[Cite as State v. Smith, 2017-Ohio-2684.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   C.A. CASE NO. 27294
                                                 :
 v.                                              :   T.C. NO. 04-CR-3554
                                                 :
 RONALD A. SMITH                                 :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                            OPINION

                   Rendered on the ___5th __ day of _____May_____, 2017.

                                            ...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

RONALD A. SMITH, Inmate #516-443, London Correctional Institute, P. O. Box 69,
London, Ohio 43140
     Defendant-Appellant
                             .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the pro se Notice of Appeal of Ronald

Smith, filed October 13, 2016. Smith appeals from the trial court’s “Decision and Order

Overruling Defendant’s Void Sentence Pursuant to State v. Hand 2016-Ohio-5504 Re-

Sentencing Hearing Requested.”              Smith’s “Void Sentence” motion was filed on
                                                                                        -2-


September 22, 2016. We hereby affirm the judgment of the trial court.

       {¶ 2} Smith was found guilty in 2005 of aggravated burglary and aggravated

robbery. The trial court sentenced Smith to consecutive ten-year prison terms, for an

aggregate sentence of 20 years.       This Court affirmed Smith’s convictions on direct

appeal in State v. Smith, 2d Dist. Montgomery Nos. 21463, 22334, 2008-Ohio-6330,

wherein this Court set forth the following facts:

              During the evening hours of September 27, 2004, two African-

       American males, one identifying himself as “Little Ronnie,” kicked in the

       front door of Latisha Robinson’s apartment and entered.            The man

       identifying himself as Little Ronnie, was armed with a gun. He got in her

       face and demanded to know where her boyfriend, Corey Pullings, was. The

       other man went to her back door and opened it, allowing three additional

       men to enter the apartment.

              When Robinson denied any knowledge of Pullings, Little Ronnie

       went upstairs in the apartment, tearing the handrail off the wall, and he went

       into Robinson’s bedroom putting the gun to her son’s head. He then

       demanded Robinson give him something to get him to leave. Robinson

       gave one of the men sixty dollars and her cell phone.

              Meanwhile, the four men downstairs ransacked Robinson’s

       apartment, toppling furniture and rummaging through boxes, throwing

       things to the floor. The men took additional items from the apartment,

       including radios and CD’s. During the ransacking of the apartment, the

       gunman, who repeatedly identified himself as “Little Ronnie,” and Robinson
                                                                                -3-


were engaged in a confrontation in the dining room where he attempted to

force Robinson to lay on the floor “like execution style.” Finally, after the

other men exited the apartment, “Little Ronnie” ran out, too.

       Robinson then escaped to a neighbor’s apartment, where the police

were called. The next day, Detective Ward, of the Montgomery County

Sheriff’s Office prepared a photo spread containing a picture of Ronald

Smith, the only individual the detective knew that called himself “Little

Ronnie.”    Robinson could not identify anyone in the photo spread.

Subsequently, when Robinson was viewing serial photos on the detective’s

computer screen, a photo of Smith came up, showing his gold teeth that

were not displayed in the prior photo. Robinson indicated that this picture

of Smith “could possibly be the person who was in her house.”

       Subsequently, a neighbor, who had opened his door while Smith and

the others were knocking at Robinson’s door, immediately picked out Smith

from a photo spread as the man at her door, and who had identified himself

as Little Ronnie.

       Smith was arrested. After being Mirandized, Smith admitted that he

and four others were knocking at Robinson’s apartment looking for Corey

Pullings, but claimed that he left after being told that he was not there. He

claimed that one of the other men kicked in the door and entered, but denied

that he ever entered the apartment. Prior to trial, Smith made a number of

phone calls attempting to get Robinson to take a payoff to drop the charges,

and attempting to set up an excuse for why he was in the area.
                                                                                           -4-

Smith at ¶s 3-8.

       {¶ 3} Since his conviction, Smith has filed fourteen motions for a new trial or for

leave to file such motions. State v. Smith, 2d Dist. Montgomery No. 27015, 2016-Ohio-

7904, ¶ 3 (affirming the trial court’s decision overruling Smith’s October 29, 2015 “Motion

for New – Trial Pursuant to Newly Discovered Evidence Crim[.] R. 33,” and his October

30, 2015 “Motion for A Order Granting Leave to file A Motion for New – Trial Crim.R.

33(B).”) We note that Smith’s October 29, 2015 motion was supported by the affidavit

of Nancy Duke, who averred “she observed Smith driving away from the apartment

complex where the offenses occurred for which he is in prison, and she then saw another

person kick in the door to an apartment.” Smith, ¶ 3. His October 30, 2015 motion was

“supported by essentially the same evidence.” Id.

       {¶ 4} On July 16, 2016, Smith filed a motion for re-sentencing, arguing that his

offenses were allied offenses of similar import that should have been merged. The trial

court overruled that motion on August 26, 2016.         Smith filed a notice of appeal on

September 16, 2016, in Case No. CA 27272, which remains pending. While CA 27272

and CA 27015 were pending, Smith filed the “Void Sentence” motion at issue herein.

