State v. Ketterer

[Cite as State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831.]

THE STATE OF OHIO, APPELLEE, v. KETTERER, APPELLANT.

[Cite as State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831.]

Criminal procedure — Sentencing — Combination of judgment entry and

sentencing opinion satisfying Crim.R. 32(C) — No violation of

prosecution’s duty to disclose evidence relevant to resentencing — Motion

to withdraw guilty plea at resentencing — Failure to notify of postrelease

control — Remand for resentencing under R.C. 2929.191.

(Nos. 2007-1261 and 2007-2425 — Submitted March 9, 2010 — Decided

August 25, 2010.)

APPEALS from the Court of Common Pleas of Butler County,

No. CR2003-03-0309.

__________________

SYLLABUS OF THE COURT

In cases in which R.C. 2929.03(F) requires the court or panel to file a sentencing

opinion, a final, appealable order consists of both the sentencing opinion

filed pursuant to R.C. 2929.03(F) and the judgment of conviction filed

pursuant to Crim.R. 32(C).

__________________

LANZINGER, J.

{¶ 1} In this case, we are asked to consider a number of issues arising

from the resentencing of appellant, Donald Ketterer, who has been convicted of

capital and noncapital offenses. We hold that the order appealed from is a final,

appealable order, that the Foster remedy was properly applied and no Brady

violation occurred during resentencing, and that the trial court properly denied the

motion to withdraw Ketterer’s guilty pleas. Because mandatory postrelease

SUPREME COURT OF OHIO

control was not properly imposed, however, we remand the case for the trial court

to conduct a hearing under R.C. 2929.191.

I. Case Background

{¶ 2} Appellant, Donald J. Ketterer, pleaded guilty to aggravated

murder, aggravated robbery, aggravated burglary, grand theft of a motor vehicle,

and burglary in connection with the February 2003 death of Lawrence Sanders.

In February 2004, a three-judge panel convicted Ketterer as charged and

sentenced him to death. On the noncapital offenses, the three-judge panel

imposed a nine-year prison term for Count 2, aggravated robbery, a nine-year

prison term for Count 3, aggravated burglary, a 17-month prison term for Count 4,

grand theft of a motor vehicle, and a four-year prison term for Count 5, burglary.

The sentence for Count 4 was concurrent with the sentences for the other counts,

while the sentences for Counts 2, 3, and 5 were consecutive.

{¶ 3} We affirmed Ketterer’s convictions and death sentence on October

25, 2006. 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 209. On April

18, 2007, we granted Ketterer’s application for reopening his appeal with respect

to his claim that appellate counsel had been ineffective by failing to challenge

Ketterer’s noncapital sentences as a violation of Blakely v. Washington (2004),

542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We then vacated his noncapital

sentences and remanded for resentencing. 113 Ohio St.3d 1463, 2007-Ohio-1722,

864 N.E.2d 650.

{¶ 4} Upon remand, on May 24, 2007, the three-judge panel conducted a

resentencing hearing on the noncapital offenses and resentenced Ketterer to the

same sentence as originally imposed. Ketterer appealed as a matter of right to

challenge his resentencing (case No. 2007-1261).

{¶ 5} On November 15, 2007, the panel filed a nunc pro tunc entry to

correct errors in the resentencing entry. Ketterer filed a notice of appeal of the

2

January Term, 2010

nunc pro tunc entry (case No. 2007-2425). The state filed a motion to dismiss

Ketterer’s appeal of the nunc pro tunc entry, and on January 30, 2008, we denied

the state’s motion and ordered that Ketterer’s appeal of the nunc pro tunc entry be

consolidated with his appeal challenging his resentencing. 116 Ohio St.3d 1498,

2008-Ohio-290, 880 N.E.2d 97. Ketterer’s merit brief raises six propositions of

law challenging his resentencing.

II. Legal Analysis

A. Requirements for final, appealable orders under R.C. 2929.03(F)

{¶ 6} Because it is potentially dispositive of this case, we first address

Proposition of Law II, in which Ketterer states that a trial court’s sentencing must

be vacated if it does not contain the information required by Crim.R. 32(C). On

October 29, 2009, we ordered that the parties file supplemental briefs to address

whether the November 15, 2007 nunc pro tunc sentencing entry is a final,

appealable order in light of our decision in State v. Baker, 119 Ohio St.3d 197,

2008-Ohio-3330, 893 N.E.2d 163. Ketterer argues that the trial court’s November

7, 2007 nunc pro tunc entry does not comply with Baker because it fails to reflect

Ketterer’s guilty pleas.

{¶ 7} The state responds that because R.C. 2929.03(F) requires courts to

file a separate sentencing opinion setting forth the court’s specific findings in

cases in which the death penalty is imposed, the final, appealable order in

Ketterer’s case is the combination of the judgment entry of conviction filed in

May 2007, the nunc pro tunc entry filed in November 2007, and the sentencing

opinion in support of the death penalty filed in February 2004. The state

recognizes that the nunc pro tunc entry does not state specifically that Ketterer

pleaded guilty but argues that because the 2004 sentencing opinion states that

Ketterer “waived his right to a jury and entered a plea of guilty to all charges

January 27, 2004,” the combination of the nunc pro tunc entry and the sentencing

opinion satisfies Baker.

