[This decision has been published in Ohio Official Reports at
96 Ohio St.3d 235.]
THE STATE OF OHIO, APPELLEE, v. BUSH, APPELLANT.
THE STATE OF OHIO, APPELLEE, v. NORTHERN, APPELLANT.
[Cite as State v. Bush, 2002-Ohio-3993.]
Criminal law—Appeals—Postconviction remedies—R.C. 2953.21 and 2953.23
do not govern a Crim.R. 32.1 postsentence motion to withdraw a guilty
plea.
(Nos. 2001-1161, 2001-1247, 2001-1375, and 2001-1480—Submitted May 21,
2002—Decided August 28, 2002.)
APPEAL from and CERTIFIED by the Court of Appeals for Union County, No. 14-
2000-44, 2001-Ohio-2220.
APPEAL from and CERTIFIED by the Court of Appeals for Allen County, No.
1-01-01, 2001-Ohio-2229.
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SYLLABUS OF THE COURT
R.C. 2953.21 and 2953.23 do not govern a Crim.R. 32.1 postsentence motion to
withdraw a guilty plea.
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COOK, J.
{¶1} These cases ask us to decide whether R.C. 2953.21 and 2953.23
govern a Crim.R. 32.1 postsentence motion to withdraw a guilty plea. The answer
is no.
I
A. Case Nos. 2001-1161 and 2001-1247: Appellant Bush
{¶2} In 1997, appellant, Raymond E. Bush, Jr., pled guilty to one count of
each of the following offenses: breaking and entering, a violation of R.C.
2911.13(B); grand theft of a motor vehicle, a violation of R.C. 2913.02; breaking
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and entering, a violation of R.C. 2911.13(A); theft, a violation of R.C. 2913.02; and
possessing criminal tools, a violation of R.C. 2923.24. The trial court sentenced
Bush to consecutive terms of one year of incarceration on each breaking and
entering conviction, eighteen months on the grand theft of a motor vehicle
conviction, one year on the theft conviction, and one year on the possession of
criminal tools conviction.
{¶3} After unsuccessfully moving for judicial release, Bush filed a Crim.R.
32.1 motion to withdraw his guilty plea in November 2000. As grounds for his
motion, Bush argued that both his counsel and the trial judge had erroneously
assured him that he would be eligible for judicial release after having served 30
days in prison, rather than the five years specified in R.C. 2929.20. The state did
not oppose the motion. The trial court denied the motion, however, and Bush
appealed to the Third District Court of Appeals.
{¶4} The court of appeals affirmed. Citing our decision in State v. Reynolds
(1997), 79 Ohio St.3d 158,
679 N.E.2d 1131, the court of appeals majority reasoned
that Reynolds’s “general syllabus language requires us to conclude that if a motion
to withdraw a guilty plea is filed outside the time for a direct appeal and it alleges
a constitutional violation as the basis for the request to vacate a conviction and
sentence, the motion must be treated as one for post-conviction relief under R.C.
2953.21.” The appellate court concluded that because Bush had failed to satisfy
either the timeliness requirement of R.C. 2953.21 or the R.C. 2953.23 exceptions
to the timeliness requirement, the trial court lacked jurisdiction to consider the
merits of his “petition for post-conviction relief.”
{¶5} The court of appeals sua sponte certified a conflict to this court.1 Bush
also appealed here. The cause is now before this court upon our determination that
1. The conflict cases are State v. Cale (Mar. 23, 2001), 11th Dist. No. 2000-L-034, 2001 WL
285794, and State v. Talley (Jan. 30, 1998), 2d Dist. No. 16479,
1998 WL 31516.
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a conflict exists (case No. 2001-1161) and pursuant to the allowance of a
discretionary appeal (case No. 2001-1247).
B. Case Nos. 2001-1375 and 2001-1480: Appellant Northern
{¶6} In 1990, appellant, Amy Sue Northern, pled guilty to one count of
murder, a violation of R.C. 2903.02. The trial court sentenced Northern to an
indefinite term of fifteen years to life. Ten years later, Northern filed a pro se
Crim.R. 32.1 motion to withdraw her guilty plea. The basis of Northern’s motion
was that, because the Adult Parole Authority had determined that she was ineligible
for parole by using the aggravated murder count with which she had been charged
and not the murder count to which she pled, the state had breached the terms of her
plea agreement. The trial court denied the motion without conducting a hearing,
and Northern appealed to the Third District Court of Appeals.
