State v. Gordon ( 2011 )

[Cite as State v. Gordon, 2011-Ohio-298.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Julie A. Edwards, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vs-
Case No. 2009CA00311
CRAIG L. GORDON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Common
Pleas Court, Case No. 2004CR2010
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 24, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PROSECUTING ATTORNEY AARON KOVALCHIK
STARK COUNTY, OHIO 111 Second Street N.W.
Suite 302
BY: KATHLEEN O. TATARSKY Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2009CA00311 2
Hoffman, J.
{¶1} Defendant-appellant Craig L. Gordon appeals his conviction and sentence
entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the State of
Ohio.
STATEMENT OF THE CASE
{¶2} On November 30, 2004, Appellant was indicted on one count of complicity
to aggravated robbery, in violation of R.C. 2923.02(A)(2), with an attendant firearm
specification. Following a jury trial, Appellant was convicted of the charge and firearm
specification, and sentenced to fifteen years in prison.
{¶3} On December 2, 2009, the trial court conducted a resentencing hearing to
impose postrelease control.
{¶4} Appellant now appeals, assigning as error:
{¶5} “I. APPELLANT’S ORIGINAL SENTENCE WAS VOID.
{¶6} “II. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶7} “III. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
TO A MAXIMUM PRISON SENTENCE.
{¶8} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SENTENCED APPELLANT TO A HARSHER SENTENCE FOR GOING TO TRIAL.
{¶9} “V. THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL.”
{¶10} Initially, we must determine whether the assigned errors are barred by the
doctrine of res judicata.
Stark County, Case No. 2009CA00311 3
{¶11} Appellant asserts his original sentence was void as the trial court failed to
properly advise Appellant regarding post-release control. On December 9, 2009, the
trial court resentenced Appellant, albeit for the limited purpose of informing him of the
term of his postrelease control. As a result, Appellant maintains he is entitled to raise all
of the assigned errors on appeal.
{¶12} The Ohio Supreme Court in State v. Ketterer 126 Ohio St.3d 448, 2010-
Ohio-3831 held:
{¶13} “In Ketterer's first appeal, this court considered most of the claims that
Ketterer raised on remand as a basis to withdraw his guilty pleas. We found that
Ketterer was adequately informed of his rights before pleading guilty; that his plea was
knowingly, voluntarily, and intelligently made; and that his counsel was not ineffective in
providing him advice on his guilty pleas. State v. Ketterer, 111 Ohio St.3d 70, 2006-
Ohio-5283, 855 N.E.2d 48, ¶ 13-14, 75-79, and 80-90. Thus, res judicata was a valid
basis for rejecting these claims.
{¶14} “In addition, the state invokes State ex rel. Special Prosecutors v. Judges,
Belmont Cty. Court of Common Pleas (1978), 55 Ohio St.2d 94, 97-98, 9 O.O.3d 88,
378 N.E.2d 162, to argue that the court lacked jurisdiction to vacate Ketterer's guilty
pleas. In Special Prosecutors, this court held that ‘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
Stark County, Case No. 2009CA00311 4
affect the decision of the reviewing court, which is not within the power of the trial court
to do.’ Id. at 97-98, 9 O.O.3d 88, 378 N.E.2d 162.
{¶15} “On appeal, this court affirmed Ketterer's convictions and death sentence.
State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 12. Ketterer's
appeal was later reopened and his case was remanded for the limited purpose of
resentencing him on his noncapital offenses. 113 Ohio St.3d 1463, 2007-Ohio-1722,
864 N.E.2d 650. Under the authority of Special Prosecutors, the panel had no authority
to consider Ketterer's motion to withdraw his guilty pleas, let alone grant him a new
trial.”
{¶16} In State v. Nichols, 2010-Ohio-3104, this Court held:
{¶17} “Thus, we find that an appeal from a re-sentencing entry for sentences
imposed after July 11, 2006, is limited to issues concerning the re-sentencing
procedure. Under these circumstances, we find that an appellant may not raise
additional arguments relating to his conviction following his resentencing.***”
{¶18} In State v. Riggenbach, 2010-Ohio-3392, this Court held:
{¶19} “The Ohio Supreme Court has consistently held when a defendant is
convicted of, or pleads guilty to, an offense for which postrelease control is required but
not properly included in the sentence, the sentence is void and the state is entitled to a
new sentencing hearing to have postrelease control imposed unless the defendant has
completed his sentence.***
{¶20} “In State v. Fischer the Ninth District Court of Appeals addressed the issue
raised by Appellant herein, holding:
Stark County, Case No. 2009CA00311 5
{¶21} “ ‘Specifically, Fischer contends that because his original sentence did not
include a notice of postrelease control, it was void pursuant to State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at syllabus. While we agree with this
statement of law, we do not agree with Fischer's contention that due to this defect, his
original direct appeal is invalid and therefore he can now ‘raise any and all trial errors
cognizable on direct appeal.’
{¶22} “ ‘* * *
{¶23} “ ‘As applied to the facts before the court in Ortega, we determined that
when a ‘court affirms the convictions in the First Appeal, the propriety of those
convictions becomes the law of the case, and subsequent arguments seeking to
overturn them become barred. Thus, in the Second Appeal, only arguments relating to
the resentencing are proper.' Id. at ¶ 7, 868 N.E.2d 961, quoting State v. Harrison, 8th
Dist. No. 88957, 2008-Ohio-921, 2008 WL 596528, at ¶ 9. Accordingly, Fischer's
contention that he may raise any and all issues relating to his conviction in this appeal is
without merit.’
{¶24} “We agree with the Ninth District's holding in Fischer and find the law of
the case doctrine applies to this Court's May 31, 2006 disposition of Appellant's original
appeal even though the appeal arose from a void sentence. As set forth in the case law
cited above, the Ohio Supreme Court has consistently held only the sentence is void for
failure to properly impose the mandatory term of postrelease control, not the conviction.
Stark County, Case No. 2009CA00311 6
Therefore, we find Appellant is precluded from asserting additional arguments relating
to his conviction following his resentencing.”1
{¶25} Appellant filed a direct appeal from his conviction and sentence in Stark
App. No. 2005CA00031, asserting his conviction was against the manifest weight and
sufficiency of the evidence, the trial court erred in imposing the maximum sentence, and
the ineffective assistance of counsel. This Court affirmed Appellant’s conviction and
sentence entered by the trial court, via Judgment Entry of July 18, 2005.
{¶26} Pursuant to the Ohio Supreme Court’s opinion in Ketterer, supra, and this
Court’s prior opinion in Nichols and Riggenbach, supra, we find Appellant’s assigned
errors are barred by the doctrine of res judicata as they were or could have been raised
in Appellant’s direct appeal.
III.
{¶27} In his third assignment of error, Appellant asserts the trial court erred in
resentencing him to the maximum sentence.
{¶28} We overrule this assignment of error based upon the authority of State v.
Fischer, Slip Opinion No. 2010-Ohio-6238.
1
The Ninth District’s holding in Fisher was affirmed by the Ohio Supreme Court’s recent
decision in State v. Fischer, Slip Opinion 2010-Ohio-6238.
Stark County, Case No. 2009CA00311 7
{¶29} Accordingly, Appellant’s conviction and sentence in the Stark County
Court of Common Pleas is affirmed.
By: Hoffman, J.
Edwards, P.J. and
Gwin, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
Stark County, Case No. 2009CA00311 8
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CRAIG L. GORDON :
:
Defendant-Appellant : Case No. 2009CA00311
For the reasons stated in our accompanying Opinion, Appellant’s conviction and
sentence entered by the Stark County Court of Common Pleas are affirmed. Costs to
Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN