[Cite as State v. Greenleaf, 2012-Ohio-686.]


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

STATE OF OHIO                                          C.A. No.     25848

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
KENNETH O. GREENLEAF                                   COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2001-10-2563

                                  DECISION AND JOURNAL ENTRY

Dated: February 22, 2012



        DICKINSON, Judge.

                                               INTRODUCTION

        {¶1}     Kenneth Greenleaf pleaded guilty to unlawful sexual conduct with a minor and

rape, and the trial court sentenced him to nine years in prison. On appeal, this Court vacated his

sentence. After the trial court resentenced Mr. Greenleaf, this Court remanded his case again so

that the trial court could advise him of the possible penalties for violating post-release control.

In July 2009, Mr. Greenleaf moved to withdraw his guilty plea and vacate his sentence. The trial

court granted his motion to vacate because it had not properly imposed post-release control, but

denied his motion to withdraw his guilty plea. This Court reversed, concluding that the trial

court should have permitted Mr. Greenleaf to withdraw his plea as a matter of law. State v.

Greenleaf, 9th Dist. No. 24983, 2010-Ohio-2863, at ¶ 15. On remand, the trial court determined

that, despite this Court’s mandate, Mr. Greenleaf did not have the right to withdraw his plea

under State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, which the Ohio Supreme Court had
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decided after our remand. It also denied a motion to dismiss that Mr. Greenleaf had filed after

our remand. Mr. Greenleaf has appealed, arguing that the trial court incorrectly ignored this

Court’s mandate and incorrectly denied his motion to dismiss. We affirm because the trial court

correctly concluded that, under Fischer, Mr. Greenleaf’s motion to withdraw his plea is barred

by res judicata and it correctly determined that his motion to dismiss was moot.

                                           VOID SENTENCE

       {¶2}    Mr. Greenleaf’s first assignment of error is that the trial court exceeded its

jurisdiction and violated the doctrines of law of the case and res judicata when it denied his

motion to withdraw his guilty plea. He has argued that, because the State failed to appeal this

Court’s decision to the Ohio Supreme Court, the trial court was required to follow our mandate

and allow him to withdraw his guilty plea.

       {¶3}    In State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, the Ohio Supreme

Court held that a sentence that does not properly impose post-release control is void and must be

vacated. Id. at ¶ 22. It also determined that “[t]he effect of vacating the sentence places the

parties in the same position they would have been in had there been no sentence.” Id. In State v.

Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, the Ohio Supreme Court, relying on Simpkins,

explained that a motion to withdraw a plea of guilty made by a defendant who has been given a

void sentence must be considered as a presentence motion under Rule 32.1 of the Ohio Rules of

Criminal Procedure. Id. at syllabus. In our last opinion regarding Mr. Greenleaf, we reasoned

that, because his sentence was void, there was no final judgment of conviction and, therefore, the

doctrine of res judicata could not bar his motion to withdraw his plea. State v. Greenleaf, 9th

Dist. No. 24983, 2010-Ohio-2863, at ¶ 13. We, therefore, reached the merits of his argument

and reversed the trial court’s decision.
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       {¶4}    After we remanded the case to the trial court, the Ohio Supreme Court changed its

position regarding post-release control errors. In State v. Fischer, 128 Ohio St. 3d 92, 2010-

Ohio-6238, it determined that a sentence that does not correctly impose post-release control is

not entirely void, but only the part addressing post-release control is void. Id. at ¶ 26. It held

that “[t]he new sentencing hearing to which an offender is entitled . . . is limited to proper

imposition of postrelease control.” Id. at paragraph two of the syllabus. It also held that “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.” Id. at paragraph three of the syllabus. It

further held that “[t]he scope of an appeal from a resentencing hearing in which a [correct] term

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

paragraph four of the syllabus.

                                       LAW OF THE CASE

       {¶5}    Mr. Greenleaf has argued that, even though Fischer changed the effect of a post-

release control sentencing error, the trial court was required to follow this Court’s mandate

because the State did not appeal the decision. In Nolan v. Nolan, 11 Ohio St. 3d 1, syllabus

(1984), the Ohio Supreme Court held that, “[a]bsent extraordinary circumstances, such as an

intervening decision by the Supreme Court, an inferior court has no discretion to disregard the

mandate of a superior court in a prior appeal in the same case.” According to Mr. Greenleaf,

Fischer does not qualify as an intervening decision by the Ohio Supreme Court because it did not

expressly overrule Boswell, which he has argued is the decision this Court relied on in our

previous opinion.

