STATE OF OHIO v. KENNETH O. GREENLEAF
C.A. No. 25848
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 22, 2012
[Cite as State v. Greenleaf, 2012-Ohio-686.]
DICKINSON, Judge.
COUNTY OF SUMMIT. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2001-10-2563
INTRODUCTION
{¶1} Kenneth Greenleaf pleaded guilty to unlawful sexual conduct with a minor and rape, and the trial court sentenced him to nine years in prison. On appeal, this Court vacated his sentence. After the trial court resentenced Mr. Greenleaf, this Court remanded his case again so that the trial court could advise him of the possible penalties for violating post-release control. In July 2009, Mr. Greenleaf moved to withdraw his guilty plea and vacate his sentence. The trial court granted his motion to vacate because it had not properly imposed post-release control, but denied his motion to withdraw his guilty plea. This Court reversed, concluding that the trial court should have permitted Mr. Greenleaf to withdraw his plea as a matter of law. State v. Greenleaf, 9th Dist. No. 24983, 2010-Ohio-2863, at ¶ 15. On remand, the trial court determined that, despite this Court‘s mandate, Mr. Greenleaf did not have the right to withdraw his plea under State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, which the Ohio Supreme Court had
VOID SENTENCE
{¶2} Mr. Greenleaf‘s first assignment of error is that the trial court exceeded its jurisdiction and violated the doctrines of law of the case and res judicata when it denied his motion to withdraw his guilty plea. He has argued that, because the State failed to appeal this Court‘s decision to the Ohio Supreme Court, the trial court was required to follow our mandate and allow him to withdraw his guilty plea.
{¶3} In State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, the Ohio Supreme Court held that a sentence that does not properly impose post-release control is void and must be vacated. Id. at ¶ 22. It also determined that “[t]he effect of vacating the sentence places the parties in the same position they would have been in had there been no sentence.” Id. In State v. Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, the Ohio Supreme Court, relying on Simpkins, explained that a motion to withdraw a plea of guilty made by a defendant who has been given a void sentence must be considered as a presentence motion under
LAW OF THE CASE
{¶5} Mr. Greenleaf has argued that, even though Fischer changed the effect of a post-release control sentencing error, the trial court was required to follow this Court‘s mandate because the State did not appeal the decision. In Nolan v. Nolan, 11 Ohio St. 3d 1, syllabus (1984), the Ohio Supreme Court held that, “[a]bsent extraordinary circumstances, such as an intervening decision by the Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case.” According to Mr. Greenleaf, Fischer does not qualify as an intervening decision by the Ohio Supreme Court because it did not expressly overrule Boswell, which he has argued is the decision this Court relied on in our previous opinion.
{¶6} In Mr. Greenleaf‘s last appeal, the State argued that, even though Mr. Greenleaf‘s sentence was void, the doctrine of res judicata barred him from moving to withdraw his guilty
RES JUDICATA
{¶7} The doctrine of “[r]es judicata bars the assertion of claims against a valid, final judgment of conviction that [were] raised or could have been raised on appeal.” State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, at ¶ 59. The bar includes “the assertion of claims in a motion to withdraw a guilty plea that were or could have been raised . . . on appeal.” Id. Whether the trial court properly advised Mr. Greenleaf that he had the right to a jury trial before accepting his guilty plea is an issue that Mr. Greenleaf could have raised in his first appeal to this Court. Accordingly, the trial court correctly determined that his argument is barred by the doctrine of res judicata. See State v. Westfall, 9th Dist. No. 25637, 2011-Ohio-6248, at ¶ 5-6.
