State v. Bush, No. 2001-1161.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Cook
• Citation: 96 Ohio St.3d 235,773 N.E.2d 522,2002 Ohio 3993
• Docket Number: No. 2001-1247.,No. 2001-1161.,No. 2001-1375.,No. 2001-1480.
• Decision Date: 28 August 2002
• Parties: The State of Ohio, Appellee, v. BUSH, Appellant. The State of Ohio, Appellee, v. Northern, Appellant.

773 N.E.2d 522 96 Ohio St.3d 235 2002 Ohio 3993 The State of Ohio, Appellee,
v.
BUSH, Appellant.
The State of Ohio, Appellee,
v.
Northern, Appellant. No. 2001-1161. No. 2001-1247. No. 2001-1375. No. 2001-1480. Supreme Court of Ohio. Submitted May 21, 2002. Decided August 28, 2002.

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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, Columbus, 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.

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.

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 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' "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 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

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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 post-conviction 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.

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...