3

SUPREME COURT OF OHIO

{¶ 8} “ ‘[I]n order to decide whether an order issued by a trial court in a

criminal proceeding is a reviewable final order, appellate courts should apply the

definitions of “final order” contained in R.C. 2505.02.’ ” State v. Baker, 119

Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 6, quoting State v. Muncie

(2001), 91 Ohio St.3d 440, 444, 746 N.E.2d 1092, citing State ex rel. Leis v. Kraft

(1984), 10 Ohio St.3d 34, 36, 10 OBR 237, 460 N.E.2d 1372. R.C. 2505.02(B)

states:

{¶ 9} “An order is a final order that may be reviewed, affirmed,

modified, or reversed, with or without retrial, when it is one of the following:

{¶ 10} “(1) An order that affects a substantial right in an action that in

effect determines the action and prevents a judgment.”

{¶ 11} Crim.R. 32(C) sets forth the requirements for a final, appealable

order in criminal cases. It states that “[a] judgment of conviction shall set forth

the plea, the verdict, or findings, upon which each conviction is based, and the

sentence.” It further states, “The judge shall sign the judgment and the clerk shall

enter it on the journal. A judgment is effective only when entered on the journal

by the clerk.”

{¶ 12} But we must also recognize that Ketterer was also convicted in a

capital case. R.C. 2929.03(F) requires the trial court to issue a separate

sentencing opinion in addition to the judgment of conviction in cases in which the

death penalty may be imposed. The statute provides:

{¶ 13} “The court or the panel of three judges, when it imposes sentence

of death, shall state in a separate opinion its specific findings as to the existence of

any of the mitigating factors set forth in division (B) of section 2929.04 of the

Revised Code, the existence of any other mitigating factors, the aggravating

circumstances the offender was found guilty of committing, and the reasons why

the aggravating circumstances the offender was found guilty of committing were

sufficient to outweigh the mitigating factors. * * * For cases in which a sentence

4

January Term, 2010

of death is imposed for an offense committed on or after January 1, 1995, the

court or panel shall file the opinion required to be prepared by this division with

the clerk of the supreme court within fifteen days after the court or panel imposes

sentence. The judgment in a case in which a sentencing hearing is held pursuant

to this section is not final until the opinion is filed.”

{¶ 14} In Baker, we did not address any interaction between R.C.

2929.03(F) and Crim.R. 32(C). Baker entered a not-guilty plea at his arraignment

and, after a jury trial, was convicted of having weapons while under a disability

and obstructing official business. The court of appeals had granted the state’s

motion to dismiss Baker’s appeal for lack of a final order because the judgment of

conviction did not contain Baker’s initial plea of not guilty. State v. Baker, 119

Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 3. The Ninth District

certified a conflict to this court, and we accepted the certified question to

determine what must be included in a judgment of conviction to allow it to

become a final, appealable order pursuant to Crim.R. 32(C).

{¶ 15} The first issue in Baker was whether, under Crim.R. 32(C), “the

plea, the verdict or findings, and the sentence” must be contained within a single

document. We noted that the Twelfth District erroneously interpreted Crim.R.

32(C) when it held that multiple documents were sufficient to meet the rules

requirements in State v. Postway, 12th Dist. No. CA2002-06-154, 2003-Ohio-

2689, 2003 WL 21213409, and we held that “[o]nly one document can constitute

a final appealable order.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,

893 N.E.2d 163, ¶ 17.

{¶ 16} The second issue in the case was whether the judgment of

conviction must include the plea entered at arraignment. We held that “the

judgment of conviction is a single document that need not necessarily include the

plea entered at arraignment.” Id. at ¶ 1. After analyzing Crim.R. 32(C), we

emphasized that “a judgment of conviction is a final appealable order under R.C.

5

SUPREME COURT OF OHIO

2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the

court upon which the conviction is based; (2) the sentence; (3) the signature of the

judge; and (4) entry on the journal by the clerk of court.” Id. at ¶ 18. In so

holding, we noted that the trial court is “required to sign and journalize a

document memorializing the sentence and the manner of the conviction.” Id. at ¶

14.

{¶ 17} We distinguish the present case from Baker and agree with the

state that in aggravated-murder cases subject to R.C. 2929.03(F), the final,

appealable order consists of the combination of the judgment entry and the

sentencing opinion. Because R.C. 2929.03(F) requires the court to file a

sentencing opinion, Baker does not control this case, because Baker addressed

only noncapital criminal cases, in which a judgment of conviction alone

constitutes a final, appealable order. R.C. 2929.03(F) requires that a separate

sentencing opinion be filed in addition to the judgment of conviction, and the

statute specifies that the court’s judgment is not final until the sentencing opinion

has been filed. Capital cases, in which an R.C. 2929.03(F) sentencing opinion is

necessary, are clear exceptions to Baker’s “one document” rule.

{¶ 18} We hold that in cases in which R.C. 2929.03(F) requires the court

or panel to file a sentencing opinion, a final, appealable order consists of both the

sentencing opinion filed pursuant to R.C. 2929.03(F) and the judgment of

conviction filed pursuant to Crim.R. 32(C). Therefore, while the final, appealable

order must satisfy the four requirements enumerated in Baker, the first

requirement — that the final, appealable order include the guilty plea, the jury

verdict, or the finding of the court upon which the conviction is based — will be

satisfied if either the judgment of conviction or the sentencing opinion includes

the guilty plea, jury verdict, or finding of the court upon which the conviction is

based.

