State v. Ketterer (Slip Opinion)
140 Ohio St. 3d 400
| Ohio | 2014Background
- Donald Ketterer pled guilty to aggravated murder (capital), aggravated robbery, aggravated burglary, grand theft of a motor vehicle, and burglary in connection with Lawrence Sanders’s death; a three-judge panel convicted and initially sentenced him to death and various terms for noncapital offenses.
- This is Ketterer’s third direct appeal focused on resentencing matters after earlier appeals: the Court affirmed conviction and death sentence, then vacated noncapital sentences under Foster and later vacated a resentencing for improper postrelease-control notification.
- The third sentencing proceeding was a limited remand to correct postrelease-control errors under State v. Fischer; Ketterer sought discovery and raised multiple sentencing challenges after the third entry.
- The trial panel denied discovery as beyond the limited scope of the resentencing; Ketterer pursued arguments that certain offenses should merge, that multiple consecutive postrelease-control terms were imposed, and that fines and costs were included without an ability-to-pay hearing.
- The Ohio Supreme Court addressed five propositions: discovery denial, merger/allied-offenses, consecutive postrelease-control periods, fines without ability-to-pay hearing, and court costs without ability-to-pay hearing, and affirmed the sentencing order.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ketterer) | Held |
|---|---|---|---|
| Denial of discovery | Discovery was unnecessary because remand limited to postrelease control; Crim.R.16 inapplicable | He needed discovery (some issues touched guilt) and state waived jurisdictional argument | Court: Denial proper; remand scope jurisdictional and not waivable; discovery irrelevant to postrelease control |
| Merger / allied offenses | Prior adjudication forecloses merger; remand limited so Johnson not retroactive | Under Johnson allied-offenses test, capital murder, aggravated robbery, aggravated burglary should merge; Johnson changed law so res judicata inapplicable | Court: Res judicata bars claim; Johnson not applied retroactively to convictions final before it was decided |
| Consecutive postrelease-control terms | Sentencing entry shows only consecutive imprisonment terms; postrelease control not part of prison term | Typographical/wording indicates multiple consecutive postrelease-control terms were imposed | Court: No consecutive postrelease-control imposed; wording construed to reflect single postrelease-control periods per offense and no unlawful result intended |
| Fines without ability-to-pay hearing | Fines were part of original judgment and prior remand; Fischer limits scope so issue res judicata | Fines reappeared in third entry and should be revisited at resentencing | Court: Res judicata bars challenge; limited remand does not reopen previously adjudicated fines |
| Court costs without ability-to-pay hearing | Costs were assessed in earlier judgments; remand limited so no hearing needed | Failure to mention costs at third hearing denied opportunity to object | Court: Res judicata; earlier assessment made costs final and omission at hearing consistent with limited remand |
Key Cases Cited
- State v. Foster, 109 Ohio St.3d 1 (2006) (declared certain judicial factfinding for sentence enhancements unconstitutional under the Sixth Amendment)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (a resentencing limited to correcting postrelease-control error does not reopen entire sentencing)
- State v. Johnson, 128 Ohio St.3d 153 (2010) (redefined allied-offenses test and overruled prior allied-offense jurisprudence)
- State v. Ketterer, 111 Ohio St.3d 70 (2006) (affirmed convictions and initial sentences)
- State v. Ketterer, 126 Ohio St.3d 448 (2010) (vacated resentencing for improper imposition of postrelease control)
- State v. Mbodji, 129 Ohio St.3d 325 (2011) (subject-matter jurisdiction objections cannot be waived)
- Hernandez v. Kelly, 108 Ohio St.3d 395 (2006) (exception to nonretroactivity when court interprets a statute’s meaning for the first time)
- State v. Williams, 74 Ohio St.3d 569 (1996) (aggravated burglary and aggravated robbery treated as separate offenses)