{¶7} In a split decision, the court of appeals majority cited the Bush decision
and affirmed on the basis that, because Northern’s Crim.R. 32.1 motion was in fact
an untimely postconviction release petition under R.C. 2953.21 and 2953.23, the
trial court lacked jurisdiction to consider the merits.2 Northern then appealed to
this court and successfully moved the court of appeals to certify a conflict.3 As in
Bush, we granted discretionary review (case No. 2001-1375), determined that a
certified conflict exists (case No. 2001-1480), and consolidated the cases.
2. Two Third District judges have since disavowed the Bush-Northern interpretation of our
precedent. See State v. Reynolds, 3d Dist. No. 12-01-11, 2002-Ohio-2823,
2002 WL 1299990
(plurality opinion in which author of lead opinion and dissenting judge agreed that Crim.R. 32.1
provides distinct remedy from postconviction petition; third panel member concurred in judgment
only).
3. See footnote 1.
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II
{¶8} Crim.R. 32.1 provides that “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.” The majority of appellate districts, however, have at
times rejected the viability of postsentence Crim.R. 32.1 motions concerned with
constitutional error. Those courts relied on our more recent pronouncement in
Reynolds.4 There, we decided that a motion styled “Motion to Correct or Vacate
Sentence” was a postconviction relief petition subject to the postconviction statutes,
R.C. 2953.21 and 2953.23, and thus barred by res judicata because the movant
could have raised the issues on direct appeal. We held:
{¶9} “Where a criminal defendant, subsequent to his or her direct appeal,
files a motion seeking vacation or correction of his or her sentence on the basis that
his or her constitutional rights have been violated, such a motion is a petition for
postconviction relief as defined in R.C. 2953.21.” Id., syllabus.
{¶10} The Reynolds syllabus must be read in the context of the facts of that
case. When we decided Reynolds, our rules provided that “[t]he syllabus of a
Supreme Court opinion states the controlling point or points of law decided in and
necessarily arising from the facts of the specific case before the Court for
adjudication.” (Emphasis added.) Former S.Ct.R.Rep.Op. 1(B), 3 Ohio St.3d xxi.
Thus, when read in context, the rule of Reynolds reaches only a motion such as the
one in that case—a “Motion to Correct or Vacate Sentence”—that fails to delineate
4. See, e.g., State v. Idowu, 1st Dist. No. C-010646,
2002-Ohio-3302,
2002 WL 1393653; State v.
Deer, 4th Dist. No. 00CA24,
2001-Ohio-2406,
2001 WL 243253; State v. Steward, 5th Dist. No. 01
CA 102,
2002-Ohio-2680,
2002 WL 1159190; State v. Parra (Jan. 14, 2000), 6th Dist. No. L-99-
1123,
2000 WL 20563; State v. Heddleston, 7th Dist. Nos.
98 CO 29,
98 CO 37, and
98 CO 46,
2001-Ohio-3391,
2001 WL 1155781; State v. Jackson (Nov. 29, 2001), 8th Dist. No. 79072,
2001
WL 1524437; State v. Lewis (Feb. 9. 1999), 9th Dist. No. 98CA007007,
1999 WL 66209; State v.
Phelps (Sept. 26, 2000), 10th Dist. No. 00AP-109,
2000 WL 1376530; State v. Wesseler, 12th Dist.
No. CA2001-08-087,
2001-Ohio-8638,
2001 WL 1598282. But, see, State v. Cale (Mar. 23, 2001),
11th Dist. No. 2000-L-034,
2001 WL 285794; State v. Talley (Jan. 30, 1998), 2d Dist. No. 16479,
1998 WL 31516.
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January Term, 2002
specifically whether it is a postconviction release petition or a Crim.R. 32.1 motion.
Such irregular “no-name” motions must be categorized by a court in order for the
court to know the criteria by which the motion should be judged. Our decision in
Reynolds set forth a means by which courts can classify such irregular motions.
See State v. Reynolds, 3d Dist. No. 12-01-11, 2002-Ohio-2823, at ¶ 24,
2002 WL
1299990 (plurality opinion) (“[I]n Reynolds the Supreme Court was considering a
vaguely titled ‘Motion to Correct or Vacate Sentence’ and not a motion filed
pursuant to a specific rule of criminal procedure. Since there was no controlling
rule or statutory provision governing or providing for a Motion to Correct or Vacate
Sentence, the Ohio State Supreme Court looked at the contents of the defendant’s
motions [sic] and determined that substantively it was a petition for post conviction
relief and then treated it as such”). Reynolds therefore does not obviate Crim.R.
32.1 postsentence motions. Instead, Reynolds sets forth a narrow rule of law limited
to the context of that case.
