[Cite as State v. Triplett,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, : Case No. 11CA24 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : STEVEN R. TRIPLETT, : : RELEASED 09/19/12

Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:

Philip J. Heald, Ironton, Ohio, for appellant.

J.B. Collier, Jr., Lawrence County Prosecutor, and W. Mack Anderson, Lawrence County Assistant Prosecutor, Ironton, Ohio, for appellee. ______________________________________________________________________ Harsha, J.

{¶1} Steven Triplett appeals from the trial court’s judgment entered on remand

from this Court to correct the erroneous imposition of postrelease control in his original

sentence. Before the court entered this judgment, Triplett moved to withdraw his guilty

pleas based on the court’s failure to properly explain postrelease control to him before

accepting the pleas. He contends that the court erred when it denied this motion

without a hearing because his original sentence was void in its entirety, making his

request a pre-sentence motion to withdraw his plea.

{¶2} However, in Triplett’s first appeal we only invalidated that portion of his

sentence related to postrelease control; the trial court’s determination of guilt and other

portions of the original sentence remain intact. Regardless of how Triplett characterizes

his motion to withdraw, the court lacked jurisdiction to consider it because we remanded Lawrence App. No. 11CA24 2

the matter solely for the proper imposition of postrelease control. And even if the trial

court had jurisdiction, the court correctly determined that res judicata precluded it from

granting the motion because Triplett could have challenged his plea in his first appeal

based on an insufficient plea colloquy. Accordingly, we affirm the trial court’s judgment.

I. Facts

{¶3} In 2010, Triplett pleaded guilty to one count of aggravated robbery and

one count of aggravated burglary. After Triplett raised a number of complaints on

appeal, we rejected all of his arguments except his contention that the trial court failed

to properly notify him about postrelease control. We recognized that the trial court

attempted to correct its mistake in a resentencing entry after Triplett filed his notice of

appeal. However, we held that the court lacked jurisdiction to issue the entry at that

time and declared it a nullity. State v. Triplett, 4th Dist. No. 10CA35,

(“Triplett I”). See also State v. Triplett, 4th Dist. No. 11CA3,

(“Triplett II”). Therefore, we remanded the matter to the trial court for the proper

imposition of postrelease control. Triplett I at ¶¶ 6, 13. On remand, Triplett orally

moved to withdraw his guilty pleas based on the trial court’s failure to properly explain

postrelease control before accepting the pleas. The court denied the motion based on

State v. Fischer,

,

,

, and the doctrine

of res judicata. After the court gave Triplett postrelease control notifications orally and

via a judgment entry, this appeal followed.

II. Assignment of Error

{¶4} Triplett assigns one error for our review:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT RECOGNIZING STEVEN TRIPLETT’S MOTION TO WITHDRAW Lawrence App. No. 11CA24 3

HIS GUILTY PLEA AS A PRE-SENTENCE MOTION PURSUANT TO CRIM.R. 32.1, AND THEREFORE NOT AFFORDING MR. TRIPLETT THE OPPORTUNITY TO PRESENT EVIDENCE AND TESTIMONY IN SUPPORT OF SAID MOTION.

III. Motion to Withdraw Guilty Pleas

{¶5} In his sole assignment of error, Triplett contends that the trial court erred

when it denied his motion to withdraw his guilty pleas. He claims that in Triplett I, this

court declared his original sentence void in its entirety. Therefore, he contends that the

trial court should have treated his request as a pre-sentence motion to withdraw his

pleas and conducted a hearing to determine whether he had a reasonable and

legitimate basis for withdrawing his pleas.

{¶6} Triplett cites State v. Boswell,

,

,

, in support of his argument. Boswell pleaded guilty to various offenses in

2000. He filed two motions for a delayed appeal but both were denied. More than five

years after sentencing, he filed a motion to vacate his plea, arguing the court failed to

properly advise him on postrelease control at the change of plea hearing. The trial court

granted the motion without opinion and vacated the plea. The state appealed and the

court of appeals affirmed, holding that the trial court “had not substantially complied with

Crim.R. 11(C)(2)(a) and R.C. 2943.032 at the sentencing hearing, because it did not

advise Boswell of the maximum penalty for his crimes before he entered his guilty plea.”

. The Supreme Court “accepted the state’s discretionary appeal, which

asserted that the court of appeals improperly applied the substantial-compliance

analysis by failing to require Boswell to demonstrate that he had been prejudiced by the

inaccurate plea colloquy.”

Lawrence App. No. 11CA24 4

{¶7} The Supreme Court did not reach the state’s argument on the prejudice

requirement because it determined that compliance with Crim.R. 11 was not the

controlling issue. Instead, the real question was whether Boswell’s motion constituted a

pre-sentence or post-sentence motion to withdraw. The Court explained that Boswell’s

original sentence was void in its entirety because the trial court failed to properly impose

postrelease control. Therefore, the trial court should have treated Boswell’s motion as a

pre-sentence motion to withdraw his pleas and conducted a hearing to determine

whether he had a reasonable and legitimate basis to withdraw his pleas. “Because the

trial court granted Boswell’s motion without opinion and the court of appeals applied the

improper standard,” the Supreme Court remanded to the trial court to consider

Boswell’s motion under the appropriate standard for pre-sentence motions to withdraw.

Id. at ¶ 13. The Court vacated the void sentence and instructed the trial court to

resentence Boswell if it denied his motion. The Court declined to address the state’s

argument that res judicata barred Boswell’s motion because the state failed to raise this

argument in any proposition of law or in its memorandum in support of jurisdiction. Id.

at ¶ 11.

