[Cite as State v. Simon, 2015-Ohio-4448.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                      :
                                                               CASE NO. CA2015-05-081
        Plaintiff-Appellee,                         :
                                                                       OPINION
                                                    :                  10/26/2015
   - vs -
                                                    :

MITCHELL SIMON,                                     :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-12-1983



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Michael K. Allen & Associates, LLC, Mary K. Martin and Joshua A. Engel, 5181 Natorp
Boulevard, Suite 210, Mason, Ohio 45040, for defendant-appellant



        M. POWELL, P.J.

        {¶ 1} Defendant-appellant, Mitchell Simon, appeals a decision of the Butler County

Court of Common Pleas denying his second motion to withdraw his guilty plea.1

        {¶ 2} The background facts of this case were set forth in this court's prior decision in

State v. Simon, 12th Dist. Butler No. CA2014-06-139, 2015-Ohio-970, ¶ 2-3 (Simon I):


1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar.
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              When Simon was 16 years old, he attempted to kill his parents
              by setting his family's home on fire while his parents were
              sleeping in separate bedrooms. Simon used an accelerant to
              start fires in two separate areas of the upstairs near the
              bedrooms. Fire investigators also found rope tied around the
              doorknobs of the bedroom doors where Simon's parents slept so
              that they could not open the doors to escape. Simon's parents
              survived the fire, and Simon was eventually arrested.

              Simon originally appeared in the Butler County Juvenile Court for
              a probable cause hearing. The juvenile court found that
              probable cause existed, and then transferred the case to the
              common pleas court pursuant to Ohio's mandatory bindover
              statutes. Simon was therefore tried as an adult. Simon was
              indicted on two counts of attempted aggravated murder and one
              count of aggravated arson. * * * [On June 2, 2014], Simon * * *
              entered a guilty plea to each charge.

       {¶ 3} At the sentencing hearing, Simon argued that the aggravated arson charge

should merge with the attempted aggravated murder charges, but the trial court found that

the two crimes were not allied offenses of similar import. The trial court subsequently

sentenced Simon to nine years in prison on each of the three charges, to be served

concurrently. Simon appealed his convictions and sentence to this court. On appeal, he

challenged the constitutionality of R.C. 2152.12, Ohio's mandatory bindover statute, and

argued he received ineffective assistance of counsel because his trial counsel did not

challenge the constitutionality of the statute. Simon also argued his conviction for aggravated

arson should have merged with his convictions for attempted aggravated murder.

       {¶ 4} While his appeal was pending, Simon filed a petition for postconviction relief

and a motion to withdraw his guilty plea on the ground he received ineffective assistance of

counsel. In support of the petition and motion, Simon attached affidavits from himself, his

father, mother, and uncle. The affidavits alleged that Simon's trial counsel misinformed him

of the terms of his plea agreement. Specifically, the affidavits alleged that in exchange for a

guilty plea, Simon was led to believe he might receive community control or, at worst, three

years in prison with the possibility of judicial release after six months. The trial court denied

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the petition and motion without conducting an evidentiary hearing. Simon appealed the

denial of his petition and motion to this court.

       {¶ 5} On March 16, 2015, in Simon's direct appeal, we found that R.C. 2152.12 was

constitutional and that Simon was not denied effective assistance of counsel, and we

affirmed his convictions. Simon I, 2015-Ohio-970 at ¶ 15-17, 42. We, however, found that

Simon's convictions for aggravated attempted murder and aggravated arson were allied

offenses of similar import and that the trial court erred when it did not merge the convictions.

Id. at ¶ 41. Accordingly, we remanded the case to the trial court for resentencing, with

instructions for the trial court to "resentence Simon after the state chooses upon which

charge(s) to proceed." Id.

       {¶ 6} After the case was remanded, Simon once again moved to withdraw his guilty

plea. Simon argued that because the motion was filed prior to resentencing, it was a

"presentence" motion to withdraw and should be "freely and liberally granted" under Crim.R.

32.1. Simon's motion raised the same issues regarding his plea that were raised in his first

motion to withdraw his plea. In support of his motion, Simon resubmitted the four affidavits

previously attached to his first motion to withdraw, and submitted affidavits from his

psychotherapist and his aunt.

       {¶ 7} On April 8, 2015, a resentencing hearing was held during which the state

elected to proceed under the two attempted aggravated murder charges. Consequently, the

trial court merged the aggravated arson conviction into the attempted aggravated murder

convictions, and sentenced Simon to nine years in prison on each of the attempted

aggravated murder charges, to be served concurrently. On April 20, 2015, the trial court

found that Simon's second motion to withdraw his plea was a post-sentence motion and

denied it without a hearing.

       {¶ 8} On July 27, 2015, we affirmed the trial court's denial of Simon's postconviction
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relief petition and his first motion to withdraw his plea. State v. Simon, 12th Dist. Butler No.

CA2014-12-255, 2015-Ohio-2989, ¶ 18, 31 (Simon II). This court found that the trial court did

not abuse its discretion in denying the petition and motion. Id.

        {¶ 9} Simon now appeals the denial of his second motion to withdraw his plea,

raising three assignments of error. Because Simon's first two assignments of error are

interrelated, we will address them together.

        {¶ 10} Assignment of Error No. 1:

        {¶ 11} THE TRIAL COURT ERRED IN NOT GRANTING A HEARING ON THE

MOTION TO WITHDRAW PLEA.

