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State v. Vasquezt

Court of Appeals of Ohio, Sixth District

September 20, 2013

State of Ohio, Appellee
v.
Nico Vasquez, Appellant

Trial Court No. CR0201201745.

Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Tim A. Dugan, for appellant.

DECISION AND JUDGMENT

OSOWIK, J.

(¶ 1} This is an appeal brought by appellant, Nico Vasquez, from the February 28, 2013 judgment of the trial court finding that it was premature to rule on his postconviction motions since appellant's direct appeal was still pending.

(¶ 2} In his single assignment of error, appellant contends that the trial court erred in not ruling on his postconviction motions since R.C. 2953.21(C) clearly grants the trial court jurisdiction to hear this motion despite a direct appeal pending.

Facts and Procedural History

(¶ 3} According to the record before the court, on May 11, 2012, appellant was indicted by the Lucas County Grand Jury for violating R.C. 2941.145, aggravated robbery with a firearm specification; R.C. 2941.145, robbery; R.C. 2941.145, aggravated robbery with a firearm specification; R.C. 2941.145, felonious assault with a firearm specification; and R.C. 2941.145, felonious assault with a firearm specification.

(¶ 4} On August 20, 2012, appellant pled guilty to Count 3 (aggravated robbery with a firearm specification) and Count 4 (felonious assault with a firearm specification). The remaining counts were dismissed.

(¶ 5} On September 19, 2012, appellant was sentenced to a period of imprisonment of six years on each count, to be served consecutively. On October 18, 2012, appellant filed a notice of appeal.

(¶ 6} On February 26, 2013, while his direct appeal was pending, appellant filed a motion titled "Petition to Vacate or Set Aside Judgment of Conviction or Sentence."

(¶ 7} On February 28, 2013, the trial court denied this motion, finding that since the direct appeal was pending, it was premature to proceed with a postconviction matter pursuant to R.C. 2953.21.

Discussion

(¶ 8} The relevant Ohio Revised Code section applicable in this case is R.C. ...


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