State v. Kendrick

[Cite as State v. Kendrick, 2017-Ohio-1306.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27133
:
v. : T.C. NO. 03-CR-4234
:
SHAWN D. KENDRICK, SR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the ___7th ___ day of _____April_____, 2017.

...........

MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

SHAUN D. KENDRICK, SR., Inmate No. A489-082, Pickaway Correctional Institution,
P.O. Box 209, Orient, Ohio 43146
Defendant-Appellant

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Shaun

Kendrick, filed May 31, 2016. Kendrick appeals from the denial of his November 17,

2015 pro se “Motion to Withdraw Guilty Plea Pursuant to Crim.R. 32.1 to Correct a

Void/Illegal Conviction Based on a Constitutionally Defective Plea [Evidentiary Hearing
 -2-

Requested].” We hereby affirm the judgment of the trial court.

{¶ 2} Kendricks’ direct appeal of his 2005 conviction provides the following initial

background of the matter herein:

***

The record reflects that Kendrick was charged in three separate

indictments with seventeen counts of rape, three counts of aggravated

robbery, five counts of kidnapping, and three counts of abduction. The

crimes occurred in 1993, 1995, and 1996-years before Kendrick's

indictment. He was identified as the perpetrator through more recent

advances in DNA technology.

Following Kendrick's indictment, he filed a variety of motions,

including a motion to dismiss on statute-of-limitation grounds, a motion to

suppress evidence, and a motion to sever some of the charges for trial. The

trial court sustained the motion to dismiss with respect to the abduction

charges but overruled it as to the other charges. The trial court also

overruled the motion to suppress and the motion to sever.

Prior to trial, Kendrick and the State engaged in on-going plea

negotiations. At one point, Kendrick rejected an offer to plead guilty to five

counts of rape with an agreed sentence of fifty years or, alternatively, to

plead no contest to eight counts of rape with no sentencing

recommendation. The State also rejected Kendrick's proposal that he plead

no contest to five counts of rape. Kendrick later rejected a second plea offer

under which he would have been required to plead guilty to six counts of
 -3-

rape with an agreed sentence of fifty years and parole eligibility after fifteen

years.

The matter proceeded to trial on January 24, 2005. Shortly after the

trial began, however, Kendrick agreed to plead guilty to seven counts of

rape, without any sentencing recommendation, in exchange for the

dismissal of all other charges. The trial court conducted a Crim.R. 11 plea

hearing and accepted the pleas. Thereafter, Kendrick filed a presentence

motion to withdraw the pleas. Following an evidentiary hearing, the trial

court overruled Kendrick's motion. He subsequently was sentenced to five

consecutive terms of ten to twenty-five years in prison and one concurrent

term of ten to twenty-five years in prison. A seventh ten-year prison term

was ordered to be served consecutively to the foregoing terms. * * *

State v. Kendrick, 2d Dist. Montgomery No. 20965, 2006-Ohio-311, ¶ 3-6 (“Kendrick I”).

{¶ 3} Kendrick appealed this Court’s decision to the Ohio Supreme Court, which

granted a discretionary appeal and reversed and remanded the matter to the trial court

for resentencing, based upon the Court’s decision in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470. In re Ohio Criminal Sentencing Statutes Cases, 109

Ohio St. 3d 411, 2006-Ohio-2394, 848 N.E.2d 809. Kendrick also filed an application to

reopen his appeal, which this Court denied in June 2006.

{¶ 4} On remand, the trial court “sentenced Kendrick to ten years on the post-S.B.

2 count, to be served consecutive to the other six consecutive sentences,” and Kendrick

appealed from this sentence. State v. Kendrick, 2d Dist. Montgomery No. 21790, 2007-

Ohio-6136, ¶ 4 (“Kendrick II”). Kendrick asserted in part that “the trial court was only
 -4-

permitted to impose a minimum, consecutive sentence on remand.” Id., ¶ 15. In affirming

the judgment of the trial court, this Court determined, quoting Foster, ¶ 7, that “the court

had ‘full discretion to impose a prison sentence within the statutory range’ without being

required to make any findings or give any reasons for imposing more than minimum

sentences or for ordering consecutive sentences.” Kendrick II, ¶ 17.

{¶ 5} Kendrick filed a “Motion to Dismiss and Vacate Conviction Pursuant to R.C.

