[Cite as State v. Greenleaf, 2012-Ohio-686.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25848
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KENNETH O. GREENLEAF COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2001-10-2563
DECISION AND JOURNAL ENTRY
Dated: February 22, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Kenneth Greenleaf pleaded guilty to unlawful sexual conduct with a minor and
rape, and the trial court sentenced him to nine years in prison. On appeal, this Court vacated his
sentence. After the trial court resentenced Mr. Greenleaf, this Court remanded his case again so
that the trial court could advise him of the possible penalties for violating post-release control.
In July 2009, Mr. Greenleaf moved to withdraw his guilty plea and vacate his sentence. The trial
court granted his motion to vacate because it had not properly imposed post-release control, but
denied his motion to withdraw his guilty plea. This Court reversed, concluding that the trial
court should have permitted Mr. Greenleaf to withdraw his plea as a matter of law. State v.
Greenleaf, 9th Dist. No. 24983, 2010-Ohio-2863, at ¶ 15. On remand, the trial court determined
that, despite this Court’s mandate, Mr. Greenleaf did not have the right to withdraw his plea
under State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, which the Ohio Supreme Court had
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decided after our remand. It also denied a motion to dismiss that Mr. Greenleaf had filed after
our remand. Mr. Greenleaf has appealed, arguing that the trial court incorrectly ignored this
Court’s mandate and incorrectly denied his motion to dismiss. We affirm because the trial court
correctly concluded that, under Fischer, Mr. Greenleaf’s motion to withdraw his plea is barred
by res judicata and it correctly determined that his motion to dismiss was moot.
VOID SENTENCE
{¶2} Mr. Greenleaf’s first assignment of error is that the trial court exceeded its
jurisdiction and violated the doctrines of law of the case and res judicata when it denied his
motion to withdraw his guilty plea. He has argued that, because the State failed to appeal this
Court’s decision to the Ohio Supreme Court, the trial court was required to follow our mandate
and allow him to withdraw his guilty plea.
{¶3} In State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, the Ohio Supreme
Court held that a sentence that does not properly impose post-release control is void and must be
vacated. Id. at ¶ 22. It also determined that “[t]he effect of vacating the sentence places the
parties in the same position they would have been in had there been no sentence.” Id. In State v.
Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, the Ohio Supreme Court, relying on Simpkins,
explained that a motion to withdraw a plea of guilty made by a defendant who has been given a
void sentence must be considered as a presentence motion under Rule 32.1 of the Ohio Rules of
Criminal Procedure. Id. at syllabus. In our last opinion regarding Mr. Greenleaf, we reasoned
that, because his sentence was void, there was no final judgment of conviction and, therefore, the
doctrine of res judicata could not bar his motion to withdraw his plea. State v. Greenleaf, 9th
Dist. No. 24983, 2010-Ohio-2863, at ¶ 13. We, therefore, reached the merits of his argument
and reversed the trial court’s decision.
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{¶4} After we remanded the case to the trial court, the Ohio Supreme Court changed its
position regarding post-release control errors. In State v. Fischer, 128 Ohio St. 3d 92, 2010-
Ohio-6238, it determined that a sentence that does not correctly impose post-release control is
not entirely void, but only the part addressing post-release control is void. Id. at ¶ 26. It held
that “[t]he new sentencing hearing to which an offender is entitled . . . is limited to proper
imposition of postrelease control.” Id. at paragraph two of the syllabus. It also held that “res
judicata still applies to other aspects of the merits of a conviction, including the determination of
guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of the syllabus. It
further held that “[t]he scope of an appeal from a resentencing hearing in which a [correct] term
of postrelease control is imposed is limited to issues arising at the resentencing hearing.” Id. at
paragraph four of the syllabus.
LAW OF THE CASE
{¶5} Mr. Greenleaf has argued that, even though Fischer changed the effect of a post-
release control sentencing error, the trial court was required to follow this Court’s mandate
because the State did not appeal the decision. In Nolan v. Nolan, 11 Ohio St. 3d 1, syllabus
(1984), the Ohio Supreme Court held that, “[a]bsent extraordinary circumstances, such as an
intervening decision by the Supreme Court, an inferior court has no discretion to disregard the
mandate of a superior court in a prior appeal in the same case.” According to Mr. Greenleaf,
Fischer does not qualify as an intervening decision by the Ohio Supreme Court because it did not
expressly overrule Boswell, which he has argued is the decision this Court relied on in our
previous opinion.
