State v. Kendrick

[Cite as State v. Kendrick, 2022-Ohio-634.]

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

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29082
:
v. : Trial Court Case No. 2003-CR-4234
:
SHAWN D. KENDRICK, SR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 4th day of March, 2022.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

SHAUN D. KENDRICK, SR., Inmate No. A489-082, Pickaway Correctional Institution,
P.O. Box 209, 11781 State Route 762, Orient, Ohio 43146
Defendant-Appellant, Pro Se

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

WELBAUM, J.
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{¶ 1} Defendant-appellant, Shaun D. Kendrick, Sr., 1 appeals pro se from the

judgment of the Montgomery County Court of Common Pleas denying his petition for

post-conviction relief filed on March 5, 2021. For the reasons outlined below, the

judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} In 2003 and 2004, Kendrick was charged in three separate indictments for

17 counts of rape, three counts of aggravated robbery, five counts of kidnapping, and

three counts of abduction. Pursuant to a plea agreement, Kendrick pled guilty to seven

counts of rape in exchange for the State’s dismissing all of the other indicted counts.

Prior to sentencing, Kendrick moved to withdraw his guilty plea, but the trial court denied

the motion. At sentencing, the trial court imposed five consecutive terms of 10 to 25

years in prison, one concurrent term of 10 to 25 years in prison, and one term of 10 years

in prison to be served consecutively to all the other terms.

{¶ 3} Kendrick appealed from his conviction and raised several assignments of

error in support of his appeal. Specifically, Kendrick challenged the trial court’s denial of

his presentence motion to withdraw his guilty plea, his motion to suppress, and his motion

to sever certain counts in the indictment for a separate trial. Kendrick also argued that

the trial court erred by imposing maximum, consecutive prison sentences and that his trial

counsel provided ineffective assistance by advising him to enter a guilty plea. We

1 Appellant’s name is spelled both “Shawn” and “Shaun” in the trial court record and in
appellant’s various appeals. Notably, all of appellant’s pro se filings use “Shaun”;
therefore, we presume that “Shaun” is the correct spelling of appellant’s name.
However, in order to be consistent with the trial court’s judgment that is on appeal, we
use “Shawn” as opposed to “Shaun” in the caption of this appeal.
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overruled all of Kendrick’s assignments of error and affirmed the judgment of the trial

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

{¶ 4} Kendrick appealed our decision in Kendrick I to the Supreme Court of Ohio.

The Supreme Court granted a discretionary appeal solely on the sentencing issue,

reversed Kendrick’s sentence, and remanded the matter for resentencing in accordance

with 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. On remand, the trial court resentenced Kendrick, and Kendrick thereafter appealed

from the resentencing judgment. Following our review, we affirmed the judgment of the

trial court. State v. Kendrick, 2d Dist. Montgomery No. 21790, 2007-Ohio-6136

(“Kendrick II”). Kendrick then once again appealed to the Supreme Court of Ohio, but

the Supreme Court did not accept the appeal for review. State v. Kendrick, 117 Ohio

St.3d 1441, 2008-Ohio-1279, 883 N.E.2d 458.

{¶ 5} Approximately one month before filing his appeal to the Supreme Court of

Ohio in Kendrick I, on January 10, 2006, Kendrick filed a motion for leave to file a delayed

petition for post-conviction relief and a corresponding petition. In his motion for leave,

Kendrick acknowledged that his petition for post-conviction relief was filed beyond the

180-day deadline that was in effect at that time. Kendrick claimed that he had been

unaware of the deadline because his appellate counsel did not let him know when the

trial court transcript was filed for his appeal. Kendrick also blamed the untimeliness of

his petition on his inability to access the prison law library. The trial court, however,

denied Kendrick’s motion for leave to file an untimely petition for post-conviction relief.

Kendrick did not appeal from that decision.
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{¶ 6} Approximately five years later, on January 20, 2011, Kendrick filed a second

petition for post-conviction relief captioned: “Motion to Dismiss and Vacate Conviction

Pursuant to R.C. 2505.02 & Crim.R. 32(A)(C).” In support of the petition, Kendrick

argued that his Sixth and Fourteenth amendment rights were violated because the

resentencing entry had not met the requirements of a final appealable order.

Specifically, Kendrick argued that the resentencing entry failed to set forth the manner of

his conviction, i.e., that Kendrick pled guilty to the crimes for which he was convicted.

