Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
APPELLANT Howard L. Drake, pro se Inmate No. 691-208 Trumbull
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Mary M. Dyczek Assistant County Prosecutor.
BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
J. STEWART, J.
Defendant-appellant Howard L. Drake received a seven-year
sentence after pleading guilty to a single count of felonious
assault. He filed a notice of appeal (State v.
Drake, 8th Dist. Cuyahoga No. 105176, 2017-Ohio-4190),
and while that appeal was pending, filed a Crim.R. 32.1
postsentence motion to withdraw his guilty plea. The court
denied the motion on grounds that it lacked jurisdiction to
proceed because of the pending appeal. The sole assignment of
error contests that ruling. The state, citing R.C.
2953.21(D), concedes that the court erred by concluding that
it could not reach the merits of Drake's motion to
withdraw the guilty plea.
When a notice of appeal is filed, the trial court loses
jurisdiction except to take action in aid of the appeal.
State ex rel Special Prosecutors v. Judges, Court of
Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162
(1978). The trial court retains jurisdiction over issues
"not inconsistent with the appellate court's
jurisdiction to reverse, modify, or affirm the judgment from
which an appeal is taken" - what is characterized as
acts "not in conflict" with appellate jurisdiction.
Yee v. Erie Cty. Sheriffs Dept., 51 Ohio St.3d 43,
44, 553 N.E.2d 1354 (1990).
An exception to the rule set forth in Special
Prosecutors exists for collateral attacks to a judgment
of conviction. R.C. 2953.21(D) states: "the court shall
consider a petition that is timely filed under division
(A)(2) of this section even if a direct appeal of the
judgment is pending." However, "R.C. 2953.21 and
2953.23 do not govern a Crim.R. 32.1 postsentence motion to
withdraw a guilty plea." State v. Bush, 96 Ohio
St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, syllabus. This is
because "a postsentence Crim.R. 32.1 motion is not
collateral but is filed in the underlying criminal case and
that it targets the withdrawal of a plea, it is not a
'collateral challenge to the validity of a conviction or
sentence.'" Id. at ¶ 13, quoting
State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d
905 (1999). Drake plainly styled his motion as a motion to
withdraw a guilty plea under Crim.R. 32.1, so we do not
accept the state's concession of error under R.C.
2953.21(D). Nevertheless, we agree that the court erred by
denying the motion to withdraw the guilty plea.
The court correctly understood that any ruling it made on the
motion to withdraw the guilty plea would interfere with our
jurisdiction to hear the merits of the pending direct appeal
from that same guilty plea. For that reason, the court lacked
jurisdiction to rule on the motion to withdraw the guilty
plea. See State v. Moon, 8th Dist. Cuyahoga No.
101930, 2015-Ohio-1648, ¶ 7. So, lacking jurisdiction to
rule on the pending motion to withdraw the guilty plea, the
court could not deny the motion. The court should have held
the motion in abeyance until Drake's direct appeal was
decided, at which time it could proceed to rule on the
motion. See State v. Lauharn, 2d Dist. Miami No.
2011 CA 10, 2012-Ohio-1572, ¶ 13 (court's ruling on
motion to withdraw guilty plea while a direct appeal was
pending was a "nullity" and motion remained pending
after direct appeal had been decided). Now that Drake's
direct appeal has been resolved, see Drake,
8th Dist. Cuyahoga No. 105176, 2017-Ohio-4190,  the trial court
now has jurisdiction and can proceed to rule on the motion.
We sustain the assignment of error.
Judgment reversed and remanded to the trial court for further
proceedings consistent with this opinion.
ordered that appellant recover of appellee costs herein
court finds there were reasonable grounds for this appeal.
ordered that a special mandate issue out of this court
directing the common pleas court to carry this judgment into
certified copy of this entry shall constitute the mandate
pursuant to Rule 27 ...