[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

State v. Gilbert, Slip Opinion No. 2014-Ohio-4562.] 

NOTICE

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2014-OHIO-4562 

THE STATE OF OHIO, APPELLANT, v. GILBERT, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, 

it may be cited as State v. Gilbert, Slip Opinion No. 2014-Ohio-4562.] 

Criminal law—Finality of judgment—Once a defendant has been sentenced by a 

trial court, that court does not have jurisdiction to entertain a motion by 

the state to vacate the defendant’s guilty plea and sentence based upon the 

defendant’s alleged violation of a plea agreement. 

(No. 2013-0382—Submitted February 25, 2014—Decided October 21, 2014.) 

APPEAL from the Court of Appeals for Hamilton County, 

No. C-110382, 2013-Ohio-238. 

_______________________ 

SYLLABUS OF THE COURT

Once a defendant has been sentenced by a trial court, that court does not have 

jurisdiction to entertain a motion by the state to vacate the defendant’s 

guilty plea and sentence based upon the defendant’s alleged violation of a 

plea agreement.

_______________________ 
SUPREME COURT OF OHIO

2 

O’NEILL, J.

{¶ 1} In a plea negotiation, appellee, Kareem Gilbert, received the 

benefit of a bargain with the state but simply chose not to live up to his end of the 

deal. 

{¶ 2} After he was indicted on several charges, Gilbert agreed in a plea 

agreement to testify against his father, Ruben Jordan, in a murder case. In 

exchange, some of the charges against Gilbert were amended or dismissed. The 

trial court proceeded to sentence Gilbert without waiting for him to testify against 

his father as anticipated in the plea agreement. Later, after he began serving his 

time in prison, he refused to testify as promised. A year after he was sentenced, 

the state claimed that Gilbert had breached the plea agreement by failing to give 

truthful testimony against his father. He was brought back to court from prison, 

the trial court threw out the former plea, and Gilbert entered a second plea. He 

was resentenced, and he then appealed to the First District Court of Appeals. That 

court reversed the trial court’s decision, holding that the trial court did not have 

the authority to reconsider its own final judgment. We agree. 

{¶ 3} Once the final judgment was entered and Gilbert was sentenced to 

prison, the trial court lost jurisdiction to vacate its judgment of conviction and to 

resentence Gilbert. There must be finality to a court’s judgment. There is no 

authority for a court to revisit a sentence that has already been imposed based on a 

defendant’s failure to fulfill his obligations under a plea agreement. 

Facts and Procedural History

{¶ 4} Kareem Gilbert was indicted by the Hamilton County Grand Jury 

on March 12, 2009, on two counts of aggravated murder with firearm 

specifications, two counts of having weapons while under disability, and one 

count of intimidation of a witness. On May 18, 2010, Gilbert entered into a plea 

agreement whereby he would plead guilty to one count of manslaughter with a 

firearm specification, one count of having weapons while under disability, and 
January Term, 2014 

3

one count of intimidation of a witness and be sentenced to 18 years in prison. In 

exchange, Gilbert agreed to cooperate with the state and testify in a murder 

prosecution against his father, Ruben Jordan. Gilbert was sentenced the same day 

to 18 years’ imprisonment. 

{¶ 5} On May 18, 2011, exactly one year later, the state asked the trial 

court to vacate Gilbert’s plea because he had failed to cooperate with the state in 

its prosecution of Jordan. The trial court granted the request, withdrew the 

original plea agreement, and vacated the sentence. Based upon the trial court’s 

action, Gilbert entered into a second plea agreement and was sentenced to 

imprisonment of 18 years to life. He filed a direct appeal on June 23, 2011, and 

subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493 (1967), asserting that there were no meritorious issues to 

argue. However, on March 30, 2012, the appellate court ordered briefing on the 

issue whether the trial court had authority to grant the state’s motion to vacate 

Gilbert’s original plea and then reconsider its own judgment and resentence 

Gilbert. 2012-Ohio-1366, ¶ 7-11. 