The trial court, however, found that the error in the resentencing entry could be corrected

by issuing a nunc pro tunc entry and therefore overruled Kendrick’s petition. Kendrick

appealed from that decision and we affirmed the judgment of the trial court. State v.

Kendrick, 2d Dist. Montgomery No. 24626, 2012-Ohio-504 (“Kendrick III”).

{¶ 7} On September 12, 2011, Kendrick filed a second motion to withdraw his guilty

plea pursuant to Crim.R. 32.1 and Crim.R. 32(C). The trial court overruled the motion

without conducting a hearing, and Kendrick appealed. On appeal, Kendrick’s appellate

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967), which asserted the absence of any issues with arguable merit for

appeal. In response, Kendrick filed a pro se brief arguing that his guilty plea was

rendered involuntary by his trial counsel’s allegedly engaging in coercive tactics and

exerting undue influence over him.

{¶ 8} After reviewing the matter, we found that all of the claims that Kendrick raised

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

addressed in Kendrick’s direct appeal or in a petition for post-conviction relief. State v.

Kendrick, 2d Dist. Montgomery No. 25100, 2012-Ohio-5795, ¶ 17 (“Kendrick IV”).
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Because of this, we found no manifest injustice warranting the withdrawal of Kendrick’s

plea. Id. We also found that the claims in Kendrick’s motion were barred by the doctrine

of res judicata. Id. Accordingly, we held that the trial court did not err by overruling

Kendrick’s second motion to withdraw his guilty plea. Id. We also held that there were

no other issues with arguable merit for Kendrick to advance on appeal. Id. at ¶ 19.

{¶ 9} On December 3, 2013, a year after our decision in Kendrick IV, Kendrick filed

a motion requesting the trial court to order the Dayton Municipal Court to release certain

public records pursuant to R.C. 149.43(B)(8). The trial court overruled the motion on

grounds that it did not have jurisdiction to order the municipal court to release the public

records. Kendrick appealed from that decision, which this court later affirmed. State v.

Kendrick, 2d Dist. Montgomery No. 26042, 2014-Ohio-2816 (“Kendrick V”).

{¶ 10} After our decision in Kendrick V, on November 17, 2015, Kendrick filed a

third motion to withdraw his guilty plea. In the motion, Kendrick raised several arguments

challenging a search warrant issued by the Dayton Municipal Court, the territorial

jurisdiction of the Dayton Police Department, the trial court’s Crim.R. 11 plea colloquy,

and one of the three indictments issued in the case, i.e., the “C indictment,” which charged

Kendrick with one count of rape and one count of kidnapping. Kendrick argued that the

trial court dismissed the C indictment and abused its discretion by accepting his guilty

plea to the rape count in that indictment.

{¶ 11} The trial court overruled Kendrick’s third motion to withdraw his guilty plea

on grounds that the motion failed to demonstrate a manifest injustice warranting the

withdrawal of Kendrick’s plea. The trial court reached this conclusion because it found

that all of the arguments asserted in the motion could have been raised on appeal or
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through a timely petition for post-conviction relief. The trial court also found that the

arguments were barred by the doctrine of res judicata. Kendrick appealed from the trial

court’s decision overruling his third motion to withdraw guilty plea. We affirmed the

judgment of the trial court. State v. Kendrick, 2d Dist. Montgomery No. 27133, 2017-

Ohio-1306 (“Kendrick VI”). In affirming the trial court’s decision, we noted that Kendrick’s

argument concerning the C indictment lacked merit because the record of the plea

hearing established “that only Count 2 [(kidnapping)] of the C indictment, and not the

entirety thereof, was dismissed, and [that] Kendrick pled guilty to Count 1 [(rape)] of the

C indictment.” Id. at ¶ 17.

