CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 10CR27056
David Fornshell, Warren County Prosecuting Attorney, Michael Greer, for plaintiff-appellee.
Thomas W. Kidd, Jr., for defendant-appellant.
M. POWELL, J.
(¶ 1} Defendant-appellant, Bradley Collins, appeals from the Warren County Common Pleas Court's judgment that overruled his request to be resentenced under the provisions in House Bill 86 and dismissed, for lack of jurisdiction, his motion to withdraw his guilty plea. For the reasons that follow, we affirm the trial court's decision not to apply the provisions in H.B. 86 in resentencing Collins but reverse its decision to dismiss his motion to withdraw his guilty plea, and remand this matter to the trial court with instructions that it rule on Collins' motion as a postsentence motion to withdraw his guilty plea.
(¶ 2} On July 28, 2011, Collins pled guilty to a reduced charge of trafficking in marijuana, a third-degree felony. The trial court accepted Collins' plea and sentenced him to five years in prison and imposed court costs against him. However, at the sentencing hearing, the trial court did not advise Collins that his failure to pay the court costs could result in the trial court's ordering him to perform community service in lieu of those costs.
(¶ 3} Collins appealed to this court, arguing that his sentence was clearly and convincingly contrary to law because the trial court failed to advise him, as required under R.C. 2947.23(A)(1), that community service could be imposed on him if he failed to pay the court costs. This court found that the issue regarding the trial court's failure to advise him about court costs was not "ripe for review" since there was no issue regarding the consequences of nonpayment of court costs presently before the court. State v. Collins, 12th Dist. Warren No. CA2011-08-083 (Jan. 30, 2012) (Accelerated Calendar Judgment Entry). Collins appealed this court's decision to the Ohio Supreme Court, which reversed our decision and remanded the matter to us for application of its decision in State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781. State v. Collins, 132 Ohio St.3d 127, 2012-Ohio-2576, ¶ 1.
(¶ 4} On remand, this court noted that, under R.C. 2947.23(A)(1), a trial court must notify a defendant, at the time of sentencing, that the failure to pay court costs could result in the trial court ordering the defendant to perform community service. State v. Collins, 12th Dist. Warren No. CA2011-08-083 (July 31, 2012) (Judgment Entry), ¶ 2. We also noted that "[b]ecause the notice is mandatory, the imposition of costs without the necessary notification renders the sentence contrary to law." Id. at ¶ 3. As a result, we determined that Collins was entitled to be resentenced. Id. Therefore, we ruled that Collins' sole assignment of error in his direct appeal was "well-taken and sustained to the extent the court costs imposed are hereby vacated[, ]" and that "[f]or this reason, the trial court's judgment is reversed and this cause is remanded for resentencing in compliance with R.C. 2947.23(A)(1)."
(¶ 5} During the pendency of Collins' first appeal, H.B. 86 went into effect on September 30, 2011. Under it, the maximum term for third-degree felonies was reduced from five years to 36 months.
(¶ 6} Shortly before he was to be resentenced, Collins filed a motion to withdraw his guilty plea, arguing that his plea had not been made knowingly, intelligently and voluntarily and that his trial counsel provided him with ineffective assistance when he advised him that he would be permitted to file for judicial release. Additionally, Collins argued that his motion to withdraw his guilty plea "should be treated as being made prior to sentencing."
(¶ 7} At his October 16, 2012 resentencing hearing, Collins argued that, under R.C. 1.58, he could not be sentenced to any more than 36 months in prison because (1) his initial sentence was void as a result of the trial court's failure to comply with the statutory sentencing requirement of properly advising him about the consequences of failing to pay court costs; and (2) he was being resentenced after September 30, 2011, the effective date of H.B. 86. The trial court rejected Collins' argument and re-imposed the five-year sentence it had originally imposed on him for his third-degree felony conviction. The trial court also advised Collins that he could be ordered to perform community service if he should fail to pay the court costs. On November 14, 2012, Collins filed a notice of appeal from the trial court's judgment.
(¶ 8} On January 24, 2013, the trial court issued an order denying Collins' motion to withdraw his guilty plea on the ground that, under State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978) and its progeny, once an appeal is taken from its judgment, a trial court is divested of jurisdiction over the matter except as to issues not inconsistent with the appellate court's authority to review, affirm, modify or reverse the judgment. The trial court concluded that, in light of the procedural posture of the case, it could not rule on Collins' motion to withdraw his guilty plea without taking action that would be inconsistent with this court's authority to review, affirm, modify or reverse the judgment.
(¶ 9} Collins now appeals, assigning the following as ...