{¶ 6} On January 30, 2013, the appellate court reversed the trial court’s 

decision by a two-to-one vote. 2013-Ohio-238. Specifically, the appellate court 

held that the trial court did not have the authority to reconsider its final judgment 

after the defendant had been sentenced. The fact that the defendant had breached 

the plea agreement was and is irrelevant. Once the defendant was sentenced, a 

final order existed, and there was no authority for the trial court to revisit its 

judgment even though the plea agreement had been breached. The court of 

appeals reversed and remanded to the trial court to vacate its May 2011 order 

granting the state’s motion to vacate the original plea and sentence and to 

reinstate its May 2010 sentence. 

 
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Analysis

{¶ 7} The question at the center of this appeal is whether a trial court can 

revisit its earlier acceptance of a plea agreement and final judgment when a 

defendant fails to abide by the terms of that plea agreement. The answer to this 

question is undoubtedly no. The state argues that the plea agreement is a contract 

between the state and the defendant and that a breach of that contract requires a 

court to revisit the original plea and treat it as though the agreement had never 

been made. While this may appear to be an equitable outcome, it simply is not 

supported by the law. It would require that a trial court have jurisdiction to 

reconsider its own valid final judgment. 

{¶ 8} Crim.R. 32(C) lists the requirements for a valid final judgment in a 

criminal case. It provides that a judgment must set forth the fact of the 

conviction, the sentence, the judge’s signature, and the time stamp indicating that 

the clerk entered the judgment in the journal. We have said that such a judgment 

“is a final order subject to appeal under R.C. 2505.02.” State v. Lester, 130 Ohio 

St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 1. See also State v. Carlisle, 131 

Ohio St.3d 127, 129, 2011-Ohio-6553, 961 N.E.2d 671, ¶ 11 (a judgment of 

conviction is final when it meets each of the requirements of Crim.R. 32(C)). In 

the present case, the May 24, 2010 judgment of the trial court finding Gilbert 

guilty and sentencing him to 18 years in prison satisfied each of those four 

requirements. It was, therefore, a valid final order. Additionally, “[a]bsent 

statutory authority, a trial court is generally not empowered to modify a criminal 

sentence by reconsidering its own final judgment.” Carlisle at ¶ 1. This court is 

committed to the principle that finality creates “ ‘ “certainty in the law and public 

confidence in the system’s ability to resolve disputes.” ’ ” Miller v. Nelson-Miller, 

132 Ohio St.3d 381, 2012-Ohio-2845, 972 N.E.2d 568, ¶ 18, quoting Strack v. 

Pelton, 70 Ohio St.3d 172, 175, 637 N.E.2d 914 (1994), quoting Knapp v. Knapp, 

24 Ohio St.3d 141, 144-145, 493 N.E.2d 1353 (1986). 
January Term, 2014 

5

{¶ 9} Once a final judgment has been issued pursuant to Crim.R. 32, the 

trial court’s jurisdiction ends. While this court does not dispute the fact that 

contract principles generally apply to the interpretation and enforcement of plea 

agreements, State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 

150, ¶ 50, those principles are not so flexible to permit jurisdiction to be 

maintained in perpetuity to enforce such agreements. 

{¶ 10} The state also argues that Gilbert submitted to the court’s 

jurisdiction when he entered a second plea after he was brought back to the trial 

court for resentencing. But the trial court no longer had jurisdiction, and a 

defendant cannot waive that which does not exist. Colley v. Colley, 43 Ohio St.3d 

87, 92, 538 N.E.2d 410 (1989) (subject-matter jurisdiction generally cannot be 

affected by agreement or consent). In State v. Purnell, 171 Ohio App.3d 446, 

2006-Ohio-6160, 871 N.E.2d 613, ¶ 12 (1st Dist.), the First District Court of 

Appeals stated: 

The parties cannot confer by consent or acquiescence 

subject-matter jurisdiction on a court where it is otherwise lacking. 