{¶ 12} Approximately four years later, on March 5, 2021, Kendrick filed a third

petition for post-conviction relief—the petition that is the subject of this appeal. In the

petition, Kendrick argued that his conviction should be vacated based on five ineffective

assistance of counsel claims, the first four of which center around Kendrick’s C

indictment. Kendrick argued that his trial counsel was ineffective for: (1) allowing him to

plead guilty to the rape count in the allegedly dismissed C indictment; (2) failing to argue

that he had the right to a new grand jury proceeding on the counts in the allegedly

dismissed C indictment; (3) failing to argue that he had the right to confront his accusers

at a new grand jury proceeding on the counts in the allegedly dismissed C indictment;

and (4) failing to object to the State and/or the trial court not journalizing the alleged

dismissal of the C indictment. For his fifth ineffective assistance of counsel claim,

Kendrick argued that his trial counsel failed to object to Dayton Police Detective Phillip

Olinger’s authority to investigate his case on territorial jurisdiction grounds. According to

Kendrick, Det. Olinger was restricted to investigating matters within Dayton, Ohio.
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{¶ 13} On March 13, 2021, the State filed a motion to dismiss Kendrick’s petition

for post-conviction relief on grounds that the trial court lacked jurisdiction to consider the

petition based on the petition’s untimeliness. Shortly thereafter, on March 18, 2021, the

trial court issued a decision and entry denying Kendrick’s petition on grounds that it did

not have jurisdiction over the matter. Approximately two weeks after the trial court issued

its decision, Kendrick filed a motion requesting a 30-day extension to file a reply to the

State’s motion to dismiss. Kendrick then filed the instant appeal from the trial court’s

decision denying his March 5, 2021 petition for post-conviction relief.

{¶ 14} In support of his appeal, Kendrick raised six assignments of error for this

court to review. For purposes of clarity, we will address Kendrick’s assignments of error

out of order.

Second, Third, Fourth, Fifth, and Sixth Assignments of Error

{¶ 15} Kendrick’s second, third, fourth, fifth, and sixth assignments of error mirror

the ineffective assistance of counsel claims that Kendrick raised in his March 5, 2021

petition for post-conviction relief. As previously noted, the first four of those claims

revolve around the C indictment, as Kendrick asserts that his trial counsel was ineffective

for allowing him to plead guilty to the rape count in the allegedly dismissed C indictment,

and by failing to raise various objections related to that matter. Kendrick also claims that

his trial counsel was ineffective for failing to object to Det. Olinger’s authority to investigate

his case on territorial jurisdiction grounds. For the following reasons, the trial court did

not err by denying Kendrick’s March 5, 2021 petition for post-conviction relief.
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(1) The trial court lacked jurisdiction to review Kendrick’s petition for post-conviction

relief because the petition was untimely and successive.

{¶ 16} When, as in this case, a direct appeal from a conviction has been taken, a

petition for post-conviction relief must be filed no later than 365 days after the date on

which the trial transcript is filed in the court of appeals in the direct appeal of the judgment

of conviction. R.C. 2953.21(A)(2)(a). A trial court lacks jurisdiction to consider an

untimely petition for post-conviction relief unless the untimeliness is excused under R.C.

2953.23(A). State v. Current, 2d Dist. Champaign No. 2012-CA-33, 2013-Ohio-1921,

¶ 16, citing State v. Johnson, 2d Dist. Montgomery No. 24775, 2012-Ohio-2542, ¶ 11.

(Other citations omitted.)

{¶ 17} “Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or

successive petition for post-conviction relief unless (1) the defendant was unavoidably

prevented from discovering the facts upon which he or she relies to present the claim, or

(2) the United States Supreme Court recognizes a new federal or state right that applies

retroactively to his or her situation and the petition asserts a claim based on that right.”

State v. Baker, 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 13. “The petitioner

must also show by clear and convincing evidence that, if not for the constitutional error

from which he suffered, no reasonable factfinder would have found him guilty.” Id., citing

R.C. 2953.23(A)(1)(b).

{¶ 18} In this case, Kendrick’s March 5, 2021 petition for post-conviction relief was

filed almost 16 years after the transcript of the trial court proceedings was filed as part of

Kendrick’s direct appeal. Kendrick also filed two prior petitions for post-convictions

relief—one in January 2006 and one in January 2011. Therefore, the petition for post-
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conviction relief at issue in this appeal is both untimely and successive. As a result, the

petition could have been properly considered by the trial court only if the statutory

exceptions in R.C. 2953.23(A)(1) applied.

{¶ 19} Upon review, we find that Kendrick failed to establish any of the statutory

exceptions for filing an untimely, successive petition for post-conviction relief. The

ineffective assistance claims that Kendrick asserted in his petition are not based on a new

federal or state right and Kendrick was not unavoidably prevented from discovering the

pertinent facts underlying those claims. Rather, the pertinent facts were apparent from

the trial court record and could have been discovered “through the exercise of reasonable

diligence.” (Citations omitted.) State v. Shabazz, 2d Dist. Greene No. 2017-CA-11,

2017-Ohio-7199, ¶ 12.

