[Cite as State v. Hendricks,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2017-0023 CHRISTOPHER M. HENDRICKS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR-2015-0161

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 8, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GERALD ANDERSON II RICHARD CROSBY III 27 North Fifth Street 600 Vine Street, Suite 2650 Zanesville, OH Cincinnati, OH 45202 [Cite as State v. Hendricks,

.]

Gwin, J.,

{¶1} Appellant Christopher M. Hendricks [“Hendricks”] appeals from the March

15, 2017 re-sentencing entry of the Muskingum County Court of Common Pleas.

Facts and Procedural History

{¶2} Hendricks entered guilty pleas to: Count I, aggravated burglary pursuant to

R.C. 2911.11(A)(2), a felony of the first degree; Counts II through V, kidnapping pursuant

to R.C. 2905.01(A)(2), all felonies of the first degree; Counts VI through VIII, kidnapping

pursuant to R.C. 2905.01(A)(3), all felonies of the first degree; Counts IX through XIII,

aggravated robbery pursuant to R.C. 2911.01(A)(1), all felonies of the first degree; and

Count XIV, having weapons while under disability pursuant to R.C. 2923.13(A)(2), a

felony of the third degree. Counts I through XIII are accompanied by firearm specifications

pursuant to R.C. 2941.145. See, State v. Hendricks, 5th Dist. Muskingum No. CT2016-

0010,

[“Hendricks I”].

{¶3} Hendricks raised six assignments of error on appeal. Hendricks I. We

overruled five of Hendricks’ assignments of error; however based on our decision in State

v. Richard-Bey, 5th Dist. Muskingum No. CT2010-Ohio-0051, we found “the trial court’s

language in the sentencing entry does not adequately comply with R.C. 2929.19(B)(2).

Appellant’s sixth assignment of error is sustained and this matter is remanded for

resentencing.”1

1 The continued validity of the decision in Richard-Bey is questionable in light of the Ohio Supreme Court’s recent decision in State v. Grimes, __ Ohio St.3d___,

, ___N.E.3d___(May 24, 2017). Muskingum County, Case No. CT2017-0023 3

{¶4} Prior to re-sentencing, Hendricks filed a Motion to Withdraw his Guilty Plea

in the trial court on February 17, 2017. Hendricks also filed on the same date a “Notice

of Intention to Plead Affirmative Defenses.”

{¶5} In his written motion, Hendricks set forth no grounds in support of his motion

to withdraw his previously entered guilty plea. Hendricks’ one paragraph motion to plead

Affirmative Defenses stated, “that he may use a defense in this matter the affirmative

defenses of self-defense, duress and/or necessity.”

{¶6} The trial court addressed the motions at the re-sentencing hearing held

February 27, 2017,

MR. CROSBY: Your Honor, again, good afternoon. Pending

before you there is a motion to withdraw the plea -- the plea previously

entered. Based upon Criminal Rule 32 and precedent, there's sufficient

reasons which basically we feel would warrant to withdraw the plea.

THE COURT: What would that be?

MR. CROSBY: Your Honor, first off, Mr. Hendricks entered

the plea. He didn't enter it knowingly, intelligently, and voluntarily.

THE COURT: The Court of Appeals said he did.

MR. CROSBY: Your Honor, he felt threatened, coerced by

attorneys. If you look at the transcripts, he did not have the maximum and

minimum sentences properly explained to him.

THE COURT: Mr. Crosby, the Court of Appeals already

addressed that and said he did.

MR. CROSBY: Okay. Muskingum County, Case No. CT2017-0023 4

THE COURT: Right?

MR. CROSBY: Yes, sir.

THE COURT: Okay. Go ahead.

MR. CROSBY: Based upon the eight factors, which you take

into consideration when considering whether or not to withdraw the plea,

the factors weigh in favor. We're back here for sentencing issue --

THE COURT: What -- what are the factors? That's what I'm

asking you. What -- what's the basis for withdrawing the plea?

MR. CROSBY: He has -- he has merit defenses which we

would have presented, Your Honor. Contemporaneous with this motion, we

filed several defenses, which we raised after reviewing discovery. He wants

to assert those and wishes to withdraw his plea and move for -- move for --

proceed according to trial. The State would not be unnecessarily

burdened--

THE COURT: What -- what are you -- what are you alleging is

the reason for withdraw a guilty plea? Specifically.

MR. CROSBY: Specifically,

Mr. Hendricks denies that he committed these offenses. Mr.

Hendricks wishes to assert his Constitutional right to a trial.

THE COURT: Then your motion to -- to withdraw his guilty

plea is denied. We’re moving to sentencing.

(Re-Sent. T. at 3-5). Muskingum County, Case No. CT2017-0023 5

{¶7} The trial court re-imposed the previously entered sentence, this time

including the proper notifications of post-release control at the hearing and in the

sentencing entry.

Assignment of Error

{¶8} Hendricks raises one assignment of error,

{¶9} “I. THE TRIAL COURT COMMITTED ERROR BY DENYING

DEFENDANT' S MOTION TO WITHDRAW HIS PLEA AND BY FAILING TO GIVE THE

MOTION FULL AND FAIR CONSIDERATION.”

Law and Analysis

{¶10} The Ohio Supreme Court has rejected the argument that a void sentence is

a legal nullity and a defendant’s appeal following resentencing for post-release control

errors was his first appeal as of right. In State v. Ketterer, Donald Ketterer had been

convicted of capital and noncapital offenses.

