[Cite as State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831.]
THE STATE OF OHIO, APPELLEE, v. KETTERER, APPELLANT.
[Cite as State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831.]
Criminal procedure — Sentencing — Combination of judgment entry and
sentencing opinion satisfying Crim.R. 32(C) — No violation of
prosecution’s duty to disclose evidence relevant to resentencing — Motion
to withdraw guilty plea at resentencing — Failure to notify of postrelease
control — Remand for resentencing under R.C. 2929.191.
(Nos. 2007-1261 and 2007-2425 — Submitted March 9, 2010 — Decided
August 25, 2010.)
APPEALS from the Court of Common Pleas of Butler County,
No. CR2003-03-0309.
__________________
SYLLABUS OF THE COURT
In cases in which R.C. 2929.03(F) requires the court or panel to file a sentencing
opinion, a final, appealable order consists of both the sentencing opinion
filed pursuant to R.C. 2929.03(F) and the judgment of conviction filed
pursuant to Crim.R. 32(C).
__________________
LANZINGER, J.
{¶ 1} In this case, we are asked to consider a number of issues arising
from the resentencing of appellant, Donald Ketterer, who has been convicted of
capital and noncapital offenses. We hold that the order appealed from is a final,
appealable order, that the Foster remedy was properly applied and no Brady
violation occurred during resentencing, and that the trial court properly denied the
motion to withdraw Ketterer’s guilty pleas. Because mandatory postrelease
SUPREME COURT OF OHIO
control was not properly imposed, however, we remand the case for the trial court
to conduct a hearing under R.C. 2929.191.
I. Case Background
{¶ 2} Appellant, Donald J. Ketterer, pleaded guilty to aggravated
murder, aggravated robbery, aggravated burglary, grand theft of a motor vehicle,
and burglary in connection with the February 2003 death of Lawrence Sanders.
In February 2004, a three-judge panel convicted Ketterer as charged and
sentenced him to death. On the noncapital offenses, the three-judge panel
imposed a nine-year prison term for Count 2, aggravated robbery, a nine-year
prison term for Count 3, aggravated burglary, a 17-month prison term for Count 4,
grand theft of a motor vehicle, and a four-year prison term for Count 5, burglary.
The sentence for Count 4 was concurrent with the sentences for the other counts,
while the sentences for Counts 2, 3, and 5 were consecutive.
{¶ 3} We affirmed Ketterer’s convictions and death sentence on October
25, 2006. 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 209. On April
18, 2007, we granted Ketterer’s application for reopening his appeal with respect
to his claim that appellate counsel had been ineffective by failing to challenge
Ketterer’s noncapital sentences as a violation of Blakely v. Washington (2004),
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We then vacated his noncapital
sentences and remanded for resentencing. 113 Ohio St.3d 1463, 2007-Ohio-1722,
864 N.E.2d 650.
{¶ 4} Upon remand, on May 24, 2007, the three-judge panel conducted a
resentencing hearing on the noncapital offenses and resentenced Ketterer to the
same sentence as originally imposed. Ketterer appealed as a matter of right to
challenge his resentencing (case No. 2007-1261).
{¶ 5} On November 15, 2007, the panel filed a nunc pro tunc entry to
correct errors in the resentencing entry. Ketterer filed a notice of appeal of the
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nunc pro tunc entry (case No. 2007-2425). The state filed a motion to dismiss
Ketterer’s appeal of the nunc pro tunc entry, and on January 30, 2008, we denied
the state’s motion and ordered that Ketterer’s appeal of the nunc pro tunc entry be
consolidated with his appeal challenging his resentencing. 116 Ohio St.3d 1498,
2008-Ohio-290, 880 N.E.2d 97. Ketterer’s merit brief raises six propositions of
law challenging his resentencing.
II. Legal Analysis
A. Requirements for final, appealable orders under R.C. 2929.03(F)
{¶ 6} Because it is potentially dispositive of this case, we first address
Proposition of Law II, in which Ketterer states that a trial court’s sentencing must
be vacated if it does not contain the information required by Crim.R. 32(C). On
October 29, 2009, we ordered that the parties file supplemental briefs to address
whether the November 15, 2007 nunc pro tunc sentencing entry is a final,
appealable order in light of our decision in State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163. Ketterer argues that the trial court’s November
7, 2007 nunc pro tunc entry does not comply with Baker because it fails to reflect
Ketterer’s guilty pleas.
{¶ 7} The state responds that because R.C. 2929.03(F) requires courts to
file a separate sentencing opinion setting forth the court’s specific findings in
cases in which the death penalty is imposed, the final, appealable order in
Ketterer’s case is the combination of the judgment entry of conviction filed in
May 2007, the nunc pro tunc entry filed in November 2007, and the sentencing
opinion in support of the death penalty filed in February 2004. The state
recognizes that the nunc pro tunc entry does not state specifically that Ketterer
pleaded guilty but argues that because the 2004 sentencing opinion states that
Ketterer “waived his right to a jury and entered a plea of guilty to all charges
January 27, 2004,” the combination of the nunc pro tunc entry and the sentencing
opinion satisfies Baker.
