[Cite as State v. Molnar,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25267

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE KEVIN M. MOLNAR COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 04 12 4206

DECISION AND JOURNAL ENTRY

Dated: August 3, 2011

Per Curiam.

{¶1} Appellant Kevin Molnar appeals the denial of his motion to withdraw his no

contest plea from the Summit County Court of Common Pleas. For the reasons set forth below,

we affirm.

I.

{¶2} In March 2005, Mr. Molnar pleaded no contest and was convicted on one count of

felonious assault and two counts of endangering children. During the plea colloquy, the court

instructed him that he would be subject to postrelease control following his incarceration and that

the postrelease control could last for a period of up to five years. Mr. Molnar was sentenced to

13 years of incarceration for these three convictions. The sentence did not include postrelease

control.

{¶3} In his direct appeal, Mr. Molnar argued that the trial court abused its discretion by

imposing maximum and consecutive sentences. This Court affirmed, based on the then-recently 2

decided State v. Foster. State v. Molnar, 9th Dist. No. 22714,

. The Supreme

Court of Ohio declined jurisdiction in the case. State v. Molnar,

, 2006-

Ohio-5083.

{¶4} In October 2009, Mr. Molnar moved for resentencing. He alleged that the trial

court had not properly sentenced him to a term of postrelease control as mandated by statute.

The State agreed that Mr. Molnar’s original sentence was void. The court determined that his

sentence was void and scheduled a new sentencing hearing. At the same time, Mr. Molnar

moved to withdraw his no contest plea. Following a hearing, the trial court denied the motion to

withdraw the plea.

{¶5} At the resentencing hearing, the court resentenced Mr. Molnar to the same

sentence and properly imposed 3 years of mandatory postrelease control.

{¶6} Mr. Molnar has appealed the trial court’s denial of his motion to withdraw his

plea. He presents three assignments of error.

II.

ASSIGNMENT OF ERROR I

“THE TRIAL COURT ERRED WHEN IT DID NOT PERMIT THE DEFENDANT TO WITHDRAW HIS NO CONTEST PLEA IN VIOLATION OF RULE 32.1 OF THE OHIO RULES OF CRIMINAL PROCEDURE.”

ASSIGNMENT OF ERROR II

“APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO RAISE THE DEFECTIVE NO CONTEST PLEA IN HIS MOTION HEARING, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, § 10 OF THE OHIO CONSTITUTION.”

{¶7} Mr. Molnar asserts in his first two assignments of error that the trial court erred in

denying his motion to withdraw and that his trial counsel was ineffective during the hearing. For

the following reasons, his first and second assignments of error are overruled. 3

{¶8} Mr. Molnar appealed from his conviction and sentence, and this Court affirmed.

After his first appeal, he moved to withdraw his no contest plea. The trial court denied his

motion, and he has again appealed. The Ohio Supreme Court recently held that, “[a]lthough the

doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to

other aspects of the merits of a conviction, including the determination of guilt and the lawful

elements of the ensuing sentence.” State v. Fischer,

, 2010–Ohio–6238, at

paragraph three of the syllabus. When the trial court fails to properly impose statutorily

mandated postrelease control as part of the defendant’s sentence, that part of the sentence is void

and must be set aside. Id. at ¶26.

{¶9} Because only the postrelease control part of Mr. Molnar’s sentence was void, this

is his second appeal from the same conviction. Mr. Molnar has already had a direct appeal, and

this Court affirmed his convictions. “Res judicata bars the assertion of claims against a valid,

final judgment of conviction that have been raised or could have been raised on appeal.” State v.

Ketterer,

, 2010–Ohio–3831, ¶59 (citing State v. Perry,

,

paragraph nine of the syllabus (1967)). This prohibition extends to claims made in support of

motions to withdraw a plea.

See, also, State v. Brown, 9th Dist. Nos. 25353 and 25355,

, ¶6. Mr. Molnar could have raised his challenge to his no contest plea in his

first appeal. Accordingly, the claim is barred by res judicata.

{¶10} The procedural posture of this case also raises a jurisdictional question. “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. While Crim.R.