6

January Term, 2010

{¶ 19} Ketterer’s sentencing opinion states, “The defendant waived his

right to a jury and entered a plea of guilty to all charges January 27, 2004.

Evidence was presented as to the charges. The three Judge panel returned a

verdict of guilty to the One Count of Aggravated Murder and guilty to all three

specifications contained in the indictment as well as a verdict of guilty on Count

Two, Three, Four and Five of the indictment.” The November 2007 nunc pro

tunc entry states that the trial court “has considered the record, the charges, the

defendant’s Guilty Finding by Judges, and findings as set forth on the record and

herein.” While the court failed to set forth Ketterer’s guilty plea in the judgment

of conviction, the sentencing opinion states that Ketterer pleaded guilty and

satisfies the requirement that the final, appealable order set forth the guilty plea,

the jury verdict, or the finding of the court upon which the conviction is based.

The sentencing opinion and judgment of conviction combine to form a valid final,

appealable order.

B. The trial court properly applied State v. Foster

{¶ 20} In his third proposition of law, Ketterer challenges the application

of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at his

resentencing. Specifically, Ketterer argues that retroactive application of Foster

to his resentencing violates his right to a jury trial, is an ex post facto violation, is

a due process violation, and violates the rule of lenity.

{¶ 21} Each of Ketterer’s arguments was considered and resolved by this

court in State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582.

In Elmore, we held that resentencing pursuant to Foster for crimes that were

committed before Foster does not violate the Sixth Amendment right to a jury

trial or the Ex Post Facto or Due Process clauses of the United States Constitution

and that a trial court is not required by the rule of lenity to impose a minimum

prison term upon resentencing pursuant to Foster. Id. at syllabus. Elmore is

7

SUPREME COURT OF OHIO

accordingly dispositive of the challenges raised in Ketterer’s third proposition of

law.

C. No Brady violation occurred

{¶ 22} In his fourth proposition of law, Ketterer argues that the three-

judge panel improperly denied his motion to provide the defense with exculpatory

evidence that was material to sentencing.

{¶ 23} Due process requires that the prosecution provide defendants with

any evidence that is material to either their guilt or their punishment. Brady v.

Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Evidence is

considered material “if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different.” United States v. Bagley (1985), 473 U.S. 667, 682, 105 S.Ct. 3375, 87

L.Ed.2d 481 (opinion of Blackmon, J.).

{¶ 24} In determining materiality, the relevant question “is not whether

the defendant would more likely than not have received a different verdict with

the evidence, but whether in its absence he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence.” Kyles v. Whitley (1995), 514

U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490. Thus, the rule set forth in Brady

is violated when the evidence that was not disclosed “could reasonably be taken

to put the whole case in such a different light as to undermine confidence in the

verdict.” Id. at 435. “In the end, this standard not only protects defendants; by

ensuring a fair trial, it also protects the system of justice as a whole.” State v.

Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 40.

{¶ 25} In a motion prior to resentencing, Ketterer requested disclosure of

information concerning a police raid on Donald Williams’s property 17 days

before the homicide, any potential charges pending against Williams and Mary

Gabbard at the time, Williams’s and Gabbard’s history as police informants,

evidence linking Williams and Gabbard to the homicide, and any evidence

8

January Term, 2010

concerning Ketterer’s mental state between the time of the offenses and his arrest.

In response, the state asserted that the requested information had already been

provided to the defense or was not Brady material. The court overruled the

defense motion.

{¶ 26} As an initial matter, the state invokes State v. Chinn (1999), 85

Ohio St.3d 548, 709 N.E.2d 1166, in arguing that Ketterer’s Brady claims should

be rejected because the evidence could not be presented at his resentencing

hearing. In Chinn, the court of appeals had remanded a capital defendant’s case

to the trial court for resentencing because the trial judge had committed errors in

his original independent evaluation and in his sentencing opinion. Id. at 562. The

trial court reimposed the death penalty, and the court of appeals affirmed. Id. at

563-564.

{¶ 27} On appeal to this court, Chinn claimed that he was denied the right

to present new mitigating evidence at his resentencing hearing. Id. at 564. In

rejecting this argument, the court stated, “[T]he errors requiring resentencing

occurred after the close of the mitigation phase of the trial. Under these

circumstances, the trial court is to proceed on remand from the point at which the

error occurred.” Id. at 565. Chinn concluded that the defendant “ ‘was not

entitled to an opportunity to improve or expand his evidence in mitigation simply

because * * * [the court of appeals] required the trial court to reweigh the

aggravating circumstance and mitigating factors.’ ” Id., quoting State v. Chinn

(June 21, 1996), 2d Dist. No. 15009, 1996 WL 338678, at *3.

{¶ 28} Based on Chinn, the state argues that Ketterer was not entitled to

present evidence at resentencing that could have been presented at his original

sentencing hearing but was not. However, Ketterer’s case was remanded for

resentencing on the noncapital offenses in accordance with Foster. A case

remanded for resentencing in accordance with Foster “anticipates a sentencing

hearing de novo, * * * [although] the parties may stipulate to the existing record

9

SUPREME COURT OF OHIO

and waive the taking of additional evidence.” State v. Mathis, 109 Ohio St.3d 54,

2006-Ohio-855, 846 N.E.2d 1, ¶ 37. Thus, we reject the state’s reliance on Chinn.