       {¶ 5} In his instant motion, Smith asserted that the trial court improperly relied upon

his juvenile record during sentencing to enhance his sentence, citing State v. Hand, Ohio

Supreme Court Slip Opinion No. 2016-Ohio-5504, ¶ 1 (holding that it “is a violation of due

process to treat a juvenile adjudication as the equivalent of an adult conviction for

purposes of enhancing a penalty for a later crime.”) Smith argued that he received “a

maximum, consecutive sentence which is unconstitutional and violated Defendant’s due

process rights.” In overruling his motion, the trial court indicated that it “is not persuaded
                                                                                         -5-


by the Defendant’s arguments and analysis.”

       {¶ 6} Smith asserts the following assignment of error:

              THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

       WHICH VIOLATED THE DEFENDANT’S DUE PROCESS RIGHTS BY

       NOT GRANTING THE DEFENDANT’S MOTION FOR RE-SENTENCING

       WHEN IT WAS FOUND BY THE SUPREME COURT IN STATE V. HAND

       2016-Ohio-5504 FOR A TRIAL COURT TO INHANCE [sic] A SENTENCE

       BASED ON THE CONSIDERATION OF A PAST JUVENILE RECORD IS

       UNCONSTITUTIONAL.

       {¶ 7} The State responds that the trial court was divested of jurisdiction to rule on

Smith’s motion because Smith had two appeals pending before this Court at the time the

motion was filed, and that the “motion essentially remains open on the trial court’s docket”

in the absence of a final appealable order. The State further asserts that the record does

not portray the error Smith asserts, since Hand “does not apply retroactively to convictions

that were final prior to Hand being decided,” and since “the trial court imposed mandatory

prison sentences in this case not because Smith had previously been adjudicated

delinquent, but because he had previously been convicted of aggravated robbery and

aggravated burglary as an adult.”

       {¶ 8} The State directs our attention in part to State v. Lauharn, 2d Dist. Miami

No. 2011 CA 10, 2012-Ohio-1572. Therein this Court noted as follows:

              The Supreme Court of Ohio has long held that “[o]nce an appeal is

       taken, the trial court is divested of jurisdiction except ‘over issues not

       inconsistent with that of the appellate court to review, affirm, modify or
                                                                                          -6-


        reverse the appealed judgment, such as the collateral issues like contempt,

        [appointment of a receiver and injunction].’ ”      State ex rel. State Fire

        Marshal v. Curl, 87 Ohiio St.3d 568, 570, 722 N.E.2d 73 (2000), quoting

        State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55

        Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). Following Special Prosecutors,

        we have repeatedly held that the filing of a notice of appeal from a conviction

        and sentence divests the trial court of jurisdiction to address a motion to

        withdraw the defendant’s plea during the pendency of the appeal. * * ** A

        motion to withdraw a plea is not a collateral issue, because it could directly

        affect the judgment under appeal. State v. Winn, 2d Dist. Montgomery No.

        17194, 1999 WL 76797 (Feb. 19, 1999).

Id., ¶ 7.

        {¶ 9} In Lauharn, this Court concluded that

               * * * the trial court did not have jurisdiction to address Lauharn’s

        motions to withdraw his plea and for reconsideration of the denial of that

        motion while the case was pending on direct appeal. Consequently, the

        trial court’s rulings on Lauharn’s motions to withdraw his plea and for

        reconsideration of that denial are nullities. Those motions remain pending

        in the trial court, which now has jurisdiction to address them. See State v.

        Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 37 (“We take

        this opportunity to specify that the holding in Special Prosecutors does not

        bar the trial court’s jurisdiction over posttrial motions permitted by the Ohio

        Rules of Criminal Procedure.”).
                                                                                          -7-

Id., ¶ 13.

           {¶ 10} We initially note that Lauharn is procedurally distinct from the matter

herein, in that it involved a direct appeal from a conviction and a motion to withdraw a

plea, which could directly affect the pending appeal.        At issue here is whether the

pendency of CA 27015 and CA 27272 divested the trial court of jurisdiction over Smith’s

“Void Sentence” motion because any action by the trial court would interfere with this

Court’s ability to reverse, affirm, or modify the orders on appeal. We conclude that the

issue of the application of Hand to Smith’s sentence is not inconsistent with this Court’s

jurisdiction in CA 27015 and CA 27272 and accordingly does not interfere with this Court’s

appellate review in those appeals. In other words, the decision of the trial court is not a

nullity.

           {¶ 11} We further agree with the State that Hand does not apply to Smith’s

sentence. “A new judicial ruling may be applied only to cases that are pending on the

announcement date, and the new judicial ruling may not be applied retroactively to a

conviction that has become final, that is, where the accused has exhausted all of his

appellate remedies. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687.”

State v. Greathouse, 2d Dist. Montgomery No. 24935, 2012-Ohio-2414, ¶ 6.

           {¶ 12} Since Smith’s assigned error lacks merit, it is overruled. The judgment of

the trial court is affirmed.

                                           .............

HALL, P.J. and WELBAUM, J., concur.

Copies mailed to:

Andrew T. French
Ronald A. Smith
                        -8-


Hon. Dennis J. Langer