{¶ 20} In so holding, we note that Kendrick blamed the untimeliness of his petition

on his trial counsel’s alleged failure to notify him of the time limitation for filing a petition

for post-conviction relief. However, “[w]e generally have held that a defendant’s lack of

knowledge of time limitations, even due to the failure of his attorney to notify him of such,

does not establish that a defendant was ‘unavoidably prevented’ from filing a timely

[petition].” State v. Harwell, 2d Dist. Montgomery No. 28104, 2019-Ohio-643, ¶ 22, citing

State v. Wells, 2d Dist. Champaign No. 2010 CA 5, 2010-Ohio-3238, ¶ 23.

{¶ 21} Kendrick also blamed the untimeliness of his petition on his appellate

counsel’s alleged failure to timely provide him with a transcript of the trial court

proceedings. However, Kendrick’s petition included a March 16, 2006 letter from the

Supreme Court of Ohio indicating that Kendrick’s appellate counsel “forwarded all

documents in his possession including [Kendrick’s] trial transcripts to [Kendrick] on
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January 25, 2006.” Petition, Ex. 9. According to that letter, Kendrick had a transcript of

the trial court proceedings 15 years before he filed his March 5, 2021 petition for post-

conviction relief. Kendrick, however, provides no explanation for the 15-year delay in

filing his petition.

{¶ 22} Regardless of that extreme delay, the transcript does not even support the

ineffective assistance of counsel claims that Kendrick asserted in his petition for post-

conviction relief, particularly those claims concerning the C indictment. As we noted in

Kendrick VI, the transcript of Kendrick’s plea hearing established that “only Count 2

[(kidnapping)] of the C indictment, and not the entirety thereof, was dismissed, and [that]

Kendrick pled guilty to Count 1 [(rape)] of the C indictment.” Kendrick VI, 2d Dist.

Montgomery No. 27133, 2017-Ohio-1306, at ¶ 17; Plea Hearing Trans. (Jan. 24, 2005),

p. 76-78, 83-84. The plea hearing transcript “further reflects that Kendrick acknowledged

his understanding of the nature of his conduct as represented in Count 1 of the C

indictment.” Id.

{¶ 23} For all of the foregoing reasons, the untimely, successive nature of

Kendrick’s petition for post-conviction relief was not excused under R.C. 2953.23(A).

Therefore, the trial court lacked jurisdiction to consider the petition.

(2) The ineffective assistance of counsel claims that Kendrick raised in his petition for

post-conviction relief were barred by the doctrine of res judicata.

{¶ 24} “Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due
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process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment.” State v.

Perry, 10 Ohio St.2d 175, 176, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

{¶ 25} “ ‘If an alleged constitutional error [such as ineffective assistance of counsel]

could have been raised and fully litigated on direct appeal, the issue is res judicata and

may not be litigated in a post[-]conviction proceeding.’ ” State v. Lane, 2d Dist. Greene

No. 2014-CA-54, 2015-Ohio-2712, ¶ 13, quoting State v. Franklin, 2d Dist. Montgomery

No. 19041, 2002-Ohio-2370, ¶ 9, citing Perry at 180. Therefore, “[a]ny ineffective

assistance claim relating to matters contained within the record should be brought through

a direct appeal.” Id., citing State v. Wilson, 2d Dist. Montgomery No. 23129, 2013-Ohio-

180, ¶ 47-48; State v. Crossley, 2d Dist. Clark No. 2020-CA-10, 2020-Ohio-6640, ¶ 21.

{¶ 26} “Res judicata not only applies to claims that could have been or were raised

on direct appeal, ‘ “but to all post[-]conviction proceedings in which an issue was or could

have been raised.” ’ ” State v. Becraft, 2d Dist. Clark No. 2018-CA-96, 2019-Ohio-2348,

¶ 15, quoting State v. Heid, 4th Dist. Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 18,

quoting State v. Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 42 (8th Dist.) “More

specifically, ‘res judicata applies to bar raising piecemeal claims in successive post[-]

conviction relief petitions or motions to withdraw a guilty plea that could have been raised,

but were not, in the first post-conviction relief petition or motion to withdraw a guilty plea.’ ”

Id., quoting State v. McCain, 2d Dist. Montgomery No. 27195, 2017-Ohio-7518, ¶ 35.

