[Cite as State v. Watson, 2011-Ohio-4227.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.    25401

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
KIMBERLY WATSON                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 08 05 1731(A)

                                 DECISION AND JOURNAL ENTRY

Dated: August 24, 2011



        BELFANCE, Presiding Judge.

        {¶1} Appellant, Kimberly Watson, appeals from the judgment of the Summit County

Court of Common Pleas. For the reasons that follow, this Court affirms in part and vacates in

part.

                                                 I.

        {¶2} In August 2008, Ms. Watson pleaded guilty to one count of felonious assault, a

second-degree felony, and one count of violating a protective order, a third-degree felony. She

was subsequently sentenced to a total prison term of six years. The sentencing entry contained

an error in the imposition of post-release control.

        {¶3} In its December 2, 2009 journal entry, the trial court scheduled a resentencing

hearing, apparently to address the post-release control error in Ms. Watson’s sentence. Ms.

Watson then filed a motion to withdraw her plea, which the court denied after a hearing. In the
                                                2


journal entry of the resentencing hearing, the trial court vacated the prior sentence, re-imposed

the same six-year prison term, and properly imposed post-release control.

         {¶4} Ms. Watson appeals from her resentencing and the denial of the motion to

withdraw her plea. To facilitate our analysis, we have rearranged the two assignments of error

that Ms. Watson presents for our review.

                                                II.

                                 ASSIGNMENT OF ERROR II

         “THE SENTENCE IMPOSED BY THE TRIAL COURT WAS CONTRARY TO
         LAW AND/OR THE TRIAL COURT ABUSED ITS DISCRETION IN
         SENTENCING MS. WATSON TO A TERM OF FIVE YEARS FOR THE
         CRIME OF FELONIOUS ASSAULT; A TERM OF ONE YEAR FOR THE
         CRIME OF VIOLATING A PROTECTION ORDER; AND RUNNING SAID
         SENTENCES CONSECUTIVE (sic).”

         {¶5} In her second assignment of error, Ms. Watson argues that the trial court abused

its discretion when it re-imposed her original six-year prison term because it did not properly

consider the factors relevant to sentencing. Because the trial court lacked jurisdiction to alter

Ms. Watson’s sentence, except to properly impose post-release control, this argument is without

merit.

         {¶6} This case is controlled by the Ohio Supreme Court’s opinion in State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238. In Fischer, the Supreme Court held that when a trial court

resentences a defendant to correct an error in the imposition of post-release control, the trial

court’s jurisdiction at resentencing is limited to the proper imposition of post-release control.

Fischer at paragraph two of the syllabus. The trial court may not revisit any other aspects of the

offender’s sentence. Id. at ¶29. As the trial court was not permitted to impose a new sentence

upon Ms. Watson, her argument that the trial court failed to properly consider relevant

sentencing factors or that it committed an error of law is without merit. In addition, we note that
                                                3


Ms. Watson did not appeal the trial court’s original sentencing entry, and her arguments are

barred by res judicata. Fischer at ¶40.

       {¶7} In the case at bar, the trial court vacated Ms. Watson’s original sentence and

apparently conducted a de novo sentencing hearing when it corrected the post-release control

error. Because the trial court lacked the jurisdiction to address anything other than post-release

control, we must vacate the portions of the trial court’s April 19, 2010 journal entry that do not

relate to the proper imposition of post-release control. See State v. Gibson, 9th Dist. No. 25085,

2011-Ohio-566, at ¶9. Except for the improper imposition of post-release control, Ms. Watson’s

original sentence, imposed in September 2008, remains effective.

       {¶8} Accordingly, Ms. Watson’s second assignment of error is overruled.

                                  ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MS.
       WATSON’S PRE-SENTENCE MOTION TO WITHDRAW HER GUILTY
       PLEA.”

       {¶9} In her first assignment of error, Ms. Watson asserts that the trial court abused its

discretion in denying the motion to withdraw her guilty plea. We disagree.

       {¶10} Due to the error in post release control, the trial court concluded that Ms.