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{¶ 8} “ ‘[I]n order to decide whether an order issued by a trial court in a
criminal proceeding is a reviewable final order, appellate courts should apply the
definitions of “final order” contained in R.C. 2505.02.’ ” State v. Baker, 119
Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 6, quoting State v. Muncie
(2001), 91 Ohio St.3d 440, 444, 746 N.E.2d 1092, citing State ex rel. Leis v. Kraft
(1984), 10 Ohio St.3d 34, 36, 10 OBR 237, 460 N.E.2d 1372. R.C. 2505.02(B)
states:
{¶ 9} “An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the following:
{¶ 10} “(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment.”
{¶ 11} Crim.R. 32(C) sets forth the requirements for a final, appealable
order in criminal cases. It states that “[a] judgment of conviction shall set forth
the plea, the verdict, or findings, upon which each conviction is based, and the
sentence.” It further states, “The judge shall sign the judgment and the clerk shall
enter it on the journal. A judgment is effective only when entered on the journal
by the clerk.”
{¶ 12} But we must also recognize that Ketterer was also convicted in a
capital case. R.C. 2929.03(F) requires the trial court to issue a separate
sentencing opinion in addition to the judgment of conviction in cases in which the
death penalty may be imposed. The statute provides:
{¶ 13} “The court or the panel of three judges, when it imposes sentence
of death, shall state in a separate opinion its specific findings as to the existence of
any of the mitigating factors set forth in division (B) of section 2929.04 of the
Revised Code, the existence of any other mitigating factors, the aggravating
circumstances the offender was found guilty of committing, and the reasons why
the aggravating circumstances the offender was found guilty of committing were
sufficient to outweigh the mitigating factors. * * * For cases in which a sentence
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of death is imposed for an offense committed on or after January 1, 1995, the
court or panel shall file the opinion required to be prepared by this division with
the clerk of the supreme court within fifteen days after the court or panel imposes
sentence. The judgment in a case in which a sentencing hearing is held pursuant
to this section is not final until the opinion is filed.”
{¶ 14} In Baker, we did not address any interaction between R.C.
2929.03(F) and Crim.R. 32(C). Baker entered a not-guilty plea at his arraignment
and, after a jury trial, was convicted of having weapons while under a disability
and obstructing official business. The court of appeals had granted the state’s
motion to dismiss Baker’s appeal for lack of a final order because the judgment of
conviction did not contain Baker’s initial plea of not guilty. State v. Baker, 119
Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 3. The Ninth District
certified a conflict to this court, and we accepted the certified question to
determine what must be included in a judgment of conviction to allow it to
become a final, appealable order pursuant to Crim.R. 32(C).
{¶ 15} The first issue in Baker was whether, under Crim.R. 32(C), “the
plea, the verdict or findings, and the sentence” must be contained within a single
document. We noted that the Twelfth District erroneously interpreted Crim.R.
32(C) when it held that multiple documents were sufficient to meet the rules
requirements in State v. Postway, 12th Dist. No. CA2002-06-154, 2003-Ohio-
2689, 2003 WL 21213409, and we held that “[o]nly one document can constitute
a final appealable order.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,
893 N.E.2d 163, ¶ 17.
{¶ 16} The second issue in the case was whether the judgment of
conviction must include the plea entered at arraignment. We held that “the
judgment of conviction is a single document that need not necessarily include the
plea entered at arraignment.” Id. at ¶ 1. After analyzing Crim.R. 32(C), we
emphasized that “a judgment of conviction is a final appealable order under R.C.
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2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the
court upon which the conviction is based; (2) the sentence; (3) the signature of the
judge; and (4) entry on the journal by the clerk of court.” Id. at ¶ 18. In so
holding, we noted that the trial court is “required to sign and journalize a
document memorializing the sentence and the manner of the conviction.” Id. at ¶
14.
{¶ 17} We distinguish the present case from Baker and agree with the
state that in aggravated-murder cases subject to R.C. 2929.03(F), the final,
appealable order consists of the combination of the judgment entry and the
sentencing opinion. Because R.C. 2929.03(F) requires the court to file a
sentencing opinion, Baker does not control this case, because Baker addressed
only noncapital criminal cases, in which a judgment of conviction alone
constitutes a final, appealable order. R.C. 2929.03(F) requires that a separate
sentencing opinion be filed in addition to the judgment of conviction, and the
statute specifies that the court’s judgment is not final until the sentencing opinion
has been filed. Capital cases, in which an R.C. 2929.03(F) sentencing opinion is
necessary, are clear exceptions to Baker’s “one document” rule.
{¶ 18} We hold that in cases in which R.C. 2929.03(F) requires the court
or panel to file a sentencing opinion, a final, appealable order consists of both the
sentencing opinion filed pursuant to R.C. 2929.03(F) and the judgment of
conviction filed pursuant to Crim.R. 32(C). Therefore, while the final, appealable
order must satisfy the four requirements enumerated in Baker, the first
requirement — that the final, appealable order include the guilty plea, the jury
verdict, or the finding of the court upon which the conviction is based — will be
satisfied if either the judgment of conviction or the sentencing opinion includes
the guilty plea, jury verdict, or finding of the court upon which the conviction is
based.
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{¶ 19} Ketterer’s sentencing opinion states, “The defendant waived his
right to a jury and entered a plea of guilty to all charges January 27, 2004.