See Colley v. Colley (1989), 43 Ohio St.3d 87, 92, 538 N.E.2d 410, 

citing Commodity Futures Trading Comm. v. Schor (1986), 478 

U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675; see, also, State v. Flynt

(1975), 44 Ohio App.2d 315, 317, 73 O.O.2d 373, 338 N.E.2d 554 

(“Since jurisdiction of subject matter is fixed by law, the consent 

of the defendant cannot create such jurisdiction”). 

{¶ 11} The state relies on numerous cases to support its argument that the 

trial court retains jurisdiction when a defendant breaches a plea agreement, 

including Bethel; State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, 829 

N.E.2d 729; and State v. Gilroy, 195 Ohio App.3d 173, 2011-Ohio-4163, 959 
SUPREME COURT OF OHIO

6 

N.E.2d 19. However, in each of these cases, the defendant had not been 

sentenced at the time the trial court considered whether the plea agreement had 

been breached. Thus, each of these cases is distinguishable because the trial 

court’s jurisdiction was not an issue. Instead, in each of these cases, the state 

followed the common practice of ensuring that the defendant had complied with 

the plea agreement prior to imposing the sentence and entering a final judgment. 

Should a defendant experience a change of heart and renege on a plea agreement 

before a sentence has been imposed, the trial court is still able to ensure that the 

defendant does not receive anything that he or she is not entitled to receive 

regarding the dismissal of any charges or a lesser sentence. There is no 

justification to create an exception from this standard procedure. 

{¶ 12} In its second proposition of law, the state asserts that double 

jeopardy does not prevent the second prosecution of Gilbert. A review of the 

appellate court’s opinion, however, reveals that it never addressed Gilbert’s 

double-jeopardy argument but found, instead, that it was moot. It appears that the 

state raised this argument to preempt Gilbert’s possible argument that the 

resentencing was prohibited by double jeopardy. It is not an affirmative 

argument, and based on our decision to uphold the decision of the First District 

Court of Appeals that Gilbert could not be reconvicted and resentenced on 

grounds other than double jeopardy, it is moot. 

Conclusion 

{¶ 13} Based upon the foregoing analysis, we hold that once a defendant 

has been sentenced by a trial court, that court does not have jurisdiction to 

entertain a motion by the state to vacate the defendant’s guilty plea and sentence 

based upon the defendant’s alleged violation of a plea agreement. If the trial 

court is concerned with the defendant abiding by the terms of the plea agreement, 

the solution is to postpone sentencing until after the defendant has performed the 

desired act. As every teacher knows, you reward the student after the desired 
January Term, 2014 

7

behavior occurs, not before. Much like teaching, plea negotiations are driven by 

the fact that the incentive to do the act in question disappears once the reward has 

been given. 

{¶ 14} The judgment of the court of appeals is affirmed, and the cause is 

remanded to the trial court for further proceedings consistent with this opinion. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, LANZINGER, and FRENCH, JJ., concur. 

O’DONNELL and KENNEDY, JJ., dissent. 

_________________ 

O’DONNELL, J., dissenting.

{¶ 15} Respectfully, I dissent. 

{¶ 16} This case presents two principal issues for our consideration: one, 

whether a court has inherent authority to vacate a judgment in a criminal case to 

correct a fraud perpetrated against it by a defendant and two, whether double 

jeopardy bars further prosecution of that defendant. My views are that the court 

does have such authority and that double jeopardy does not bar further 

prosecution of the defendant who purported to commit fraud against the court, 

and who expressly waived that right. 

{¶ 17} Appellee, Kareem Gilbert, perpetrated a fraud on the trial court by 

providing a 50-page written statement to the state and agreeing to testify truthfully 

about criminal violations of his father in exchange for a favorable plea to a lesser 

included offense and later recanting that statement. Because he did so, the court 

vacated his guilty plea to a lesser but included offense and the judgment of 

conviction. Double jeopardy is not at issue in this case, because Gilbert expressly 

waived this constitutional protection. 