Watson’s sentence was void. Accordingly, the trial court treated Ms. Watson’s motion as a

presentence motion to withdraw her plea. As clarified by Fischer, Ms. Watson’s sentence was

not entirely void, and hence the trial court’s consideration of her motion as a presentence motion

was error. See Fischer at paragraph two of the syllabus; State v. Ketterer, 126 Ohio St.3d 448,

2010-Ohio-3831, at ¶63 (because Defendant was sentenced after July 11, 2006, his non capital

sentences were not void). We conclude, however, in this case, that such error was harmless as
                                                 4


Ms. Watson was not prejudiced by the trial court’s error because it applied a more liberal

standard that favored Ms. Watson. See Crim.R. 32.1

       {¶11} With either the pre- or postsentence standard, this Court reviews a denial of a

motion to withdraw a plea for an abuse of discretion. State v. Smith (1977), 49 Ohio St.2d 261,

paragraph two of the syllabus.        An abuse of discretion means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219. Under either standard, the court did not abuse its discretion in denying Ms.

Watson’s motion.

       {¶12} Ms. Watson alleged in her motion that her attorney misinformed her about the

maximum length of the sentence she could receive and that her counsel was ineffective in having

done so. She contended that her attorney told her that she could receive a maximum of two years

in prison, whereas she was actually subject to a combined total of up to thirteen years of

incarceration on the two counts. On appeal, she asserts that the trial court abused its discretion in

determining that she was represented by competent counsel when she entered her plea. See State

v. West, 9th Dist. No. 04CA008554, 2005-Ohio-990, at ¶22.

       {¶13} At the hearing, she supported her allegations with her own testimony. From the

trial court’s statements at the hearing and its detailed opinion denying the motion, it is apparent

that the trial court did not find Ms. Watson’s testimony credible as it did not believe that Ms.

Watson’s counsel actually told her that she faced only two years in prison. The court observed

that despite her contention, Ms. Watson had been informed of the maximum sentence both

during the plea colloquy and on the guilty plea form that she signed. Ms. Watson admitted that

she had reviewed the written plea of guilty and understood the consequences of her plea and the

presumption of prison for her offense. She also stated that she understood that the court did not
                                                 5


have to follow any sentencing recommendations made by her attorney or the prosecutor and that

had she known that she would be getting six years, she would not have waived her rights.

Ultimately, the trial court found that Ms. Watson’s claims did not rise above a mere change of

heart.

         {¶14} Generally, we defer to the trial court’s determination of credibility. See Smith, 49

Ohio St.2d at 264. There is nothing in the record indicating that the trial court’s resolution of

credibility or its determination that Ms. Watson had failed to articulate a reasonable and

legitimate basis for the withdrawal of her plea was unreasonable, arbitrary or unconscionable.

         {¶15} The trial court further concluded that even if Ms. Watson had been misinformed

by her attorney, she suffered no prejudice from counsel’s alleged error because she nonetheless

entered her plea knowingly and voluntarily. See State v. Gegia, 157 Ohio App.3d 112, 2004-

Ohio-2124, at ¶17. In light of the record before us, we cannot conclude that the court abused its

discretion in determining that, despite counsel’s alleged errors, Ms. Watson nonetheless made

the plea knowingly and voluntarily.

         {¶16} We conclude that the trial court did not abuse its discretion in denying Ms.

Watson’s motion to withdraw her plea.

         {¶17} Ms. Watson’s first assignment of error is overruled.

                                                III.

         {¶18} Ms. Watson’s two assignments of error are overruled. We affirm the trial court’s

March 23, 2010 order denying Ms. Watson’s motion to withdraw her plea. To the extent that it

properly imposes post-release control, we also affirm the April 19, 2010 sentencing entry.

Because the trial court was without jurisdiction to alter Ms. Watson’s original sentence except to

properly impose post-release control, we vacate those portions of the trial court’s April 19, 2010
                                                 6


sentencing entry that do anything other than properly impose post-release control. Ms. Watson’s

original sentence, except for the post-release control portion corrected in the April 19, 2010

sentencing entry, remains valid.

                                                                        Judgment affirmed in part,
                                                                             and vacated in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



MOORE, J.
CARR, J.
CONCUR
                                           7



APPEARANCES:

JAMES K. REED, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