{¶8} Triplett incorrectly argues that like Boswell’s sentence, his entire original

sentence is void. He fails to recognize post-Boswell changes in the law affecting the

consequences of a trial court’s failure to properly impose postrelease control, and he

misinterprets our decision in Triplett I. For sentences like Boswell’s that were imposed

prior to July 11, 2006, common law rules apply. State v. Davis, 4th Dist. No. 10CA9,

. Under the common law as it stood when the Supreme Court

decided Boswell, the failure to properly impose postrelease control rendered the entire Lawrence App. No. 11CA24 5

sentence void, not just the imposition of postrelease control. See

After Boswell but

before Triplett I, the Supreme Court of Ohio modified the common law in Fischer,

,

,

. “The Fischer Court held that when a

trial court fails to properly impose postrelease control, only that portion of the sentence

is void, thus resentencing is limited to the issue of postrelease control.” Davis at ¶ 8,

citing Fischer at ¶ 28-29. For sentences imposed on and after July 11, 2006, R.C.

2929.191 applies. Davis at ¶ 8. Under the statute, the defendant is entitled to a

resentencing hearing limited to the proper imposition of postrelease control. Id. In other

words, under current law, regardless of whether the common law or R.C. 2929.191

applies, the mere lack of proper notice of postrelease control never renders an entire

sentence void.

{¶9} In Triplett I, we did not hold that Triplett’s entire sentence was void. We

explained that “[w]hen a court fails to properly impose post-release control for a

particular offense, the offending portion of the sentence is void, must be set aside, and

is subject to review and correction.” Triplett I at ¶ 4, citing Fischer at ¶ 27-29. Because

the trial court failed to properly notify Triplett about postrelease control, we remanded

for a “resentencing limited to the issue of the proper imposition of post-release control.”

Triplett I at ¶ 13. Therefore, the trial court’s determination of guilt and remainder of the

original sentence remained intact after Triplett I.

{¶10} Since Fischer, the Supreme Court has not addressed whether a motion to

withdraw a guilty plea filed after the imposition of a partially void sentence should be

treated as a pre- or post-sentence motion. A number of appellate courts have

concluded that it is a post-sentence motion. State v. Beachum, 6th Dist. Nos. S-10-041 Lawrence App. No. 11CA24 6

& S-10-042,

, ¶ 21; State v. Thomas, 1st Dist. Nos. C-100411 & C-

100412,

, ¶ 16; State v. Christie, 3rd. Dist. No. 4-10-04,

; State v. Bell, 8th Dist. No. 95719,

. However, we need not

address this issue because regardless of how we characterize the motion, as we

explain below, the trial court lacked jurisdiction to consider it. And even if the court had

jurisdiction, the doctrine of res judicata bars Triplett’s argument for withdrawing his

pleas.

{¶11} Unlike the defendant in Boswell, Triplett filed a timely direct appeal. And

as noted above, following that appeal the determination of his guilt and lawful portions

of his sentence remained intact. We clearly remanded this case for the sole purpose of

having the trial court properly notify Triplett about postrelease control. The trial court

lacked jurisdiction to consider Triplett’s motion to withdraw his pleas because we did not

remand for that purpose. State v. Blevins, 4th Dist. No. 11CA3431,

.

See State ex rel. Special Prosecutors v. Judges,

,

(1978) (“Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and

determine a motion to withdraw the guilty plea subsequent to an appeal and an

affirmance by the appellate court.”); State v. Nicholson, 8th Dist. No. 97567, 2012-Ohio-

1550, ¶ 10 (“Because this court affirmed Nicholson’s convictions in Nicholson I, the trial

court lacked jurisdiction upon remand to consider a motion to vacate the guilty plea.”).

{¶12} Even if the court had jurisdiction to consider the motion, as the trial court

correctly noted, res judicata precluded the court from granting it. “The doctrine of res

judicata bars claims that the defendant raised or could have raised on direct appeal.”

State v. Miller, 4th Dist. No. 11CA14,

. “[T]he doctrine serves to Lawrence App. No. 11CA24 7

preclude a defendant who has had his day in court from seeking a second on that same

issue. In so doing, res judicata promotes the principles of finality and judicial economy

by preventing endless relitigation of an issue on which a defendant has already received

a full and fair opportunity to be heard.” State v. Saxon,

, 2006-Ohio-

1245,

, ¶ 18. In his first appeal, Triplett could have, but failed to

challenge the validity of his pleas based on the court’s failure to properly notify him

about postrelease control during the plea colloquy. Therefore, res judicata prevents him

from raising the argument now.

{¶13} Accordingly, we overrule the sole assignment of error and affirm the trial

court’s judgment.

JUDGMENT AFFIRMED. Lawrence App. No. 11CA24 8

Kline, J., concurring.

{¶14} I respectfully concur in judgment only. Here, “I continue to believe that the

trial court was authorized to correct the void portion of Triplett’s sentence at the

February 23, 2011 sentencing hearing.” State v. Triplett, 4th Dist. No. 11CA3, 2011-

Ohio-5431, ¶ 11 (Kline, J., dissenting); see also State v. Triplett, 4th Dist. No. 10CA35,

(Kline, J., dissenting). Therefore, I would have addressed

Triplett’s motion to withdraw by overruling his second assignment of error in Triplett II.

See Triplett,

. Lawrence App. No. 11CA24 9

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Lawrence County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

McFarland, J.: Concurs in Judgment and Opinion. Kline, J.: Concurs in Judgment Only with Opinion.

For the Court

BY: ____________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.