[Cite as State v. Snider, 2011-Ohio-889.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                          Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2010-CA-00128
STEVEN L. SNIDER                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No. 2008-
                                                   CR-0583

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            February 22, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN FERRERO                                       RICHARD DRAKE
PROSECUTING ATTORNEY                               303 Courtyard Centre
BY: RONALD MARK CALDWELL                           116 Cleveland Avenue N.W.
110 Central Plaza South, Ste. 510                  Canton, OH 44702
Canton, OH 44702
[Cite as State v. Snider, 2011-Ohio-889.]


Gwin, P.J.

        {¶1}     Appellant Steven Lee Snider appeals his conviction for felonious assault

and domestic violence in the Stark County Court of Common Pleas. The relevant facts

underlying appellant’s case are set forth in State v. Snider, Stark App. No. 2008 CA

000147, 2009-Ohio-3427.

                                        STATEMENT OF THE CASE

        {¶2}     Appellant was indicted on a charge of felonious assault and domestic

violence. After hearing the evidence and receiving instructions from the trial court, the

jury returned a verdict finding appellant guilty as charged in the indictment. The jury

further found that appellant had two prior convictions for domestic violence, one in 2003

and the other in 2005. As memorialized in a Journal Entry filed on June 27, 2008,

appellant was sentenced to an aggregate prison sentence of thirteen (13) years. His

conviction and sentence were affirmed by this Court. State v. Snider, Stark App. No.

2008 CA 000147, 2009-Ohio-3427. However, the sentencing entry filed by the trial

court did not properly inform the appellant of the length of post release control.

        {¶3}     On April 12, 2010 appellant filed a “Motion to Impose Lawful Sentence on

Defendant” citing the trial court’s failure to properly impose post-release control as part

of appellant’s original sentence. By Judgment Entry filed May 5, 2010, the trial court

denied appellant’s motion as moot as the Court held a Video Re-sentencing Hearing

pursuant to R.C. 2929.191 on May 3, 2010. The court issued a journal entry on May 6,

2010 reflecting the re-sentencing.

        {¶4}     Appellant has filed a timely notice of appeal, raising via appointed counsel,

the following five assignment of error for our consideration:
Stark County, Case No. 2010-CA-00128                                                   3


      {¶5}   “I. THE APPELLANT WAS DENIED HIS RIGHT TO TRIAL BY AN

IMPARTIAL JURY.

      {¶6}   “II. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.”

      {¶7}   “III. THE TRIAL COURT ERRED BY PERMITTING A NON-EXPERT

WITNESS TO GIVE AN OPINION OUTSIDE THE SCOPE OF EVID. R. 701.

      {¶8}   “IV. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

SENTENCES WITHOUT MAKING FINDINGS AS REQUIRED BY R.C. §2929.14(E)(4).

      {¶9}   “V. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.”

      {¶10} Additionally, appellant has filed a brief pro se in which he raises as an

additional assignment of error:

      {¶11} “I. THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL

ERROR IN FAILING TO ALLOW APPELLANT THE CONSTITUTIONAL RIGHT TO

PROCEED PRO-SE.”

      JURISDICTION TO CONSIDER APPELLANT'S FIRST THROUGH FIFTH

      ASSIGNMENTS OF ERROR RAISED BY APPOINTED COUNSEL AND

      APPELLANT’S SINGLE PRO SE ASSIGNMENT OF ERROR.

      {¶12} Appellant argues that a direct appeal from a void sentence is a legal nullity

and a defendant's appeal following resentencing is actually a defendant's first appeal as

of right. Therefore, appellant argues that, even though this Court reviewed the merits of

the arguments that he had raised in his first direct appeal relating to his conviction he
Stark County, Case No. 2010-CA-00128                                                    4


now has the right to assert additional arguments relating to his conviction following his

resentencing. We disagree.

       {¶13} In State v. Fischer (Dec. 23. 2010), Ohio Sup. Ct. No. 2009-0897, __Ohio

St.3d__, __N.E.2d__, 2010-Ohio-6238, the Ohio Supreme Court specifically precluded

the raising of such legal claims in an appeal from a post-release control resentencing

hearing. The Supreme Court held that "[a]lthough the doctrine of res judicata does not

preclude review of a void sentence, res judicata applies to other aspects of the merits of

a conviction, including the determination of guilt and the lawful elements of the ensuing

sentence. Thus, "[t]he scope of an appeal from a resentencing hearing in which a

mandatory term of post release control is imposed is limited to issues arising at the

resentencing hearing."‘ Id. at ¶ 40.

