State v. Kendrick , 2012 Ohio 5795 ( 2012 )

[Cite as State v. Kendrick, 2012-Ohio-5795.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25100
v. : T.C. NO. 03CR4234
SHAUN D. KENDRICK, SR. : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 7th day of December , 2012.
..........
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JOSHUA S. CARTER, Atty. Reg. No. 0084925, 10044 Meadow Woods Lane, Dayton, Ohio
45458
Attorney for Defendant-Appellant
SHAUN D. KENDRICK, SR., #A489-082, Pickaway Correctional Institution, P. O. Box
209, Orient, Ohio 43146
Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Shaun D. Kendrick, Sr., appeals a decision of the trial
court overruling his motion to withdraw his guilty plea in Case No. 2003-CR-4234.
Kendrick filed a timely notice of appeal with this Court on March 16, 2012.
{¶ 2} Appointed counsel for defendant-appellant Kendrick submitted an appellate
brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
alleging that no arguably meritorious issues exist for appeal. After a thorough review of the
record, this Court agrees that the trial court’s proceedings were proper, and we affirm the
trial court’s judgment.
{¶ 3} We set forth the history of the case in State v. Kendrick, 2d Dist.
Montgomery No. 24626, 2012-Ohio-504, and repeat it herein in pertinent part:
{¶ 4} “On January 26, 2005, Kendrick accepted a plea deal and pled guilty to
seven counts of rape. ‘Six of those convictions were for rapes that had occurred prior to the
July 1, 1996 effective date of the Senate Bill 2 sentencing laws, and the other one took place
after that date. The trial court sentenced Kendrick to five consecutive, indeterminate
sentences of 10 to 25 years and one concurrent sentence of 10 to 25 years for the pre-S.B. 2
rapes. The court also ordered a consecutive 10-year term for the post-S.B. 2 rape. We
affirmed Kendrick’s convictions and sentence. State v. Kendrick, Montgomery App. 20965,
2006-Ohio-311 [hereinafter ‘Kendrick I’].’ State v. Kendrick, Montgomery App. No.
21790, 2007-Ohio-6136, at ¶2 (hereinafter ‘Kendrick II’).”
{¶ 5} “The Supreme Court of Ohio reversed Kendrick's post-S.B. 2 sentence
following our decision in Kendrick I. See In re Ohio Sentencing Cases, 109 Ohio St.3d
411, 2006-Ohio-2394, at ¶19. The case was remanded for re-sentencing in line with State v.
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Foster, 109 Ohio St.3d 1, 2006-Ohio-856. See Kendrick II at ¶3.”
{¶ 6} “The trial court re-sentenced Kendrick on remand to ten years on the
post-S.B. 2 count, and, in August 2006, the trial court issued a new termination entry
(hereinafter the ‘Resentencing Entry’). The court ordered Kendrick to serve that sentence
consecutive to his other six sentences. Kendrick appealed following the resentencing
hearing, and we affirmed the trial court’s decision. See Kendrick II at ¶19. The Supreme
Court of Ohio declined to review our decision in Kendrick II. See State v. Kendrick, 117
Ohio St.3d 1441 (Table), 2008-Ohio-1279.”
{¶ 7} “On January 20, 2011, Kendrick filed a ‘Motion to Dismiss and Vacate
Conviction Pursuant to R.C. 2505.02 & Crim.R. 32(A)(C).’ In his motion, Kendrick argued
that the trial court’s Resentencing Entry was not a final appealable order. Kendrick asserted
that, because there was no final appealable order properly sentencing him, the trial court
should hold an evidentiary hearing and discharge Kendrick. The trial court denied
Kendrick’s motion.”
{¶ 8} Kendrick appealed the trial court’s decision, and we affirmed, holding that
the proper remedy for a trial court’s failure to set forth the manner of a defendant’s
conviction in a judgment entry is to issue a nunc pro tunc entry that corrects the error. State
v. Kendrick, 2d Dist. Montgomery No. 24626, 2012-Ohio-504. We note that the trial court
issued a nunc pro tunc entry reflecting Kendrick’s plea of guilty on September 20, 2011.
{¶ 9} 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
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a hearing.
{¶ 10} It is from this judgment that Kendrick now appeals.
{¶ 11} Counsel was appointed to represent Kendrick on appeal on April 25, 2012.
On June 20, 2012, appointed counsel submitted an Anders brief, alleging that no arguably
meritorious issues existed for appeal. By magistrate’s order of June 22, 2012, we informed
Kendrick that his counsel filed an Anders brief and informed him of the significance of an
Anders brief. We invited Kendrick to file a pro se brief assigning any error for our review
within sixty days. After requesting one extension of time, Kendrick filed his merit brief on
September 20, 2012.
{¶ 12} Kendrick’s sole assignment of error is as follows:
{¶ 13} “THE APPELLANT [sic] RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL, DUE PROCESS AND EQUAL PROTECTION OF LAW AFFORDED TO
HIM BY THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION HAS BEEN VIOLATED.”
{¶ 14} In his sole assignment, Kendrick contends that the trial court erred when it
overruled his motion to withdraw his plea. Specifically, Kendrick argues that coercive
tactics and undue influence exerted by his trial counsel rendered his guilty plea involuntary.
{¶ 15} In his direct appeal, Kendrick previously argued that his counsel was
ineffective, that he had entered his guilty plea out of frustration with his trial counsel’s
failure to file pre-trial motions, that he should have been permitted to withdraw his plea to
preserve his right to appeal the trial court’s rulings on his pre-trial motions, and that he
received erroneous advice regarding pre-trial motions. Kendrick also asserted that the trial
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court erred when it overruled his pre-sentence motion to withdraw his plea. We rejected
Kendrick’s claims regarding the ineffectiveness of his trial counsel in our decision affirming
his conviction in Kendrick I. 2d Dist. Montgomery No. 20965, 2006-Ohio-311. We also
held that the trial court did not err when it overruled Kendrick’s pre-sentence motion to
withdraw his guilty plea. Id.{¶ 16} 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 discretion by accepting his “corrupt” plea; and 4) that he was denied
equal protection of the law and due process.
{¶ 17} 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 Hartzell 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
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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.
{¶ 18} Kendrick’s sole assignment of error is overruled.
{¶ 19} In the performance of our duty, under Anders v. California, to conduct an
independent review of the record, we have found no additional potential assignments of error
having arguable merit. We conclude that this appeal is wholly frivolous. Therefore, the
judgment of the trial court is Affirmed.
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FAIN, J. and FROELICH, J., concur.
Copies mailed to:
Carley J. Ingram
Joshua S. Carter
Shaun D. Kendrick, Sr.
Hon. Michael L. Tucker