Evidence was presented as to the charges. The three Judge panel returned a
verdict of guilty to the One Count of Aggravated Murder and guilty to all three
specifications contained in the indictment as well as a verdict of guilty on Count
Two, Three, Four and Five of the indictment.” The November 2007 nunc pro
tunc entry states that the trial court “has considered the record, the charges, the
defendant’s Guilty Finding by Judges, and findings as set forth on the record and
herein.” While the court failed to set forth Ketterer’s guilty plea in the judgment
of conviction, the sentencing opinion states that Ketterer pleaded guilty and
satisfies the requirement that the final, appealable order set forth the guilty plea,
the jury verdict, or the finding of the court upon which the conviction is based.
The sentencing opinion and judgment of conviction combine to form a valid final,
appealable order.
B. The trial court properly applied State v. Foster
{¶ 20} In his third proposition of law, Ketterer challenges the application
of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at his
resentencing. Specifically, Ketterer argues that retroactive application of Foster
to his resentencing violates his right to a jury trial, is an ex post facto violation, is
a due process violation, and violates the rule of lenity.
{¶ 21} Each of Ketterer’s arguments was considered and resolved by this
court in State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582.
In Elmore, we held that resentencing pursuant to Foster for crimes that were
committed before Foster does not violate the Sixth Amendment right to a jury
trial or the Ex Post Facto or Due Process clauses of the United States Constitution
and that a trial court is not required by the rule of lenity to impose a minimum
prison term upon resentencing pursuant to Foster. Id. at syllabus. Elmore is
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accordingly dispositive of the challenges raised in Ketterer’s third proposition of
law.
C. No Brady violation occurred
{¶ 22} In his fourth proposition of law, Ketterer argues that the three-
judge panel improperly denied his motion to provide the defense with exculpatory
evidence that was material to sentencing.
{¶ 23} Due process requires that the prosecution provide defendants with
any evidence that is material to either their guilt or their punishment. Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Evidence is
considered material “if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Bagley (1985), 473 U.S. 667, 682, 105 S.Ct. 3375, 87
L.Ed.2d 481 (opinion of Blackmon, J.).
{¶ 24} In determining materiality, the relevant question “is not whether
the defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.” Kyles v. Whitley (1995), 514
U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490. Thus, the rule set forth in Brady
is violated when the evidence that was not disclosed “could reasonably be taken
to put the whole case in such a different light as to undermine confidence in the
verdict.” Id. at 435. “In the end, this standard not only protects defendants; by
ensuring a fair trial, it also protects the system of justice as a whole.” State v.
Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 40.
{¶ 25} In a motion prior to resentencing, Ketterer requested disclosure of
information concerning a police raid on Donald Williams’s property 17 days
before the homicide, any potential charges pending against Williams and Mary
Gabbard at the time, Williams’s and Gabbard’s history as police informants,
evidence linking Williams and Gabbard to the homicide, and any evidence
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concerning Ketterer’s mental state between the time of the offenses and his arrest.
In response, the state asserted that the requested information had already been
provided to the defense or was not Brady material. The court overruled the
defense motion.
{¶ 26} As an initial matter, the state invokes State v. Chinn (1999), 85
Ohio St.3d 548, 709 N.E.2d 1166, in arguing that Ketterer’s Brady claims should
be rejected because the evidence could not be presented at his resentencing
hearing. In Chinn, the court of appeals had remanded a capital defendant’s case
to the trial court for resentencing because the trial judge had committed errors in
his original independent evaluation and in his sentencing opinion. Id. at 562. The
trial court reimposed the death penalty, and the court of appeals affirmed. Id. at
563-564.
{¶ 27} On appeal to this court, Chinn claimed that he was denied the right
to present new mitigating evidence at his resentencing hearing. Id. at 564. In
rejecting this argument, the court stated, “[T]he errors requiring resentencing
occurred after the close of the mitigation phase of the trial. Under these
circumstances, the trial court is to proceed on remand from the point at which the
error occurred.” Id. at 565. Chinn concluded that the defendant “ ‘was not
entitled to an opportunity to improve or expand his evidence in mitigation simply
because * * * [the court of appeals] required the trial court to reweigh the
aggravating circumstance and mitigating factors.’ ” Id., quoting State v. Chinn
(June 21, 1996), 2d Dist. No. 15009, 1996 WL 338678, at *3.
{¶ 28} Based on Chinn, the state argues that Ketterer was not entitled to
present evidence at resentencing that could have been presented at his original
sentencing hearing but was not. However, Ketterer’s case was remanded for
resentencing on the noncapital offenses in accordance with Foster. A case
remanded for resentencing in accordance with Foster “anticipates a sentencing
hearing de novo, * * * [although] the parties may stipulate to the existing record
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and waive the taking of additional evidence.” State v. Mathis, 109 Ohio St.3d 54,
2006-Ohio-855, 846 N.E.2d 1, ¶ 37. Thus, we reject the state’s reliance on Chinn.
{¶ 29} Ketterer raises three specific Brady claims.
1. Information on Williams and Gabbard
{¶ 30} First, Ketterer argues that the panel erred when it refused to order
that the prosecution provide all information concerning other individuals who
were possibly involved in Sanders’s homicide. Ketterer asserts that Williams and
Gabbard were “persons of interest” during the investigation but that their
involvement in the homicide was never disclosed. Ketterer relies on his own
February 28 police statement, made two days after his confession, in which he
implicated Williams and Gabbard in the murder. In that statement, Ketterer
claimed that Williams drove him to Sanders’s residence and Gabbard
accompanied him inside Sanders’s house, where Ketterer killed Sanders. Ketterer
claimed that Gabbard helped him look for property inside Sanders’s house and
that she accompanied him when he stole Sanders’s car.