{¶6} In Mr. Greenleaf’s last appeal, the State argued that, even though Mr. Greenleaf’s
sentence was void, the doctrine of res judicata barred him from moving to withdraw his guilty
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plea. We rejected its argument because we concluded that the doctrine of res judicata could not
apply to a void judgment. State v. Greenleaf, 9th Dist. No. 24983, 2010-Ohio-2863, at ¶ 13. In
Fischer, however, the Ohio Supreme Court specifically held that, even though a sentence that
does not properly impose post-release control is void in part, “res judicata still applies to other
aspects of the merits of a conviction, including the determination of guilt[.]” State v. Fischer,
128 Ohio St. 3d 92, 2010-Ohio-6238, at paragraph three of the syllabus. Fischer, therefore, was
inconsistent with our opinion. Because the doctrine of law of the case does not apply if there has
been an intervening inconsistent decision by the Supreme Court, we conclude that the trial court
correctly determined that it had discretion to reconsider the State’s res judicata argument. See
State ex rel. Potain v. Mathews, 59 Ohio St. 2d 29, 32 (1979) (explaining that an example of an
extraordinary circumstance “would be where a holding of the Court of Appeals is inconsistent
with an intervening decision by this court.”).
RES JUDICATA
{¶7} The doctrine of “[r]es judicata bars the assertion of claims against a valid, final
judgment of conviction that [were] raised or could have been raised on appeal.” State v.
Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, at ¶ 59. The bar includes “the assertion of
claims in a motion to withdraw a guilty plea that were or could have been raised . . . on appeal.”
Id. Whether the trial court properly advised Mr. Greenleaf that he had the right to a jury trial
before accepting his guilty plea is an issue that Mr. Greenleaf could have raised in his first appeal
to this Court. Accordingly, the trial court correctly determined that his argument is barred by the
doctrine of res judicata. See State v. Westfall, 9th Dist. No. 25637, 2011-Ohio-6248, at ¶ 5-6.
{¶8} Mr. Greenleaf has argued that his case falls within the “injustice” exception to the
doctrine of res judicata. He has noted that, in Simpkins, the Ohio Supreme Court explained that
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“[r]es judicata is a rule of fundamental and substantial justice . . . that ‘is to be applied in
particular situations as fairness and justice require, and that . . . is not to be applied so rigidly as
to defeat the ends of justice or so as to work an injustice.’” State v. Simpkins, 117 Ohio St. 3d
420, 2008-Ohio-1197, at ¶ 25 (quoting Grava v. Parkman Twp., 73 Ohio St. 3d 379, 386–87
(1995)). According to Mr. Greenleaf, he should not be penalized for the fact that his court-
appointed lawyers failed to recognize the defect in the plea colloquy.
{¶9} Mr. Greenleaf did not argue to the trial court that his case falls within an
exception to the doctrine of res judicata. This Court has repeatedly held that it “will not consider
arguments . . . that could have been, but were not, made in the trial court.” State v. McIntyre, 9th
Dist. No. 25666, 2011-Ohio-3668, at ¶ 5 (quoting State v. Jackson, 9th Dist. No. 96CA006355,
1997 WL 197113 at *2 (Mar. 26, 1997)); e.g. State v. Rondon, 9th Dist. No. 25447, 2011-Ohio-
4938, at ¶ 5 (quoting State v. Holmes, 9th Dist. No. 22938, 2006-Ohio-2175, at ¶ 4).
Furthermore, Mr. Greenleaf has admitted in his brief that he became aware that the trial court
failed to tell him that he had the right to a jury trial in 2003. He did not move to withdraw his
plea, however, until 2009. The Ohio Supreme Court has recognized that “[a]n undue delay
between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a
motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and
militating against the granting of the motion.” State v. Smith, 49 Ohio St. 2d 261, paragraph
three of the syllabus (1977) (construing Criminal Rule 32.1, which allows a defendant to
withdraw his plea after sentencing “to correct manifest injustice.”). We, therefore, reject Mr.
Greenleaf’s injustice argument.
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{¶10} The trial court correctly concluded that, under Fischer, Mr. Greenleaf’s motion to
withdraw his guilty plea is barred by the doctrine of res judicata. Mr. Greenleaf’s first
assignment of error is overruled.
MOTION TO DISMISS
{¶11} Mr. Greenleaf’s second assignment of error is that the trial court incorrectly
denied his motion to dismiss the indictment. After this Court remanded Mr. Greenleaf’s case to
the trial court with instructions to allow him to withdraw his plea, Mr. Greenleaf moved to
dismiss the indictment, arguing that it would violate his right to a speedy trial for the State to
bring him to trial so long after the offenses allegedly occurred. The trial court concluded that,
because Mr. Greenleaf’s motion to withdraw was barred under Fischer, his motion to dismiss,
which was based on the assumption that his motion to withdraw would be granted, was moot.
