State v. Vasquez

[Cite as State v. Vasquez, 

.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY

State of Ohio                                     Court of Appeals No. L-23-1300

        Appellee                                  Trial Court No. CR0199306193

v.

Ismael Vasquez                                    DECISION AND JUDGMENT

        Appellant                                 Decided: August 2, 2024

                                          …
        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Timothy F. Sweeney, for appellant.

                                              …

        SULEK, P.J.

        {¶ 1} Appellant Ismael Vasquez appeals the judgment of the Lucas County Court

of Common Pleas denying his Crim.R. 32.1 post-sentence motion to withdraw his guilty

plea. For the following reasons, the trial court’s judgment is reversed.

                        I. Factual Background and Procedural History

        {¶ 2} On August 4, 1992, V.H. was found having been beaten to death. Vasquez

was indicted in relation to the murder. On January 12, 1994, he entered a plea of guilty

pursuant to North Carolina v. Alford to the lesser offense of murder in violation of R.C.
2903.02 and was sentenced to 15 years to life in prison. Vasquez never appealed his

conviction.

       {¶ 3} Nearly 30 years later, on February 14, 2023, Vasquez filed a Crim.R. 32.1

motion to withdraw his guilty plea, asserting that he received newly discovered

exculpatory evidence that the State unlawfully withheld from him. The State opposed

Vasquez’s motion, arguing that the trial court lacked jurisdiction to consider it.

       {¶ 4} On November 20, 2023, the trial court entered its judgment denying

Vasquez’s motion to withdraw his guilty plea. The court determined that it had no

jurisdiction to hear a Crim.R. 32.1 motion to withdraw a guilty plea after the time for an

appeal from the conviction had expired.1

                                 II. Assignment of Error

       {¶ 5} Vasquez timely appealed the trial court’s November 20, 2023 judgment,

asserting one assignment of error for review:

              1. The trial court committed reversible error and misapplied

       controlling law, including from the Ohio Supreme Court and the Sixth

       Appellate District, in ruling that it did not have jurisdiction to hear and

       determine, and in thus denying, Appellant’s well-supported and timely

       motion under Ohio Crim. R. 32.1 to withdraw his January 1994 Alford plea

       to an August 1992 murder offense, allegedly committed when Appellant



1
 In its decision, the trial court found that Vasquez had attempted to file a delayed appeal,
which was denied. Vasquez asserts, and the State concedes, that no such delayed appeal
was attempted.

2.
       was 16 years old, in circumstances where the State’s recently-revealed

       suppression of numerous exculpatory materials in violation of its duties

       under Brady v. Maryland and Crim.R. 16 resulted in a plea that was not

       made knowingly, intelligently, and voluntarily and in a miscarriage of

       justice.

                                        III. Analysis

       {¶ 6} In his assignment of error, Vasquez argues that the trial court erred in

denying for lack of jurisdiction his Crim.R. 32.1 post-sentence motion to withdraw his

guilty plea. Crim.R. 32.1 provides, “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.”

       {¶ 7} Ordinarily, an appellate court reviews the denial of a post-sentence motion

to withdraw a guilty plea for an abuse of discretion. State v. Davis, 

, ¶

21 (6th Dist.). Where the trial court decides that it lacks jurisdiction to consider the

motion, however, that decision is reviewed de novo. State v. Davic, 

(10th Dist.) (“[A]n appellate court reviews questions of law, including whether a trial

court has subject-matter jurisdiction to consider a motion to withdraw a guilty plea, under

a de novo standard.”).

       {¶ 8} The issue presented in this case is whether the trial court retains jurisdiction

to entertain a post-sentence motion to withdraw a guilty plea where the time for filing an

appeal from the conviction has expired and no appeal has been taken.


3.
       {¶ 9} As a starting point, “Crim.R. 32.1 does not provide a time limit for moving

to withdraw after a sentence is imposed.” State v. Straley, 

. In

State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 

 (1978), however, the Ohio Supreme Court curtailed the ability of a defendant to

file a post-sentence motion to withdraw a guilty plea:

       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 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.

       {¶ 10} Recently, the rule in Special Prosecutors has been called into question by

State ex rel. Davis v. Janas, 

. In Janas, the Ohio Supreme Court

recognized that a “trial court’s jurisdiction over a criminal matter is limited once the

proceedings are complete. Generally, a trial court loses jurisdiction to modify its

judgment once that judgment has been affirmed on appeal.” 