{¶ 29} Ketterer raises three specific Brady claims.

1. Information on Williams and Gabbard

{¶ 30} First, Ketterer argues that the panel erred when it refused to order

that the prosecution provide all information concerning other individuals who

were possibly involved in Sanders’s homicide. Ketterer asserts that Williams and

Gabbard were “persons of interest” during the investigation but that their

involvement in the homicide was never disclosed. Ketterer relies on his own

February 28 police statement, made two days after his confession, in which he

implicated Williams and Gabbard in the murder. In that statement, Ketterer

claimed that Williams drove him to Sanders’s residence and Gabbard

accompanied him inside Sanders’s house, where Ketterer killed Sanders. Ketterer

claimed that Gabbard helped him look for property inside Sanders’s house and

that she accompanied him when he stole Sanders’s car.

{¶ 31} Before trial, the state provided the defense with the pretrial

statements of Williams and Gabbard. Williams’s and Gabbard’s statements

corroborated Ketterer’s version of events in his initial confession but provided no

evidence that either one of them accompanied Ketterer to the Sanders residence.

The state did not provide any additional information concerning the involvement

of Williams and Gabbard in Sanders’s murder, because there was none.

{¶ 32} Nevertheless, Ketterer claims that the court should have disclosed

(1) all information relating to the commission of illegal activities at Williams’s

business at 706 East Avenue, (2) all documents relating to prior illegal activities

of Williams and Gabbard, (3) all documents relating to crimes with which

Ketterer was charged in which Williams and Gabbard are mentioned, (4) whether

they were working as informants and their history of working with law-

enforcement agencies, (5) the potential charges they faced for the raid at 706 East

10

January Term, 2010

Avenue, and (6) any consideration they received in return for their cooperation.

These Brady requests lack merit because the information about Williams’s and

Gabbard’s activities and their criminal record is not material to Ketterer’s

resentencing.

{¶ 33} However, Ketterer argues that the involvement of other individuals

in the offenses was a mitigating or exculpatory factor during his resentencing. In

making this argument, Ketterer cites Lockett v. Ohio (1978), 438 U.S. 586, 98

S.Ct. 2954, 57 L.Ed.2d 973, and other capital cases that govern the admissibility

of mitigating evidence during a court’s consideration of whether to impose the

death penalty. However, the statutory mitigating factors set forth in R.C.

2929.04(B)(1) through (B)(7) are not applicable to Ketterer’s resentencing for his

noncapital offenses.

{¶ 34} The state cites United States v. Ruiz (2002), 536 U.S. 622, 122

S.Ct. 2450, 153 L.Ed.2d 586, in arguing that disclosure of the requested material

to Ketterer was rendered unnecessary by his guilty pleas. In Ruiz, the Supreme

Court held that “the Constitution does not require the Government to disclose

material impeachment evidence prior to entering a plea agreement with a criminal

defendant.” (Emphasis added.) Id. at 633. The court reasoned that when a

defendant pleads guilty he or she forgoes not only a fair trial but also other

accompanying constitutional guarantees. Id. at 628–629. Ruiz stated that

impeachment information is special, as it is “more closely related to the fairness

of a trial than to the voluntariness of the plea.” (Emphasis sic.) Id. at 633.

{¶ 35} Ruiz supports the state’s argument as it pertains to the disclosure of

impeachment evidence. Information about Gabbard’s and Williams’s activities at

706 East Avenue related to possible impeachment evidence. Nothing in the

record indicates that such evidence would lead to the disclosure of exculpatory

evidence as to the noncapital offenses.

11

SUPREME COURT OF OHIO

{¶ 36} Even assuming that Ketterer was entitled to such information,

Ketterer knew about most of this information before his resentencing hearing.

See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 28,

fn. 2 (no Brady violation occurs where a defendant knows of essential facts

permitting him to take advantage of exculpatory information or where evidence is

available from another source), citing United States v. Clark (C.A.6, 1991), 928

F.2d 733, 738; see also State v. Iacona (2001), 93 Ohio St.3d 83, 100, 752 N.E.2d

937, quoting United States v. Smith Grading & Paving, Inc. (C.A.4, 1985), 760

F.2d 527, 532 (“ ‘No due process violation occurs as long as Brady material is

disclosed to a defendant in time for its effective use at trial’ ”).

{¶ 37} Ketterer was aware of illegal activities at 706 East Avenue,

although no link to these activities was ever established with Sanders’s murder.

At a hearing to determine support for Ketterer’s guilty plea, Gabbard testified that

she and Williams were arrested during a drug raid at 706 East Avenue on

February 7, 2003, for selling cocaine. Gabbard also admitted that she used and

sold cocaine, fenced property, and committed prostitution while staying at 706

East Avenue. The defense was also aware of Gabbard’s extensive criminal

history.

{¶ 38} In addition, Ketterer knew before pleading guilty that Williams

was a confidential police informant and provided information to police that led to

Ketterer’s arrest for Sanders’s murder. The defense was also aware of Williams’s

prior criminal history and that he had received consideration in exchange for

information that he provided to the police.

{¶ 39} Ketterer invokes Banks v. Dretke (2004), 540 U.S. 668, 124 S.Ct.

