[Cite as State v. Wilson, 2014-Ohio-1764.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO

        Plaintiff-Appellee

v.

KEITH A. WILSON

        Defendant-Appellant


Appellate Case No.       25482

Trial Court Case No. 2011-CR-2703

(Criminal Appeal from
(Common Pleas Court)
                                             ...........

                                             OPINION

                               Rendered on the 25th day of April, 2014.

                                             ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. 0020084, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County
Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road NE, Bloomingburg, Ohio
43106
      Attorney for Defendant-Appellant

                                             .............

WELBAUM, J.
                                                                                             2


        {¶ 1}    Defendant-Appellant, Keith Wilson, appeals from a judgment overruling his

motion to withdraw his pleas in Montgomery County Common Pleas Court Case No. 2011 CR

2703.   In support of his appeal, Wilson contends that trial counsel rendered ineffective

assistance of counsel. The State maintains that the trial court lacked jurisdiction to hear the

motion, because it was filed during Wilson’s direct appeal. The State also contends that

Wilson failed to demonstrate manifest injustice.

        {¶ 2}    We conclude that the trial court lacked jurisdiction during the direct appeal to

resolve Wilson’s motion, insofar as it concerned his pleas to Murder and Felonious Assault, and

the motion remained pending in the trial court after the appeal was filed.       Accordingly, with

respect to these pleas, the appeal will be dismissed for lack of a final appealable order.

        {¶ 3}    The trial court did have jurisdiction to consider Wilson’s motion, insofar as it

involved his plea to Involuntary Manslaughter, because Wilson never appealed that conviction.

However, the motion intertwined facts pertinent to both pleas, and the matters would be more

appropriately considered together by the trial court on remand. Accordingly, to the extent the

trial court judgment concerns the Involuntary Manslaughter plea, the judgment will be reversed

and remanded for further proceedings.



                               I. Facts and Course of Proceedings

        {¶ 4}    Wilson was originally indicted on two counts of Murder and two counts of

Felonious Assault in connection with the murder of his wife, Marny Wilson. See State v.

Wilson, 2d Dist. Montgomery No. 24975, 2013-Ohio-1076, ¶ 3. While these charges were

pending, the police were also investigating the homicide of Elmer Bloodsaw, which had
                                                                                           3


occurred in 2000. The police believed that Wilson had caused Bloodsaw’s death. Id. at ¶ 4.

       {¶ 5}     As the result of a plea bargain, Wilson pled no contest on November 30, 2011,

to the charges involving his wife’s death. On December 2, 2011, Wilson also pled guilty to

Involuntary Manslaughter with respect to Bloodsaw’s death, which had not yet resulted in an

indictment. Id. at ¶ 5 and 12. At the sentencing hearing, which was held on December 20,

2011, the trial court sentenced Wilson to 15 years to life for the murder of his wife, three years

for a firearm specification, and five years for Bloodsaw’s death, with the sentences to be served

consecutively. Wilson, thus, received a total sentence of 23 years to life. Id. at ¶ 6.

       {¶ 6}     On December 30, 2011, Wilson filed a notice of appeal from the no contest

plea. This appeal was designated as Appellate Case No. 24975. On the same day, Wilson

also filed a motion in the trial court, seeking to withdraw his pleas.

       {¶ 7}     On February 2, 2012, the trial court overruled Wilson’s motion to withdraw

his pleas, based on lack of jurisdiction. Wilson then filed a notice of appeal from this decision,

and that appeal was designated as Appellate Case No. 25025. Wilson subsequently asked us to

dismiss the appeal in Case No. 25025, based on his admission that the appeal in Case No.

24975 had divested the trial court of jurisdiction to rule on his motion to withdraw his pleas.

On May 10, 2012, we granted Wilson’s motion to dismiss his appeal. See State v. Wilson, 2d

Dist. Montgomery No. 25025 (May 10, 2012).

       {¶ 8}     Our decision on the merits of Wilson’s direct appeal was not issued until

March 22, 2013.       Wilson, 2d Dist. Montgomery No. 24975, 2013-Ohio-1076.               In the

meantime, while the direct appeal was pending, Wilson filed a second motion in the trial court,

asking to withdraw his pleas. This motion, which was filed on August 3, 2012, was based on
                                                                                             4


ineffective assistance of trial counsel, and was accompanied by Wilson’s affidavit, which

recounted matters that had allegedly occurred outside the record.

