State v. Hall ( 2017 )

[Cite as State v. Hall, 2017-Ohio-813.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-408
v. : (C.P.C. No. 07CR01-1539)
James K. Hall, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 7, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam
and Erik P. Henry, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, James K. Hall, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion to vacate judgment and to
withdraw guilty plea. For the following reasons, we affirm that judgment.
I. Factual and Procedural Background
{¶ 2} In 2007, appellant pled guilty to two counts of aggravated robbery and one
count of felonious assault. The trial court sentenced him to eight-year concurrent prison
terms for each of his aggravated robbery convictions, a consecutive three-year term for a
firearm specification, and an eight-year consecutive term for his felonious assault
conviction for a total sentence of 19 years in prison. On appeal, this court vacated that
No. 16AP-408 2
sentence and remanded the matter for resentencing after concluding that "[t]he trial
court's statements at the sentencing hearing support appellant's claim that the court
improperly relied upon his refusal to testify as an aggravating factor in calculating his
sentence." State v. Hall, 179 Ohio App. 3d 727, 2008-Ohio-6228, ¶ 20 (10th Dist.).
{¶ 3} On remand, the original sentencing judge recused herself and a new judge
was assigned to sentence appellant. That judge sentenced him to nine-year concurrent
prison terms for each of his aggravated robbery convictions, a consecutive three-year term
for a firearm specification, and an eight-year consecutive term for his felonious assault
conviction for a total sentence of 20 years in prison. This court affirmed that sentence.
State v. Hall, 10th Dist. No. 09AP-302, 2009-Ohio-5712.
{¶ 4} In January 2016, almost seven years after his resentencing, appellant filed a
motion requesting the trial court to vacate its resentencing entry because the court did not
impose a sentence on all of his convictions. He also asked to withdraw his guilty plea
because the trial court failed to determine that he entered his plea with a full
understanding of the penalties involved. The trial court denied appellant's motion, both
on res judicata grounds and also for his failure to demonstrate a manifest injustice
necessary for the postsentence withdrawal of a plea.
II. Appellant's Appeal
{¶ 5} Appellant appealed to this court. His appellate counsel, however, filed a
motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that he could find no errors prejudicial to appellant which may be argued to this
court on appeal. In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant's counsel concludes the appeal is wholly frivolous,
counsel should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany this request with a brief identifying anything in the record that
could arguably support the client's appeal. Counsel also must furnish the client with a
copy of the brief and request to withdraw and allow the client sufficient time to raise any
matters that the client chooses. Id. Once the defendant's counsel satisfies these
requirements, the appellate court must fully examine the proceedings below to determine
whether the case is wholly frivolous. If the appellate court also determines the appeal is
wholly frivolous, it may grant counsel's request to withdraw and dismiss the
No. 16AP-408 3
appeal without violating constitutional requirements or may proceed to a decision on the
merits if state law so requires. Id. On the other hand, if this court concludes that there
are arguably meritorious issues for appeal, and therefore not wholly frivolous, we must
afford appellant the assistance of counsel to address those issues. Id.; State v. Hudson,
10th Dist. No. 14AP-868, 2015-Ohio-3975, ¶ 5.
{¶ 6} Appellate counsel in this matter has followed the procedure in Anders and
we have already granted counsel's motion to withdraw. This court also notified appellant
of his counsel's representations and afforded him ample time to file a pro se brief.
Appellant did not file such a brief. This case is now before us for an independent review
to decide whether any arguably meritorious issues exist. State v. Muhammad, 10th Dist.
No. 12AP-906, 2013-Ohio-2776, ¶ 6.
A. Did the Trial Court Err in Denying Appellant's Motion to Vacate
Sentence and to Withdraw Plea?
{¶ 7} In counsel's Anders brief, he proposes one potential assignment of error, in
which he argues that the trial court erred in denying appellant's motion to vacate sentence
and to withdraw plea. We disagree.
1. Appellant's Motion to Vacate
{¶ 8} Appellant's motion to vacate his sentence is largely premised on his
argument that the trial court, during his resentencing hearing, did not pronounce a
sentence for one of his convictions. He argues that the court's failure rendered his
sentencing entry interlocutory and, therefore, not a final appealable order. We disagree.
{¶ 9} Some appellate courts in Ohio have concluded that in criminal cases, where
a trial court fails to impose a sentence on each count of a conviction, the order is merely
interlocutory and, therefore, the court has no power to hear an appeal from such an order.
State v. Williams, 3d Dist. No. 5-10-02, 2011-Ohio-995, ¶ 12; State v. Moore, 3d Dist. No.
14-06-53, 2007-Ohio-4941, ¶ 7; State v. Hoelscher, 9th Dist. No. 05CA0085-M, 2006-
Ohio-3531, ¶ 10; State v. Waters, 8th Dist. No. 85691, 2005-Ohio-5137, ¶ 16. We need not
address the issue here because the trial court did impose a sentence for each of appellant's
convictions. Specifically, the trial court stated at appellant's sentencing hearing:
Sentence of the Court on Counts 3 and 6 would be a nine-year
sentence on Count 3 with the three-year gun specification on
top of that. Count 14 will be an eight-year sentence. Count 3
No. 16AP-408 4
and 6 will run concurrent with each other. Count 14 will run
consecutively to Counts 3 and 6.