1256, 157 L.Ed.2d 1166, to argue that the state’s failure to disclose exculpatory

evidence applies to his resentencing. In Banks, the state had failed to disclose that

an essential prosecution witness was a paid police informant. Id. at 675. The

state also failed to disclose interviews with another witness, who falsely stated

12

January Term, 2010

that his testimony was entirely unrehearsed. Id. Based on these facts, the

Supreme Court concluded that Banks had established prejudice from the violation

and cause for failing to present his claims in state court because the defendant had

reasonably relied on the prosecutor’s open-file policy and assertions that

everything known to the government had been disclosed. Id. at 698.

{¶ 40} Banks is readily distinguishable. Unlike the prosecution in Banks,

the state disclosed that Williams was an informant who provided police with

information that led to Ketterer’s arrest. Moreover, Ketterer has not presented

any evidence of prosecutorial concealment or that he relied on false statements by

the prosecutor.

2. Information on mental and physical condition

{¶ 41} Second, Ketterer claims that the panel erred when it refused to

order that the prosecution provide all information in its possession as to his

mental and physical condition at the time of the offenses.

{¶ 42} Before the resentencing hearing, Ketterer was either provided or

was aware of information the state had regarding his mental and physical

condition between the time of the offenses and his arrest. The state had provided

Ketterer with the pretrial statements of Williams, Gabbard, and Lisa Lawson that

described his mental status on the evening of the murder and the following day.

In his statement, Williams said that Ketterer “seemed very shook up” and was still

drunk on the evening of February 24. Gabbard said that she sold Ketterer some

crack rocks that same evening. Lisa Lawson, a bartender, stated that Ketterer

appeared intoxicated when he left the pub on the evening of February 25.

{¶ 43} Ketterer was also aware of police testimony describing his mental

and physical condition at the time of his arrest. During the hearing on the motion

to suppress, Detective Steve Rogers testified that he smelled alcohol on Ketterer’s

breath when he was arrested but that he did not think that Ketterer was

intoxicated. When Rogers interviewed Ketterer several hours later, Ketterer told

13

SUPREME COURT OF OHIO

him that he was taking Klonopin as medication.1 Detective James Cifuentes also

testified that he smelled alcohol on Ketterer’s breath at the time of his arrest.

Cifuentes felt that Ketterer was intoxicated but said that he seemed to have

control of himself. Nevertheless, Ketterer suggests that there may be reports from

others whom the state did not disclose who witnessed his impairment by alcohol

and drugs during his arrest. However, Ketterer provides nothing to support this

conclusory and speculative claim.

{¶ 44} Thus, no Brady violation occurred involving the disclosure of

information about Ketterer’s mental and physical condition, because the defense

knew about this information before resentencing.

3. Information on favorable treatment of Hester and Jasper

{¶ 45} Third, Ketterer argues that the panel erred by refusing to order the

state to disclose information pertaining to the favorable treatment offered to Scott

Hester and Tyrone Jasper.

{¶ 46} Before his resentencing hearing, Ketterer did not request disclosure

of information pertaining to any favorable treatment Hester or Jasper received in

the disposition of their criminal charges. Ketterer’s failure to make these requests

is a waiver of his present claim. See State v. Iacona, 93 Ohio St.3d at 101, 752

N.E.2d 937 (when a Brady violation is uncovered prior to the close of trial, the

failure to request a continuance will usually constitute a waiver of the error on

appeal). Nevertheless, these claims also lack merit.

{¶ 47} Hester’s testimony related solely to Ketterer’s motion to suppress

his pretrial statements. In that motion, Ketterer argued that he was subjected to

custodial interrogation at the moment the police asked him to accompany them to

the station on the evening of February 25. Ketterer attempted to develop

testimony at the motion hearing that Hester observed Ketterer being taken away in

1. In the competency evaluation, Dr. Hopes stated that Ketterer had a history of being prescribed

Klonopin, which is a medication commonly used in the treatment of severe depressive disorders.

14

January Term, 2010

handcuffs outside 706 East Avenue. But Hester was a reluctant witness and at

first refused to testify. After the court ordered him to testify, Hester stated that he

was not going to lie for the defendant.

{¶ 48} The defense called Jason Kristanoff, the defense investigator, who

testified that he interviewed Hester in jail and that Hester stated that on the night

of February 25, he saw Ketterer being arrested and taken away in handcuffs.

While on the stand, Hester retracted the statements he had made to Kristanoff.

The court denied the motion to suppress.

{¶ 49} With respect to Jasper, the state informed the defense that Jasper,

an inmate in the Butler County jail, was a potential witness. The state provided

the defense with a summary of Jasper’s criminal record. But Jasper was never

called as a witness. During the mitigation hearing, the prosecutor informed the

court that Jasper would have been called as a rebuttal witness if the defense had

introduced DNA results, which raised the possibility that someone else was

involved in committing the offenses.

{¶ 50} Ketterer argues that the state failed to disclose favorable treatment

that Hester received following his testimony at the hearing on the motion to

suppress and failed to disclose the disposition of pending charges against Jasper.

{¶ 51} The Brady claim as to Hester lacks merit because the disposition of

charges against him was not material to Ketterer’s resentencing. Ketterer became

acquainted with Hester while they were both in jail. Yet because Hester had no

involvement in Sanders’s murder, the robbery and burglary of his house, or the

theft of his car, Hester’s testimony was relevant only to the motion to suppress

and had no bearing on Ketterer’s resentencing.