       {¶14} Further, the Ohio Supreme Court has rejected the argument that a void

sentence is a legal nullity and a defendant's appeal following resentencing for post

release control errors was his first appeal as of right. In State v. Ketterer, Donald

Ketterer had been convicted of capital and noncapital offenses. 126 Ohio St.3d 448,

935 N.E.2d 9, 2010-Ohio-3831.          The Ohio Supreme Court held that the trial court

properly denied the motion to withdraw Ketterer's guilty pleas. Because mandatory post

release control was not properly imposed, however, the Court remanded the case for

the trial court to conduct a hearing under R.C. 2929.191. While the case was on

remand for resentencing, Ketterer filed a motion to withdraw his guilty pleas. (Id. at ¶

55). In response, the state argued that res judicata barred Ketterer's motion to withdraw

his guilty pleas because on the first appeal, the Supreme Court rejected his attacks on

his pleas. (Id. at ¶ 59).
Stark County, Case No. 2010-CA-00128                                                       5


       {¶15} The Court agreed noting, “In Ketterer's first appeal, this court considered

most of the claims that Ketterer raised on remand as a basis to withdraw his guilty pleas

... Thus, res judicata was a valid basis for rejecting these claims.”         (Id. at ¶ 60).

Furthermore, the Court found, “In addition, the state invokes State ex rel. Special

Prosecutors v. Judges, Belmont Cty. Court of Common Pleas (1978), 55 Ohio St.2d 94,

97-98, 9 O.O.3d 88, 378 N.E.2d 162, to argue that the court lacked jurisdiction to vacate

Ketterer's guilty pleas. In Special Prosecutors, this court held that ‘Crim.R. 32.1 does

not vest jurisdiction in the trial court to maintain and determine a motion to withdraw the

guilty plea subsequent to an appeal and an affirmance by the appellate court. While

Crim.R. 32.1 apparently enlarges the power of the trial court over its judgments without

respect to the running of the court term, it 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 off the reviewing court, which is not within the power of the trial

court to do.’ Id. at 97-98, 9 O.O.3d 88, 378 N.E.2d 162.

       {¶16} “On appeal, this court affirmed Ketterer's convictions and death sentence.

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 12. Ketterer's

appeal was later reopened and his case was remanded for the limited purpose of

resentencing him on his noncapital offenses, 113 Ohio St.3d 1463, 2007-Ohio-1722,

864 N.E.2d 650. Under the authority of Special Prosecutors, the panel had no authority

to consider Ketterer's motion to withdraw his guilty pleas, let alone grant him a new

trial.” Ketterer 126 Ohio St.3d at 460, 935 N.E.2d at 22, 2010-Ohio-3831 at ¶ 61-62.
Stark County, Case No. 2010-CA-00128                                                      6


       {¶17} We note that in the case at bar, the trial court originally sentenced

appellant on June 10, 2008 after the effective date of R.C. 2929.191. See, State v.

Nichols, Richland App. No.2009CA0111, 2010-Ohio-3104 at ¶ 15.

       {¶18} In this appeal, however, appellant does not raise any challenge to the

2010 sentencing hearing, but instead raises issues related to his original trial.

       {¶19} In the case at bar, we find as we did in Nichols, supra, “that an appeal

from a re-sentencing entry for sentences imposed after July 11, 2006, is limited to

issues concerning the re-sentencing procedure. Under these circumstances, we find

that an appellant may not raise additional arguments relating to his conviction following

his resentencing.” (Id. at ¶ 19). Res judicata is a valid basis for rejecting these claims.

Ketterer, supra. Accordingly, appellant is not entitled to a second appeal as of right

from the trial court original sentencing entry filed June 10, 2008.

       {¶20} Appellant's first, second, third, fourth, and fifth assignments of error raised

by appointed counsel and appellant’s sole pro se assignment of error are dismissed.
Stark County, Case No. 2010-CA-00128                                            7


      {¶21} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur


                                         _________________________________
                                         HON. W. SCOTT GWIN

                                         _________________________________
                                         HON. SHEILA G. FARMER

                                         _________________________________
                                         HON. JULIE A. EDWARDS


WSG:clw 0204
[Cite as State v. Snider, 2011-Ohio-889.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
STEVEN L. SNIDER                                  :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2010-CA-00128




          For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. SHEILA G. FARMER

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