32.1 apparently enlarges the power of the trial court over its judgments without respect to the

running of the court term, it does not confer upon the trial court the power to vacate a judgment 4

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.” State v. Ketterer,

, 2010–Ohio–3831, at ¶61 (quoting State ex rel. Special Prosecutors v. Judges,

Court of Common Pleas,

, 97–98 (1978)).

{¶11} In his first appeal, this Court reviewed the trial court’s judgment and affirmed.

Pursuant to Special Prosecutors and Ketterer, the trial court lost jurisdiction to consider Mr.

Molnar’s motion to withdraw his no contest plea. The argument he presented in the first

assignment of error could have been raised in his first appeal and, accordingly, is barred by res

judicata. State v. Brown, 9th Dist. Nos. 25353 and 25355,

, at ¶8.

{¶12} Because the trial court could not consider Mr. Molnar’s motion to withdraw his

no contest plea, there is no basis for his claim of ineffective assistance of counsel during the

hearing. Accordingly, Mr. Molnar’s first and second assignments of error are overruled.

ASSIGNMENT OF ERROR III

“APPELLANT WAS DEPRIVED OF HIS DUE PROCESS AND HIS SPEEDY TRIAL RIGHTS WHEN HE WAS NOT GIVEN A VALID SENTENCE UNTIL ALMOST FIVE YEARS AFTER HIS NO CONTEST PLEA.”

{¶13} Mr. Molnar argues that the delay of almost five years between “his plea and the

imposition of a valid sentence” is a violation of his Sixth Amendment speedy trial rights.

Because there was not a delay between the plea and sentence, the assignment of error is

overruled.

{¶14} Pursuant to Rule 32(A) of the Ohio Rules of Criminal Procedure, the trial court

shall impose sentence without unnecessary delay. Mr. Molnar has argued that there was a

lengthy, unnecessary delay between his plea and the imposition of sentence. This is not a case in

which the trial court refused to sentence the defendant. Rather, Rule 32(A) does not apply in a 5

case like this, in which a defendant must be resentenced because the trial court did not properly

impose postrelease control. State v. Hubbard, 9th Dist. No. 25141,

. Thus,

Mr. Molnar’s third assignment of error is overruled.

III.

{¶15} Because Mr. Molnar had already appealed, the trial court could not consider his

motion to withdraw his no contest plea. The trial court did not unnecessarily delay imposing

sentence because only the postrelease control portion of his sentence was void; the remainder of

the sentence was valid and timely imposed. The assignments of error are overruled and the

judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 6

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

WHITMORE, J. DICKINSON, P. J. CONCUR

BELFANCE, J. CONCURS IN JUDGMENT ONLY, SAYING:

{¶16} I would not apply State ex rel. Special Prosecutors v. Judges, Court of Common

Pleas (1978),

, to erect a jurisdictional bar to Mr. Molnar’s motion to withdraw

his plea. Nor would I apply res judicata to foreclose Mr. Molnar’s Crim.R. 32.1 motion to

withdraw. However, because I agree that his assignments of error should be overruled for other

reasons, I concur in judgment only. I write separately to address what I believe is the overly-

broad application of Special Prosecutors and State v. Ketter that runs counter to Ohio Supreme

Court precedent interpreting Crim.R. 32.1.

Motion to Withdraw Plea

{¶17} Crim.R. 32.1 allows a defendant to file a motion to withdraw a plea, either before

or after sentence is imposed. When a defendant moves to withdraw his plea after sentence, as

Mr. Molnar did, he must meet a high burden: “to correct manifest injustice the court after

sentence may set aside the judgment of conviction and permit the defendant to withdraw his

plea.” The Rule does not impose a time limit or deadline on when the motion must be filed.

State v. Bush,

,

. The passage of time, however, remains 7

important. State v. Smith (1977),

, paragraph three of the syllabus (undue

delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing

of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and

militating against granting of motion). Importantly, the Ohio Supreme Court has consistently

held that a Crim.R. 32.1 motion to withdraw a plea is a separate and alternative legal remedy.

Bush at ¶11.

{¶18} Notwithstanding the availability of a Crim.R. 32.1 motion as a separate and

distinct remedy and the plain language of Crim.R. 32.1, courts of appeals have recently

determined that a criminal defendant may not avail himself of a postsentence motion to withdraw

a plea if a direct appeal has been taken from the conviction. These courts have applied Special

Prosecutors, and, more recently, State v. Ketterer,

,

, to

conclude that the trial court lacked jurisdiction to consider a postsentence motion to withdraw a

plea.