       {¶6}    In Mr. Greenleaf’s last appeal, the State argued that, even though Mr. Greenleaf’s

sentence was void, the doctrine of res judicata barred him from moving to withdraw his guilty
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plea. We rejected its argument because we concluded that the doctrine of res judicata could not

apply to a void judgment. State v. Greenleaf, 9th Dist. No. 24983, 2010-Ohio-2863, at ¶ 13. In

Fischer, however, the Ohio Supreme Court specifically held that, even though a sentence that

does not properly impose post-release control is void in part, “res judicata still applies to other

aspects of the merits of a conviction, including the determination of guilt[.]” State v. Fischer,

128 Ohio St. 3d 92, 2010-Ohio-6238, at paragraph three of the syllabus. Fischer, therefore, was

inconsistent with our opinion. Because the doctrine of law of the case does not apply if there has

been an intervening inconsistent decision by the Supreme Court, we conclude that the trial court

correctly determined that it had discretion to reconsider the State’s res judicata argument. See

State ex rel. Potain v. Mathews, 59 Ohio St. 2d 29, 32 (1979) (explaining that an example of an

extraordinary circumstance “would be where a holding of the Court of Appeals is inconsistent

with an intervening decision by this court.”).

                                         RES JUDICATA

       {¶7}    The doctrine of “[r]es judicata bars the assertion of claims against a valid, final

judgment of conviction that [were] raised or could have been raised on appeal.” State v.

Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, at ¶ 59. The bar includes “the assertion of

claims in a motion to withdraw a guilty plea that were or could have been raised . . . on appeal.”

Id. Whether the trial court properly advised Mr. Greenleaf that he had the right to a jury trial

before accepting his guilty plea is an issue that Mr. Greenleaf could have raised in his first appeal

to this Court. Accordingly, the trial court correctly determined that his argument is barred by the

doctrine of res judicata. See State v. Westfall, 9th Dist. No. 25637, 2011-Ohio-6248, at ¶ 5-6.

       {¶8}    Mr. Greenleaf has argued that his case falls within the “injustice” exception to the

doctrine of res judicata. He has noted that, in Simpkins, the Ohio Supreme Court explained that
                                                   5


“[r]es judicata is a rule of fundamental and substantial justice . . . that ‘is to be applied in

particular situations as fairness and justice require, and that . . . is not to be applied so rigidly as

to defeat the ends of justice or so as to work an injustice.’” State v. Simpkins, 117 Ohio St. 3d

420, 2008-Ohio-1197, at ¶ 25 (quoting Grava v. Parkman Twp., 73 Ohio St. 3d 379, 386–87

(1995)). According to Mr. Greenleaf, he should not be penalized for the fact that his court-

appointed lawyers failed to recognize the defect in the plea colloquy.

        {¶9}    Mr. Greenleaf did not argue to the trial court that his case falls within an

exception to the doctrine of res judicata. This Court has repeatedly held that it “will not consider

arguments . . . that could have been, but were not, made in the trial court.” State v. McIntyre, 9th

Dist. No. 25666, 2011-Ohio-3668, at ¶ 5 (quoting State v. Jackson, 9th Dist. No. 96CA006355,

1997 WL 197113 at *2 (Mar. 26, 1997)); e.g. State v. Rondon, 9th Dist. No. 25447, 2011-Ohio-

4938, at ¶ 5 (quoting State v. Holmes, 9th Dist. No. 22938, 2006-Ohio-2175, at ¶ 4).

Furthermore, Mr. Greenleaf has admitted in his brief that he became aware that the trial court

failed to tell him that he had the right to a jury trial in 2003. He did not move to withdraw his

plea, however, until 2009. The Ohio Supreme Court has recognized that “[a]n undue delay

between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a

motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and

militating against the granting of the motion.” State v. Smith, 49 Ohio St. 2d 261, paragraph

three of the syllabus (1977) (construing Criminal Rule 32.1, which allows a defendant to

withdraw his plea after sentencing “to correct manifest injustice.”). We, therefore, reject Mr.

Greenleaf’s injustice argument.
                                                6


       {¶10} The trial court correctly concluded that, under Fischer, Mr. Greenleaf’s motion to

withdraw his guilty plea is barred by the doctrine of res judicata.        Mr. Greenleaf’s first

assignment of error is overruled.

                                    MOTION TO DISMISS

       {¶11} Mr. Greenleaf’s second assignment of error is that the trial court incorrectly

denied his motion to dismiss the indictment. After this Court remanded Mr. Greenleaf’s case to

the trial court with instructions to allow him to withdraw his plea, Mr. Greenleaf moved to

dismiss the indictment, arguing that it would violate his right to a speedy trial for the State to

bring him to trial so long after the offenses allegedly occurred. The trial court concluded that,

because Mr. Greenleaf’s motion to withdraw was barred under Fischer, his motion to dismiss,

which was based on the assumption that his motion to withdraw would be granted, was moot.