        {¶ 12} Assignment of Error No. 2:

        {¶ 13} THE TRIAL COURT ERRED IN NOT GRANTING THE MOTION TO

WITHDRAW PLEA.

        {¶ 14} Simon argues the trial court erred in denying his second motion to withdraw his

guilty plea without a hearing. Simon asserts the trial court erred in treating the motion as a

post-sentence motion subject to the "manifest injustice" standard under Crim.R. 32.1, rather

than as a presentence motion which should be "freely and liberally granted."2 Simon asserts

his motion to withdraw was a presentence motion because, inter alia, we declared his original

sentence void in Simon I.

        {¶ 15} 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



2. The basis of Simon's "presentence" motion to withdraw his guilty plea is that the trial court imposed a
sentence contrary to what his trial counsel advised him would be imposed. Simon does not explain how a
"presentence" motion to withdraw a plea may be predicated upon the sentence. Inherent in the concept of a
"presentence" motion is that the sentence is yet to be imposed. Furthermore, an un-imposed, anticipated
sentence may not serve as grounds for a presentence motion to withdraw a guilty plea as it is mere conjecture
and speculation as to what the sentence will be prior to its imposition.
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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).

       {¶ 16} At the outset, we dispute Simon's assertion that this court declared his original

sentence void in Simon I. Contrary to Simon's assertion, we did not declare his original

sentence was void. Rather, we simply found that Simon "fulfilled his burden of proving that

the convictions are allied offenses, and the trial court erred when it did not merge the

convictions." Simon I, 2015-Ohio-970 at ¶ 41. Accordingly, we remanded the case to the

trial court solely for resentencing, based on the allied-offenses sentencing error. Id.

       {¶ 17} "It has long been held that a trial court has no authority to even 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.

       {¶ 18} In 2010, the Ohio Supreme Court affirmed its holding 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, Belmont Cty. Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978). 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, for this action would affect the decision of the reviewing court,

which is not within the power of the trial court to do.'" Id. quoting Special Prosecutors at 98.

       {¶ 19} Subsequently, in 2011, the supreme court held that "[i]n a remand based only

on an allied-offenses sentencing error, the guilty verdicts underlying a defendant's sentences

remain the law of the case and are not subject to review." State v. Wilson, 129 Ohio St.3d
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214, 2011-Ohio-2669, ¶ 15.

       {¶ 20} In the case at bar, after considering Simon's direct appeal to this court, we

remanded the case to the trial court solely for the limited purpose of dealing with the merger

issue and resentencing Simon. No other aspect of Simon's convictions was modified by the

appeal and we affirmed his convictions. The trial court, therefore, lacked jurisdiction to

consider Simon's post-remand motion to withdraw his guilty plea. Carter, 2011-Ohio-6104 at

¶ 13. See also State v. Caston, 6th Dist. Erie No. E-11-077, 2012-Ohio-5260; State v.

O'Neal, 9th Dist. Medina No. 10CA0140-M, 2012-Ohio-396 (on remand solely for

resentencing, a trial court may not entertain a motion to withdraw a plea; a trial court's grant

of a post-remand motion to withdraw a plea would essentially undo the entire appeal).

       {¶ 21} The trial court, therefore, did not err in denying Simon's post-remand motion to

withdraw his guilty plea without a hearing. State v. Lindsey, 8th Dist. Cuyahoga No. 98361,

2013-Ohio-102. Simon's first and second assignments of error are overruled.

       {¶ 22} Assignment of Error No. 3:

       {¶ 23} THE TRIAL COURT LACKED JURISDICTION BECAUSE R.C. 2151.12 [sic] IS

UNCONSTITUTIONAL.

       {¶ 24} Following our decision remanding this case for resentencing, Simon filed a

motion to dismiss for lack of jurisdiction, arguing the trial court lacked jurisdiction because

R.C. 2152.12, the bindover statute, was unconstitutional. The trial court denied the motion.

On appeal, Simon argues the trial court erred in denying his motion to dismiss.

       {¶ 25} Simon's third assignment of error is overruled on the basis of our holding in

Simon I that the bindover statute is constitutional:

              Ohio courts have continually found that the mandatory bindover
              statute is constitutional and does not violate due process or other
              constitutional rights.

              We agree with the holdings of our sister courts that the
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              mandatory bindover statutes do not violate due process. The
              statute, which removes any discretion from the juvenile court,
              requires the juvenile court to bind the juvenile-defendant over if
              three qualifications are met: the defendant must have committed
              a delineated crime, the defendant must be of a certain age, and
              there must be probable cause to support the charge. Because
              juvenile judges have no discretion in the matter and are required
              to hold a hearing to determine the defendant's age, the category
              of the offense charged, and whether probable cause exists, there
              is no deprivation of due process.

(Internal citations omitted.) Simon I, 2015-Ohio-970 at ¶ 15-16. We likewise rejected

Simon's claim that the trial court lacked jurisdiction because the bindover statute was

unconstitutional: "given our decision that the statute is constitutional, the trial court held

proper jurisdiction where the juvenile court found that Simon was 16 years old, was charged

with attempted aggravated murder, and that there was probable cause to support the

charge." Id. at ¶ 17, fn. 1.

       {¶ 26} Judgment affirmed.


       S. POWELL and RINGLAND, JJ., concur.




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