Facts and Procedural History 

{¶ 18} Around 1:00 AM on the morning of October 16, 2008, Kareem 

Gilbert, Bryan Austin, and Victor Davis were near the intersection of Elder and 
SUPREME COURT OF OHIO

8 

Republic Streets in Cincinnati, Ohio. Gilbert began to argue with Austin, and 

Austin hit Gilbert with a meatball sub sandwich that spilled onto Gilbert’s white 

T-shirt. Gilbert left, retrieved a handgun, returned, and shot Austin numerous 

times, killing him. The state alleged that Gilbert later shot and killed Davis. 

{¶ 19} On March 12, 2009, a Hamilton County grand jury indicted Gilbert 

on two counts of aggravated murder with firearm specifications, one count of 

witness intimidation, and two counts of having a weapon while under disability. 

Gilbert pleaded not guilty to all charges. 

{¶ 20} About 14 months later—on May 18, 2010—the parties entered into 

a plea agreement, which states: 

2. The Defendant agrees to provide truthful, complete, and 

accurate information during the investigation and prosecution of 

any criminal offenses of which he has relevant information; 

3. The Defendant agrees to testify truthfully, completely, 

and accurately in any legal proceeding in which he is called to 

testify as a witness, including but not limited to any juvenile 

proceeding, grand jury, or trial, whether civil or criminal in nature; 

4. Specifically, the Defendant agrees to give truthful and 

complete testimony as a State’s witness against Ruben Jordan. 

The Defendant states the statement he provided to the Cincinnati 

Police Department on May 17, 2010, regarding Mr. Jordan was 

truthful and complete. The Defendant additionally agrees to testify 

truthfully before the Hamilton County Grand Jury. * * * 

Furthermore, the Defendant agrees to testify concerning any 

criminal violations against any and all individuals targeted in these 

investigations resulting from cooperation. * * * 
January Term, 2014 

9

5. In exchange for and in consideration of the 

aforementioned cooperation, the Hamilton County Prosecutor’s 

Office agrees to resolve the Defendant’s pending cases in the 

following manner: Defendant will plea to Count one as voluntary 

manslaughter with a firearm specification, count two weapon 

under disability, and count three intimidation of crime 

victim/witness. The State will dismiss all remaining counts and 

specifications. The State would enter into an agreed prison 

sentence of 18 years in the Ohio Department of Corrections. The 

Defendant further states that he has been promised nothing in 

addition to that which is stated herein, and that this document fully 

incorporates the complete understanding of the parties; 

6. The Defendant agrees and understands that completion 

of the terms of this agreement is to be determined by the Hamilton 

County Prosecutor’s Office. If it is determined by the Hamilton 

County Prosecutor’s Office that at any time the Defendant fails to 

cooperate fully, refuses to testify, or testifies falsely in any 

proceeding, intentionally gives false, misleading, or incomplete 

information or testimony, compromises his value as a witness, or 

otherwise violates any terms of this agreement, then the Hamilton 

County Prosecutor’s Office may reinstate the original charges 

against the Defendant as well as any additional charges which may 

be appropriate. The parties will be returned to their respective 

positions prior to the execution of this agreement with the 

expressed exception that the proffer statement taken of the 

Defendant is admissible in the prosecution against him, as 

provided in Paragraph Two: (¶ 2) above. Additionally, the 
SUPREME COURT OF OHIO

10 

Defendant specifically waives an argument of double jeopardy or 

speedy trial rights with regard to any charges against him. 

7. The Defendant waives any Constitutional or statutory 

rights to a speedy trial during the life of this agreement; 

8. The Defendant waives any Constitutional right against 

twice being placed in jeopardy with respect to any offenses that the 

State may prosecute if this agreement is terminated. 

{¶ 21} In accordance with this agreement, Gilbert withdrew his not guilty 

pleas and pleaded guilty to one count of voluntary manslaughter with a firearm 

specification, one count of having a weapon while under a disability, and one 

count of witness intimidation, with the parties agreeing to an aggregate 18-year 

prison term. At the May 18, 2010 sentencing hearing, Gilbert specifically agreed 

to abide by the plea agreement. In exchange for the reduction of one aggravated 

murder charge to voluntary manslaughter and the dismissal of the other 

aggravated murder charge and a charge of having a weapon while under 

disability, the state represented to the court that Gilbert 

agreed and entered into a written agreement with the State to 

provide truthful, complete, and accurate information during the 

investigation and to testify in the prosecution of his father, Ruben 

Jordan, who [was] charged with the aggravated murder of Victor 

Davis. 