{¶11} Our precedent distinguishes postsentence Crim.R. 32.1 motions from
postconviction petitions. See State ex rel. Tran v. McGrath (1997), 78 Ohio St.3d
45, 47,
676 N.E.2d 108 (unanimous court describing postconviction relief petition
and postsentence motion to withdraw a guilty plea as “alternative remedies”); State
ex rel. WLWT-TV5 v. Leis (1997),
77 Ohio St.3d 357, 360,
673 N.E.2d 1365
(unanimous court identifying postsentence Crim.R. 32.1 motion to withdraw a
guilty plea and postconviction petition as separate remedies). We have continued
to recognize a Crim.R. 32.1 postsentence motion to withdraw a guilty plea as a
distinct avenue for relief following our decision in Reynolds. See State ex rel.
Stovall v. Jones (2001),
91 Ohio St.3d 403, 404,
746 N.E.2d 601 (unanimous court
describing a postsentence Crim.R. 32.1 motion as an “adequate legal remed[y]”);
State ex rel. Chavis v. Griffin (2001),
91 Ohio St.3d 50, 51,
741 N.E.2d 130
(unanimous court summarizing trial court’s obligations in addressing a
postsentence Crim.R. 32.1 motion); Douglas v. Money (1999),
85 Ohio St.3d 348,
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349, 708 N.E.2d 697 (unanimous court citing Tran in identifying postsentence
motion to withdraw a guilty plea as separate from postconviction relief petition);
State v. Ashworth (1999),
85 Ohio St.3d 56, 70,
706 N.E.2d 1231 (discussing the
operation of Crim.R. 32.1 without mentioning postconviction relief statutes); Shie
v. Leonard (1998),
84 Ohio St.3d 160, 161,
702 N.E.2d 419 (unanimous court citing
Tran for proposition that alternative legal remedies of postconviction relief petition
and postsentence motion to withdraw a guilty plea existed). And we confirm today
that our holding in Reynolds continues to be narrow.
{¶12} The state urges us to conclude, however, that because the General
Assembly has provided a statutory remedy for addressing claimed constitutional
error, the postconviction scheme is the exclusive avenue of redress. Thus, the state
asserts, courts must construe postsentence Crim.R. 32.1 motions that are based on
constitutional violations to be postconviction petitions. We disagree.
{¶13} R.C. 2953.21(J), part of the postconviction relief statutory scheme,
provides that “the remedy set forth in this section is the exclusive remedy by which
a person may bring a collateral challenge to the validity of a conviction or sentence
in a criminal case ….” Given that 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.” See State v. Calhoun (1999), 86 Ohio St.3d 279, 281,
714 N.E.2d
905 (“a postconviction proceeding is … a collateral civil attack on the
judgment”); Black’s Law Dictionary (7th Ed.Rev.1999) 255 (defining “collateral
attack” as “[a]n attack on a judgment entered in a different proceeding”). We thus
reject the state’s contention that the statutory scheme set forth in R.C. 2953.21 and
2953.23 provides the exclusive means by which a criminal defendant can raise a
constitutional attack on his or her plea.
{¶14} Accordingly, we hold that R.C. 2953.21 and 2953.23 do not govern
a Crim.R. 32.1 postsentence motion to withdraw a guilty plea. Postsentence
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January Term, 2002
motions to withdraw guilty or no contest pleas and postconviction relief petitions
exist independently. A criminal defendant can seek under Crim.R. 32.1 to
withdraw a plea after the imposition of sentence. See State v. Smith (1977), 49
Ohio St.2d 261,
3 O.O.3d 402,
361 N.E.2d 1324, paragraph one of the syllabus.
R.C. 2953.21 and 2953.23 do not govern the timeliness of such a motion. And
Crim.R. 32.1 itself does not prescribe a time limitation. This is not to say that
timeliness is not a consideration, however, as an “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 the granting of the motion.” Smith,
49 Ohio St.2d
261,
3 O.O.3d 402,
361 N.E.2d 1324, paragraph three of the syllabus.
III
{¶15} We reverse the judgments of the court of appeals and remand these
causes for further proceedings.
Judgments reversed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.
RESNICK, J., dissents.
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Alison Boggs, Union County Prosecuting Attorney, and John Heinkel,
Assistant Prosecuting Attorney, for appellee in case Nos. 2001-1161 and 2001-
1247.
Dennis W. McNamara, for appellant Raymond A. Bush in case Nos. 2001-
1161 and 2001-1247.
David E. Bowers, Allen County Prosecuting Attorney, and Jana E. Gutman,
Assistant Prosecuting Attorney, for appellee in case Nos. 2001-1375 and 2001-
1480.
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David H. Bodiker, Ohio Public Defender, and Stephen P. Hardwick,
Assistant State Public Defender, for appellant Amy Sue Northern in case Nos.
2001-1375 and 2001-1480.
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