{¶ 31} Before trial, the state provided the defense with the pretrial
statements of Williams and Gabbard. Williams’s and Gabbard’s statements
corroborated Ketterer’s version of events in his initial confession but provided no
evidence that either one of them accompanied Ketterer to the Sanders residence.
The state did not provide any additional information concerning the involvement
of Williams and Gabbard in Sanders’s murder, because there was none.
{¶ 32} Nevertheless, Ketterer claims that the court should have disclosed
(1) all information relating to the commission of illegal activities at Williams’s
business at 706 East Avenue, (2) all documents relating to prior illegal activities
of Williams and Gabbard, (3) all documents relating to crimes with which
Ketterer was charged in which Williams and Gabbard are mentioned, (4) whether
they were working as informants and their history of working with law-
enforcement agencies, (5) the potential charges they faced for the raid at 706 East
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Avenue, and (6) any consideration they received in return for their cooperation.
These Brady requests lack merit because the information about Williams’s and
Gabbard’s activities and their criminal record is not material to Ketterer’s
resentencing.
{¶ 33} However, Ketterer argues that the involvement of other individuals
in the offenses was a mitigating or exculpatory factor during his resentencing. In
making this argument, Ketterer cites Lockett v. Ohio (1978), 438 U.S. 586, 98
S.Ct. 2954, 57 L.Ed.2d 973, and other capital cases that govern the admissibility
of mitigating evidence during a court’s consideration of whether to impose the
death penalty. However, the statutory mitigating factors set forth in R.C.
2929.04(B)(1) through (B)(7) are not applicable to Ketterer’s resentencing for his
noncapital offenses.
{¶ 34} The state cites United States v. Ruiz (2002), 536 U.S. 622, 122
S.Ct. 2450, 153 L.Ed.2d 586, in arguing that disclosure of the requested material
to Ketterer was rendered unnecessary by his guilty pleas. In Ruiz, the Supreme
Court held that “the Constitution does not require the Government to disclose
material impeachment evidence prior to entering a plea agreement with a criminal
defendant.” (Emphasis added.) Id. at 633. The court reasoned that when a
defendant pleads guilty he or she forgoes not only a fair trial but also other
accompanying constitutional guarantees. Id. at 628–629. Ruiz stated that
impeachment information is special, as it is “more closely related to the fairness
of a trial than to the voluntariness of the plea.” (Emphasis sic.) Id. at 633.
{¶ 35} Ruiz supports the state’s argument as it pertains to the disclosure of
impeachment evidence. Information about Gabbard’s and Williams’s activities at
706 East Avenue related to possible impeachment evidence. Nothing in the
record indicates that such evidence would lead to the disclosure of exculpatory
evidence as to the noncapital offenses.
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{¶ 36} Even assuming that Ketterer was entitled to such information,
Ketterer knew about most of this information before his resentencing hearing.
See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 28,
fn. 2 (no Brady violation occurs where a defendant knows of essential facts
permitting him to take advantage of exculpatory information or where evidence is
available from another source), citing United States v. Clark (C.A.6, 1991), 928
F.2d 733, 738; see also State v. Iacona (2001), 93 Ohio St.3d 83, 100, 752 N.E.2d
937, quoting United States v. Smith Grading & Paving, Inc. (C.A.4, 1985), 760
F.2d 527, 532 (“ ‘No due process violation occurs as long as Brady material is
disclosed to a defendant in time for its effective use at trial’ ”).
{¶ 37} Ketterer was aware of illegal activities at 706 East Avenue,
although no link to these activities was ever established with Sanders’s murder.
At a hearing to determine support for Ketterer’s guilty plea, Gabbard testified that
she and Williams were arrested during a drug raid at 706 East Avenue on
February 7, 2003, for selling cocaine. Gabbard also admitted that she used and
sold cocaine, fenced property, and committed prostitution while staying at 706
East Avenue. The defense was also aware of Gabbard’s extensive criminal
history.
{¶ 38} In addition, Ketterer knew before pleading guilty that Williams
was a confidential police informant and provided information to police that led to
Ketterer’s arrest for Sanders’s murder. The defense was also aware of Williams’s
prior criminal history and that he had received consideration in exchange for
information that he provided to the police.
{¶ 39} Ketterer invokes Banks v. Dretke (2004), 540 U.S. 668, 124 S.Ct.
1256, 157 L.Ed.2d 1166, to argue that the state’s failure to disclose exculpatory
evidence applies to his resentencing. In Banks, the state had failed to disclose that
an essential prosecution witness was a paid police informant. Id. at 675. The
state also failed to disclose interviews with another witness, who falsely stated
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that his testimony was entirely unrehearsed. Id. Based on these facts, the
Supreme Court concluded that Banks had established prejudice from the violation
and cause for failing to present his claims in state court because the defendant had
reasonably relied on the prosecutor’s open-file policy and assertions that
everything known to the government had been disclosed. Id. at 698.