2502.02 & Crim.R. 32(A)(C)” on January 20, 2011, asserting that the trial court’s

Resentencing Entry was not a final appealable order; the trial court overruled the motion,

and this Court affirmed the decision of the trial court. State v. Kendrick, 2d Dist.

Montgomery No. 24626, 2012-Ohio-504, ¶ 5, 14 (“Kendrick III”).

{¶ 6} “On September 12, 2011, Kendrick filed a motion to withdraw his guilty plea

pursuant to Crim. R. 32.1 and Crim. R. 32(C). In a judgment entry issued on February

22, 2012, the trial court overruled Kendrick’s motion to withdraw his plea without

conducting a hearing.” State v. Kendrick, 2d Dist. Montgomery No. 25100, 2012-Ohio-

5795, ¶ 9 (“Kendrick IV”). Appointed counsel for Kendrick then filed an appeal pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Id., ¶ 2.

Kendrick IV provides as follows:

In the instant appeal, Kendrick argues that the trial court erred when

it overruled his most recent motion to withdraw his guilty plea for the

following reasons: 1) he was induced and coerced into entering a guilty

plea; 2) his trial counsel was ineffective; 3) the trial court abused it[s]

discretion by accepting his “corrupt” plea; and 4) that he was denied equal

protection of the law and due process.
 -5-

Upon review, we find that the entirety of Kendrick's claims in his

second motion to withdraw his guilty plea either were or could have been

addressed in his direct appeal or in a motion for post-conviction relief.

Claims that could have been addressed on direct appeal or in a post-

conviction relief motion in support of post-sentence motion to withdraw are

insufficient to demonstrate the manifest injustice required by Crim. R. 32.1

in order to vacate a plea. State v. Hartzell, 2d Dist. Montgomery No. 17499,

1999 WL 957746 (Aug. 20, 1999). Additionally, any claims that were raised

and rejected in a prior proceeding are barred by res judicata. The claims

made by Kendrick regarding the ineffectiveness of his trial counsel were

considered and rejected by us in Kendrick I. Those claims are, therefore,

barred by res judicata. Any additional out-of-court representations that

[Kendrick] claims his trial counsel made could have been the subject of a

post-conviction motion for relief. Kendrick did not seek that relief.

Accordingly he cannot demonstrate that a manifest injustice resulted from

what his attorney is alleged to have said in order to “induce” him into

pleading guilty. Thus, we find that the trial court did not err when it overruled

Kendrick's motion to withdraw his guilty plea.

Id., ¶ 16-17.

{¶ 7} In his November 17, 2015 motion to withdraw his pleas, Kendrick asserted

the following arguments: 1) the Dayton Municipal Court lacked the jurisdiction to issue a

search warrant to collect Kendrick’s DNA outside of the corporate limits of the City of

Dayton, specifically at the Kettering Police Department; 2) the Dayton Municipal Court
 -6-

lacked probable cause to issue the search warrant; 3) the Dayton Police officer who

executed the warrant lacked authority to do so in the City of Kettering; 4) Kendrick did not

consent to providing a DNA sample; 5) the “C” indictment herein was dismissed and the

trial court abused its discretion in allowing the defendant to plead guilty to said indictment;

and 6) Kendrick’s plea was involuntary since the trial court allegedly failed to comply with

Crim.R. 11 and “failed to inform the defendant the consequences of his guilty plea, that

pleading guilty the defendant would be labeled a sexual predator.”

{¶ 8} On January 25, 2016, the State opposed Kendrick’s motion. The State

asserted as follows:

Notwithstanding the lack of merit to each issue raised by Defendant,

all issues were, or could have been raised on direct appeal or in a petition

for post-conviction relief and therefore do not demonstrate manifest

injustice under Crim.R. 32.1. Further, issues one through four were

previously considered by this court and ultimately rejected, and therefore

are barred by res judicata. * * *

{¶ 9} In overruling Kendrick’s motion, the trial court determined as follows:

The court, based upon the content of the State’s memorandum in

opposition to Defendant Shaun Kendrick’s motion, overrules Mr. Kendrick’s

motion to withdraw his guilty plea under Ohio R. Civ.P. [sic] 32.1. The issues

raised by Mr. Kendrick’s motion could have been raised on appeal or

through a timely filed petition seeking post-conviction relief, and, as such,

the required manifest injustice [cannot] be demonstrated. Further, Mr.

