Portage County Legal News

Judges find court must consider merits of plea withdraw motion

JESSICA SHAMBAUGH
Special to the Legal News
Published: April 22, 2014

A trial court must consider the merits of a man’s motion to withdraw his guilty plea after the 12th District Court of Appeals recently ruled that the motion was not barred by res judicata.

The three-judge appellate panel this week sustained Kono Furr’s assignment of error and remanded his burglary case to the Butler County Court of Common Pleas for reconsideration.

Case summary details that Furr was charged with second-degree burglary and fifth-degree possessing criminal tools in 2012.

As part of a negotiated plea agreement, Furr pleaded guilty to a reduced charge of third-degree burglary and the second charge was merged.

The common pleas court sentenced Furr to three years in prison for his burglary conviction.

Less than a month after sentencing, Furr moved to withdraw his guilty plea.

That motion asserted that his attorney had promised him he would receive probation for his plea, that he had no intention of pleading guilty to a third-degree felony that resulted in the maximum sentence he would have faced regardless of the plea and that his attorney failed to discuss sentencing guidelines with him.

Before the trial court could rule on that motion, Furr filed a notice of appeal with the 12th District naming the same arguments.

The 12th District, however, ruled that it was unable to consider the assignment of error because the trial court never ruled on his motion.

It also determined that the trial court lacked jurisdiction to make that ruling because the appeal was filed.

“Accordingly, the motion to strike appellant’s brief is granted in this appeal and is hereby dismissed,” the panel wrote in its January 2013 ruling.

Following that dismissal, the trial court denied the motion to withdraw a guilty plea on the ground that Furr should have raised his claims on appeal and because he failed to do so he was barred by res judicata.

Furr appealed that decision to the 12th District and contended that the trial court was mistaken and his motion was not barred.

“The trial court was temporarily divested of jurisdiction to rule on appellant’s motion to withdraw his guilty plea when appellant filed his notice of appeal with this court. However, as the state now concedes, when this court dismissed appellant’s appeal, the trial court regained jurisdiction to rule on appellant’s pending motion to withdraw his guilty plea,” Presiding Judge Robert Ringland wrote for the court.

The appellate panel held that the doctrine of res judicata did not apply in Furr’s case and ruled that the trial court erred in finding that it did

It explained that Furr raised his concerns both in his motion to withdraw and in his initial appeal.

However, neither court had yet ruled on the issues raised.

“Indeed, in Furr 1, 12th Dist. Butler No. CA2012-08-163, this court dismissed appellant’s appeal on the basis that the trial court had not ruled on appellant’s motion to withdraw his guilty plea,” Judge Ringland stated.

At that time, the court found the appeal was premature and dismissed it so that the trial court could address the issues.

“The plain meaning of our decision in Furr 1 to dismiss appellant’s appeal was to allow appellant’s motion to withdraw his guilty plea to be determined in the trial court where it should be. The trail court erred in determining otherwise,” Judge Ringland continued.

Judges Robin Piper and Stephen Powell concurred and remanded the matter for further proceedings.

The case is cited State v. Furr, 2014-Ohio-1319.

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