{¶8} Mr. Greenleaf has argued that his case falls within the “injustice” exception to the doctrine of res judicata. He has noted that, in Simpkins, the Ohio Supreme Court explained that
{¶9} Mr. Greenleaf did not argue to the trial court that his case falls within an exception to the doctrine of res judicata. This Court has repeatedly held that it “will not consider arguments . . . that could have been, but were not, made in the trial court.” State v. McIntyre, 9th Dist. No. 25666, 2011-Ohio-3668, at ¶ 5 (quoting State v. Jackson, 9th Dist. No. 96CA006355, 1997 WL 197113 at *2 (Mar. 26, 1997)); e.g. State v. Rondon, 9th Dist. No. 25447, 2011-Ohio-4938, at ¶ 5 (quoting State v. Holmes, 9th Dist. No. 22938, 2006-Ohio-2175, at ¶ 4). Furthermore, Mr. Greenleaf has admitted in his brief that he became aware that the trial court failed to tell him that he had the right to a jury trial in 2003. He did not move to withdraw his plea, however, until 2009. The Ohio Supreme Court has recognized that “[a]n undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
MOTION TO DISMISS
{¶11} Mr. Greenleaf‘s second assignment of error is that the trial court incorrectly denied his motion to dismiss the indictment. After this Court remanded Mr. Greenleaf‘s case to the trial court with instructions to allow him to withdraw his plea, Mr. Greenleaf moved to dismiss the indictment, arguing that it would violate his right to a speedy trial for the State to bring him to trial so long after the offenses allegedly occurred. The trial court concluded that, because Mr. Greenleaf‘s motion to withdraw was barred under Fischer, his motion to dismiss, which was based on the assumption that his motion to withdraw would be granted, was moot. Mr. Greenleaf has conceded that, if we agree with the trial court‘s conclusion regarding Fischer, his second assignment of error is moot. Accordingly, his second assignment of error is overruled on that basis.
CONCLUSION
{¶12} The trial court correctly concluded that, under State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, Mr. Greenleaf‘s motion to withdraw his guilty plea is barred by the doctrine of res judicata. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
MOORE, P. J. CONCURS
STATE OF OHIO v. KENNETH O. GREENLEAF
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
BELFANCE, J.
BELFANCE, J. DISSENTS, SAYING:
{¶13} I respectfully dissent from the judgment of the majority.
{¶14} In State v. Greenleaf, 9th Dist. No. 24983, 2010-Ohio-2863, ¶ 15, this Court determined that Mr. Greenleaf was entitled to withdraw his plea because the trial court failed to inform him of his right to a jury trial at his plea hearing. As the State did not appeal our decision, our determination became law of the case. See Hubbard ex rel. Creed v. Sauline, 74 Ohio St. 3d 402, 405 (1996).
{¶16} In Hopkins, the Supreme Court of Ohio presented a detailed discussion of what constitutes an intervening decision and also discussed the distinction between res judicata and law of the case. It noted that res judicata is “a substantive rule of law that applies to a final judgment, whereas the law-of-the-case doctrine is a rule of practice analogous to estoppel.” Id. at ¶ 22. In Mr. Greenleaf‘s prior appeal, this Court definitively concluded that Mr. Greenleaf‘s plea was invalid and that Mr. Greenleaf was entitled to withdraw it. Greenleaf at ¶ 15. Given that our decision was final as to this issue and the State had a right of appeal at that juncture, I believe it is reasonable to question whether res judicata barred the trial court from disregarding our mandate given the State‘s failure to appeal. Although the criminal matter itself was pending, there was nothing left for the court to consider with respect to our decision. In other words, we did not remand the matter for the trial court to further consider whether the plea was valid or should be withdrawn. See, e.g., Indiana Ins. Co. v. Farmers Ins. Co. of Columbus, Inc., 5th Dist. No. 2004 AP 07 0055, 2005-Ohio-1774, ¶ 67 (Hoffman, J., dissenting) (noting that because issue
{¶17} Even if res judicata did not apply in this case, in light of Hopkins, I am not convinced that Fischer constitutes an intervening decision under these facts. Fischer considered the consequences of the trial court‘s failure to properly impose post-release control in the context of the defendant‘s argument that his first merit appeal was invalid. Fischer at ¶ 2-5. The Fischer court went on to hold that the portion of a sentence “that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time on direct appeal or by collateral attack.” Id. at paragraph one of the syllabus. Notably, Fischer itself did not involve a motion to withdraw a plea nor consideration of whether a plea is valid, and there is no alignment of its holding to our holding in Mr. Greenleaf‘s 2010 appeal.
{¶18} Nonetheless, even assuming that Fischer constitutes an intervening inconsistent decision, and that res judicata did not apply to bar the trial court‘s action, I still would reverse the trial court‘s decision because in my view, the trial court could properly consider Mr. Greenleaf‘s
APPEARANCES:
NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.