STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOHNNY HALL, JR., DEFENDANT-APPELLANT.
CASE NO. 12-10-11
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY
February 14, 2011
2011-Ohio-659
Appeal from Putnam County Common Pleas Court, Trial Court No. 2004-CR-0053. Judgment Affirmed.
Kenneth J. Rexford for Appellant
Gary L. Lammers for Appellee
{¶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
{¶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
{¶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
{¶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.
{¶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
{¶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.
Mr. Hall was denied Due Process of law when the State of Ohio knowingly and intentionally violated his right under
{¶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
{¶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.
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.