[Cite as State v. Norris,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : Patricia A. Delaney, P.J. : William B. Hoffman, J. Plaintiff-Appellee : Sheila G. Farmer, J. : -vs- : Case No. CT2012-0055 : : DERRICK C. NORRIS : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Muskingum County Court of Common Pleas Case No. CR 2003-288A

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 15, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX DERRICK NORRIS #478-560 Muskingum County Prosecutor Marion Correctional Institution P.O. Box 57 BY: ROBERT L. SMITH Marion, Ohio 43301 Assistant Prosecuting Attorney 27 North Fifth Street Zanesville, Ohio 43701 [Cite as State v. Norris,

.]

Farmer, J.

{¶1} Defendant-appellant, Derrick Norris, appeals from the October 31, 2012,

Entry of the Muskingum County Court of Common Pleas denying his Motion for Leave

to Withdraw Guilty and/or No Contest Plea. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On September 17, 2004, appellant Derrick Norris pleaded guilty to one

count of murder with a firearm specification in violation of R.C. 2903.02(A)(1) and R.C.

2941.145, one count of aggravated robbery in violation of R.C. 2911.01(A)(1), and one

count of tampering with evidence in violation of R.C. 2921.12(A)(1). In exchange, the

State asked the trial court to enter a Nolle Prosequi to all other counts of the indictment

and the trial court granted such request. As memorialized in an Entry filed on

September 23, 2004, the trial court sentenced appellant to an aggregate term of thirty-

three (33) years to life in prison. Appellant did not file an appeal.

{¶3} On March 5, 2010, appellant filed a Motion for Sentencing, requesting the

vacation of his sentence and a de novo sentencing hearing because the trial court had

failed to properly inform him of postrelease control at the sentencing hearing. Pursuant

to an Entry filed on April 2, 2010, the trial court denied the motion. Appellant then

appealed.

{¶4} Pursuant to an Opinion filed on December 8, 2010 in State v. Norris, 5th

Dist. No. CT10-0020, 2010-Ohio- 6076, this Court held that appellant was entitled to a

de novo resentencing hearing. We vacated appellant’s sentence and remanded the

matter for a resentencing hearing because, at his original sentencing hearing, appellant

had not been advised of his postrelease control obligation. Muskingum County App. Case No. CT2012-0055 3

{¶5} On December 20, 2010, the trial court conducted a resentencing hearing.

Just prior to the resentencing, appellant, on December 20, 2010, filed a Motion to

Withdraw Guilty and/or No Contest Plea. Appellant, in his motion, argued that had he

known that postrelease control was mandatory for a period of five years, he would not

have pleaded guilty. Counsel for appellant attempted to address the trial court regarding

the motion. However, the trial court indicated that the motion to withdraw would not be

heard and proceeded to limit the hearing to the imposition of postrelease control. Via

an Entry filed on December 21, 2010, the trial court notified appellant that postrelease

control was mandatory for a period of five (5) years. Subsequent to the sentencing

hearing, the trial court issued a briefing schedule on the motion to withdraw appellant's

guilty plea.

{¶6} On January 20, 2011, appellant filed an appeal from the trial court’s

December 21, 2010, entry. The case was assigned No. CT11-0001.

{¶7} Counsel for appellant filed a motion to withdraw as counsel and a brief

pursuant to Anders v. California (1967),

, rehearing den. (1967),

, indicating that the appeal in Case No. CT11-0001 was wholly frivolous and setting

forth a proposed assignment of error. Appellant did not file a pro se brief alleging any

additional assignments of error. Counsel for appellant raised the following potential

assignment of error:

{¶8} “THE TRIAL COURT ERRED IN RE–IMPOSING A PERIOD OF POST

RELEASE CONTROL AND FAILED TO CONDUCT A PROPER RE–SENTENCING

HEARING.” Muskingum County App. Case No. CT2012-0055 4

{¶9} Pursuant to an Opinion filed on February 3, 2012 in State v. Norris, 5th

Dist. No. CT11–0001,

, this Court found that because the trial court had

imposed the correct period of postrelease control, the hearing was properly conducted.

We overruled appellant's potential assignment of error, granted counsel's motion to

withdraw, and affirmed the judgment of the trial court.

{¶10} Via an Entry filed on October 31, 2012, the trial court denied appellant’s

December 20, 2010 Motion to Withdraw Guilty and/or No Contest Plea.

{¶11} Appellant now raises the following assignment of error on appeal:

{¶12} “WHEN THE TRIAL COURT COMPLETELY FAILS TO ADVISE A

CRIMINAL DEFENDANT AT THE PLEA COLLOQUY THAT A MANDATORY TERM OF

POST-RELEASE CONTROL WILL BE PART OF THE SENTENCING, THE COURT

FAILS TO COMPLY WITH CRIM. R. 11(C)(2)(a), AND THE RESULTING GUILTY

PLEA MUST BE VACATED. SEE: STATE VS. SARKOZY, 117 OHIO ST.3D 86;

STATE VS. BOSWELL, 121 OHIO ST.3D 575; AND, STATE VS. MONTEZ-JONES,

, (OHIO APP. 5 DIST.).”