Kendrick has previously moved for and been denied a new trial making this
 -7-

latest attempt subject to a res judicata bar. The court, in conclusion,

overrules Shaun Kendrick’s motion to withdraw his guilty plea under Ohio

R. Crim.P. 32.1.

{¶ 10} Kendrick asserts seven assignments of error herein. We will consider his

first four assignments of error together. They are as follows:

THE DAYTON MUNICIPAL COURT LACKED THE POWER &

AUTHORITY TO ISSUE A SEARCH & SEIZURE WARRANT TO COLLECT

THE DEFENDANT’S D.N.A. OUTSIDE THE DAYTON MUNICIPAL

COURT TERRITORIAL JURISDICTION. THIS VIOLATED THE

DEFENDANT’S FOURTH, FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS RIGHTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTIONS 10, 14, AND 16 TO THE OHIO CONSTITUTION.

And,

THE MUNICIPAL COURT VIOLATED THE DEFENDANT’S

FOURTH AMENDMENT RIGHTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO

CONSITUTION IN ISSUING A SEARCH & SEIZURE WARRANT

WITHOUT PROBABLE CAUSE BY A NEUTRAL AND DETACHED

MAGISTRATE.

And,

THE DAYTON POLICE DEPARTMENT DETECTIVE PHILLIP

OLINGER VIOLATED THE DEFENDANT’S FOURTH, FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS RIGHTS TO THE UNITED STATES
 -8-

CONSTITUTION AND ARTICLE I, SECTIONS 10, 14, AND 16 [O]F THE

OHIO CONSTITUTION AND THE OHIO RULES OF CRIMINAL

PROCEDURE 41.

And,

THE TRIAL COURT VIOLATED THE APPELLANT’S FOURTH,

FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS TO THE

UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10, 14, &

16 TO THE OHIO CONSTITUTION FOR ALLOWING THE STATE OF

OHIO TO PRESENT THE “CONSENT” EXCEPTION TO THE

WARRANTLESS SEARCH & SEIZURE CONDUCTED ON THE

DEFENDANT. EASING THE STATE OF OHIO BURDEN OF PROOF.

{¶ 11} “We review a trial court’s decision on a post-sentence motion to withdraw

guilty plea * * * for an abuse of discretion. * * *.” State v. Ogletree, 2d Dist. Clark No.

2014-CA-16, 2014-Ohio-3431, ¶ 11. “The lynchpin of abuse-of-discretion review is the

determination whether the trial court's decision is reasonable. AAAA Enterprises, Inc. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990).” State v. Chase, 2d Dist. Montgomery No. 26238, 2015–Ohio–545, ¶

17.

{¶ 12} Crim.R. 32.1 provides: “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.” As this Court has previously noted:

The manifest injustice standard demands a showing of extraordinary
 -9-

circumstances. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324.

Further, the defendant has the burden to prove the existence of manifest

injustice. Id.

The term injustice is defined as “the withholding or denial of justice.

In law, the term is almost invariably applied to the act, fault, or omission of

a court, as distinguished from that of an individual.” Black's Law Dictionary,

5th Ed. A “manifest injustice” comprehends a fundamental flaw in the path

of justice so extraordinary that the defendant could not have sought redress

from the resulting prejudice through another form of application reasonably

available to him or her.

Crim.R. 32.1 derives from the court’s inherent power to vacate its

own prior orders when justice so requires. In that regard, it is comparable

to Civ.R. 60(B), which contemplates equitable relief from a final order

subject to certain defects. In this context, it is noteworthy that Civ.R. 60(B)

relief is not a substitute for appellate review of prejudicial error. Doe v.

Trumbull Cty. Children’s Services Bd. (1986), 28 Ohio St.3d 128, 502

N.E.2d 605. We believe that the same bar reasonably applies to Crim.R.

32.1.

State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746, *2 (Aug. 20, 1999).

