[Cite as State v. Kendrick,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25100

v. : T.C. NO. 03CR4234

SHAUN D. KENDRICK, SR. : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 7th day of December , 2012.

..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOSHUA S. CARTER, Atty. Reg. No. 0084925, 10044 Meadow Woods Lane, Dayton, Ohio 45458 Attorney for Defendant-Appellant

SHAUN D. KENDRICK, SR., #A489-082, Pickaway Correctional Institution, P. O. Box 209, Orient, Ohio 43146 Defendant-Appellant

.......... DONOVAN, J.

{¶ 1} Defendant-appellant Shaun D. Kendrick, Sr., appeals a decision of the trial

court overruling his motion to withdraw his guilty plea in Case No. 2003-CR-4234.

Kendrick filed a timely notice of appeal with this Court on March 16, 2012.

{¶ 2} Appointed counsel for defendant-appellant Kendrick submitted an appellate

brief under Anders v. California,

,

,

(1967),

alleging that no arguably meritorious issues exist for appeal. After a thorough review of the

record, this Court agrees that the trial court’s proceedings were proper, and we affirm the

trial court’s judgment.

{¶ 3} We set forth the history of the case in State v. Kendrick, 2d Dist.

Montgomery No. 24626,

, and repeat it herein in pertinent part:

{¶ 4} “On January 26, 2005, Kendrick accepted a plea deal and pled guilty to

seven counts of rape. ‘Six of those convictions were for rapes that had occurred prior to the

July 1, 1996 effective date of the Senate Bill 2 sentencing laws, and the other one took place

after that date. The trial court sentenced Kendrick to five consecutive, indeterminate

sentences of 10 to 25 years and one concurrent sentence of 10 to 25 years for the pre-S.B. 2

rapes. The court also ordered a consecutive 10-year term for the post-S.B. 2 rape. We

affirmed Kendrick’s convictions and sentence. State v. Kendrick, Montgomery App. 20965,

[hereinafter ‘Kendrick I’].’ State v. Kendrick, Montgomery App. No.

21790,

(hereinafter ‘Kendrick II’).”

{¶ 5} “The Supreme Court of Ohio reversed Kendrick's post-S.B. 2 sentence

following our decision in Kendrick I. See In re Ohio Sentencing Cases,

,

, at ¶19. The case was remanded for re-sentencing in line with State v.

Ohio St.3d 1,

. See Kendrick II at ¶3.”

{¶ 6} “The trial court re-sentenced Kendrick on remand to ten years on the

post-S.B. 2 count, and, in August 2006, the trial court issued a new termination entry

(hereinafter the ‘Resentencing Entry’). The court ordered Kendrick to serve that sentence

consecutive to his other six sentences. Kendrick appealed following the resentencing

hearing, and we affirmed the trial court’s decision. See Kendrick II at ¶19. The Supreme

Court of Ohio declined to review our decision in Kendrick II. See State v. Kendrick,

(Table),

.”

{¶ 7} “On January 20, 2011, Kendrick filed a ‘Motion to Dismiss and Vacate

Conviction Pursuant to R.C. 2505.02 & Crim.R. 32(A)(C).’ In his motion, Kendrick argued

that the trial court’s Resentencing Entry was not a final appealable order. Kendrick asserted

that, because there was no final appealable order properly sentencing him, the trial court

should hold an evidentiary hearing and discharge Kendrick. The trial court denied

Kendrick’s motion.”

{¶ 8} Kendrick appealed the trial court’s decision, and we affirmed, holding that

the proper remedy for a trial court’s failure to set forth the manner of a defendant’s

conviction in a judgment entry is to issue a nunc pro tunc entry that corrects the error. State

v. Kendrick, 2d Dist. Montgomery No. 24626,

. We note that the trial court

issued a nunc pro tunc entry reflecting Kendrick’s plea of guilty on September 20, 2011.

{¶ 9} On September 12, 2011, Kendrick filed a motion to withdraw his guilty plea

pursuant to Crim. R. 32.1 and Crim. R. 32(C). In a judgment entry issued on February 22,

2012, the trial court overruled Kendrick’s motion to withdraw his plea without conducting 4

a hearing.