       {¶ 9}     The State filed a memorandum in opposition on August 7, 2012, asserting that

the trial court lacked jurisdiction to rule on the motion to withdraw, due to the pendency of the

appeal. In October 2012, the State filed a second memorandum, responding to the merits of

Wilson’s motion to withdraw. The trial court then overruled Wilson’s motion on October 31,

2012. In the decision, the trial court addressed the merits of the motion, and concluded that

Wilson had been well-represented by competent counsel and had entered his pleas knowingly,

voluntarily, and intelligently. The trial court did not discuss its potential lack of jurisdiction,

nor did it consider Wilson’s affidavit or specific claims of ineffective assistance of counsel.

       {¶ 10}    Wilson appeals from the decision overruling his motion to withdraw his pleas.



                           II. Should a Plea Made Due to Counsel’s

                                   Ineffectiveness Be Vacated?

       {¶ 11}    Wilson’s sole assignment of error is as follows:

                A Plea Made Due to the Ineffectiveness of Counsel Must Be Vacated.

       {¶ 12}    Under this assignment of error, Wilson contends that his pleas must be vacated

because trial counsel failed to inform him about the implications of his pleas, failed to pursue a

defense that he raised, failed to protect his right to a free choice of counsel, and was complicit

with the trial court in coercing him to plead. In response, the State contends that there is no

final appealable order, because the trial court lacked authority to consider the motion to

withdraw the pleas. On the merits, the State argues that Wilson failed to show manifest
                                                                                              5


injustice, which is required as a predicate for vacating a plea.

       {¶ 13}    As was noted, Wilson pled no contest to the Murder and Felonious Assault

charges on November 30, 2011. Wilson filed a timely appeal from these charges only on

December 30, 2011. He did not file an appeal from his conviction and sentence for the

Involuntary Manslaughter charge.           See Wilson, 2d Dist. Montgomery No. 24975,

2013-Ohio-1076, ¶ 1.

       {¶ 14}    Wilson also filed two motions to withdraw his pleas. The first motion was

filed on December 30, 2011, and the second was filed on August 3, 2012. Thus, both motions

were filed while Wilson’s appeal was pending. The second motion was based on matters not

in the record and was supported by Wilson’s affidavit.

       {¶ 15}    The established jurisdictional rule is 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). (Other citation omitted.) In State v. Lauharn,

2d Dist. Miami No. 2011 CA 10, 2012-Ohio-1572, we applied this rule and concluded that the

lack of jurisdiction in the trial court meant that the defendant’s motions to withdraw his plea

were still pending in the trial court, and that there was no final appealable order. Id. at ¶ 13.

       {¶ 16}    The defendant in Lauharn had filed a motion to withdraw his pleas while his

direct appeal from his conviction was pending. Id. at ¶ 2. After the motion was overruled, the

defendant filed a motion for reconsideration. This also occurred while the direct appeal was
                                                                                           6


pending. Id. at ¶ 3. The trial court overruled the motion for reconsideration, and four months

later, we issued a decision in the defendant’s direct appeal. Id. at ¶ 3-4. This factual scenario

is very similar to Wilson’s situation, as Wilson’s motions were filed during the appeal process,

and were denied before we issued a decision in his direct appeal.

       {¶ 17}    When Lauharn appealed from the denial of his motion to withdraw his pleas,

we noted that “[f]ollowing 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.” (Citations

omitted.) Id. at ¶ 7, referring to Special Prosecutors, 55 Ohio St.2d at 97, 378 N.E.2d 162.

We further observed that “[a] motion to withdraw a plea is not a collateral issue, because it

could directly affect the judgment under appeal.” (Citation omitted.) Lauharn at ¶ 7. In this

regard, we stressed that:

                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). Id. at ¶ 8.

       {¶ 18}    We admitted in Lauharn that our approach had not always been consistent.