{¶ 40} Banks is readily distinguishable. Unlike the prosecution in Banks,
the state disclosed that Williams was an informant who provided police with
information that led to Ketterer’s arrest. Moreover, Ketterer has not presented
any evidence of prosecutorial concealment or that he relied on false statements by
the prosecutor.
2. Information on mental and physical condition
{¶ 41} Second, Ketterer claims that the panel erred when it refused to
order that the prosecution provide all information in its possession as to his
mental and physical condition at the time of the offenses.
{¶ 42} Before the resentencing hearing, Ketterer was either provided or
was aware of information the state had regarding his mental and physical
condition between the time of the offenses and his arrest. The state had provided
Ketterer with the pretrial statements of Williams, Gabbard, and Lisa Lawson that
described his mental status on the evening of the murder and the following day.
In his statement, Williams said that Ketterer “seemed very shook up” and was still
drunk on the evening of February 24. Gabbard said that she sold Ketterer some
crack rocks that same evening. Lisa Lawson, a bartender, stated that Ketterer
appeared intoxicated when he left the pub on the evening of February 25.
{¶ 43} Ketterer was also aware of police testimony describing his mental
and physical condition at the time of his arrest. During the hearing on the motion
to suppress, Detective Steve Rogers testified that he smelled alcohol on Ketterer’s
breath when he was arrested but that he did not think that Ketterer was
intoxicated. When Rogers interviewed Ketterer several hours later, Ketterer told
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him that he was taking Klonopin as medication.1 Detective James Cifuentes also
testified that he smelled alcohol on Ketterer’s breath at the time of his arrest.
Cifuentes felt that Ketterer was intoxicated but said that he seemed to have
control of himself. Nevertheless, Ketterer suggests that there may be reports from
others whom the state did not disclose who witnessed his impairment by alcohol
and drugs during his arrest. However, Ketterer provides nothing to support this
conclusory and speculative claim.
{¶ 44} Thus, no Brady violation occurred involving the disclosure of
information about Ketterer’s mental and physical condition, because the defense
knew about this information before resentencing.
3. Information on favorable treatment of Hester and Jasper
{¶ 45} Third, Ketterer argues that the panel erred by refusing to order the
state to disclose information pertaining to the favorable treatment offered to Scott
Hester and Tyrone Jasper.
{¶ 46} Before his resentencing hearing, Ketterer did not request disclosure
of information pertaining to any favorable treatment Hester or Jasper received in
the disposition of their criminal charges. Ketterer’s failure to make these requests
is a waiver of his present claim. See State v. Iacona, 93 Ohio St.3d at 101, 752
N.E.2d 937 (when a Brady violation is uncovered prior to the close of trial, the
failure to request a continuance will usually constitute a waiver of the error on
appeal). Nevertheless, these claims also lack merit.
{¶ 47} Hester’s testimony related solely to Ketterer’s motion to suppress
his pretrial statements. In that motion, Ketterer argued that he was subjected to
custodial interrogation at the moment the police asked him to accompany them to
the station on the evening of February 25. Ketterer attempted to develop
testimony at the motion hearing that Hester observed Ketterer being taken away in
1. In the competency evaluation, Dr. Hopes stated that Ketterer had a history of being prescribed
Klonopin, which is a medication commonly used in the treatment of severe depressive disorders.
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handcuffs outside 706 East Avenue. But Hester was a reluctant witness and at
first refused to testify. After the court ordered him to testify, Hester stated that he
was not going to lie for the defendant.
{¶ 48} The defense called Jason Kristanoff, the defense investigator, who
testified that he interviewed Hester in jail and that Hester stated that on the night
of February 25, he saw Ketterer being arrested and taken away in handcuffs.
While on the stand, Hester retracted the statements he had made to Kristanoff.
The court denied the motion to suppress.
{¶ 49} With respect to Jasper, the state informed the defense that Jasper,
an inmate in the Butler County jail, was a potential witness. The state provided
the defense with a summary of Jasper’s criminal record. But Jasper was never
called as a witness. During the mitigation hearing, the prosecutor informed the
court that Jasper would have been called as a rebuttal witness if the defense had
introduced DNA results, which raised the possibility that someone else was
involved in committing the offenses.
{¶ 50} Ketterer argues that the state failed to disclose favorable treatment
that Hester received following his testimony at the hearing on the motion to
suppress and failed to disclose the disposition of pending charges against Jasper.
{¶ 51} The Brady claim as to Hester lacks merit because the disposition of
charges against him was not material to Ketterer’s resentencing. Ketterer became
acquainted with Hester while they were both in jail. Yet because Hester had no
involvement in Sanders’s murder, the robbery and burglary of his house, or the
theft of his car, Hester’s testimony was relevant only to the motion to suppress
and had no bearing on Ketterer’s resentencing.
{¶ 52} Similarly, the disposition of charges against Jasper was not
material to Ketterer’s resentencing, because he too was not involved in the
offenses. Jasper’s testimony was relevant only as a potential prosecution rebuttal
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witness based on what Ketterer appears to have told him about the offenses in jail.
Accordingly, information about Jasper had no bearing on Ketterer’s resentencing.
{¶ 53} Even assuming that information about Hester and Jasper should
have been disclosed, no Brady violation occurred, because Ketterer knew about
the disposition of charges against both of them. In a motion filed before the
resentencing hearing, Ketterer described the charges against Hester and set forth
their disposition. In the same motion, Ketterer discussed charges and their
disposition against Jasper.