By entry dated May 24, 2010, the trial court convicted Gilbert of three offenses, 

dismissed two charges, and imposed the recommended sentence. 

{¶ 22} Later, the state moved to vacate the plea agreement. At the hearing 

on its motion to vacate, it argued that Gilbert had failed to give truthful testimony 
January Term, 2014 

11

against his father. The prosecutor represented that Gilbert “recanted his 50-

page—some of it—statement, especially as it pertained to Mr. Jordan, him 

eyewitnessing the murder of Mr. Davis and saying his father was the one that 

killed him. I think he said they were both at home * * * watching a football 

game.” 

{¶ 23} Gilbert did not object to the state’s motion, and his counsel 

conceded that Gilbert 

broke his contract with the State by, at some point, giving 

incomplete information or perhaps inaccurate testimony at the time 

that the plea agreement was made and thereby not following 

through with that contract. And so, for that reason, he doesn’t 

object to the plea being vacated, but it is his position that he gave 

truthful testimony during the trial against his father. 

Gilbert’s counsel also stated: “It is his position that he told the truth on the stand 

and that he had lied prior to that to the State and to the officers in order to get a 

better deal for himself.” 

{¶ 24} The court granted the state’s motion and set aside Gilbert’s plea. 

Pursuant to a second plea agreement, Gilbert pleaded guilty to one count of 

murder with a firearm specification and one count of having a weapon while 

under disability, with a recommended aggregate sentence of 18 years to life. The 

court convicted Gilbert of the two offenses and imposed the recommended 

sentence. 

{¶ 25} Gilbert appealed. His counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moved to 

withdraw as appellate counsel. The appellate court determined that legal points 

arguable on their merits remained to be resolved, granted the motion to withdraw, 
SUPREME COURT OF OHIO

12 

appointed new counsel, and ordered briefing on whether the trial court “had 

authority to grant the state’s motion to vacate Gilbert’s pleas and to reconsider 

and modify its May 2010 criminal sentence, and on any other matter counsel may 

discover in a diligent review of the record.” 2012-Ohio-1366, at ¶ 10. The court 

of appeals subsequently reversed the trial court judgment, determining that the 

trial court “lacked the authority to reconsider the May 2010 valid final judgment.” 

2013-Ohio-238, ¶ 21. 

{¶ 26} The state appealed to this court. We accepted jurisdiction on two 

propositions of law raising these issues: whether, when a party breaches a plea 

agreement, a trial court has authority to vacate the plea and whether the double 

jeopardy clause barred the prosecution of Gilbert, when he “understood that if he 

breached the agreement the original charges could be reinstated.” 

Law and Analysis

{¶ 27} “Fraud connotes perjury, falsification, concealment, 

misrepresentation.” Knauer v. United States, 328 U.S. 654, 657, 66 S.Ct. 1304, 

90 L.Ed. 1500 (1946). While Gilbert maintained that he testified truthfully at his 

father’s trial, the record suggests that he acted fraudulently in negotiating his first 

plea agreement. He essentially admitted to making misrepresentations to the state 

as demonstrated by his attorney’s statement that Gilbert gave “incomplete 

information and perhaps inaccurate testimony at the time that he plea agreement 

was made” and he “had lied * * * to the State and to the officers in order to get a 

better deal for himself.” 