Lauharn, 2d Dist. Miami No. 2011 CA 10, 2012-Ohio-1572, at ¶ 9-10. After making this

observation, we then analogized motions to withdraw pleas to Civ.R. 60(B) motions. Id. at ¶
                                                                                             7


11. We stressed that in the context of motions for relief from judgment, the Supreme Court of

Ohio had “ ‘expressly held that an appeal divests trial courts of jurisdiction to consider Civ.R.

60(B) motions for relief from judgment.’ ” Id., quoting Howard v. Catholic Social Services,

70 Ohio St.3d 141, 146-147, 637 N.E.2d 890 (1994). We also discussed and distinguished

petitions for post-conviction relief, which the legislature had specifically authorized trial courts

to hear while direct appeals from convictions were pending. Lauharn at ¶ 12.

       {¶ 19}    We then stated that:

                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.”).

                Lauharn's appeal must be dismissed for lack of a final appealable order.

       Lauharn at ¶ 13-14.

       {¶ 20}    In light of our decision in Lauharn, the State contends that there is no final

appealable order with regard to the second motion to withdraw, because the trial court lacked

jurisdiction to rule on the motion during the pendency of Wilson’s direct appeal.        We agree
                                                                                                 8


with the State, in part.

        {¶ 21}     In Lauharn, we cited State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028,

959 N.E.2d 516, in which the Supreme Court of Ohio had stressed 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.’ ” Lauharn at ¶ 13, quoting Davis at ¶ 37.

        {¶ 22}     In Davis, the Supreme Court of Ohio considered whether the decision in

Special Prosecutors barred the trial court from considering a defendant’s post-conviction

motion for new trial, which was based on newly-discovered evidence, and was filed after the

defendant’s conviction had been affirmed on direct appeal. Davis at ¶ 2, 4, and 23.

        {¶ 23}     The defendant’s motion for new trial was based on the affidavit of a DNA

expert, which allegedly undermined the state’s DNA evidence. The defendant argued that “the

affidavit demonstrated that trial counsel were ineffective by failing to mount an effective

challenge to the state's DNA evidence,” and that he [the defendant] could actually be innocent

of the offense. Id. at ¶ 6.

        {¶ 24}     Relying on Special Prosecutors, the Fifth District Court of Appeals had

concluded that the trial court lacked jurisdiction to consider the motion for new trial because it

“ ‘would be inconsistent with the judgment of the Ohio Supreme Court, affirming Appellant's

convictions and sentence.’ ” Davis at ¶ 8, quoting State v. Davis, 5th Dist. Licking No.

09-CA-0019, 2009-Ohio-5175, ¶ 12. The Supreme Court of Ohio rejected the position taken

by the Fifth District Court of Appeals, and concluded that the trial court did have jurisdiction to

consider the matter. In this regard, the Supreme Court of Ohio stated that:

                 Contrary to the state's argument, the earlier claim is not related to Davis's
                                                                                            9


       present claim that newly discovered evidence (Mueller's affidavit) warrants a

       new trial. Indeed, this issue could not have been raised on direct appeal and

       decided by this court, because it rests upon evidence not considered by the trial

       court – an affidavit by a qualified DNA expert. A reviewing court on direct

       appeal could not have considered an affidavit that was not part of the record.

       State v. Ishmail (1978), 54 Ohio St.2d 402, 406, 8 O.O.3d 405, 377 N.E.2d 500

       (a reviewing court is limited to the record made of the proceedings in the trial

       court). Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, at ¶ 34.

       {¶ 25}    The Supreme Court further stated that:

                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. These motions provide a

       safety net for defendants who have reasonable grounds to challenge their

       convictions and sentences. The trial court acts as the gatekeeper for these

       motions and, using its discretion, can limit the litigation to viable claims only.

       Id. at ¶ 37.

       {¶ 26}    Accordingly, based on our prior decision in Lauharn, the appeal must be

dismissed for lack of a final appealable order, insofar as it pertains to Wilson’s attempt to

withdraw his pleas to Murder and Felonious Assault for the murder of his wife, Marny Wilson.

The motion remains pending in the trial court, because the court lacked jurisdiction over the

motion while Wilson’s appeal was pending.