{¶ 52} Similarly, the disposition of charges against Jasper was not

material to Ketterer’s resentencing, because he too was not involved in the

offenses. Jasper’s testimony was relevant only as a potential prosecution rebuttal

15

SUPREME COURT OF OHIO

witness based on what Ketterer appears to have told him about the offenses in jail.

Accordingly, information about Jasper had no bearing on Ketterer’s resentencing.

{¶ 53} Even assuming that information about Hester and Jasper should

have been disclosed, no Brady violation occurred, because Ketterer knew about

the disposition of charges against both of them. In a motion filed before the

resentencing hearing, Ketterer described the charges against Hester and set forth

their disposition. In the same motion, Ketterer discussed charges and their

disposition against Jasper.

{¶ 54} Based on the foregoing, no Brady violation occurred during

Ketterer’s resentencing.

D. Appellant’s motion to withdraw his guilty pleas was properly denied

{¶ 55} The fifth and sixth propositions of law address the trial court’s

denial of Ketterer’s motion to withdraw his guilty pleas.

{¶ 56} While the case was on remand for resentencing, Ketterer filed a

motion to withdraw his guilty pleas on the basis that (1) his pleas were based on a

misunderstanding of the sentence he would receive (i.e., he believed that he

would not receive the death penalty), (2) he relied on statutes that have now been

declared unconstitutional in Foster, (3) the prosecutor suppressed exculpatory

evidence, and (4) he received ineffective assistance of counsel.

{¶ 57} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty or no

contest may be made only before sentence is imposed; but to correct manifest

injustice the court after sentence may set aside the judgment of conviction and

permit the defendant to withdraw his or her plea.” “[A] presentence motion to

withdraw a guilty plea should be freely and liberally granted.” State v. Xie

(1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715.

{¶ 58} Ketterer raises the same grounds raised in the trial court in arguing

that the presiding judge erred in denying his motion to withdraw his guilty pleas.

He argues that the three-judge panel should have granted his motion to withdraw

16

January Term, 2010

his pleas under the standard that such motions should be “freely and liberally

granted.”

{¶ 59} In response, the state argues that res judicata bars Ketterer’s

motion to withdraw his guilty pleas because on the first appeal, this court rejected

his attacks on his pleas. Res judicata bars the assertion of claims against a valid,

final judgment of conviction that have been raised or could have been raised on

appeal. State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d

104, paragraph nine of the syllabus. Ohio courts of appeals have applied res

judicata to bar the assertion of claims in a motion to withdraw a guilty plea that

were or could have been raised at trial or on appeal. See State v. McGee, 8th Dist.

No. 91638, 2009-Ohio-3374, ¶ 9; State v. Totten, 10th App. No. 05AP-278 and

05AP-508, 2005-Ohio-6210, ¶ 7 (collecting cases).

{¶ 60} 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.

{¶ 61} 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

17

SUPREME COURT OF OHIO

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.

{¶ 62} 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.

{¶ 63} Finally, this court’s decision in State v. Boswell, 121 Ohio St.3d

575, 2009-Ohio-1577, 906 N.E.2d 422, does not apply to the present case.

Boswell considered the effect of a void sentence on a defendant’s motion to

withdraw his guilty plea. Unlike the situation in Boswell, Ketterer’s noncapital

sentences are not void. As discussed below, procedures set forth in R.C.

2929.191 apply to remedy any defects in imposing postrelease control because

Ketterer was resentenced after July 11, 2006. See State v. Singleton, 124 Ohio

St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 34.

{¶ 64} Based on the foregoing, the trial court properly denied Ketterer’s

motion to withdraw his guilty pleas.

E. Appellant was not properly notified of postrelease control on resentencing

{¶ 65} In his first proposition of law, Ketterer argues that he must be

resentenced on the noncapital offenses because the three-judge panel failed to

properly notify him of postrelease control at his resentencing hearing and failed to

properly incorporate postrelease control into its resentencing entry. In his

additional proposition of law, Ketterer asserts that the panel’s nunc pro tunc entry

failed to correct these errors.

18

January Term, 2010

{¶ 66} During the resentencing hearing for the noncapital offenses,

Ketterer was notified of postrelease control: “The Court is also going to advise

you, sir, and this is assuming that something happens to Count One, that if — in

regards to Count Two and Five, if you are released after serving that sentence, the

Ohio Department of Rehabilitations and Control [sic] will put you on post-release

control, mandatory for a period of five years. And if you violated their rules and

regulations such that you were convicted of a new crime or if you didn’t report to

your parole officer they could send you back in increments of 30, 60, 90 days and

they could send you back for a total amount of one half of what I have sentenced

you to. So we are talking — these sentences were the original sentences of —

total up to 22 that means the parole board could give you an additional 11 years

on that.” (Emphasis added.)

{¶ 67} The three-judge panel’s judgment entry dated May 29, 2007,

states, “As to Count(s) Two, Three, Four and Five: The Court has notified the

defendant that post release control is in this case [sic] up to a maximum of years

[sic], as well as the consequences for violating conditions of post release control

imposed by the Parole Board under Revised Code Section 2967.28.”

{¶ 68} On November 15, 2007, the panel filed a nunc pro tunc entry

providing, “As to Count(s) Two, Three, Four and Five: The Court has notified the

defendant that post release control is Mandatory in this case up to a maximum of

5 years, as well as the consequences for violating conditions of post release

control imposed by the Parole Board, under Revised Code Section 2967.28.”