State ex rel. Special Prosecutors

{¶19} Ronald Asher pleaded guilty to murder and his conviction was affirmed on

appeal. Months later, he moved to withdraw his guilty plea. The trial court granted the motion

and the State did not appeal.

{¶20} Mr. Asher was arraigned again, and the trial court set a date for trial. Before that

date, however, special prosecutors assigned to the case petitioned for a writ of prohibition. The

State argued that the trial court lacked jurisdiction to grant the motion to withdraw the plea, so

the court could not proceed with a trial. The court of appeals denied the writ and the State

appealed. 8

{¶21} The Supreme Court explained that “the pivotal issue herein presented is whether

the trial court exceeded its jurisdiction in vacating appellee’s plea of guilty subsequent to the

Court of Appeals’ affirmance of its prior judgment convicting the appellee on the basis of his

guilty plea.” Id. at 96. In his direct appeal, the court of appeals had considered and decided that

Mr. Asher voluntarily entered his guilty plea. Id. The Supreme Court recognized the general

rule that a trial court retains jurisdiction over issues not inconsistent with that of the court of

appeals to affirm, reverse, or modify the appealed judgment. Id. at 97. Notwithstanding this

general rule, the Supreme Court held that “the trial court’s granting of [Mr. Asher’s] motion to

withdraw the guilty plea and the order to proceed with a new trial were inconsistent with the

judgment of the Court of Appeals affirming the trial court’s conviction premised upon the guilty

plea. The judgment of the reviewing court is controlling upon the lower court as to all matters

within the compass of the judgment.” Id. at 97.

{¶22} This last sentence is significant – the court of appeals’ judgment is controlling

upon the trial court as to all matters within that judgment. In Mr. Asher’s case, the court of

appeals considered his challenge to the voluntariness of his plea. That judgment – that he

voluntarily entered his plea – was controlling on the trial court, and it could not reach a contrary

conclusion and grant the motion to withdraw the plea.

{¶23} The Special Prosecutors’ holding, considered in light of the facts before the

Court, is consistent with general practice – when the court of appeals has considered and decided

an issue, that holding is the law of the case. This is what the State argued in Special Prosecutors.

Id. at 96. See, also, State ex rel. Cordray v. Marshall,

,

(recognizing the jurisdictional distinction between the law of the case doctrine and res judicata).

Special Prosecutors has been applied, however, to create a jurisdictional bar to a Crim.R. 32.1 9

motion to withdraw a plea regardless of whether that issue was raised and decided on appeal.

However, in my view, Special Prosecutors is limited to those cases where an appellate court has

considered and passed upon an issue, thus depriving a trial court of authority to alter the

appellate court’s decision. This conclusion is supported by Cordray, where the Supreme Court

held that “[w]hile new arguments are barred by the res judicata portion of the law-of-the-case

doctrine, res judicata – unlike the portion of the law-of-the-case doctrine at issue here – is not a

basis for extraordinary relief in prohibition.”

.

State v. Ketterer

{¶24} The main opinion also relies upon State v. Ketterer to support the conclusion that

the trial court was deprived of jurisdiction to consider Mr. Molnar’s motion to withdraw his plea.

However, I view reliance upon Ketterer as misplaced. Although the Ohio Supreme Court

applied Special Prosecutors in Ketterer, as I read the decision, it did so only in dicta.

Furthermore, Ketterer is procedurally distinct from this case.

{¶25} Donald Ketterer was convicted of a number of offenses, including aggravated

murder. He appealed his convictions to the Ohio Supreme Court. The Court vacated the

noncapital sentences and remanded for resentencing. Ketterer at ¶3. After the Supreme Court’s

remand to the trial court, Mr. Ketterer filed a motion to withdraw his guilty plea. Id. at ¶56. The

trial court denied the motion, held a new sentencing hearing, and imposed the same sentence as it

ordered at the original sentencing hearing. Id. at ¶4. On appeal, Mr. Ketterer argued that the

trial court erred when it denied his motion. Id. at ¶58.

