committed plain error overruling the
              Appellant's motion to correct illegal sentence as void.

              [2.] Trial court was divested of jurisdiction to rule on the may
              16, 2018 "Motion to Correct Illegal Sentence."
No. 18AP-402                                                                               3


(Sic passim.) We consider the jurisdictional challenge first.
III. DISCUSSION
   A. Second Assignment of Error – Whether the Trial Court Erred in Ruling
      on Battin's May 16 Motion Despite a Pending Appeal on a Similar Issue
       {¶ 6} Once an appeal is perfected, the trial court is divested of jurisdiction over
matters that are inconsistent with the reviewing court's jurisdiction to reverse, modify, or
affirm the judgment. State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252,
¶ 17. Consequently, while a trial court may not modify a decision being appealed or proceed
to adjudicate claims that may be affected by the appeal, where a stay of proceedings has not
been requested, the trial court retains jurisdiction to take actions consistent with the
decision being appealed. Id. at ¶ 19; see also State ex rel. Electronic Classroom of
Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626,
¶ 13-18. Denying a subsequent motion to correct an illegal or void sentence was consistent
with the trial court's denial of the prior motion to vacate and did not modify, affect, or
impair our ability to consider the propriety of the trial court's original ruling on the motion
to vacate. We could still have reversed the trial court (in which case, on remand, the trial
court could still have granted the motion to vacate) or we could have and did affirm. Battin,
2018-Ohio-2533.     Consequently, we do not agree that the trial court was without
jurisdiction to deny the motion that is the subject of this appeal while the appeal in Battin,
2018-Ohio-2533, was pending.
       {¶ 7} Battin's second assignment of error is overruled.
   B. First Assignment of Error – Whether the Trial Court Erred in Denying
      the Motion to Correct the Allegedly Illegal and Void Sentence
       {¶ 8} Battin argues that his conviction must be vacated because felonious assault is
not a lesser-included offense of rape and because he was never indicted for felonious
assault. (Battin Brief at 2-21.) We agree that felonious assault is not a lesser-included
offense of rape. See State v. Hay, 3d Dist. No. 14-2000-24, 2000 Ohio App. LEXIS 5951,
*11 (Dec. 19, 2000); State v. Jones, 83 Ohio App.3d 723, 738 (2d Dist.1992); see also State
v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, paragraph two of the syllabus; Ohio v.
Deem, 40 Ohio St.3d 205 (1988), paragraph three of the syllabus. It is also clear from the
record that Battin was not indicted for felonious assault. (Feb. 18, 2015 Indictment.)
No. 18AP-402                                                                              4


       {¶ 9} However, it is perfectly permissible to agree to plead guilty to a crime that has
not been indicted. State v. Long, 10th Dist. No. 83AP-444, 1984 WL 5914, 1984 Ohio App.
LEXIS 10927, *13 (Sept. 27, 1984), citing Stacy v. Van Coren, 18 Ohio St.2d 188 (1969). An
indictment is merely a finding by a grand jury that there is probable cause to believe an
individual committed a particular offense. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-
5059, ¶ 39. A plea of guilty constitutes a complete admission that the individual actually
committed the offense in question (which encompasses the question of whether there is
probable cause to believe the individual committed the offense). Crim.R. 11(B)(1). By
pleading guilty to felonious assault, Battin was agreeing that he was guilty of felonious
assault, which obviated the need for a jury to adjudicate him guilty or for a grand jury to
find probable cause to prosecute him for that offense.
       {¶ 10} The fact that Battin was not indicted for the offense to which he chose to plead
as part of a plea agreement does not render his conviction void or create grounds to vacate
his conviction. His first assignment of error is overruled.
IV. CONCLUSION
       {¶ 11} The trial court acted consistently with our power to reverse, modify, or affirm
the trial court's decision on a prior motion to vacate when it denied a subsequent motion to
correct a void sentence. Battin was legally permitted to plead guilty to an offense for which
he had not been indicted. We therefore overrule both of Battin's assignments of error and
affirm the judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                      KLATT and LUPER SCHUSTER, JJ., concur.