(Mar. 4, 2009 Sentencing Hearing Tr. at 17.)
{¶ 10} Appellant argues that this statement does not include a sentence for Count 6
of the indictment. We disagree. Although the trial court could have been more precise in
its language, we interpret the court's statement as imposing nine-year concurrent
sentences on Counts 3 and 6, with the three-year firearm specification to Count 3 to be
served consecutively to those concurrent terms. This interpretation is bolstered by the
trial court's decision to order the sentences for Counts 3 and 6 to be served concurrently.
Such a decision would have been meaningless if the trial court had not imposed sentence
on both counts. We also note the trial court's subsequent sentencing entry, which stated
that appellant's sentence was "NINE (9) YEARS as to Count Three; NINE (9) YEARS as to
Count Six; EIGHT (8) YEARS as to Count Fourteen * * *. Counts Three and Six to be
served concurrently with each other but consecutively with Count Fourteen. The
Defendant shall serve an additional, consecutive Three (3) years incarceration as to the
firearm specification." (Mar. 31, 2009 Corrected Resentencing Jgmt. Entry at 2.)
{¶ 11} Appellant also argued that his sentence should be vacated because the trial
court did not determine whether his offenses should have merged for purposes of
sentencing. This argument is barred by res judicata. " 'Under the doctrine of res judicata,
a final judgment of conviction bars a convicted defendant who was represented by counsel
from raising and litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have been raised by
the defendant at the trial, which resulted in that judgment of conviction, or on an appeal
from that judgment.' " State v. Lowe, 10th Dist. No. 14AP-481, 2015-Ohio-382, ¶ 10,
quoting State v. Perry, 10 Ohio St. 2d 175 (1967), paragraph nine of the syllabus.
{¶ 12} Appellant could have raised this merger argument in his direct appeal from
his resentencing but he did not. As a result, res judicata bars him from raising it in this
appeal. State v. Greenberg, 10th Dist. No. 12AP-11, 2012-Ohio-3975, ¶ 12; State v. Myers,
10th Dist. No. 11AP-909, 2012-Ohio-2733, ¶ 6; State v. Garnett, 10th Dist. No. 12AP-594,
2013-Ohio-1210, ¶ 9. We recognize that an exception to the application of res judicata
applies to void judgments. State v. Mitchell, 187 Ohio App. 3d 315, 320, 2010-Ohio-1766,
No. 16AP-408 5
¶ 22, fn. 1 (6th Dist.), citing State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, ¶ 30.
However, the merger argument appellant presents would not render the trial court's
judgment void. Myers at ¶ 7, citing State v. Timmons, 10th Dist. No. 11AP-895, 2012-
Ohio-2079, ¶ 12 (applying res judicata to bar consideration of alleged merger error that
would not render judgment void); Greenberg at ¶ 12. Accordingly, res judicata bars
consideration of appellant's merger claims.
{¶ 13} The trial court did not err by denying appellant's motion to vacate.
2. Appellant's Motion to Withdraw Plea
{¶ 14} Appellant argues that he should have been allowed to withdraw his plea
because the trial court did not comply with Crim.R. 11 in accepting his guilty plea by not
informing him that he was subject to a mandatory prison term and would not be eligible
for community control or judicial release. We disagree for two reasons.
{¶ 15} First, this argument is also barred by res judicata. This court has
consistently applied res judicata to bar a defendant from raising claims in a post-sentence
motion to withdraw guilty plea that were either raised or could have been raised in a
direct appeal from the judgment of conviction and sentence. Lowe; State v. Britford, 10th
Dist. No. 11AP-646, 2012-Ohio-1966, ¶ 13. See also State v. Ketterer, 126 Ohio St. 3d 448,
2010-Ohio-3831, ¶ 59. Appellant could have raised this alleged error in his direct appeal
but failed to do so. State v. Ishmail, 67 Ohio St. 2d 16, 18 (1981); State v. Rexroad, 9th
Dist. No. 22214, 2004-Ohio-6271, ¶ 9. Neither would the trial court's alleged failure
render the trial court's sentencing entry void. Britford at ¶ 8. Accordingly, the argument
is barred by res judicata. Lowe at ¶ 11 (applying res judicata to bar consideration of trial
court's alleged failure to comply with Crim.R. 11 because defendant did not appeal from
sentencing and only raised the issue in subsequent motion to withdraw plea); Britford at
¶ 7-8 (same).
{¶ 16} Second, appellant was informed of the mandatory prison term he faced and
that he would not be eligible for community control or judicial release. The "Entry of
Guilty Plea" form that he signed informed him that R.C. 2929.13(F) required a mandatory
prison term for his firearm specification and that he would not be eligible for community
control sanctions or judicial release for that term. Appellant's other convictions did not
contain mandatory prison terms.
No. 16AP-408 6
III. Conclusion
{¶ 17} After our independent review of the record, we are unable to find any non-
frivolous issues for appeal, and we agree that the issues raised in appellant's Anders brief
are not meritorious. Muhammad at ¶ 14. Accordingly, we affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and BRUNNER, JJ., concur.