{¶26} The Supreme Court began its analysis by examining the State’s argument that Mr.

Ketterer’s motion to withdraw was barred by res judicata. Id. at ¶59. The State argued, and the

Court agreed, that Mr. Ketterer raised the same attacks on his plea in his first appeal that he later 10

argued in his motion to withdraw. Id. The Supreme Court concluded that “res judicata was a

valid basis for rejecting these claims.” Id. at ¶60.

{¶27} Despite having decided that res judicata applied and that the trial court correctly

denied the motion to withdraw, the Supreme Court also considered the State’s alternative

jurisdictional argument in which it invoked Special Prosecutors “to argue that the court lacked

jurisdiction to vacate Ketterer’s guilty pleas.” Id. at ¶61. The Court noted that, on direct appeal,

it affirmed Mr. Ketterer’s convictions and death sentence, but remanded solely for resentencing

on the noncapital offenses. Id. at ¶62. The Court concluded that “[u]nder the authority of

Special Prosecutors, the [trial court] had no authority to consider Ketterer’s motion to withdraw

his guilty pleas, let alone grant him a new trial.” Id. at ¶62. Although the Court made this

observation, it had already resolved the issue on res judicata, before considering the

jurisdictional argument. Thus, I believe the discussion of Special Prosecutors was merely dicta,

meant to completely address the State’s arguments. In any event, Mr. Ketterer appealed his

conviction and challenged the validity of his guilty plea on direct appeal, which distinguishes

Mr. Ketterer’s case from Mr. Molnar’s. This significant procedural difference should take Mr.

Molnar’s case beyond the holding of Ketterer.

A Crim.R. 32.1 motion is a separate remedy bearing no time limitations

{¶28} The Ohio Supreme Court has held that a Crim.R. 32.1 motion is a separate and

alternative legal remedy. Bush at ¶ 11 (“We have continued to recognize a Crim.R. 32.1

postsentence motion to withdraw a guilty plea as a distinct avenue for relief.”) In Bush, the

Court considered the appeals of two defendants who had filed postsentence motions to withdraw

their pleas. One motion to withdraw was filed three years after the plea, the other motion was

filed ten years after the plea. The trial courts in both cases denied the motions because it 11

considered them as untimely motions for post-conviction relief and the court of appeals affirmed

both cases.

{¶29} The Ohio Supreme Court reversed and rejected the notion that a post-sentence

Crim.R. 32.1 motion to withdraw a plea was tantamount to a motion for postconviction relief. In

reaching this conclusion, the Bush court emphasized that a Crim.R. 32.1 motion is a separate and

alternative remedy. The Court reasoned that a postsentence Crim.R. 32.1 motion is not a

collateral challenge to the validity of the conviction or sentence, rather, it is filed in the

underlying case and targets the withdrawal of the plea, not the conviction or sentence. Id. at ¶13.

As a Crim.R. 32.1 motion is a separate remedy, a trial court possesses jurisdiction to consider in

the first instance, a motion to withdraw a plea.

{¶30} The holding in Special Prosecutors only applies if an appellate court has already

considered and decided the issue. In this case, although Mr. Molnar appealed following his

conviction, he did not challenge any aspect of his plea. When this Court decided his first appeal,

it did so in the context of the assignments of error he raised. As emphasized in Bush, Mr.

Molnar’s challenge to his plea is not a collateral attack on his sentence and conviction, rather it is

raised as a challenge to his plea. Since Mr. Molnar did not challenge any aspect of his plea in his

direct appeal, I would hold that Special Prosecutors does not apply to this case given that the

trial court would not be reaching a result contrary to the result reached by this Court in his direct

appeal.

{¶31} The practical implication of this Court’s decision is to establish a limited time

frame within which to file a postsentence motion to withdraw a plea and to make an arbitary

distinction between those who file appeals and those who do not. In applying Special

Prosecutors to this situation, a defendant directly appealing his conviction is effectively 12

foreclosed from employing the Crim.R. 32.1 remedy unless he seeks to withdraw his plea almost

immediately after sentencing—a result that runs counter to the principles expressed in Bush and

the express language of Crim.R. 32.1. The Supreme Court has gone so far as to acknowledge

that a defendant could withdraw his plea even after he has completed his sentence, if he can meet

the manifest injustice standard. State v. Harrison,

,

.