I

{¶13} Appellant, in his sole assignment of error, argues that the trial court erred

in denying his Motion to Withdraw Guilty and/or No Contest Plea.

{¶14} Appellant maintains that, pursuant to State v. Sarkozy,

,

,

, he should be permitted to withdraw his guilty plea

because he was not advised at his change of plea hearing that he was subject to a

mandatory five-year term of postrelease control. In Sarkozy, the Ohio Supreme Court

held, * * if a trial court fails during a plea colloquy to advise a defendant that the Muskingum County App. Case No. CT2012-0055 5

sentence will include a mandatory term of postrelease control, the defendant may

dispute the knowing, intelligent, and voluntary nature of the plea either by filing a motion

to withdraw the plea or upon direct appeal. Further, we hold that if the trial court fails

during the plea colloquy to advise a defendant that the sentence will include a

mandatory term of postrelease control, the court fails to comply with Crim.R. 11 and the

reviewing court must vacate the plea and remand the cause.” Id. at ¶ 25.

{¶15} In State v. Boswell,

, 2009–Ohio–1577,

, also cited by appellant, the Ohio Supreme Court held that a motion to withdraw a

plea, filed in a case where the sentence was void due to the trial court's failure to

impose postrelease control at sentencing, must be deemed to be a presentence motion

to withdraw a plea due to the necessity of treating a void sentence as a nullity.

{¶16} However, subsequent to Boswell, the Ohio Supreme Court held that only

the portion of the sentence concerning postrelease control is void:

{¶17} “We similarly hold that when a judge fails to impose statutorily mandated

postrelease control as part of a defendant's sentence, that part of the sentence is void

and must be set aside. Neither the Constitution nor common sense commands anything

more.

{¶18} “This principle is an important part of the analysis of void sentences that

we have not focused upon in prior cases involving postrelease control, including Bezak,

, 2007–Ohio–3250,

. Thus, we reaffirm the portion of

the syllabus in Bezak that states ‘[w]hen a defendant is convicted of or pleads guilty to

one or more offenses and postrelease control is not properly included in a sentence for Muskingum County App. Case No. CT2012-0055 6

a particular offense, the sentence for that offense is void,’ but with the added proviso

that only the offending portion of the sentence is subject to review and correction.

{¶19} “However, we now modify the second sentence in the Bezak syllabus as

ill-considered. That sentence states that the offender is entitled to a new sentencing

hearing for the offense for which postrelease control was not imposed properly.

, 2007–Ohio–3250,

. It does not recognize a principle that

we overlooked in Bezak: when an appellate court concludes that a sentence imposed

by a trial court is in part void, only the portion that is void may be vacated or otherwise

amended.

{¶20} “Therefore, we hold that the new sentencing hearing to which an offender

is entitled under Bezak is limited to proper imposition of postrelease control.” State v.

Fischer,

,

, 340–341, 2010–Ohio–6238, ¶ 26–29.

{¶21} This Court has concluded that because the convictions and remaining

portion of the original sentence remain valid based on the Supreme Court's holding in

Fischer, a motion to withdraw a plea made prior to resentencing to correct the

postrelease control portion of the sentence is properly addressed as a post-sentence

motion. See State v. Montgomery, 5th Dist. No. 10 CA 42,

. Thus,

appellant’s motion was a post-sentence motion to withdraw his guilty plea and is subject

to the doctrine of res judicata.

{¶22} Appellant asserts that his plea must be vacated because the trial court

failed to advise him of mandatory postrelease control at the plea hearing. However,

appellant’s attempt to withdraw his guilty plea, made subsequent to this Court’s remand

for resentencing, is barred by the doctrine of res judicata. See State v. Hazel, 11th Dist. Muskingum County App. Case No. CT2012-0055 7

Nos. 10AP-1013, 10AP-1014,

. 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. State v. Perry,

,

(1967).

“Ohio courts of appeals have applied res judicata to bar the assertion of claims in a

motion to withdraw guilty plea that were or could have been raised at trial or on appeal.

State v. Ketterer,

, 2010–Ohio–3831,

, citations

omitted. Appellant clearly could have raised the issue he now raises on direct appeal or

during one of his earlier appeals. As is stated above, appellant did raise the issue of

postrelease control in 2010.

{¶23} Appellant’s sole assignment of error is, therefore, overruled.

{¶24} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Farmer, J.

Delaney, P.J. and

Hoffman, J. concur

s/ Sheila G. Farmer______________

s/ Patricia A. Delaney____________

s/ William B. Hoffman___ _________

JUDGES

SGF/d0304 [Cite as State v. Norris,

.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

THE STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : DERRICK C. NORRIS : : Defendant-Appellant : CASE NO. CT2012-0055

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Muskingum County Court of Common Pleas is affirmed. Costs

assessed to appellant.

s/ Sheila G. Farmer______________

s/ Patricia A. Delaney____________

s/ William B. Hoffman___ _________

JUDGES