{¶ 54} Based on the foregoing, no Brady violation occurred during
Ketterer’s resentencing.
D. Appellant’s motion to withdraw his guilty pleas was properly denied
{¶ 55} The fifth and sixth propositions of law address the trial court’s
denial of Ketterer’s motion to withdraw his guilty pleas.
{¶ 56} While the case was on remand for resentencing, Ketterer filed a
motion to withdraw his guilty pleas on the basis that (1) his pleas were based on a
misunderstanding of the sentence he would receive (i.e., he believed that he
would not receive the death penalty), (2) he relied on statutes that have now been
declared unconstitutional in Foster, (3) the prosecutor suppressed exculpatory
evidence, and (4) he received ineffective assistance of counsel.
{¶ 57} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct manifest
injustice the court after sentence may set aside the judgment of conviction and
permit the defendant to withdraw his or her plea.” “[A] presentence motion to
withdraw a guilty plea should be freely and liberally granted.” State v. Xie
(1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715.
{¶ 58} Ketterer raises the same grounds raised in the trial court in arguing
that the presiding judge erred in denying his motion to withdraw his guilty pleas.
He argues that the three-judge panel should have granted his motion to withdraw
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his pleas under the standard that such motions should be “freely and liberally
granted.”
{¶ 59} In response, the state argues that res judicata bars Ketterer’s
motion to withdraw his guilty pleas because on the first appeal, this court rejected
his attacks on his pleas. 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), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d
104, paragraph nine of the syllabus. Ohio courts of appeals have applied res
judicata to bar the assertion of claims in a motion to withdraw a guilty plea that
were or could have been raised at trial or on appeal. See State v. McGee, 8th Dist.
No. 91638, 2009-Ohio-3374, ¶ 9; State v. Totten, 10th App. No. 05AP-278 and
05AP-508, 2005-Ohio-6210, ¶ 7 (collecting cases).
{¶ 60} 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. We found
that Ketterer was adequately informed of his rights before pleading guilty; that his
plea was knowingly, voluntarily, and intelligently made; and that his counsel was
not ineffective in providing him advice on his guilty pleas. State v. Ketterer, 111
Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 13-14, 75-79, and 80-90. Thus,
res judicata was a valid basis for rejecting these claims.
{¶ 61} In addition, the state invokes State ex rel. Special Prosecutors v.
Judges, Belmont Cty. Court of Common Pleas (1978), 55 Ohio St.2d 94, 97-98, 9
O.O.3d 88, 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
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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.” Id. at 97-
98.
{¶ 62} On appeal, this court affirmed Ketterer’s convictions and death
sentence. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,
¶ 12. Ketterer’s appeal was later reopened and his case was remanded for the
limited purpose of resentencing him on his noncapital offenses. 113 Ohio St.3d
1463, 2007-Ohio-1722, 864 N.E.2d 650. 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.
{¶ 63} Finally, this court’s decision in State v. Boswell, 121 Ohio St.3d
575, 2009-Ohio-1577, 906 N.E.2d 422, does not apply to the present case.
Boswell considered the effect of a void sentence on a defendant’s motion to
withdraw his guilty plea. Unlike the situation in Boswell, Ketterer’s noncapital
sentences are not void. As discussed below, procedures set forth in R.C.
2929.191 apply to remedy any defects in imposing postrelease control because
Ketterer was resentenced after July 11, 2006. See State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 34.
{¶ 64} Based on the foregoing, the trial court properly denied Ketterer’s
motion to withdraw his guilty pleas.
E. Appellant was not properly notified of postrelease control on resentencing
{¶ 65} In his first proposition of law, Ketterer argues that he must be
resentenced on the noncapital offenses because the three-judge panel failed to
properly notify him of postrelease control at his resentencing hearing and failed to
properly incorporate postrelease control into its resentencing entry. In his
additional proposition of law, Ketterer asserts that the panel’s nunc pro tunc entry
failed to correct these errors.
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January Term, 2010
{¶ 66} During the resentencing hearing for the noncapital offenses,
Ketterer was notified of postrelease control: “The Court is also going to advise
you, sir, and this is assuming that something happens to Count One, that if — in
regards to Count Two and Five, if you are released after serving that sentence, the
Ohio Department of Rehabilitations and Control [sic] will put you on post-release
control, mandatory for a period of five years. And if you violated their rules and
regulations such that you were convicted of a new crime or if you didn’t report to
your parole officer they could send you back in increments of 30, 60, 90 days and
they could send you back for a total amount of one half of what I have sentenced
you to. So we are talking — these sentences were the original sentences of —
total up to 22 that means the parole board could give you an additional 11 years
on that.” (Emphasis added.)
{¶ 67} The three-judge panel’s judgment entry dated May 29, 2007,
states, “As to Count(s) Two, Three, Four and Five: The Court has notified the
defendant that post release control is in this case [sic] up to a maximum of years
[sic], as well as the consequences for violating conditions of post release control
imposed by the Parole Board under Revised Code Section 2967.28.”
{¶ 68} On November 15, 2007, the panel filed a nunc pro tunc entry
providing, “As to Count(s) Two, Three, Four and Five: The Court has notified the
defendant that post release control is Mandatory in this case up to a maximum of
5 years, as well as the consequences for violating conditions of post release
control imposed by the Parole Board, under Revised Code Section 2967.28.”