 It further commented

that “[r]elief from judgments in criminal cases is confined to the procedures authorized

by statute or rule,” specifically listing Crim.R. 32.1, and “[o]utside of those procedures,

there is no statute or criminal rule permitting a trial court to sua sponte substantively

change a defendant’s sentence after that sentence has been affirmed on direct appeal.” Id.


4.
Some courts have read Janas to mean that “Special Prosecutors can no longer be

construed as divesting a trial court of its continuing jurisdiction over post-sentence

motions that are permitted by the Ohio Rules of Criminal Procedure or Ohio law.” State

v. Enyart, 

 (10th Dist.); see also State v. Brown, 

 (8th Dist.); State v. Cobb, 

 (9th Dist.).

       {¶ 11} Vasquez asks this court to join the Tenth, Eighth, and Ninth Districts in no

longer enforcing the rule in Special Prosecutors. Upon review, that issue does not need

to be decided in this case. The rule in Special Prosecutors applies where a conviction has

been affirmed on appeal because a lower court cannot take an action that affects the

decision of a reviewing court. But here, no appeal was taken from Vasquez’s conviction.

Thus, Special Prosecutors is not implicated, no time limit exists for filing a Crim.R. 32.1

post-sentence motion to withdraw a guilty plea, and the trial court retains jurisdiction to

consider Vasquez’s motion.

       {¶ 12} The State, arguing against this result, cites prior decisions from this court

that it claims expands the rule of Special Prosecutors to deprive a trial court of

jurisdiction where, although no direct appeal was filed, the time for filing such an appeal

had expired. In State v. Caston, 

 (6th Dist.), this court quoted, “It has

long been held that a trial court has no authority to even consider a motion to withdraw a

plea after a conviction has been affirmed on appeal; or, if there was no appeal, after the

time for filing the original appeal has passed.” Id. at ¶ 10, quoting State v. Carter, 2011-

Ohio-6104, ¶ 11 (3d Dist.). This court quoted the same language again in State v. Davis,

, ¶ 23 (6th Dist.).


5.
       {¶ 13} Importantly, though, neither Caston, Davis, nor Carter involved a post-

sentence motion to withdraw a guilty plea being denied for lack of jurisdiction where a

direct appeal was not taken and the time for filing a direct appeal had expired. In Caston,

this court held that the trial court lacked jurisdiction because Caston’s conviction “was

expressly affirmed on appeal and the matter was remanded to the trial court solely for the

purpose of dealing with the merger issue.” 

. In Davis, the post-sentence

motion to withdraw the guilty plea was denied on the basis of res judicata, not lack of

jurisdiction. Davis at ¶ 29. In Carter, like Caston, the conviction was affirmed on appeal

but the matter was remanded for “the limited purpose of applying the appropriate

procedures to merge the counts.” (Emphasis sic.) Carter at ¶ 13. Therefore, those cases

cannot be relied upon as an expansion of the Special Prosecutors rule.

       {¶ 14} Instead, this court has adopted the analytical framework originally

articulated in the concurring opinion in Davis:

              In step one, the question is whether the defendant’s conviction was

       appealed and affirmed on appeal? If the answer is yes, then the trial court

       has no jurisdiction to entertain the post-sentence motion to withdraw under

       Special Prosecutors. If the answer is no, the court must proceed to step

       two. In step two, the question is whether the defendant relies upon

       evidence contained within the trial court record to support his post-sentence

       motion to withdraw? If the answer is yes, then the defendant’s motion is

       barred by res judicata under [State v. Tekulve, 

 (1st Dist.)]

       and its progeny. If the answer is no, the court must proceed to step three.


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       In step three, which is applicable where the defendant did not appeal his

       conviction and raises arguments to support his post-sentence motion to

       withdraw that rely upon evidence outside the trial record, the trial court

       must address the motion on its merits and ascertain whether the defendant

       should be allowed to withdraw his plea post-sentence in order to correct

       manifest injustice as provided in Crim.R. 32.1.