{¶ 10} It is from this judgment that Kendrick now appeals.

{¶ 11} Counsel was appointed to represent Kendrick on appeal on April 25, 2012.

On June 20, 2012, appointed counsel submitted an Anders brief, alleging that no arguably

meritorious issues existed for appeal. By magistrate’s order of June 22, 2012, we informed

Kendrick that his counsel filed an Anders brief and informed him of the significance of an

Anders brief. We invited Kendrick to file a pro se brief assigning any error for our review

within sixty days. After requesting one extension of time, Kendrick filed his merit brief on

September 20, 2012.

{¶ 12} Kendrick’s sole assignment of error is as follows:

{¶ 13} “THE APPELLANT [sic] RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL, DUE PROCESS AND EQUAL PROTECTION OF LAW AFFORDED TO

HIM BY THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE UNITED STATES

CONSTITUTION HAS BEEN VIOLATED.”

{¶ 14} In his sole assignment, Kendrick contends that the trial court erred when it

overruled his motion to withdraw his plea. Specifically, Kendrick argues that coercive

tactics and undue influence exerted by his trial counsel rendered his guilty plea involuntary.

{¶ 15} In his direct appeal, Kendrick previously argued that his counsel was

ineffective, that he had entered his guilty plea out of frustration with his trial counsel’s

failure to file pre-trial motions, that he should have been permitted to withdraw his plea to

preserve his right to appeal the trial court’s rulings on his pre-trial motions, and that he

received erroneous advice regarding pre-trial motions. Kendrick also asserted that the trial 5

court erred when it overruled his pre-sentence motion to withdraw his plea. We rejected

Kendrick’s claims regarding the ineffectiveness of his trial counsel in our decision affirming

his conviction in Kendrick I. 2d Dist. Montgomery No. 20965,

. We also

held that the trial court did not err when it overruled Kendrick’s pre-sentence motion to

withdraw his guilty plea.

{¶ 16} In the instant appeal, Kendrick argues that the trial court erred when it

overruled his most recent motion to withdraw his guilty plea for the following reasons: 1) he

was induced and coerced into entering a guilty plea; 2) his trial counsel was ineffective; 3)

the trial court abused it discretion by accepting his “corrupt” plea; and 4) that he was denied

equal protection of the law and due process.

{¶ 17} Upon review, we find that the entirety of Kendrick’s claims in his second

motion to withdraw his guilty plea either were or could have been addressed in his direct

appeal or in a motion for post-conviction relief. Claims that could have been addressed on

direct appeal or in a post-conviction relief motion in support of post-sentence motion to

withdraw are insufficient to demonstrate the manifest injustice required by Crim. R. 32.1 in

order to vacate a plea. State v. Hartzell, 2d Dist. Montgomery No. 17499,

(Aug. 20, 1999). Additionally, any claims that were raised and rejected in a prior

proceeding are barred by res judicata. The claims made by Kendrick regarding the

ineffectiveness of his trial counsel were considered and rejected by us in Kendrick I. Those

claims are, therefore, barred by res judicata. Any additional out-of-court representations

that Hartzell claims his trial counsel made could have been the subject of a post-conviction

motion for relief. Kendrick did not seek that relief. Accordingly he cannot demonstrate 6

that a manifest injustice resulted from what his attorney is alleged to have said in order to

“induce” him into pleading guilty. Thus, we find that the trial court did not err when it

overruled Kendrick’s motion to withdraw his guilty plea.

{¶ 18} Kendrick’s sole assignment of error is overruled.

{¶ 19} In the performance of our duty, under Anders v. California, to conduct an

independent review of the record, we have found no additional potential assignments of error

having arguable merit. We conclude that this appeal is wholly frivolous. Therefore, the

judgment of the trial court is Affirmed.

..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Carley J. Ingram Joshua S. Carter Shaun D. Kendrick, Sr. Hon. Michael L. Tucker