{¶ 28} Gilbert also perpetrated a fraud on the trial court because, by 

fraudulently entering into the plea agreement, he tampered with the administration 

of justice and subverted the integrity of the judicial process as a whole. See 

Coulson v. Coulson, 5 Ohio St.3d 12, 15, 488 N.E.2d 809 (1983) (“ ‘Fraud upon 

the court’ is an elusive concept. * * * It is generally agreed that ‘ * * * [a]ny 

fraud connected with the presentation of a case to a court is a fraud upon the 
January Term, 2014 

13

court, in a broad sense.’ 11 Wright & Miller, Federal Practice and Procedure 

(1973) 253, Section 2870”). 

{¶ 29} A federal court has inherent power to vacate a judgment upon 

proof that a fraud has been perpetrated on it. Chambers v. NASCO, Inc., 501 U.S. 

32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). In Chambers, the United States 

Supreme Court stated: 

This “historic power of equity to set aside fraudulently begotten 

judgments,” Hazel–Atlas [Glass Co. v. Hartford-Empire Co.], 322 

U.S. [238] at 245, 64 S.Ct. [997, 88 L.Ed. 1250 (1944)] is 

necessary to the integrity of the courts, for “tampering with the 

administration of justice in [this] manner * * * involves far more 

than an injury to a single litigant. It is a wrong against the 

institutions set up to protect and safeguard the public.” Id., at 246, 

64 S.Ct., at 1001. 

{¶ 30} In the context of divorce, this court has established a trial court’s 

authority to vacate a judgment after a party has committed a fraud upon the court. 

Jelm v. Jelm, 155 Ohio St. 226, 98 N.E.2d 401 (1951), paragraph two of the 

syllabus; Van DeRyt v. Van DeRyt, 6 Ohio St.2d 31, 36, 215 N.E.2d 698 (1966) (a 

court “does have inherent power to vacate after term a judgment * * * which is 

voidable for fraud or collusion”). In Van DeRyt at 36, we recognized:

A court draws the power to vacate from the reason for its 

existence—to render justice; for where fraud or collusion is 

practiced on a court, the court ceases to function as a court and its 

judgment becomes an official stamp lent to the subversive 
SUPREME COURT OF OHIO

14 

intentions of the abusing parties. To protect its integrity, a court 

has inherent power to crush the fruits of fraud and collusion. 

{¶ 31} Notwithstanding any commitment this court may have to the 

principle of finality of judgments, see majority opinion at ¶ 8, such a pledge 

cannot overshadow its duty to preserve the integrity of the judicial system and 

“crush the fruits of fraud,” Van DeRyt at 36. 

{¶ 32} In my view, a trial court has inherent authority to vacate a 

judgment in a criminal case due to a fraud committed upon it, apart from its 

authority to reconsider a valid, final judgment when a void sentence has been 

imposed or when a judgment contains a clerical error. 

{¶ 33} The majority’s holding that once “a defendant has been sentenced 

by a trial court, that court does not have jurisdiction to entertain a motion by the 

state to vacate the defendant’s guilty plea and sentence based upon the 

defendant’s alleged violation of a plea agreement,” majority opinion at ¶ 13, 

conflates the concepts of a court’s inherent power and its jurisdiction. As early as 

1896, this court recognized that there is a difference between a court’s inherent 

power and its jurisdiction. In Hale v. State, 55 Ohio St. 210, 213, 45 N.E. 199 

(1896), we stated: 

The difference between the jurisdiction of courts and their inherent 

powers is too important to be overlooked. In constitutional 

governments their jurisdiction is conferred by the provisions of the 

constitutions and of statutes enacted in the exercise of legislative 

authority. That, however, is not true with respect to such powers 

as are necessary to the orderly and efficient exercise of 

jurisdiction. Such powers, from both their nature and their ancient 

exercise, must be regarded as inherent. They do not depend upon 
January Term, 2014 

15

express constitutional grant, nor in any sense upon the legislative 

will. 

{¶ 34} Article IV, Section 4(A) of the Ohio Constitution provides that 

there “shall be a court of common pleas and such divisions thereof as may be 

established by law serving each county of the state,” and Section 4(B) establishes 

that “courts of common pleas and divisions thereof shall have such original 

jurisdiction over all justiciable matters * * * as may be provided by law.” 