{¶ 13} As the State notes, Kendrick’s first four arguments address suppression

issues, and they are not addressed to his guilty pleas. As noted above, Kendrick filed a

motion to suppress, which the trial court overruled. As this court has previously noted,

“[i]n general, a guilty plea waives all claims of error preceding the plea except claims of
 -10-

ineffective assistance of counsel sufficient to cause the defendant’s guilty plea to be less

than knowing and voluntary. State v. Kidd, 2d Dist. Clark No. 03CA43, 2004-Ohio-6784,

¶ 16.” State v. Guerry, 2d Dist. Clark No. 2015-CA-30, 2016-Ohio-962, ¶ 6. Kendrick’s

first four assigned errors are waived, a manifest injustice is not demonstrated, and his

first four assigned errors are accordingly overruled.

{¶ 14} Kendrick’s fifth assignment of error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

ACCEPTED THE APPELLANT[’]S GUILTY PLEAS & SENTENCED THE

APPELLANT TO A DISMISSED INDICTMENT VIOLATING THE

APPELLANT[’]S 5TH, 6TH, AND 14TH AMENDMENT RIGHTS TO THE

UNITED STATES CONSTITUTION AND OHIO CONSTITUTION ARTICLE

I, SECTIONS 5, 10, AND 16.

{¶ 15} Kendrick’s fifth assignment of error, challenging the validity of his

indictment, is also waived by his guilty plea. We further note, as the State asserts, the

record before us belies Kendrick’s assertion that he was sentenced to prison on a

dismissed indictment. The record reflects that at the beginning of trial on January 24,

2005, the State requested that the “C” Indictment be dismissed without prejudice based

upon loss of contact with the victim therein. Defense counsel objected and requested

that the “C” Indictment be dismissed with prejudice. The court indicated that the

dismissal would be without prejudice and requested that the State provide an entry for

the court’s signature.

{¶ 16} The following exchange subsequently occurred prior to Kendrick’s plea:

THE COURT: The record needs to reflect that we are on the record
 -11-

again, present in the courtroom. Mr. Kendrick and his attorney obviously

are present, and we are present after the first day of this trial. A jury has

been picked, opening statements have occurred, and one witness, Mrs. [F.]

has testified.

Following that testimony or actually before Mrs. [F.’s] testimony,

there was some indication by Mr. Hodge on behalf of Mr. Kendrick of some

desire to resume plea negotiations. That has occurred, and I believe we

have arrived at a certain understanding regarding what counts Mr. Kendrick

will plead guilty to. And Mr. Patzer, I will allow you to state that for the

record.

MR. PATZER: May it please the Court, it’s my understanding at this

time the defendant intends to withdraw his former plea of not guilty and

enter a plea of guilty to count one of the A indictments, a rape count for the

victim [B.M.]. Count 5 of the A indictment, rape count of the victim [T.R.].

Count 9 of the A indictment, rape count, victim [E.S.]. Count 12 of the A

indictment, a rape count with the victim [S. B.]. In the B indictment, Count

1, a rape count charging a rape with the victim [S.E.], and Count 11 of the

B indictment, a rape count with the victim [T.J.], Count 1 of the C indictment,

a rape charge, victim [A.L.].

Your Honor, in regard to the C indictment of [A.L.], we - - we’re going

to dismiss that without prejudice. This morning made an oral motion I take

it by proceeding here today that we’re going to be allowed to withdraw the

dismissal. It hasn’t been journalized, so officially it hasn’t been dismissed
 -12-

in all events. But for purposes of facilitating a plea here today, that matter

would be before the Court to withdraw the dismissal, withdrawing without

objection.

Let me state for the record charges that will be dismissed, if it please

the Court. Count 2; Count 3 has already been dismissed; Count 4; Count

6, again of the A indictment; Count 7 has already been dismissed; Count 8,

again of the A indictment; Count 10 and 11 of the A indictment; Count 13;

Count 14 having been previously dismissed. Of the B indictment Count 2,

3, 4, 5, 6, 7, 8, 9, 10 of the B indictment dismissed, and Count 12. And of

the C indictments Count 2 again to be dismissed.

THE COURT: Mr. Hodge, I believe that’s a fair and accurate

representation or recitation, if you will, of the plea negotiations which have

occurred.

MR. HODGE: That is correct, your Honor, including the

representation with regard to the C indictment count, and we are looking to

foreclose that count also today.

THE COURT: Right, and so what will happen then there will be a

plea on that C indictment which was, as I recall, December 1 or thereabouts

of 2004 regarding Ms. [L.]

MR. HODGE: Yes, sir. Yes. Sir. And with regard to the count,

that makes six counts under the old law, one count under the new law - -

THE COURT: That’s correct.