As noted in Bush, the Rule does not establish any time limit for filing a motion to withdraw. The

only reference to time in the Rule relates to whether the motion is filed before sentence or after

sentence.

{¶32} The Supreme Court recognized this in Bush, where it held that the time limits

from the postconviction relief statutes did not apply to Crim.R. 32.1. Bush at ¶14. Notably, in

Bush, the two defendants filed their motions to withdraw their pleas many years after the

judgment of conviction had been entered and well after the time for appeal had passed.

{¶33} The current application of Special Prosecutors also permits those who have not

appealed their conviction and sentence to avail themselves of the Crim.R. 32.1 remedy while it

forecloses that remedy to those who have appealed their conviction and sentence. A defendant

who has entered a plea and been sentenced may file a postsentence motion to withdraw the plea

any time after sentencing – unless the defendant has exercised his right to appeal. If the court of

appeals has affirmed, then the trial court is deprived of jurisdiction to consider the defendant’s

motion to withdraw the plea even if the defendant did not challenge his plea on appeal. This

application of Special Prosecutors is inconsistent with Bush.

Special Prosecutors has been applied even more broadly

{¶34} The reach of Special Prosecutors continues to expand. Courts have applied it to

hold that a trial court has been deprived of jurisdiction to consider a postsentence motion to 13

withdraw a guilty plea, as was done in this case. In State v. Davis, Fifth Dist. No. 09-CA-0019,

, a case now before the Ohio Supreme Court, the Fifth District has expanded its

reach further. It applied Special Prosecutors to a motion for a new trial, holding that a trial court

is deprived of jurisdiction to consider a Crim.R. 33 motion for new trial after the judgment has

been affirmed on appeal. Davis at ¶12. In my view, these issues turn upon how broadly one

interprets what is within the “compass” of an appellate court’s judgment. Thus, the very fact that

a matter was affirmed on appeal may be taken to suggest that a trial court may not consider any

matter because to do so would undermine the affirmance of the appellate court, irrespective of

whether the matter is actually an independent remedy and irrespective of whether the matter was

actually considered and decided by the appellate court. In my view, the Ohio Supreme Court did

not intend the reach of Special Prosecutors to foreclose distinct avenues of relief that were not

previously considered and decided by an appellate court.

Res Judicata

{¶35} This Court also concludes that Mr. Molnar’s motion to withdraw his plea is barred

under principles of res judicata, reasoning that this is “Mr. Molnar’s second appeal from the

same conviction.” However, this premise ignores the legal distinction between a direct appeal

challenging a conviction and sentence and the Crim.R. 32.1 remedy which is not a collateral

attack upon the conviction and sentence. Bush at ¶ 13. This is Mr. Molnar’s first appeal from his

Crim.R. 32. 1 motion to withdraw his plea.

{¶36} Although at first glance, it may appear that Ketterer applies to this case, it does

not. The Ketterer Court did apply res judicata to bar Mr. Ketterer from raising the same

arguments concerning his plea that he had raised in his first appeal. That is not the situation in

this case. 14

Conclusion

{¶37} A convicted defendant has a limited number of means available to challenge his

conviction. He can appeal his conviction to raise errors that appear on the record and seek

postconviction relief when alleged errors are outside the record. A defendant could, until

recently, also move to withdraw a plea, in addition to exercising the constitutional right to

appeal. These remedies serve important purposes that are different from a direct appeal. Special

Prosecutors and Ketterer have been applied to prevent a trial court from considering a

defendant’s motion to withdraw a guilty plea that has never been raised or considered by an

appellate court. This artificial limit, in the form of a jurisdictional bar, is imposed upon

defendant who has exercised a constitutional right to appeal his conviction and sentence but

never challenged his plea nor availed himself of the Crim.R. 32.1 remedy. I would consider Mr.

Molnar’s appeal from the denial of the motion to vacate his plea on its merits because pursuant

to Crim.R. 32.1, Mr. Molnar was not foreclosed from filing the motion, the trial court had

jurisdiction to consider his motion on its merits, and res judicata did not preclude consideration

of his motion. Accordingly, I concur in the judgment only.

APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.