,

, 2010-

Ohio-3831. The Ohio Supreme Court held that the trial court properly denied the motion

to withdraw Ketterer’s guilty pleas. Because mandatory post-release control was not

properly imposed, however, the Court remanded the case for the trial court to conduct a

hearing under R.C. 2929.191. While the case was on remand for resentencing, Ketterer

filed a motion to withdraw his guilty pleas. (Id. at ¶ 55). In response, the state argued

that res judicata barred Ketterer’s motion to withdraw his guilty pleas because on the first

appeal, the Supreme Court rejected his attacks on his pleas. (Id. at ¶ 59).

{¶11} The Court agreed noting, “In Ketterer’s first appeal, this court considered

most of the claims that Ketterer raised on remand as a basis to withdraw his guilty pleas

... Thus, res judicata was a valid basis for rejecting these claims.” (Id. at ¶ 60). Muskingum County, Case No. CT2017-0023 6

{¶12} Furthermore, the Court stated,

[T]he state invokes State ex rel. Special Prosecutors v. Judges,

Belmont Cty. Court of Common Pleas (1978),

,

, 378 N.E .2d 162, to argue that the court lacked jurisdiction to

vacate Ketterer’s guilty pleas. In Special Prosecutors, this court held that

“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. While Crim.R. 32.1 apparently

enlarges the power of the trial court over its judgments without respect to

the running of the court term, it does not confer upon the trial court the power

to vacate a judgment which has been affirmed by the appellate court, for

this action would affect the decision of the reviewing court, which is not

within the power of the trial court to do.”

,

,

.

On appeal, this court affirmed Ketterer’s convictions and death

sentence. State v. Ketterer,

,

,

, ¶ 12. Ketterer’s appeal was later reopened and his case was

remanded for the limited purpose of resentencing him on his noncapital

offenses,

,

,

. Under

the authority of Special Prosecutors, the panel had no authority to consider

Ketterer’s motion to withdraw his guilty pleas, let alone grant him a new trial. Muskingum County, Case No. CT2017-0023 7

Ketterer,

,

,

. See also

State v. Nichols, 5th Dist. Richland App. No.2009-CA-0111,

; State v.

Samples, 5th Dist. Stark App. No, 2010-CA-00122,

.

{¶13} In State v. Becraft, the Court of Appeals noted,

The foregoing case law indicates that a trial court lacks jurisdiction

to consider a motion to withdraw a guilty plea filed on remand for the limited

purpose of resentencing when the underlying conviction was affirmed on

direct appeal. This is appropriate because even “if the case is reviewed

and partially remanded for some aspect of resentencing, the appellate court

nevertheless affirmed the underlying conviction and the lower court no

longer has jurisdiction to reconsider matters dealing with that conviction,

such as whether the plea should be vacated.” State v. Smith, 7th Dist.

Mahoning No. 14 MA 65,

,

, ¶ 5, citing

State v. Triplett, 4th Dist. Lawrence No. 11CA24,

,

and Special Prosecutors, 55 Ohio St.2d at 97–98,

.

“Indeed, if a trial court were to grant a defendant’s post-remand motion to

withdraw his plea, the trial court’s order would essentially undo the entire

appeal.” State v. O’Neal, 9th Dist. Medina No. 10CA0140-M, 2012-Ohio-

396,

, ¶ 8, quoting State v. O’Neal, 9th Dist. Medina No.

07CA0050-M,

,

, ¶ 11. See also State v.

Simon, 12th Dist. Butler No. CA2015-05-081,

,

, ¶ 20; State v. Caston, 6th Dist. Erie No. E-11-077, 2012-Ohio- Muskingum County, Case No. CT2017-0023 8

5260,

, ¶ 8–11; State v. Craddock, 8th Dist. Cuyahoga

No. 87582,

,

, ¶ 8–10.

2nd Dist. Clark No. 2016-C

.

{¶14} After Ketterer, the Supreme Court held that “a trial court retains jurisdiction

to decide a motion for a new trial based on newly discovered evidence when the specific

issue has not been decided upon direct appeal.” (Emphasis added.) State v. Davis,

,

,

, ¶ 37. In so holding, the Supreme Court

clarified that “the holding in Special Prosecutors does not bar the trial court’s jurisdiction

over post-trial motions permitted by the Ohio Rules of Criminal Procedure.”

{¶15} In the case at bar, the trial court did conduct a hearing on Hendricks’ motion

to withdraw his guilty plea. Although the instant case does not involve a motion for new

trial, we note that Hendricks did not claim that the motion to withdraw his guilty plea was

based upon newly discovered evidence. In the case at bar, the record does not indicate

that Hendricks has set forth any specific reasons that provide him with a meritorious

defense. State v. Boyd, 10th Dist. No. 97APA12-1640,

(Oct. 22, 1998)

citing State v. Fish,

,

(1st Dist. 1995). Further,

the record does not indicate that Hendricks has made any effort to show that he could not

with reasonable diligence have discovered and produced exculpatory evidence before he

entered his plea.

{¶16} The record herein demonstrates the trial court held a thorough hearing on

the matter, and Hendricks was given many opportunities to present any evidence to

support his motion.

{¶17} Hendricks’ sole assignment of error is overruled. Muskingum County, Case No. CT2017-0023 9

{¶18} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Wise, John, J, and

Baldwin, J., concur