MR. HODGE: - - and Ms. [B.’s] count, which was Count 12, your
 -13-

Honor, and Shawn’s withdrawing his former pleas of not guilty and entering

pleas of guilty to the counts.

THE COURT: And Mr. Kendrick, is that what you want to do this

afternoon?

THE DEFENDANT: Yes, sir.

***

MR. PATZER: And in Count 1 of the B indictment - - or the C

indictment, pardon me, the People are prepared to prove beyond a

reasonable doubt that on or about the 5th day of May, 1996, in Montgomery

County, the defendant Shawn D. Kendrick did engage in sexual conduct

with another, [A.L.], by purposely compelling her to submit by force or threat

of force, contrary to the Ohio Revised Code.

THE COURT: And finally as to Ms. [L.], again, do you understand

that’s the nature of the conduct that you’re pleading guilty to?

THE DEFENDANT: Yes, sir.

Tr. of Proceedings, Jury Trial and Plea (Jan. 24, 2005), pgs. 76-78, 83-84.

{¶ 17} Kendrick’s fifth assigned error is not only waived but it also lacks merit.

The above colloquy demonstrates that only Count 2 of the C indictment, and not the

entirety thereof, was dismissed, and Kendrick pled guilty to Count 1 of the C indictment.

The colloquy further reflects that Kendrick acknowledged his understanding of the nature

of his conduct as represented in Count 1 of the C indictment. Accordingly, Kendrick’s

fifth assignment of error is overruled.

{¶ 18} Kendrick’s sixth assignment of error is as follows:
 -14-

THE APPELLANT’S GUILTY PLEA WAS INVOLUNTARY AND

UNKNOWING WHEN THE TRIAL COURT FAILED TO SUBSTANTIALLY

COMPLY WITH CRIM.R. 11 BY NOT INFORMING THE APPELLANT OF

THE PUNITIVE CONSEQUENCES OF HIS PLEA.

{¶ 19} Kendrick asserts that the trial court failed to advise him that “by pleading

guilty the appellant would be labeled a sexual predator.” Since Kendrick’s sixth

assignment of error could have been raised on direct appeal or in a petition for post-

conviction relief, a manifest injustice is not demonstrated. This assigned error is further

belied by the record before us, which reflects that the court advised Kendrick that “given

the rape charges that you’re pleading guilty to, Mr. Kendrick, you must also be classified

as an aggravated sexually-oriented offender, which means that you have under that

classification * * * which is mandatory you will have upon any release from prison, you’ll

have lifetime reporting requirements.” The court further advised Kendrick of his

registration and reporting duties, and that he “cannot live within 1000 feet of any school.”

Finally, the court advised Kendrick that “if you fail to register or if you fail to give the

notification as required, that could be a new criminal offense that you could be charged

and convicted of.” Kendrick acknowledged his understanding of the court’s advisement,

and his March 7, 2005 Judgment Entry of Conviction provides that he “is designated as

a Sexual Predator,” and that he was advised of his “requirement to register as a sex

offender.” Kendrick’s sixth assignment of error is overruled.

{¶ 20} Kendrick’s seventh assignment of error is as follows:

THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE

OF TRIAL COUNSEL & APPELLATE COUNSEL MR. JAY ADAMS BY
 -15-

NOT INFORMING THE APPELLANT WHEN THE TRIAL TRANSCRIPTS

WAS [sic] FILED WITH THE SECOND APPELLATE DISTRICT CLERK OF

COURT.

{¶ 21} As the State notes, this argument was not raised before the trial court, and

it is not properly before us. State v. Lehman, 2d Dist. Champaign No. 2014-CA-17,

2015-Ohio-1979, ¶ 14 (“It is well-established that issues raised for the first time on appeal

are not properly before this court and will not be addressed. * * *.”) Further, Kendrick’s

final argument is not addressed to the withdrawal of Kendrick’s pleas. Kendrick’s

seventh assigned error is accordingly overruled.

{¶ 22} Having overruled Kendrick’s seven assigned errors, the judgment of the trial

court is affirmed.

.............

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Meagan D. Woodall
Shaun D. Kendrick, Sr.
Montgomery County Common Pleas Court
c/o Hon. Mary Katherine Huffman, Administrative Judge