{¶ 27} As previously discussed, the first four ineffective assistance of counsel

claims that Kendrick raised in his March 5, 2021 petition for post-conviction relief revolved

around Kendrick’s trial counsel’s allowing Kendrick to plead guilty to the rape charge in
 -12-

the C indictment, which Kendrick incorrectly claims was dismissed. Kendrick’s fifth

ineffective assistance of counsel claim concerned his trial counsel’s failing to object to the

investigating detective’s allegedly acting outside of his territorial jurisdiction. All of these

claims are barred by res judicata because they concern matters that were contained

within the record and therefore could have been raised in Kendrick’s direct appeal or in

one of Kendrick’s prior petitions for post-conviction relief. Moreover, although not

couched as ineffective assistance of counsel claims, Kendrick raised similar claims

concerning his C indictment and the Dayton Police Department’s territorial jurisdiction in

his third motion to withdraw his guilty plea, and we affirmed the trial court’s decision

overruling those claims in Kendrick VI. Therefore, the claims in Kendrick’s petition have

already been addressed by this court and are barred by res judicata for that reason as

well.

{¶ 28} Because the trial court did not have jurisdiction to consider Kendrick’s

untimely, successive petition for post-conviction relief, and because the ineffective

assistance of counsel claims raised in the petition were barred by the doctrine of res

judicata, Kendrick’s second, third, fourth, fifth, and sixth assignments of error are

overruled.

First Assignment of Error

{¶ 29} Under his first assignment of error, Kendrick contends that the trial court

erred by prematurely denying his petition for post-conviction relief. Kendrick asserts that

pursuant to Crim.R. 6(C) and (D), he had until March 23, 2021, to file a reply to the State’s
 -13-

motion to dismiss his petition, and that the trial court denied his petition five days before

that date, on March 18, 2021. The State concedes the trial court erred in that regard,

but claims that said error was harmless. We agree.

{¶ 30} Crim.R. 52(A) defines harmless error in the context of criminal cases and

provides that: “Any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.” Under the harmless-error standard of review, “the

government bears the burden of demonstrating that the error did not affect the substantial

rights of the defendant.” (Emphasis omitted.) State v. Perry, 101 Ohio St.3d 118, 2004-

Ohio-297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113

S.Ct. 1770, 123 L.Ed.2d 508 (1993). (Other citation omitted.) The Supreme Court of

Ohio has stated that to affect the substantial rights of the defendant, “ ‘the error must have

been prejudicial: It must have affected the outcome of the [trial] court proceedings.’ ”

(Emphasis omitted.) State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d

222, ¶ 7, quoting Olano at 734. “Accordingly, Crim.R. 52(A) asks whether the rights

affected are ‘substantial’ and, if so, whether a defendant has suffered any prejudice as a

result.” State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36,

quoting State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24-25.

{¶ 31} Considering the trial court’s lack of jurisdiction over Kendrick’s petition for

post-conviction relief, and the application of res judicata to the ineffective assistance of

counsel claims asserted therein, we find that the outcome of the petition would not have

changed even if the trial court had waited the correct amount of time before denying the

petition. That is, Kendrick’s petition would have been denied regardless of whether

Kendrick was given the opportunity to file a reply to the State’s motion to dismiss his
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petition, as Kendrick would not have been able to raise any new arguments in his reply.

See R.C. 2953.21(A)(4) (“A petitioner shall state in the original or amended petition * * *

all grounds for relief claimed by the petitioner. * * * [A]ny ground for relief that is not so

stated in the petition is waived.”). Because of this, we find that the trial court’s error did

not affect a substantial right and did not prejudice Kendrick. Therefore, the trial court’s

error was harmless and may be properly disregarded under Crim.R. 52(A).

{¶ 32} Kendrick’s first assignment of error is overruled.

Conclusion

{¶ 33} Having overruled all assignments of error raised by Kendrick, the judgment

of the trial court denying Kendrick’s March 5, 2021 petition for post-conviction relief is

affirmed.

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DONOVAN, J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Shaun D. Kendrick, Sr.
Hon. Gerald Parker