(Emphasis added.)

{¶ 69} Effective July 11, 2006, R.C. 2929.191 establishes a procedure to

remedy a sentence that fails to properly impose a term of postrelease control. In

State v. Singleton, 124 Ohio St.3d, 173, 2009-Ohio-6434, 920 N.E.2d 958,

paragraph two of the syllabus, this court held: “For criminal sentences imposed on

or after July 11, 2006, in which a trial court failed to properly impose postrelease

19

SUPREME COURT OF OHIO

control, trial courts shall apply the procedures set forth in R.C. 2929.191.”

Neither of the parties has addressed the application of R.C. 2929.191 as a remedy

in this case. However, R.C. 2929.191 applies to Ketterer because his resentencing

hearing occurred after July 11, 2006. See, e.g., State v. Fry, 125 Ohio St.3d 163,

2010-Ohio-1017, 926 N.E.2d 1239, ¶ 214.

{¶ 70} Ketterer argues that the trial court failed to notify him orally of

postrelease control as to Count Three, aggravated burglary, which is a first-degree

felony.2 In response, the state contends that the judge merely made “an

inadvertent slip of the tongue” at the resentencing hearing when the court referred

only to “Count Two and Five.” The state argues that the court meant to say

“Counts Two through Five” when notifying Ketterer of postrelease control. In

support of this argument, the state asserts that the court correctly stated that the

total prison time was 22 years for all the noncapital counts and stated that “Counts

Two through Five * * * are consecutive to Count One.”

{¶ 71} However, the court could not have meant Counts Two through

Five in imposing mandatory postrelease control because neither Count Four, a

fourth-degree felony, nor Count Five, a third-degree felony, subjected Ketterer to

mandatory postrelease control under R.C. 2967.28(B) and (C).3

{¶ 72} The state argues that any mistake in advising Ketterer of

postrelease control as to Count Three should be overlooked because he was still

advised that postrelease control was mandatory for five years. Watkins v. Collins,

111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78. In Watkins, 12 inmates

who were incarcerated for violating postrelease control filed for a writ of habeas

2. Appellant’s brief incorrectly refers to the charge of aggravated burglary as Count Two rather

than Count Three.

3. Burglary as charged in Count Five is a third-degree felony. Count Five charged Ketterer with

burglary at the crime scene after the murder. Because this offense did not involve any threat or

physical harm to a person, it was subject to discretionary rather than mandatory postrelease

control. See R.C. 2967.28(B) and (C).

20

January Term, 2010

corpus. Id. at ¶ 27. The petitioners argued that the trial courts never properly

imposed postrelease control, because the language in their sentencing entries

mistakenly included discretionary language concerning their terms of postrelease

control. Id. at ¶ 42. This court acknowledged that the journal entries erroneously

referred to discretionary, instead of mandatory, postrelease control, but

determined that a “reasonable person in the position of any of the petitioners

would have had sufficient notice that postrelease control could be imposed

following the expiration of the person’s sentence.” Id. at ¶ 51.

{¶ 73} The petitioners in Watkins sought writs of habeas corpus, requiring

the petitioners to show that they were entitled to immediate release from

incarceration. Because our standard of review in a habeas case differs

considerably from our standard of review when considering a death-penalty case

on direct appeal to this court, Watkins is of little instructional value. More

significantly, Watkins did not address the procedures set forth in R.C. 2929.191

for correcting mistakes in notifying a defendant of postrelease control. These

statutory procedures provide a mechanism for correcting the failure to properly

advise Ketterer of postrelease control on Count Three. These statutory procedures

must be followed in Ketterer’s case because his resentencing occurred after July

11, 2006. Thus, the dissent’s reliance upon Watkins is misplaced, and the state’s

argument that any mistakes in notifying Ketterer about postrelease control can be

overlooked is rejected.

{¶ 74} Ketterer also contends that the panel’s resentencing entry is

defective because it failed to state that postrelease control is mandatory for five

years. Ketterer argues that the resentencing entry also incorrectly stated that

postrelease control is imposed as to Counts Three and Four, because he was not

notified of postrelease control as to Count Three and he was not subject to

mandatory postrelease control on Count Four, a fourth-degree felony.

21

SUPREME COURT OF OHIO

{¶ 75} In response, the state argues that the missing language in the

resentencing entry was a clerical error that was corrected when the panel filed the

nunc pro tunc entry on November 15, 2007. The nunc pro tunc entry added the

omitted word “Mandatory” and the missing numeral “5.” However, the nunc pro

tunc entry continues to state incorrectly that Ketterer was notified of postrelease

control on Counts Two, Three, Four, and Five.

{¶ 76} In his additional proposition of law, Ketterer challenges the

validity of the nunc pro tunc entry. As discussed earlier, R.C. 2929.191(C)

requires that a hearing be conducted before a nunc pro tunc entry is journalized to

correct a sentence that fails to properly impose a term of postrelease control.

Nothing in the record indicates that such a hearing was conducted. Accordingly,

the nunc pro tunc entry was ineffective.

{¶ 77} The nunc pro tunc entry contains another error, which Ketterer

does not raise. The nunc pro tunc entry does not state that Ketterer was informed

that if he violated his supervision or a condition of postrelease control, the parole

board could impose a maximum prison term of up to one-half of the prison term

originally imposed, which here is an aggregate 11 years. See R.C.