(Emphasis added.)
{¶ 69} Effective July 11, 2006, R.C. 2929.191 establishes a procedure to
remedy a sentence that fails to properly impose a term of postrelease control. In
State v. Singleton, 124 Ohio St.3d, 173, 2009-Ohio-6434, 920 N.E.2d 958,
paragraph two of the syllabus, this court held: “For criminal sentences imposed on
or after July 11, 2006, in which a trial court failed to properly impose postrelease
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control, trial courts shall apply the procedures set forth in R.C. 2929.191.”
Neither of the parties has addressed the application of R.C. 2929.191 as a remedy
in this case. However, R.C. 2929.191 applies to Ketterer because his resentencing
hearing occurred after July 11, 2006. See, e.g., State v. Fry, 125 Ohio St.3d 163,
2010-Ohio-1017, 926 N.E.2d 1239, ¶ 214.
{¶ 70} Ketterer argues that the trial court failed to notify him orally of
postrelease control as to Count Three, aggravated burglary, which is a first-degree
felony.2 In response, the state contends that the judge merely made “an
inadvertent slip of the tongue” at the resentencing hearing when the court referred
only to “Count Two and Five.” The state argues that the court meant to say
“Counts Two through Five” when notifying Ketterer of postrelease control. In
support of this argument, the state asserts that the court correctly stated that the
total prison time was 22 years for all the noncapital counts and stated that “Counts
Two through Five * * * are consecutive to Count One.”
{¶ 71} However, the court could not have meant Counts Two through
Five in imposing mandatory postrelease control because neither Count Four, a
fourth-degree felony, nor Count Five, a third-degree felony, subjected Ketterer to
mandatory postrelease control under R.C. 2967.28(B) and (C).3
{¶ 72} The state argues that any mistake in advising Ketterer of
postrelease control as to Count Three should be overlooked because he was still
advised that postrelease control was mandatory for five years. Watkins v. Collins,
111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78. In Watkins, 12 inmates
who were incarcerated for violating postrelease control filed for a writ of habeas
2. Appellant’s brief incorrectly refers to the charge of aggravated burglary as Count Two rather
than Count Three.
3. Burglary as charged in Count Five is a third-degree felony. Count Five charged Ketterer with
burglary at the crime scene after the murder. Because this offense did not involve any threat or
physical harm to a person, it was subject to discretionary rather than mandatory postrelease
control. See R.C. 2967.28(B) and (C).
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January Term, 2010
corpus. Id. at ¶ 27. The petitioners argued that the trial courts never properly
imposed postrelease control, because the language in their sentencing entries
mistakenly included discretionary language concerning their terms of postrelease
control. Id. at ¶ 42. This court acknowledged that the journal entries erroneously
referred to discretionary, instead of mandatory, postrelease control, but
determined that a “reasonable person in the position of any of the petitioners
would have had sufficient notice that postrelease control could be imposed
following the expiration of the person’s sentence.” Id. at ¶ 51.
{¶ 73} The petitioners in Watkins sought writs of habeas corpus, requiring
the petitioners to show that they were entitled to immediate release from
incarceration. Because our standard of review in a habeas case differs
considerably from our standard of review when considering a death-penalty case
on direct appeal to this court, Watkins is of little instructional value. More
significantly, Watkins did not address the procedures set forth in R.C. 2929.191
for correcting mistakes in notifying a defendant of postrelease control. These
statutory procedures provide a mechanism for correcting the failure to properly
advise Ketterer of postrelease control on Count Three. These statutory procedures
must be followed in Ketterer’s case because his resentencing occurred after July
11, 2006. Thus, the dissent’s reliance upon Watkins is misplaced, and the state’s
argument that any mistakes in notifying Ketterer about postrelease control can be
overlooked is rejected.
{¶ 74} Ketterer also contends that the panel’s resentencing entry is
defective because it failed to state that postrelease control is mandatory for five
years. Ketterer argues that the resentencing entry also incorrectly stated that
postrelease control is imposed as to Counts Three and Four, because he was not
notified of postrelease control as to Count Three and he was not subject to
mandatory postrelease control on Count Four, a fourth-degree felony.
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SUPREME COURT OF OHIO
{¶ 75} In response, the state argues that the missing language in the
resentencing entry was a clerical error that was corrected when the panel filed the
nunc pro tunc entry on November 15, 2007. The nunc pro tunc entry added the
omitted word “Mandatory” and the missing numeral “5.” However, the nunc pro
tunc entry continues to state incorrectly that Ketterer was notified of postrelease
control on Counts Two, Three, Four, and Five.
{¶ 76} In his additional proposition of law, Ketterer challenges the
validity of the nunc pro tunc entry. As discussed earlier, R.C. 2929.191(C)
requires that a hearing be conducted before a nunc pro tunc entry is journalized to
correct a sentence that fails to properly impose a term of postrelease control.
Nothing in the record indicates that such a hearing was conducted. Accordingly,
the nunc pro tunc entry was ineffective.
{¶ 77} The nunc pro tunc entry contains another error, which Ketterer
does not raise. The nunc pro tunc entry does not state that Ketterer was informed
that if he violated his supervision or a condition of postrelease control, the parole
board could impose a maximum prison term of up to one-half of the prison term
originally imposed, which here is an aggregate 11 years. See R.C.
