State v. Hall , 2011 Ohio 659 ( 2011 )

[Cite as State v. Hall, 2011-Ohio-659.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-10-11
v.
JOHNNY HALL, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2004-CR-0053
Judgment Affirmed
Date of Decision: February 14, 2011
APPEARANCES:
Kenneth J. Rexford for Appellant
Gary L. Lammers for Appellee
Case No. 12-10-11
WILLAMOWSKI, J.,
{¶1} Defendant-Appellant, Johnny Hall (“Hall”), appeals the judgment of
the Putnam County Court of Common Pleas after he was granted a new sentencing
hearing because of an error in informing him of postrelease control for his 2004
drug-trafficking conviction. In this appeal, Hall claims that his original guilty plea
was not knowing, intelligent and voluntary; that he was denied the effective
assistance of counsel; that he was denied due process of law; and that the trial
court improperly denied his “pre-sentencing” motion to withdraw his plea. For the
reasons set forth below, the judgment is affirmed.
{¶2} On October 18, 2004, Hall pled guilty to one count of trafficking in
drugs (cocaine in excess of 100 grams) in violation of R.C. 2925.03(A), (C)(4)(g),
a felony of the first degree. As part of the plea agreement, the State dropped the
second and third counts for possession. On December 15, 2004, the trial court
sentenced Hall to the maximum term of ten years authorized by R.C.
2929.14(D)(2)(b)(i)-(ii), plus an additional two years pursuant to R .C.
2929.19(B), for an aggregate sentence of twelve years.
{¶3} Hall moved for leave to file a delayed appeal on May 13, 2005. This
Court denied that motion, finding that Hall did not set forth sufficient reason for
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failing to timely file a notice of appeal. State v. Hall (July 7, 2005), 3d Dist. No.
12-05-11.
{¶4} On April 28, 2006, Hall filed a post-conviction motion to vacate and
correct his sentence pursuant the Ohio Supreme Court’s decision in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E. 2d 470. The trial court denied
the motion and this Court affirmed the trial court's decision. See State v. Hall, 3d
Dist. No. 12-06-08, 2006-Ohio-5155.
{¶5} On October 29, 2007, Hall filed a motion to withdraw his guilty plea
pursuant to Crim.R. 32, which was overruled by the trial court on November 8,
2007. This Court affirmed the trial court's judgment denying his motion to
withdraw his guilty plea and also found that his other two assignments of error
pertaining to ineffective assistance of counsel and the claim that his guilty plea
was unknowingly, unintelligently, and involuntarily entered, were barred by res
judicata and failed to meet the time limitations imposed by R.C. 2953.21 for
petitions for post-conviction relief. See State v. Hall, 3d Dist. No. 12-07-15,
2008-Ohio-1150.
{¶6} On May 30, 2008, Hall filed a petition for post conviction relief,
claiming his conviction was void on the basis of a defective indictment pursuant to
State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917. Hall also
filed a motion for a Final Appeal Order in September 2008 and a hearing was held.
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As a result of that hearing, on November 20, 2008, and December 11, 2008, the
trial court issued nunc pro tunc judgment entries to correct the judgment entry to
comply with Crim.R. 32(C) pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-
Ohio-3330, 893 N.E.2d 163, requiring the sentencing entries to reflect the manner
in which a defendant was convicted, and to correct the entry regarding the
dismissal of the second and third counts.
{¶7} On December 15, 2008, Hall filed an appeal of the December 11,
2008 nunc pro tunc judgment entry, but that appeal was dismissed by this Court
due to lack of jurisdiction. A motion for reconsideration and an appeal to the Ohio
Supreme Court were similarly denied. The trial court overruled Hall’s motion for
post conviction relief on January 1, 2010.
{¶8} Relevant to the case before us now, in February 2010, Hall filed a
“Motion to Correct the Status of Void Sentencing Entry,” claiming that his
original sentencing did not properly comply with the instructions pertaining to
postrelease control pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-
3250, 868 N.E.2d 961. Hall’s judgment entry of sentencing stated that he would
be subject to a period of postrelease control “pursuant to law (up to five years)”
instead of a definitive period of postrelease control of “five years.”
{¶9} As a result, a new sentencing hearing was held on May 28, 2010. At
that hearing, Hall’s attorney referred to Hall’s motion to withdraw his guilty plea
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pursuant to Crim.R. 32.1 that had been filed “some time ago” and denied by the
trial court. Hall’s attorney asked the trial court to reconsider that motion, claiming
that the original decision was decided based upon the standard for deciding a
“postsentence” motion for plea withdrawal. He argued that Hall’s original
sentence was “void” because of inaccurate postrelease control information, and
therefore, the motion should be considered a “presentencing” motion, which is
reviewed with a more liberal standard. The trial court overruled the request for
reconsideration and proceeded with the sentencing hearing.