Pursuant to R.C. 2931.03, a court of common pleas “has original jurisdiction of 

all crimes and offenses, except in cases of minor offenses the exclusive 

jurisdiction of which is vested in courts inferior to the court of common pleas.” 

The trial court convicted Gilbert in May 2010 in accordance with its original 

jurisdiction. 

{¶ 35} The record shows that Gilbert did not object to the trial court’s 

exercise of subject matter or personal jurisdiction at the hearing regarding the 

state’s motion to vacate. “ ‘Once a tribunal has jurisdiction over both the subject 

matter of an action and the parties to it, “* * * the right to hear and determine is 

perfect; and the decision of every question thereafter arising is but the exercise of 

the jurisdiction thus conferred * * *.” ’ ” Pratts v. Hurley, 102 Ohio St.3d 81, 

2004-Ohio-1980, 806 N.E.2d 992, ¶ 12, quoting State ex rel. Pizza v. Rayford, 62 

Ohio St.3d 382, 384, 582 N.E.2d 992 (1992), quoting Sheldon’s Lessee v. Newton, 

3 Ohio St. 494, 499 (1854). Because Gilbert did not challenge the trial court’s 

exercise of jurisdiction after subject matter and personal jurisdiction were 

perfected, he forfeited any claim of jurisdictional error, absent plain error. 

Crim.R. 52(B); State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 

306, ¶ 23. However, in this case, no plain error exists because, when the trial 

court vacated the May 2010 judgment, it properly exercised jurisdiction of the 
SUPREME COURT OF OHIO

16 

cause pursuant to its inherent authority and Gilbert acquiesced to its exercise of 

personal jurisdiction. 

{¶ 36} Finally, I disagree with the majority’s view that the state’s 

argument related to double jeopardy in its second proposition of law “is not an 

affirmative argument * * * [and] it is moot.” Majority opinion at ¶ 12. While the 

appellate court determined that Gilbert’s assignment of error asking that court to 

determine whether the trial court’s order violated Gilbert’s constitutional 

protections against double jeopardy was moot, 2013-Ohio-238, ¶ 20, we accepted 

jurisdiction of the state’s second proposition of law, which states: “The double 

jeopardy clause did not bar the prosecution of [Gilbert] where both parties 

bargained for and received substantial benefits, and [Gilbert] understood that if he 

breached the agreement the original charges could be reinstated.” 135 Ohio St.3d 

1458, 2013-Ohio-2258, 988 N.E.2d 578. The state’s second proposition of law 

thus asserts an affirmative argument. See Black’s Law Dictionary 70 (10th 

Ed.2014) (affirmative means “[s]upporting the existence of certain facts”). 

{¶ 37} Second, because in Gilbert’s first plea agreement, he expressly 

waived any double jeopardy argument as to any charges against him as well as 

any protection from twice being placed in jeopardy relating to any offenses that 

the state might bring against him if the agreement were terminated, double 

jeopardy is not a concern in this case. See State v. D.W., 133 Ohio St.3d 434, 

2012-Ohio-4544, 978 N.E.2d 894, ¶ 24 (a party may waive constitutional rights as 

long as the waiver is made knowingly and intelligently and is an intentional 

relinquishment of a known right). 

{¶ 38} Accordingly, I would reverse the judgment of the court of appeals 

because a court has inherent authority to reconsider its judgment to protect the 

integrity of the judicial system when a defendant perpetrates a fraud upon it. 

KENNEDY, J., concurs in the foregoing opinion. 

_________________ 
January Term, 2014 

17

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. 

Machol, Assistant Prosecuting Attorney, for appellant. 

Ravert J. Clark, for appellee. 

Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. 

Taylor, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio 

Prosecuting Attorneys Association. 

Michael DeWine, Attorney General, and Matthew A. Kanai, Assistant 

Attorney General, urging reversal for amicus curiae Attorney General of Ohio. 

Timothy Young, Ohio Public Defender, and Terrence K. Scott, Assistant 

Public Defender, urging affirmance for amicus curiae Ohio Public Defender. 

_________________