Mr. Greenleaf has conceded that, if we agree with the trial court’s conclusion regarding Fischer,
his second assignment of error is moot. Accordingly, his second assignment of error is overruled
on that basis.
CONCLUSION
{¶12} The trial court correctly concluded that, under State v. Fischer, 128 Ohio St. 3d
92, 2010-Ohio-6238, Mr. Greenleaf’s motion to withdraw his guilty plea is barred by the
doctrine of res judicata. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
MOORE, P. J.
CONCURS
BELFANCE, J.
DISSENTS, SAYING:
{¶13} I respectfully dissent from the judgment of the majority.
{¶14} In State v. Greenleaf, 9th Dist. No. 24983, 2010-Ohio-2863, ¶ 15, this Court
determined that Mr. Greenleaf was entitled to withdraw his plea because the trial court failed to
inform him of his right to a jury trial at his plea hearing. As the State did not appeal our
decision, our determination became law of the case. See Hubbard ex rel. Creed v. Sauline, 74
Ohio St.3d 402, 405 (1996).
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{¶15} The majority concludes that State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
constituted an intervening inconsistent decision creating an exception to the law-of-the-case
doctrine. However, if our decision was also a final judgment, then res judicata would apply to
prevent the trial court from altering our decision, see Hopkins v. Dyer, 104 Ohio St.3d 461,
2004-Ohio-6769, ¶ 22, irrespective of whether there is an applicable exception to the law-of-the-
case doctrine. Hence, the inquiry as to whether Fischer is an intervening inconsistent decision is
irrelevant if res judicata applies. Conversely, if res judicata does not apply, then I still question
whether Fischer is actually an intervening inconsistent decision given that Fischer is not a case
that decided whether a plea was valid and under what circumstances a defendant had a right to
withdraw his plea.
{¶16} In Hopkins, the Supreme Court of Ohio presented a detailed discussion of what
constitutes an intervening decision and also discussed the distinction between res judicata and
law of the case. It noted that res judicata is “a substantive rule of law that applies to a final
judgment, whereas the law-of-the-case doctrine is a rule of practice analogous to estoppel.” Id.
at ¶ 22. In Mr. Greenleaf’s prior appeal, this Court definitively concluded that Mr. Greenleaf’s
plea was invalid and that Mr. Greenleaf was entitled to withdraw it. Greenleaf at ¶ 15. Given
that our decision was final as to this issue and the State had a right of appeal at that juncture, I
believe it is reasonable to question whether res judicata barred the trial court from disregarding
our mandate given the State’s failure to appeal. Although the criminal matter itself was pending,
there was nothing left for the court to consider with respect to our decision. In other words, we
did not remand the matter for the trial court to further consider whether the plea was valid or
should be withdrawn. See, e.g., Indiana Ins. Co. v. Farmers Ins. Co. of Columbus, Inc., 5th Dist.
No. 2004 AP 07 0055, 2005-Ohio-1774, ¶ 67 (Hoffman, J., dissenting) (noting that because issue
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to be decided on remand was independent of determination of insurance coverage which was
finally decided, res judicata would bar application of intervening Ohio Supreme Court decision).
{¶17} Even if res judicata did not apply in this case, in light of Hopkins, I am not
convinced that Fischer constitutes an intervening decision under these facts. Fischer considered
the consequences of the trial court’s failure to properly impose post-release control in the context
of the defendant’s argument that his first merit appeal was invalid. Fischer at ¶ 2-5. The
Fischer court went on to hold that the portion of a sentence “that does not include the statutorily
mandated term of postrelease control is void, is not precluded from appellate review by
principles of res judicata, and may be reviewed at any time on direct appeal or by collateral
attack.” Id. at paragraph one of the syllabus. Notably, Fischer itself did not involve a motion to
withdraw a plea nor consideration of whether a plea is valid, and there is no alignment of its
holding to our holding in Mr. Greenleaf’s 2010 appeal.
{¶18} Nonetheless, even assuming that Fischer constitutes an intervening inconsistent
decision, and that res judicata did not apply to bar the trial court’s action, I still would reverse the
trial court’s decision because in my view, the trial court could properly consider Mr. Greenleaf’s
Crim.R. 32.1 motion even if it were considered a post-sentence motion. See State v. Molnar, 9th
Dist. No. 25267, 2011-Ohio-3799, ¶ 16-37 (Belfance, J., dissenting). Thus, I would determine
that the trial court should have considered the merits of Mr. Greenleaf’s motion to withdraw his
plea as a post-sentence motion.
APPEARANCES:
NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.