[Cite as State v. Gordon, 2011-Ohio-298.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Julie A. Edwards, P.J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. William B. Hoffman, J.
-vs-
                                                  Case No. 2009CA00311
CRAIG L. GORDON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Common
                                              Pleas Court, Case No. 2004CR2010


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        January 24, 2011


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


PROSECUTING ATTORNEY                          AARON KOVALCHIK
STARK COUNTY, OHIO                            111 Second Street N.W.
                                              Suite 302
BY: KATHLEEN O. TATARSKY                      Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2009CA00311                                                    2

Hoffman, J.


        {¶1}   Defendant-appellant Craig L. Gordon appeals his conviction and sentence

entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the State of

Ohio.

                                  STATEMENT OF THE CASE

        {¶2}   On November 30, 2004, Appellant was indicted on one count of complicity

to aggravated robbery, in violation of R.C. 2923.02(A)(2), with an attendant firearm

specification. Following a jury trial, Appellant was convicted of the charge and firearm

specification, and sentenced to fifteen years in prison.

        {¶3}   On December 2, 2009, the trial court conducted a resentencing hearing to

impose postrelease control.

        {¶4}   Appellant now appeals, assigning as error:

        {¶5}   “I. APPELLANT’S ORIGINAL SENTENCE WAS VOID.

        {¶6}   “II. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

        {¶7}   “III. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT

TO A MAXIMUM PRISON SENTENCE.

        {¶8}   “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

SENTENCED APPELLANT TO A HARSHER SENTENCE FOR GOING TO TRIAL.

        {¶9}   “V. THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL.”

        {¶10} Initially, we must determine whether the assigned errors are barred by the

doctrine of res judicata.
Stark County, Case No. 2009CA00311                                                         3


       {¶11} Appellant asserts his original sentence was void as the trial court failed to

properly advise Appellant regarding post-release control. On December 9, 2009, the

trial court resentenced Appellant, albeit for the limited purpose of informing him of the

term of his postrelease control. As a result, Appellant maintains he is entitled to raise all

of the assigned errors on appeal.

       {¶12} The Ohio Supreme Court in State v. Ketterer 126 Ohio St.3d 448, 2010-

Ohio-3831 held:

       {¶13} “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. We found that

Ketterer was adequately informed of his rights before pleading guilty; that his plea was

knowingly, voluntarily, and intelligently made; and that his counsel was not ineffective in

providing him advice on his guilty pleas. State v. Ketterer, 111 Ohio St.3d 70, 2006-

Ohio-5283, 855 N.E.2d 48, ¶ 13-14, 75-79, and 80-90. Thus, res judicata was a valid

basis for rejecting these claims.

       {¶14} “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
Stark County, Case No. 2009CA00311                                                        4


affect the decision of 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.

          {¶15} “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.”

          {¶16} In State v. Nichols, 2010-Ohio-3104, this Court held:

          {¶17} “Thus, we find 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.***”

          {¶18} In State v. Riggenbach, 2010-Ohio-3392, this Court held:

          {¶19} “The Ohio Supreme Court has consistently held when a defendant is

convicted of, or pleads guilty to, an offense for which postrelease control is required but

not properly included in the sentence, the sentence is void and the state is entitled to a

new sentencing hearing to have postrelease control imposed unless the defendant has

completed his sentence.***

          {¶20} “In State v. Fischer the Ninth District Court of Appeals addressed the issue

raised by Appellant herein, holding:
Stark County, Case No. 2009CA00311                                                        5


       {¶21} “ ‘Specifically, Fischer contends that because his original sentence did not

include a notice of postrelease control, it was void pursuant to State v. Bezak, 114 Ohio

St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at syllabus. While we agree with this

statement of law, we do not agree with Fischer's contention that due to this defect, his

original direct appeal is invalid and therefore he can now ‘raise any and all trial errors

cognizable on direct appeal.’

       {¶22} “ ‘* * *

       {¶23} “ ‘As applied to the facts before the court in Ortega, we determined that

when a ‘court affirms the convictions in the First Appeal, the propriety of those

convictions becomes the law of the case, and subsequent arguments seeking to

overturn them become barred. Thus, in the Second Appeal, only arguments relating to

the resentencing are proper.' Id. at ¶ 7, 868 N.E.2d 961, quoting State v. Harrison, 8th

Dist. No. 88957, 2008-Ohio-921, 2008 WL 596528, at ¶ 9. Accordingly, Fischer's

contention that he may raise any and all issues relating to his conviction in this appeal is

without merit.’

       {¶24} “We agree with the Ninth District's holding in Fischer and find the law of

the case doctrine applies to this Court's May 31, 2006 disposition of Appellant's original

appeal even though the appeal arose from a void sentence. As set forth in the case law

cited above, the Ohio Supreme Court has consistently held only the sentence is void for

failure to properly impose the mandatory term of postrelease control, not the conviction.
Stark County, Case No. 2009CA00311                                                     6


Therefore, we find Appellant is precluded from asserting additional arguments relating

to his conviction following his resentencing.”1

       {¶25} Appellant filed a direct appeal from his conviction and sentence in Stark

App. No. 2005CA00031, asserting his conviction was against the manifest weight and

sufficiency of the evidence, the trial court erred in imposing the maximum sentence, and

the ineffective assistance of counsel. This Court affirmed Appellant’s conviction and

sentence entered by the trial court, via Judgment Entry of July 18, 2005.

       {¶26} Pursuant to the Ohio Supreme Court’s opinion in Ketterer, supra, and this

Court’s prior opinion in Nichols and Riggenbach, supra, we find Appellant’s assigned

errors are barred by the doctrine of res judicata as they were or could have been raised

in Appellant’s direct appeal.

                                            III.

       {¶27} In his third assignment of error, Appellant asserts the trial court erred in

resentencing him to the maximum sentence.

       {¶28} We overrule this assignment of error based upon the authority of State v.

Fischer, Slip Opinion No. 2010-Ohio-6238.




1
 The Ninth District’s holding in Fisher was affirmed by the Ohio Supreme Court’s recent
decision in State v. Fischer, Slip Opinion 2010-Ohio-6238.
Stark County, Case No. 2009CA00311                                            7


      {¶29} Accordingly, Appellant’s conviction and sentence in the Stark County

Court of Common Pleas is affirmed.

By: Hoffman, J.

Edwards, P.J. and

Gwin, J. concur

                                       s/ William B. Hoffman _________________
                                       HON. WILLIAM B. HOFFMAN


                                       s/ Julie A. Edwards___________________
                                       HON. JULIE A. EDWARDS


                                       s/ W. Scott Gwin _____________________
                                       HON. W. SCOTT GWIN
Stark County, Case No. 2009CA00311                                                 8


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CRAIG L. GORDON                           :
                                          :
       Defendant-Appellant                :         Case No. 2009CA00311


       For the reasons stated in our accompanying Opinion, Appellant’s conviction and

sentence entered by the Stark County Court of Common Pleas are affirmed. Costs to

Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS


                                          s/ W. Scott Gwin_____________________
                                          HON. W. SCOTT GWIN
