State v. CarterState v. Carter
- Reporters:
- ,
- Before:
- Willamowski, Rogers, Shaw
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, William Carter (“Carter”), appeals the judgment of the Allen County Court of Common Pleas denying his motion to withdraw his guilty plea more than a year after his original sentencing. On appeal, Carter maintains that the trial court erred in overruling his “pre-sentence” motion without a hearing. Or, “alternatively,” he states that he had ineffective assistance of trial counsel; his plеa was not intelligent, knowing and voluntary; and he had ineffective assistance of appellate counsel. For the reasons set forth below, the judgment is affirmed.
{¶2} In October 2009, the Allen County Grand Jury entered an amended indictment of Carter with the following two counts: Count Onе – kidnapping in violation of
{¶4} Carter then filed a direct appeal, contending that the trial court erred in sentencing him on both conviсtions, as they were allied offenses of similar import and that the trial court was only permitted to convict him on one charge. The trial court had agreed that they were allied offenses, but had purported to “merge” the counts by ordering them to be served concurrently. We sustained Carter’s sole assignment of error and remanded for resentencing, with instructions for the trial court to permit the State to elect one offense to pursue at the resentencing and to impose a single sentence. See State v. Carter (Dec. 27, 2010), 3d Dist. No. 1-10-04, unreported (or, “Carter I”).
{¶5} On April 6, 2011, Carter filed a motion to withdraw his guilty plea pursuant to
{¶6} On June 21, 2011, the trial court filed a judgment entry and opinion journalizing the denial of Carter’s motion to withdraw his plea and the trial сourt also filed the new judgment entry of sentencing. In overruling the motion to withdraw his guilty plea, the trial court found the motion not well taken for the following reasons.
First and foremost, the Defendant could have raised the issue on direct appeal. His appeal to the Third District did not raise the issue for which he wishes to withdraw his plea.
Next, the Defendant did not file a petition for postconviction relief within the statutory time period. Therefore, the matter is res judicata and the court has no jurisdiction. * * *
Secondly, [even] assuming the Court did have jurisdiction, the Motion is not well-taken after the hearing. The record is clear that the Defendant understood the possible sentence he could receive and acknowledged the same. In fact, the Defendant claims he is not contending that the conviction should be set aside but that the sentence wasn’t what he thought it would be.
Again, this is without merit. Defendant could have raised this issue on appeal but did not.
(June 21, 2011 J.E., p. 2.)
{¶7} On July 13, 2011, Carter filed an appeal, raising the following assignments of error for our review.
First Assignment of Error
The trial court errеd in overruling [Carter’s] pre-sentence motion to withdraw his guilty plea without hearing.
Alternatively:
Second Assignment of Error
Ineffective assistance of trial counsel.
Third Assignment of Error
Intelligent, knowing, and voluntary waiver of constitutional rights.
Fourth Assignment of Error
Ineffective assistance of appellant [sic] counsel.
{¶8} In the first assignment of error, Carter asserts that the trial court erred by denying his “pre-sentence” motion to withdraw his guilty plea. Carter does not dеny that he committed the offense, but he claims that his plea was invalid because he was not aware that the sentences could run consecutively. He contends that his plea withdrawal should be allowed under the more liberal standard
{¶9}
{¶10} The trial court did hold a hearing on Carter’s mоtion to withdraw his plea, and there was considerable discussion as to whether the motion should be considered a “pre-sentence” motion or a “post-sentence” motion. However, the trial court found that the motion was untimely and was barred by res judicаta. Moreover, the record also clearly demonstrated that even if the trial court would have had jurisdiction, Carter’s motion would not have satisfied the standards necessary for granting either a pre-sentence or a post-sentence motion to withdraw a guilty plea.
{¶12} In Ketterer, after the defendant’s convictions had been affirmed on appeal, the case was remаnded for the limited purpose of resentencing the defendant on his noncapital offenses. Id., at ¶62. “Under the authority of Special Prosecutors, the panel had no authority to consider [the defendant’s] motion to
{¶13} Just as in Ketterer, when Carter appealed to this Court, we remanded the case but only for the limited purpose of applying the appropriate procedures to merge the cоunts. See Carter I. No other aspect of Carter’s conviction was modified by the appeal, and therefore, his valid conviction cannot be set aside after it has been affirmed on appeal. The resentencing hearing is constrained to the narrow function of correcting only the error in the sentence and it cannot be used as a vehicle to reexamine any other perceived errors. See Fischer, at ¶25; State v. Hall, 3d Dist. No. 12-10-11, 2011-Ohio-659, ¶14.
{¶14} Finally, even if the trial court had authority to consider the motion, a decision appeаled and affirmed by this Court is res judicata. State v. Coats, 2010–Ohio–4822, at ¶16. Res judicata bars the assertion of claims against a valid, final judgment of conviction that have been raised or could have been raised on appeal. Ketterer, at ¶59. “Ohio courts of appeals have applied rеs judicata to bar the
{¶15} The trial court did not err in finding that it did not have jurisdiction to consider Carter’s belated motion to withdraw his guilty plea. The first assignment of error is overruled.
{¶16} In his second and third assignments of error, Carter complains that he had ineffective assistance of counsel, claiming that his original trial counsel did not properly inform him that the sentence for the repeat violent offеnder specification would run consecutively to the sentence imposed for the aggravated robbery/kidnapping. He also alleges that his plea was not an intelligent, knowing and voluntary waiver of his constitutional rights.
{¶17} Although the record clearly refutes bоth of these assertions, neither matter is subject to review because both of the issues are barred by res judicata. “The doctrine of res judicata establishes that ‘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. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶30, quoting State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus.
{¶18} Carter could have raised both of these issues at the time of his first appeal. He cannot belatedly appeal these issues now because they are barred by res judicata. In his appellate brief, Carter mistakenly states that State v. Wilson, supra, stands for the proposition that a defendant in Carter’s position is not barred from relitigating matters already decided. In Wilson, the Ohio Supreme Court specifically stated that “[t]he scope of an appeal from a nеw sentencing hearing is limited to issues that arise at the new sentencing hearing.” (Emphasis added.) Wilson, 129 Ohio St.3d 216, at ¶30. Likewise, Carter’s appeal from his resentencing hearing is limited to the issues pertaining to the trial court’s correction of the merger issue. Carter’s second and third assignments of error are overruled.
{¶19} In the fourth assignment of error, Carter аsserts that he was denied effective assistance of appellate counsel in his original direct appeal. Although this assignment of error is not very specific, apparently Carter is arguing that his appellate counsel did not sufficiently represеnt him in “correct[ing] all defects in the earlier court proceedings,” referring to Carter I. (Appellant’s Br., p. 9.)
{¶20} In 1993, the Supreme Court of Ohio adopted
A defendant in a criminal case may apply for reopening of the apрeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appеal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
(Emphasis added.)
{¶21} The decision in Carter’s original appeal was journalized on December 27, 2010. Carter filed his appeal in this case on July 13, 2011, which is well beyond the ninety-day time limitation set forth in
{¶22} 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
ROGERS, P.J. and SHAW, J., concur.
/hlo