[Cite as State v. Hill, 2020-Ohio-3271.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190337
TRIAL NO. B-0107283-A
Plaintiff-Appellee, :
vs. : O P I N I O N.
CURTIS HILL, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 10, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William F. Oswall, Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Defendant-appellant Curtis Hill appeals the Hamilton County
Common Pleas Court’s judgment dismissing his Crim.R. 32.1 motion to withdraw his
guilty pleas. We affirm the court’s judgment.
{¶2} Hill was convicted in 2002 upon guilty pleas to aggravated robbery and
two counts of kidnapping, along with accompanying firearm specifications. The trial
court sentenced him to prison terms totaling 31 years and included in the judgment of
conviction notice that, “[a]s part of the sentence in this case, the defendant is subject to
the post release control supervisions of R.C. 2967.28.”
{¶3} In the direct appeal, we rejected Hill’s challenges to his sentences and
to the voluntary nature of his guilty pleas, concluding that, “[i]n accepting Hill’s
pleas, the trial court complied with the requirements of Crim.R. 11(C),” and that “Hill
entered his pleas knowingly and voluntarily.” State v. Hill, 1st Dist. Hamilton No. C-
020137, 2002-Ohio-7079, ¶ 1 and 2. For those reasons, we affirmed the trial court’s
findings of guilt. But we remanded for resentencing on the firearm specifications.
On remand, Hill was resentenced to prison terms totaling 28 years. He took no
direct appeal from that judgment.
{¶4} Hill also challenged his convictions in postconviction motions filed with
the common pleas court in 2006, 2017, and 2018. In the 2018 motion from which this
appeal derives, Hill sought to withdraw his guilty pleas pursuant to Crim.R. 32.1. He
argued that his pleas had not been entered knowingly, because the trial court failed, as
required by Crim.R. 11(C)(2)(a), to advise him during the plea colloquy that his
sentences would include mandatory five-year terms of postrelease control. The
common pleas court dismissed the motion for lack of jurisdiction.
{¶5} In this appeal, Hill presents a single assignment of error challenging
the dismissal of that motion. The challenge is untenable.
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{¶6} The due-process protections afforded by Article I, Section 16 of the
Ohio Constitution and the Fourteenth Amendment to the United States Constitution
require that a guilty or no-contest plea “represent[ ] a [knowing,] voluntary and
intelligent choice among the alternative courses of action open to the defendant.”
North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State
v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). To that end, Crim.R.
11(C)(2)(a) requires that a trial court, before accepting a guilty plea, determine that
the defendant understands the nature of the charges against him and the maximum
penalty involved. A trial court does not comply with Crim.R. 11(C)(2)(a) if the court
does not advise the defendant during the plea colloquy that his sentence will include
a term of postrelease control. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,
881 N.E.2d 1224, paragraph one of the syllabus.
{¶7} A claim of noncompliance with Crim.R. 11(C)(2)(a) with respect to
postrelease control may be raised in support of a challenge to the knowing,
intelligent, or voluntary nature of a plea, either on direct appeal or in a Crim.R. 32.1
motion to withdraw the plea. Sarkozy at paragraph one of the syllabus. But that
claim, when advanced in a postsentence Crim.R. 32.1 motion, is barred under the
doctrine of res judicata, if the claim was or could have been raised on direct appeal.
See State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59
(holding that res judicata generally bars a defendant from raising a claim in a
postsentence Crim.R. 32.1 motion that was or could have been raised on direct
appeal). Accord State v. Straley, Slip Opinion No. 2019-Ohio-5206, ¶ 23-27 (holding
that res judicata barred a Crim.R. 32.1 claim of noncompliance with Crim.R.
11(C)(2)(a) in not advising that sentences were mandatory).
{¶8} Hill pled guilty to three first-degree felonies, for which he was subject
to concurrent mandatory five-year terms of postrelease control. See R.C. 2967.28(B)
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and (F)(4)(c) and former R.C. 2929.14(F)(1) (superseded on September 30, 2011, and
currently governed by R.C. 2929.14(D)(1)). Before accepting his guilty pleas, the trial
court did not, as required by Crim.R. 11(C)(2)(a), advise him that his sentences
would include postrelease control. Noncompliance with Crim.R. 11(C)(2)(a) with
respect to postrelease control was not raised in Hill’s 2002 direct appeal, but
underlay the challenge to the “knowing” nature of his guilty pleas presented in his
2018 Crim.R. 32.1 motion to withdraw those pleas.
{¶9} The trial court’s failure to even mention postrelease control during the
plea colloquy relieved Hill of the burden of demonstrating that he had been
prejudiced by noncompliance with Crim.R. 11(C)(2)(a). See Sarkozy at ¶ 22. Thus,
the noncompliance claim presented in his Crim.R. 32.1 motion did not depend for its
resolution upon evidence outside the record of the proceedings resulting in his pleas
and could have been raised on direct appeal. The claim was, therefore, barred by res
judicata.
{¶10} Moreover, the common pleas court lacked jurisdiction to entertain
Hill’s noncompliance claim. A trial court has no jurisdiction to entertain a Crim.R.
32.1 motion to withdraw a guilty plea after the conviction based upon that plea has
been affirmed in the direct appeal, when the issue presented in the motion does not
depend for its resolution upon evidence outside the record of the proceedings leading
to that conviction and thus could have been raised on direct appeal. State ex rel.
Special Prosecutors v. Judges, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978)
(holding that Crim.R. 32.1 “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”); State v. West, 1st Dist. Hamilton No. C-150587, 2017-Ohio-5596, ¶ 10-20
(following State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, to hold
that an appeals court’s decision affirming a conviction upon a guilty plea does not
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OHIO FIRST DISTRICT COURT OF APPEALS
deprive a lower court of jurisdiction to entertain a postsentence Crim.R. 32.1 motion
to withdraw that plea, if the issue presented by the motion could not have been
raised on direct appeal).
{¶11} Finally, a court always has jurisdiction to correct a void judgment.
State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d
263, ¶ 18-19. But the Ohio Supreme Court in State v. Harper, Slip Opinion No.
2020-Ohio-2913, recently “realign[ed]” its void-versus-voidable jurisprudence with
“the traditional understanding of what constitutes a void judgment” and held that
“[w]hen a case is within a court’s subject-matter jurisdiction and the accused is
properly before the court, any error in the exercise of that jurisdiction in imposing
postrelease control renders the court’s judgment voidable,” not void. Id. at ¶ 4-6 and
41. Thus, the trial court’s error in failing to mention postrelease control during the
plea colloquy rendered Hill’s convictions voidable, not void, because the trial court
had personal jurisdiction over Hill and jurisdiction to accept his guilty pleas and to
convict him upon those pleas.
{¶12} The common pleas court had no jurisdiction to entertain Hill’s Crim.R.
32.1 motion. Accordingly, we affirm the court’s judgment dismissing the motion.
Judgment affirmed.
MOCK, P.J., ZAYAS and MYERS, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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