Mr. Greenleaf has conceded that, if we agree with the trial court’s conclusion regarding Fischer,

his second assignment of error is moot. Accordingly, his second assignment of error is overruled

on that basis.

                                        CONCLUSION

       {¶12} The trial court correctly concluded that, under State v. Fischer, 128 Ohio St. 3d

92, 2010-Ohio-6238, Mr. Greenleaf’s motion to withdraw his guilty plea is barred by the

doctrine of res judicata. The judgment of the Summit County Common Pleas Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
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       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(C). 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.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT




MOORE, P. J.
CONCURS

BELFANCE, J.
DISSENTS, SAYING:

       {¶13} I respectfully dissent from the judgment of the majority.

       {¶14} In State v. Greenleaf, 9th Dist. No. 24983, 2010-Ohio-2863, ¶ 15, this Court

determined that Mr. Greenleaf was entitled to withdraw his plea because the trial court failed to

inform him of his right to a jury trial at his plea hearing. As the State did not appeal our

decision, our determination became law of the case. See Hubbard ex rel. Creed v. Sauline, 74

Ohio St.3d 402, 405 (1996).
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       {¶15} The majority concludes that State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

constituted an intervening inconsistent decision creating an exception to the law-of-the-case

doctrine. However, if our decision was also a final judgment, then res judicata would apply to

prevent the trial court from altering our decision, see Hopkins v. Dyer, 104 Ohio St.3d 461,

2004-Ohio-6769, ¶ 22, irrespective of whether there is an applicable exception to the law-of-the-

case doctrine. Hence, the inquiry as to whether Fischer is an intervening inconsistent decision is

irrelevant if res judicata applies. Conversely, if res judicata does not apply, then I still question

whether Fischer is actually an intervening inconsistent decision given that Fischer is not a case

that decided whether a plea was valid and under what circumstances a defendant had a right to

withdraw his plea.

       {¶16} In Hopkins, the Supreme Court of Ohio presented a detailed discussion of what

constitutes an intervening decision and also discussed the distinction between res judicata and

law of the case. It noted that res judicata is “a substantive rule of law that applies to a final

judgment, whereas the law-of-the-case doctrine is a rule of practice analogous to estoppel.” Id.

at ¶ 22. In Mr. Greenleaf’s prior appeal, this Court definitively concluded that Mr. Greenleaf’s

plea was invalid and that Mr. Greenleaf was entitled to withdraw it. Greenleaf at ¶ 15. Given

that our decision was final as to this issue and the State had a right of appeal at that juncture, I

believe it is reasonable to question whether res judicata barred the trial court from disregarding

our mandate given the State’s failure to appeal. Although the criminal matter itself was pending,

there was nothing left for the court to consider with respect to our decision. In other words, we

did not remand the matter for the trial court to further consider whether the plea was valid or

should be withdrawn. See, e.g., Indiana Ins. Co. v. Farmers Ins. Co. of Columbus, Inc., 5th Dist.

No. 2004 AP 07 0055, 2005-Ohio-1774, ¶ 67 (Hoffman, J., dissenting) (noting that because issue
                                                   9


to be decided on remand was independent of determination of insurance coverage which was

finally decided, res judicata would bar application of intervening Ohio Supreme Court decision).

        {¶17} Even if res judicata did not apply in this case, in light of Hopkins, I am not

convinced that Fischer constitutes an intervening decision under these facts. Fischer considered

the consequences of the trial court’s failure to properly impose post-release control in the context

of the defendant’s argument that his first merit appeal was invalid.          Fischer at ¶ 2-5. The

Fischer court went on to hold that the portion of a sentence “that does not include the statutorily

mandated term of postrelease control is void, is not precluded from appellate review by

principles of res judicata, and may be reviewed at any time on direct appeal or by collateral

attack.” Id. at paragraph one of the syllabus. Notably, Fischer itself did not involve a motion to

withdraw a plea nor consideration of whether a plea is valid, and there is no alignment of its

holding to our holding in Mr. Greenleaf’s 2010 appeal.

        {¶18} Nonetheless, even assuming that Fischer constitutes an intervening inconsistent

decision, and that res judicata did not apply to bar the trial court’s action, I still would reverse the

trial court’s decision because in my view, the trial court could properly consider Mr. Greenleaf’s

Crim.R. 32.1 motion even if it were considered a post-sentence motion. See State v. Molnar, 9th

Dist. No. 25267, 2011-Ohio-3799, ¶ 16-37 (Belfance, J., dissenting). Thus, I would determine

that the trial court should have considered the merits of Mr. Greenleaf’s motion to withdraw his

plea as a post-sentence motion.


APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