2929.19(B)(3)(e). Ketterer was correctly advised of this condition of postrelease
control during the resentencing hearing. However, the nunc pro tunc entry
incorrectly states, “The defendant is ordered to serve as part of this sentence any
term of post release control imposed by the Parole Board, and any prison term for
violation of that post release control.” Thus, the nunc pro tunc entry should be
amended to incorporate the correct language of this rule. See R.C.
2929.191(B)(1).
{¶ 78} Thus, in contrast to the dissent’s characterization of the facts, this
is not a case in which the trial court merely misspoke in regard to one point
concerning postrelease control. Instead, at least four errors occurred in notifying
Ketterer of postrelease control: (1) the trial court orally advised Ketterer that he
22
January Term, 2010
was subject to five years of mandatory postrelease control as to “Counts Two and
Five” when it should have said “Counts Two and Three,” (2) the nunc pro tunc
entry incorrectly states that Ketterer was notified of postrelease control on Counts
Two, Three, Four, and Five, (3) the nunc pro tunc entry does not contain proper
language explaining the consequences of a violation of postrelease control, and
(4) the trial court issued the nunc pro tunc entry without following the procedures
of R.C. 2929.191, which controls in this case. Viewed cumulatively, these errors
on the part of the trial court cannot be considered harmless. We have stated that
“the court must conduct proceedings in capital cases with a strict level of care that
comports with their unique status.” State v. Clinkscale, 122 Ohio St.3d 351,
2009-Ohio-2746, 911 N.E.2d 862, ¶ 23. Accordingly, while the dissent is correct
that it is highly unlikely that Ketterer will ever be subject to postrelease control,
trial courts in capital cases must scrupulously comply with the applicable statutes
and rules, even those involving postrelease control.
{¶ 79} Because the trial court failed to properly impose postrelease
control, the case is remanded so that Ketterer may be given the proper terms of
postrelease control pursuant to R.C. 2929.191.
III. Conclusion
{¶ 80} We hold that in cases in which a sentencing opinion is required by
R.C. 2929.03(F), a final, appealable order consists of both the sentencing opinion
and the judgment of conviction filed pursuant to Crim.R. 32(C). We further hold
that the first of the four requirements for a final, appealable order enumerated in
Baker will be satisfied if the sentencing opinion, the judgment of conviction, or
preferably both, reflect the guilty plea, the jury verdict, or the finding of the court
upon which the conviction is based. Because Ketterer’s sentencing opinion sets
forth his guilty plea, there is a valid final, appealable order in this case.
{¶ 81} Furthermore, we hold that the trial court properly applied the
Foster remedy in resentencing Ketterer, that no Brady violation occurred during
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resentencing, and that the trial court properly denied Ketterer’s motion to
withdraw his guilty pleas. Because the trial court failed to properly impose
postrelease control during resentencing, we reverse the judgment and remand the
case so that postrelease control may be properly imposed according to R.C.
2929.191.
Judgment reversed
and cause remanded.
PFEIFER, O’CONNOR, O’DONNELL, and CUPP, JJ., concur.
LUNDBERG STRATTON, J., dissents.
BROWN, C.J., not participating.
__________________
LUNDBERG STRATTON, J., dissenting.
{¶ 82} The majority holds that the trial court failed to properly impose
postrelease control and, therefore, that the case must be remanded so that Ketterer
may be given the proper terms of postrelease control pursuant to R.C. 2929.191. I
dissent.
{¶ 83} In Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857
N.E.2d 78, this court acknowledged that the journal entries erroneously referred to
discretionary, instead of mandatory, postrelease control, but determined that a
“reasonable person in the position of any of the petitioners would have sufficient
notice that postrelease control could be imposed following the expiration of the
person’s sentence.” Id. at ¶ 51. Moreover, we noted that the “preeminent purpose
of R.C. 2967.28” is that “offenders subject to postrelease control know at
sentencing that their liberty could continue to be restrained after serving their
initial sentences.” Id. at ¶ 52.
{¶ 84} In this case, Ketterer was advised that he was subject to postrelease
control, that the duration of that postrelease control would be five years, and that
imposition of the postrelease control was mandatory. Therefore, while the trial
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January Term, 2010
court may have misspoken and at one point used the word “and” instead of the
word “through,” the trial court did comply with the requirement to advise Ketterer
that postrelease control was mandatory for five years. Therefore, the preeminent
purpose of R.C. 2967.28 was complied with, and no error should be found that
warrants reversal.
{¶ 85} In addition, Ketterer was sentenced to death for aggravated murder
and to terms of imprisonment for burglary, aggravated burglary, aggravated
robbery, and grand theft of a motor vehicle. The term sentences were in addition
to his sentence of death. Therefore, he will not ever be subject to postrelease
control. Thus, any failure to properly impose postrelease control is also a factor
in the harmless-error analysis. I respectfully dissent and would find that any
failure to comply with the requirement to notify Ketterer of postrelease control
constituted harmless error.
__________________
Robin N. Piper, Butler County Prosecuting Attorney, and Michael A.
Oster Jr., Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Randall L. Porter, Assistant
Public Defender, for appellant.
Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert
and Steven L. Taylor, Assistant Prosecuting Attorneys, urging affirmance for
amicus curiae, Ohio Prosecuting Attorneys Association.
______________________
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