{¶10} On June 7, 2010, the trial court issued its final order, sentencing Hall
to the same sentence as previously imposed and advising him that he was subject
to five years of mandatory postrelease control. Hall now appeals this decision,
raising the following four assignments of error.
First Assignment of Error
The plea in this case was not knowing, intelligent, and voluntary,
in violation of Criminal Rule 11, the Ohio Constitution, and the
United States Constitution.
Second Assignment of Error
The trial Court improperly denied the motion of the defense to
withdraw his plea, as the same was a pre-sentencing motion to
withdraw his plea.
Third Assignment of Error
Mr. Hall was denied the effective assistance of counsel.
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Fourth Assignment of Error
Mr. Hall was denied Due Process of law when the State of Ohio
knowingly and intentionally violated his right under R.C. 2925.51(F) to
have an independent analyst of his choice present at the testing of the
controlled substances.
{¶11} Hall pled guilty and was sentenced to twelve years in prison in 2004.
Since that time, he has filed several motions for review of his plea and sentence in
the trial court, and has also filed for subsequent review in this Court of Appeals
and with the Ohio Supreme Court. Although the issues that Hall raises in this
appeal have previously been addressed, he contends that he is entitled to a “new”
review of all of these matters because his previous sentence was “void” due to an
inaccurate sentencing statement concerning postrelease control.
{¶12} However, a recent decision by the Supreme Court of Ohio has
clarified the extent of review that is applicable after a new sentencing hearing is
held because the trial court did not properly impose postrelease control. See State
v. Fischer, --- Ohio St.3d ---, 2010-Ohio-6238, --- N.E.2d ---. The Ohio Supreme
Court abrogated portions of State v. Bezak and held that “the new sentencing
hearing to which an offender is entitled under Bezak is limited to proper
imposition of postrelease control.” Id. at ¶29. Furthermore, the scope of appeal
arising from the limited resentencing hearing “is limited to issues arising at the
resentencing hearing.” Id. at paragraph four of the syllabus. The doctrine of “res
judicata still applies to other aspects of the merits of a conviction, including the
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determination of guilt and the lawful elements of the ensuing sentence.” Id. at
paragraph three of the syllabus.
{¶13} When postrelease control is not properly included in a sentence for a
particular offense, the sentence for that offense is void, but “only the offending
portion of the sentence is subject to review and correction.” Id. at ¶27. The new
sentencing hearing is limited to the proper imposition of postrelease control. Id. at
¶29. The scope of relief is limited and does not permit a reexamination of all the
perceived errors at trial or in other proceedings. Id. at ¶25, citing Hill v. United
States (1962), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417.
{¶14} Hall’s sentencing hearing to correct the portion of the sentence
pertaining to postrelease control cannot be used as a vehicle to reopen all of the
other aspects of his case. Therefore, Hall’s appeal from that hearing is limited to
the subject of postrelease control. Res judicata is still applicable to the issues Hall
has raised today concerning the acceptance and attempted withdrawal of his guilty
plea, his claims of ineffective assistance of counsel, and his complaints about the
testing procedures for controlled substances that occurred prior to his guilty plea.
Based on the above and on the authority of State v. Fischer, supra, Hall’s four
assignments are overruled.
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{¶15} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., concurs.
/jnc
ROGERS, P.J., concurs separately.
{¶16} I concur with the result reached by the majority in this case. I write
separately to emphasize my position on Appellant’s assignment of error alleging
that the trial court improperly denied his motion to withdraw his plea.
{¶17} First, I would find that a motion to reconsider a final judgment
rendered in the trial court months or years earlier is a nullity. State v. Buss, 3d
Dist. No. 2-05-04, 2005-Ohio-3603, ¶¶9-10, citing Pitts v. Ohio Dept. of Transp.
(1981), 67 Ohio St.2d 76, 78. Second, I would note that the trial court has no
authority to even consider a motion to withdraw a plea after an original appeal or,
if none, after the time for filing the original appeal has passed; and certainly not
after this Court has affirmed a previous denial. State v. Coats, 3d Dist. Nos. 10-
10-05, 10-10-06, 2010-Ohio-4822, ¶18, citing State v. Ketterer, 126 Ohio St.3d
448, 2010-Ohio-3831, ¶61. Finally, even if the trial court had authority to
consider the motion, a decision appealed and affirmed by this Court is res judicata.
Id., 2010-Ohio-4822, at ¶16.
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