Davis at ¶ 34 (Zmuda, P.J., concurring); State v. Hall, 

 (6th

Dist.); State v. Newsome, 

 (6th Dist.); see also 

(“[W]hile there is no jurisdictional bar to a trial court’s entertaining a postsentence

Crim.R. 32.1 motion where there has been no appeal, the doctrine of res judicata does bar

a defendant from raising in that motion those matters that ‘could fairly [have] be[en]

determined’ in a direct appeal from his conviction, without resort to evidence outside the

record.”).2

       {¶ 15} In this case, the analysis never proceeded beyond the first step. Because

Vasquez never appealed his conviction, however, the trial court retained jurisdiction to

consider his Crim.R. 32.1 post-sentence motion to withdraw his guilty plea. Therefore,

the trial court erred when it denied the motion for lack of jurisdiction and without



2
 The concurring opinion seeks to overturn this court’s precedence in Davis, Hall, and
Newsome for the same reason cited by Vasquez, which is that the rule in Special
Prosecutors should no longer be enforced. As mentioned above, however, the issue of
whether a trial court retains jurisdiction to entertain a Crim.R. 32.1 motion to withdraw a
guilty plea following an appeal is not before this court. Thus, any argument on the
continued viability of the test announced in Davis, Hall, and Newsome is best left for
another day and for a case that squarely presents the issue.

7.
considering whether Vasquez’s motion was barred by res judicata, and if it was not,

whether it succeeded on the merits.

       {¶ 16} Accordingly, Vasquez’s assignment of error is well-taken.

                                      IV. Conclusion

       {¶ 17} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is reversed and the matter is remanded to the trial court for further

proceedings consistent with this decision. The State is ordered to pay the costs of this

appeal pursuant to App.R. 24.

                                                                         Judgment reversed
                                                                             and remanded.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Thomas J. Osowik, J.                           ____________________________
                                                         JUDGE
Charles E. Sulek, P.J.
CONCUR                                         ____________________________
                                                         JUDGE

Christine E. Mayle, J.                         ____________________________
CONCURS AND WRITES                                      JUDGE
SEPARATELY.

       MAYLE, J.

       {¶ 18} I concur in the judgment of the majority because I agree that the trial court

has jurisdiction to consider Vasquez’s Crim.R. 32.1 motion. I write separately because

several of this court’s cases—some of which the majority cites but distinguishes—

contain statements of law that are no longer accurate following the Ohio Supreme Court’s



8.
decisions in State v. Davis, 

 (“Roland Davis”), and State ex rel. Davis v.

Janas, 

 (“Janas”).3 Moreover, under Roland Davis and Janas, the first

step of the three-step analysis relied on by the majority is invalid.

       {¶ 19} In Roland Davis, the Ohio Supreme Court held that “the holding in [Special

Prosecutors, 

] does not bar the trial court’s jurisdiction over posttrial

motions permitted by the Ohio Rules of Criminal Procedure” because “[t]hese motions

provide a safety net for defendants who have reasonable grounds to challenge their

convictions and sentences.” Id. at ¶ 37. It more specifically recognized in Janas that

relief from final judgment may be sought under procedures authorized by statute or rule,

including under Crim.R. 32.1. Id. at f.n. 3. Janas did not qualify this statement to allow

trial-court jurisdiction only in cases that were not directly appealed.

       {¶ 20} Notwithstanding these decisions, this court has continued to perpetuate the

proposition that a trial court lacks jurisdiction to consider a motion to withdraw a plea

under Crim.R. 32.1 after a conviction has been affirmed or the time for filing an original

appeal has passed. See, e.g., State v. Davis, 

, ¶ 23 (6th Dist.) (“Anton

Davis”), quoting State v. Caston, 

 (6th Dist.), quoting State v. Carter,

 (3d Dist.) (“[A] trial court has no authority to even consider a

motion to withdraw a plea after a conviction has been affirmed on appeal; or, if there was

no appeal, after the time for filing the original appeal has passed.”) (Internal quotations



3
 To avoid confusion among the several “Davis” decisions, I am including the
defendants’ first names when referencing State v. Davis, 

, and State v.
Davis, 

 (6th Dist.).

9.
omitted.); State v. Winfield, 

 (6th Dist.) (“[A] trial court has no

jurisdiction to determine a motion to withdraw a guilty plea once the original judgment is

appealed.”); State v. Irbey, 

 (6th Dist.), citing 

 (“Crim.R. 32.1 does not vest jurisdiction in the trial court to determine a motion

to withdraw a guilty plea which is filed subsequent to an appeal and an affirmance by the

appellate court.”). These statements are simply incorrect under Roland Davis and Janas.

         {¶ 21} The majority also cites with approval the concurring opinion in Anton

Davis, which sets forth a three-step analysis for determining whether a court may

entertain a Crim.R. 32.1 motion to withdraw a plea. The first step requires the court to

determine whether the defendant’s conviction was appealed and affirmed on appeal.

Under this analysis, if the conviction “was appealed and affirmed on appeal . . . then the

trial court has no jurisdiction to entertain the post-sentence motion to withdraw. . . .” Id.

at ¶ 34. The majority finds that Vasquez never filed a direct appeal, thus the trial court

retained jurisdiction to consider his Crim.R. 32.1 motion. But reciting and applying this

three-step analysis reinforces an incorrect legal proposition. We should simply

acknowledge that in some of our cases, including Anton Davis, we have mistakenly

overlooked the impact of the Ohio Supreme Court’s decisions in Roland Davis and

Janas.

         {¶ 22} The Tenth District appropriately owned up to this mistake in State v.

Enyart, 

 (10th Dist.). In Enyart, after the trial court denied several

motions to suppress, the defendant pled no contest in 2008 to numerous charges, was

found guilty, and was sentenced to maximum, consecutive prison sentences. On direct


10.
appeal, he argued that his no contest pleas were involuntary and the trial court failed to

comply with Crim.R. 11 in accepting them. The Tenth District affirmed his convictions

(Enyart I). In 2009, it granted the defendant’s application to reopen his appeal based on

a claim of ineffective assistance of appellate counsel, but ultimately, overruled the

assigned error (Enyart II).

       {¶ 23} In April 2017, the defendant filed his first motion to withdraw his no

contest plea under Crim.R. 32.1 on the basis that he had recently discovered evidence

proving that police illegally searched his home before serving him with a search warrant.

The trial court denied the motion and in 2018, the Tenth District affirmed (Enyart III).

Relying on Special Prosecutors, it found, sua sponte, that the trial court lacked

jurisdiction to consider the defendant’s Crim.R. 32.1 motion because his conviction had

been affirmed on appeal.

       {¶ 24} In May 2022, the defendant filed a second motion to withdraw his no

contest plea under Crim.R. 32.1. This time he accused the State of withholding portions

of the police file. He claimed that he had only recently obtained the entire case file as

part of a settlement of a civil suit and through a public records request. He characterized

the evidence as newly discovered. Relying on Enyart III, the trial court denied the

motion for lack of jurisdiction. The defendant appealed.

       {¶ 25} The Tenth District observed that generally, appellate courts will not make

legal arguments for an appellant, and the defendant provided no legal authority to the trial

court to explain why Enyart III was wrongly decided. Nevertheless, it acknowledged that

it had a duty to perpetuate “legally sound decisions by applying the correct controlling


11.
precedent.” Id. at ¶ 22. It recognized that where “‘a statement of law is incorrect, a court

should not forbear to correct the error on the principal of stare decisis, but should right

the wrong at the earliest opportunity.’” Id., quoting Cardon v. Northwest Airlines, Inc.,

, *2 (6th Dist. Apr. 6, 1990), citing Mead v. McGraw, 

, 62

(1869).

       {¶ 26} The Tenth District explained that in Enyart III, it relied on the Supreme

Court of Ohio’s “unambiguous holding in Special Prosecutors that ‘Crim. R. 32.1 does

not vest jurisdiction in the trial court to maintain and determine a motion to withdraw [a]

guilty plea subsequent to an appeal and an affirmance by the appellate court.’” Id. at ¶

23, quoting 

. However, it observed that in the years after

Special Prosecutors, the Supreme Court reversed course as articulated in both Roland

Davis and Janas. It concluded that “[a]s a result, Special Prosecutors can no longer be

construed as divesting a trial court of its continuing jurisdiction over post-sentence

motions that are permitted by the Ohio Rules of Criminal Procedure or Ohio law.” Id. at

¶ 26. As such, it found that contrary to Enyart III, “Special Prosecutors no longer applies

to post-sentence motions to withdraw a guilty or no contest plea filed pursuant to Crim.R.

32.1.” Id. It acknowledged its mistake in continuing to hold otherwise after Janas. It

explained that it could not “in good conscience and in light of Janas, continue to

adhere—or issue precedent that binds trial courts to adhere—to Special Prosecutors in

disposing of any postconviction motions authorized by statute or the criminal rules on

jurisdictional grounds.” Id. It found that the trial court had jurisdiction to consider the




12.
merits of the defendant’s motion to withdraw his plea, and reversed and remanded to the

trial court.

        {¶ 27} Like the Tenth District in Enyart, I believe we must explicitly acknowledge

that we have mistakenly continued to cite Special Prosecutors for a proposition of law

that was abrogated by Roland Davis and Janas. A trial court does maintain jurisdiction

to consider a post-sentence Crim.R. 32.1 motion. To that end, we should not cite or

apply the first step of the Anton Davis analysis.




        This decision is subject to further editing by the Supreme Court of
   Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
        version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.supremecourt.ohio.gov/ROD/docs/.




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