[Cite as State v. Alford, 2011-Ohio-4811.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95946




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                        DARRYL ALFORD

                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-469026

        BEFORE: Jones, J., Blackmon, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                       September 22, 2011
ATTORNEY FOR APPELLANT

Thomas E. Conway
75 Public Square, Suite 700
Cleveland, Ohio 44113

Darryl Alford, Pro se
Inmate No. 493-759
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030-8000


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Darryl Alford, appeals from the trial court’s judgment
denying his motion to withdraw his plea.         We affirm.

                                                     I.

          {¶ 2} In 2005, Alford pleaded guilty to failure to comply with an order or signal of a

police officer and two counts of felonious assault with one-year firearm and body armor

specifications.       The trial court sentenced Alford to 12 years in prison.

          {¶ 3} Alford appealed pro se, but the appeal was dismissed for failure to file the

record.         A second pro se appeal was dismissed as untimely.
          1                                                        2




          {¶ 4} Alford subsequently filed a motion to withdraw his guilty plea, which was

denied.         Alford appealed, contending that the trial court erred by not granting his

postsentence motion to withdraw his plea.           This court affirmed the conviction, but held that

the trial court did not “adequately set forth postrelease control advisements in its judgment

entry,” and remanded for “resentencing in accordance with State v. Singleton, 124 Ohio St.3d

173, 2009-Ohio-6434, 920 N.E.2d 958.”                State v. Alford, Cuyahoga App. No. 93911,

2010-Ohio-4130, ¶19.

          {¶ 5} On remand, prior to the resentencing hearing, Alford, pro se, filed a motion to

withdraw his plea.         The trial court denied the motion and resentenced Alford to a 12-year

prison term.         The court imposed postrelease control and advised him of the penalties for


          1
              State v. Alford, Cuyahoga App. No. 87275, motion nos. 379031 and 382174.
          2
              State v. Alford, Cuyahoga App. No. 87856, motion no. 383933.
violating it.    Alford now appeals and for his sole assignment of error contends that “[t]he trial

court erred when it failed to grant appellant’s presentence motion to withdraw his guilty

pleas.”

                                                 II.

          {¶ 6} On appeal, this court affirmed the convictions, but remanded only for

resentencing for compliance with postrelease control advisements. Alford, 2010-Ohio-4130,

at ¶1, 19.      In State v. Pruitt, Cuyahoga App. No. 91205, 2009-Ohio-859, this court held that

“‘[a] trial court lacks jurisdiction, upon remand, to consider a Crim.R. 32.1 motion to

withdraw a guilty plea after affirmance by the appellate court of a judgment of conviction.’”

Id. at ¶11, quoting State ex rel. Special Prosecutors v. Judges, Court of Common Pleas

(1978), 55 Ohio St.2d 94, 378 N.E.2d 162.

          {¶ 7} Alford contends that Pruitt is not controlling here because it relied on the

distinguishable Special Prosecutors case.         According to Alford, Special Prosecutors is

distinguishable from this case because Special Prosecutors involved a postsentence, rather than

a presentence, motion to withdraw a guilty plea. Special Prosecutors is not distinguishable

from this case.      There, the defendant’s plea and conviction were upheld on appeal.         The

defendant then filed a motion to vacate his plea in the trial court, and the court granted the

motion.      The Ohio Supreme Court held in part that:

          “The trial court’s granting of the motion to withdraw the guilty plea and the order to
          proceed with a new trial were inconsistent with the judgment of the Court of Appeals
       affirming the trial court’s conviction premised upon the guilty plea. The judgment of
       the reviewing court is controlling upon the lower court as to all matters within the
       compass of the judgment. * * *

       “Furthermore, 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 * * * 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 of the reviewing court, which is not within the power
       of the trial court to do.” Id. at 97-98.

       {¶ 8} In light of the above, this case is on point with Special Prosecutors.       As there,

this court in this case affirmed the plea and conviction; therefore, the trial court did not have

the power to affect that decision.

       {¶ 9} Alford relies on State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906

N.E.2d 422.    In Boswell, the Ohio Supreme Court held that “[a] motion to withdraw a plea of

guilty or no contest made by a defendant who has been given a void sentence must be

considered as a presentence motion under Crim.R. 32.1.”               (Emphasis added.)      Id. at

syllabus.   There, the trial court failed to include postrelease control as required by statute, and

the Ohio Supreme Court vacated the void sentence, remanded the case to the trial court to

consider the defendant’s motion to withdraw his plea, and ordered resentencing if the motion

to withdraw the plea was denied.

       {¶ 10} Here, this court did not find Alford’s sentence void and therefore this case is

distinguishable from Boswell.         Moreover, in State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court, modifying its earlier position in

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, held that if a “judge

fails to impose statutorily mandated postrelease control as part of a defendant’s sentence,

[only] that part of the sentence is void and must be set aside.”       Id. at ¶26.    Further, in

Fischer, the Court specifically held that “although the doctrine of res judicata does not

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

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

sentence.   The scope of an appeal from a resentencing hearing in which a mandatory term of

postrelease control is imposed is limited to issues arising at the resentencing hearing.”    Id. at

¶40.

       {¶ 11} Although the Ohio Supreme Court did not discuss Boswell in Fischer, it appears

Fischer calls the Court’s prior holding in Boswell into question.       A sentence that fails to

properly include postrelease control is void only in “part,” the “new sentencing hearing to

which an offender is entitled * * * is limited to proper imposition of postrelease control,” and

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.”     Fischer at ¶26, 29, 40.      It does

not follow that a trial court has jurisdiction to consider a motion to withdraw a plea after

appellate remand for resentencing only.

       {¶ 12} In light of the above, we find Special Prosecutors controlling and overrule
Alford’s sole assignment of error.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

PATRICIA A. BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