2929.19(B)(3)(e). Ketterer was correctly advised of this condition of postrelease

control during the resentencing hearing. However, the nunc pro tunc entry

incorrectly states, “The defendant is ordered to serve as part of this sentence any

term of post release control imposed by the Parole Board, and any prison term for

violation of that post release control.” Thus, the nunc pro tunc entry should be

amended to incorporate the correct language of this rule. See R.C.

2929.191(B)(1).

{¶ 78} Thus, in contrast to the dissent’s characterization of the facts, this

is not a case in which the trial court merely misspoke in regard to one point

concerning postrelease control. Instead, at least four errors occurred in notifying

Ketterer of postrelease control: (1) the trial court orally advised Ketterer that he

22

January Term, 2010

was subject to five years of mandatory postrelease control as to “Counts Two and

Five” when it should have said “Counts Two and Three,” (2) the nunc pro tunc

entry incorrectly states that Ketterer was notified of postrelease control on Counts

Two, Three, Four, and Five, (3) the nunc pro tunc entry does not contain proper

language explaining the consequences of a violation of postrelease control, and

(4) the trial court issued the nunc pro tunc entry without following the procedures

of R.C. 2929.191, which controls in this case. Viewed cumulatively, these errors

on the part of the trial court cannot be considered harmless. We have stated that

“the court must conduct proceedings in capital cases with a strict level of care that

comports with their unique status.” State v. Clinkscale, 122 Ohio St.3d 351,

2009-Ohio-2746, 911 N.E.2d 862, ¶ 23. Accordingly, while the dissent is correct

that it is highly unlikely that Ketterer will ever be subject to postrelease control,

trial courts in capital cases must scrupulously comply with the applicable statutes

and rules, even those involving postrelease control.

{¶ 79} Because the trial court failed to properly impose postrelease

control, the case is remanded so that Ketterer may be given the proper terms of

postrelease control pursuant to R.C. 2929.191.

III. Conclusion

{¶ 80} We hold that in cases in which a sentencing opinion is required by

R.C. 2929.03(F), a final, appealable order consists of both the sentencing opinion

and the judgment of conviction filed pursuant to Crim.R. 32(C). We further hold

that the first of the four requirements for a final, appealable order enumerated in

Baker will be satisfied if the sentencing opinion, the judgment of conviction, or

preferably both, reflect the guilty plea, the jury verdict, or the finding of the court

upon which the conviction is based. Because Ketterer’s sentencing opinion sets

forth his guilty plea, there is a valid final, appealable order in this case.

{¶ 81} Furthermore, we hold that the trial court properly applied the

Foster remedy in resentencing Ketterer, that no Brady violation occurred during

23

SUPREME COURT OF OHIO

resentencing, and that the trial court properly denied Ketterer’s motion to

withdraw his guilty pleas. Because the trial court failed to properly impose

postrelease control during resentencing, we reverse the judgment and remand the

case so that postrelease control may be properly imposed according to R.C.

2929.191.

Judgment reversed

and cause remanded.

PFEIFER, O’CONNOR, O’DONNELL, and CUPP, JJ., concur.

LUNDBERG STRATTON, J., dissents.

BROWN, C.J., not participating.

__________________

LUNDBERG STRATTON, J., dissenting.

{¶ 82} The majority holds that the trial court failed to properly impose

postrelease control and, therefore, that the case must be remanded so that Ketterer

may be given the proper terms of postrelease control pursuant to R.C. 2929.191. I

dissent.

{¶ 83} In Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857

N.E.2d 78, this court acknowledged that the journal entries erroneously referred to

discretionary, instead of mandatory, postrelease control, but determined that a

“reasonable person in the position of any of the petitioners would have sufficient

notice that postrelease control could be imposed following the expiration of the

person’s sentence.” Id. at ¶ 51. Moreover, we noted that the “preeminent purpose

of R.C. 2967.28” is that “offenders subject to postrelease control know at

sentencing that their liberty could continue to be restrained after serving their

initial sentences.” Id. at ¶ 52.

{¶ 84} In this case, Ketterer was advised that he was subject to postrelease

control, that the duration of that postrelease control would be five years, and that

imposition of the postrelease control was mandatory. Therefore, while the trial

24

January Term, 2010

court may have misspoken and at one point used the word “and” instead of the

word “through,” the trial court did comply with the requirement to advise Ketterer

that postrelease control was mandatory for five years. Therefore, the preeminent

purpose of R.C. 2967.28 was complied with, and no error should be found that

warrants reversal.

{¶ 85} In addition, Ketterer was sentenced to death for aggravated murder

and to terms of imprisonment for burglary, aggravated burglary, aggravated

robbery, and grand theft of a motor vehicle. The term sentences were in addition

to his sentence of death. Therefore, he will not ever be subject to postrelease

control. Thus, any failure to properly impose postrelease control is also a factor

in the harmless-error analysis. I respectfully dissent and would find that any

failure to comply with the requirement to notify Ketterer of postrelease control

constituted harmless error.

__________________

Robin N. Piper, Butler County Prosecuting Attorney, and Michael A.

Oster Jr., Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Randall L. Porter, Assistant

Public Defender, for appellant.

Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert

and Steven L. Taylor, Assistant Prosecuting Attorneys, urging affirmance for

amicus curiae, Ohio Prosecuting Attorneys Association.

______________________

25