       {¶ 27}    In view of this holding, we will not discuss the State’s contention that the
                                                                                           10


motion was properly denied. This is a determination to be made by the trial court in the first

instance, after the court has examined the materials filed in support of the motion and has

weighed the credibility of the factual materials supported.     “A motion made pursuant to

Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith,

credibility and weight of the movant's assertions in support of the motion are matters to be

resolved by that court.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph

two of the syllabus. We are in the position of conducting appellate review, and the initial

decision as a “gatekeeper” is not ours to make.

       {¶ 28}    We note, however, that Wilson did not appeal from the conviction and

sentence for Involuntary Manslaughter that involved a different victim.       Wilson, 2d Dist.

Montgomery No. 24975, 2013-Ohio-1076, at ¶ 1. The trial court would have had jurisdiction

to consider the motion to withdraw, to the extent that it involved this plea. See State v.

Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030 (1st Dist.) In Tekulve, the

First District Court of Appeals noted that:

                [W]hile there is no jurisdictional bar to a trial court's entertaining a

       postsentence Crim.R. 32.1 motion where there has been no appeal, the doctrine

       of res judicata does bar a defendant from raising in that motion those matters

       that “could fairly [have] be[en] determined” in a direct appeal from his

       conviction, without resort to evidence outside the record. Thus “the doctrine of

       res judicata is applicable only where issues could have been determined on direct

       appeal without resort to evidence outside the record.” But a defendant who has

       not taken a direct appeal from his conviction is not barred from raising in his
                                                                                           11


       motion matters that depend for their resolution upon outside evidence.

       (Footnotes and citations omitted.) Id. at ¶ 5.

       {¶ 29}    To this extent, we could discuss the State’s contention that the trial court

properly denied Wilson’s motion to withdraw on its merits, insofar as it involved the plea that

Wilson did not appeal. However, we decline to do so, because Wilson’s motion involved both

pleas and did not factually separate issues pertaining to either set of pleas. Accordingly,

resolution of this matter would be better addressed by the trial court’s consideration on remand.

       {¶ 30}    Accordingly, to the extent the appeal involves the denial of the motion to

withdraw the pleas to the Murder and Felonious Assault charges, the appeal will be dismissed

for lack of a final appealable order. To the extent the appeal involves the denial of the motion

to withdraw the plea to Involuntary Manslaughter, Wilson’s assignment of error is sustained in

part, and the judgment of the trial court will be reversed.



                                         III. Conclusion

       {¶ 31} Wilson’s sole assignment of error having been sustained in part, the judgment

of the trial court is reversed in part, and is remanded to the trial court for further proceedings.

The part of the appeal pertaining to the denial of Wilson’s motion to withdraw his pleas to

Murder and Felonious Assault is dismissed for lack of a final appealable order.

                                   .............

DONOVAN, J., concurs.

FROELICH, P.J., concurring:

       {¶ 32}    I concur with the judgment and write separately only to try to clarify a
                                                                                         12


jurisdictional question that may arise in other fact scenarios.

       {¶ 33} The Supreme Court’s statement in Davis that “the trial court acts as the

gatekeeper for these motions” (i.e., “post-trial motions permitted by the Ohio Rules of Criminal

Procedure”) presumes that the trial court has the jurisdiction and authority to consider them as

long as the direct appeal is not pending - how else would the trial court have the power to

decide what gets past the gate?

       {¶ 34} Thus, I disagree with Tekulve from the First District if it holds that jurisdiction

to entertain a post-sentence Crim.R. 32.1 motion only exists if there has been no resolved

appeal. While res judicata might result in a denial of the R. 32.1 motion, a trial court’s denial

on res judicata grounds is, almost by definition, an exercise of its jurisdiction.

       {¶ 35} I would hold that while a direct appeal of a judgment is pending, a trial court

does not have jurisdiction to rule on a motion to withdraw the plea that resulted in that

conviction. Once the appeal is resolved, the trial court has jurisdiction to consider such a

motion including, as appropriate, the applicability of the doctrine of res judicata.

                                            ..........



Copies mailed to:

Mathias H. Heck
Carley J. Ingram
George A. Katchmer
Hon. Gregory F. Singer
