[Cite as State v. Weaver,

.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12CA16 TERRA WEAVER, nka TERRA KAMP

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. CRB 9800173

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: June 14, 2013

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

STEVE KNOWLING BRIAN L. SOMMERS PROSECUTING ATTORNEY LOGEE, HOSTETLER, STUTZMAN 164 East Jackson Street & LEHMAN Millersburg, Ohio 44654 2171 Eagle Pass Wooster, Ohio 44691 Holmes County, Case No. 12CA16 2

Wise, J.

{¶1} Appellant State of Ohio appeals the decision of the Holmes County

Municipal Court, which granted Appellee Terra Weaver’s post-sentence motion to

withdraw a prior no contest plea. The relevant facts leading to this appeal are as

follows.

{¶2} On April 20, 1998, appellee was charged by complaint in the Holmes

County Municipal Court with one count of domestic violence, a misdemeanor of the first

degree under R.C. 2919.25(A). On April 24, 1998, appellee appeared before the court

and entered a plea of no contest.1 The trial court found appellee guilty and ordered her

to pay court costs; a thirty-day jail term was suspended on a number of conditions,

including that appellee attend and complete the Family Lifeskills program.

{¶3} On October 18, 2011, more than thirteen years later, appellee moved to

withdraw her no contest plea “on the basis that while [appellee] waived her right to

counsel at the time of entering her plea, [appellee] never discussed this matter with an

attorney or sought the advice of counsel prior to her entry of a plea and consequently

[appellee] was not fully aware of all the consequences of entering a plea to the charge

of Domestic Violence. * * *.”

{¶4} The trial court scheduled an oral hearing. The State of Ohio raised a

number of objections to appellee's motion at the oral hearing.

{¶5} The trial court granted appellee's motion to withdraw her no contest plea

on November 28, 2011.

1 We note the record contains a document, dated April 24, 1998, stating: “I, Terra L. Weaver, have been offered the opportunity to apply for legal services on my behalf and do hereby decline the offer.” However, no record of any Crim.R. 11 colloquy from 1998 has been provided. Holmes County, Case No. 12CA16 3

{¶6} The State of Ohio thereafter obtained leave under App.R. 5(C) and

appealed to this Court. Appellant asserted in its sole assigned error that the trial court

had abused its discretion in permitting appellee to withdraw her plea of no contest. On

June 18, 2012, we reversed the trial court's decision of November 28, 2011 granting

the withdrawal of appellee’s plea, and remanded the matter for proceedings consistent

with our accompanying opinion. See State v. Weaver, Holmes App.No. 11CA023,

(“Weaver I”). Appellee did not file an appeal with the Ohio Supreme

Court.

{¶7} The trial court thereupon set the matter for a hearing on September 19,

2012. The trial court stated at the commencement of said hearing: "This is 98 CRB 173

on a motion for the original motion [sic] was to withdraw her original plea and the Court

granted that and then we are here because the Court of Appeals basically said there

was not enough evidence on the record [.]" Tr. at 2. Appellee was then permitted to

again testify about the circumstances surrounding her decision to enter a no contest

plea in 1998.

{¶8} On October 11, 2012, the trial court issued a judgment entry granting

appellee’s motion to withdraw her plea under Crim.R. 32.1.

{¶9} On October 17, 2012, the State of Ohio filed a notice of appeal and a

request for leave to appeal under App.R. 5(C). This Court granted leave to appeal on

November 21, 2012. The State of Ohio herein raises the following sole Assignment of

Error:

{¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY REOPENING

DEFENDANT-APPELLE'S (SIC) PRIOR CR 32.1 MOTION, HOLDING A SECOND Holmes County, Case No. 12CA16 4

EVIDENTIARY HEARING, AND AGAIN GRANTING SAID MOTION AFTER THIS

COURT HAD REVERSED THE TRIAL COURT'S INITIAL GRANTING OF

DEFENDANT'S MOTION AND REMANDED TO REINSTATE HER CONVICTION.”

I.

{¶11} In its sole Assignment of Error, Appellant State of Ohio challenges the trial

court's granting of appellee’s motion to withdraw her 1998 no contest plea following our

decision in Weaver I.

{¶12} Crim. R. 32.1 states, “A motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the

court after sentence may set aside the judgment of conviction and permit the defendant

to withdraw his or her plea.”

{¶13} The law of the case doctrine has been applied in appeals pertaining to

plea withdrawal motions. See State v. Cvijetinovic, Cuyahoga App.No. 82894, 2003-

Ohio-7071; State v. White, Cuyahoga App.No. 81368,

. “[T]he doctrine

of the law of the case * * * establishes that the ‘decision of a reviewing court in a case

remains the law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels.’ ” Pipe Fitters Union

Local No. 392 v. Kokosing Constr. Co., Inc.,

, 218,

,

, quoting Nolan v. Nolan (1984),

,

.

The doctrine of the law of the case “functions to compel trial courts to follow the

mandates of reviewing courts.” Hubbard ex rel. Creed v. Sauline (1996),

,

, quoting

Holmes County, Case No. 12CA16 5

{¶14} In reviewing the procedural history of this matter, we surmise that the trial

court interpreted our June 18, 2012 reversal and remand “for proceedings consistent

with this opinion” as opening the door to hearing additional evidence on appellee’s

Crim.R. 32.1 motion. However, in our June 18, 2012 decision we clearly held that

appellee had failed to establish that a manifest injustice had occurred when she

entered her no contest plea in 1998. See Weaver I at ¶8. Under the doctrine of the law

of the case, the allowance of further proceedings in contravention of our prior holding

was erroneous and warrants reversal.

{¶15} Accordingly, Appellant State of Ohio’s sole Assignment of Error is

sustained.

{¶16} For the reasons stated in the foregoing opinion, the October 11, 2012

decision of the Municipal Court of Holmes County, Ohio, is hereby reversed and

remanded with directions to the trial court to enter judgment denying appellee’s motion

of October 18, 2011 to withdraw no contest plea.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.

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JUDGES JWW/d 0603 Holmes County, Case No. 12CA16 6

IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : TERRA WEAVER, nka TERRA KAMP : : Defendant-Appellee : Case No. 12CA16

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Holmes County, Ohio, is reversed and remanded for

entry of judgment consistent with this opinion.

Costs assessed to appellee.

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JUDGES