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State v. Kendrick

Court of Appeals of Ohio, Second District, Montgomery

April 7, 2017

STATE OF OHIO Plaintiff-Appellee
v.
SHAWN D. KENDRICK, SR. Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 03-CR-4234

          MEAGAN D. WOODALL, Attorney for Plaintiff-Appellee

          SHAUN D. KENDRICK, Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the pro se Notice of Appeal of Shaun Kendrick, filed May 31, 2016. Kendrick appeals from the denial of his November 17, 2015 pro se "Motion to Withdraw Guilty Plea Pursuant to Crim.R. 32.1 to Correct a Void/Illegal Conviction Based on a Constitutionally Defective Plea [Evidentiary Hearing

          Requested]." We hereby affirm the judgment of the trial court.

         {¶ 2} Kendricks' direct appeal of his 2005 conviction provides the following initial background of the matter herein:

***
The record reflects that Kendrick was charged in three separate indictments with seventeen counts of rape, three counts of aggravated robbery, five counts of kidnapping, and three counts of abduction. The crimes occurred in 1993, 1995, and 1996-years before Kendrick's indictment. He was identified as the perpetrator through more recent advances in DNA technology.
Following Kendrick's indictment, he filed a variety of motions, including a motion to dismiss on statute-of-limitation grounds, a motion to suppress evidence, and a motion to sever some of the charges for trial. The trial court sustained the motion to dismiss with respect to the abduction charges but overruled it as to the other charges. The trial court also overruled the motion to suppress and the motion to sever.
Prior to trial, Kendrick and the State engaged in on-going plea negotiations. At one point, Kendrick rejected an offer to plead guilty to five counts of rape with an agreed sentence of fifty years or, alternatively, to plead no contest to eight counts of rape with no sentencing recommendation. The State also rejected Kendrick's proposal that he plead no contest to five counts of rape. Kendrick later rejected a second plea offer under which he would have been required to plead guilty to six counts of rape with an agreed sentence of fifty years and parole eligibility after fifteen years.
The matter proceeded to trial on January 24, 2005. Shortly after the trial began, however, Kendrick agreed to plead guilty to seven counts of rape, without any sentencing recommendation, in exchange for the dismissal of all other charges. The trial court conducted a Crim.R. 11 plea hearing and accepted the pleas. Thereafter, Kendrick filed a presentence motion to withdraw the pleas. Following an evidentiary hearing, the trial court overruled Kendrick's motion. He subsequently was sentenced to five consecutive terms of ten to twenty-five years in prison and one concurrent term of ten to twenty-five years in prison. A seventh ten-year prison term was ordered to be served consecutively to the foregoing terms. * * * '

State v. Kendrick, 2d Dist. Montgomery No. 20965, 2006-Ohio-311, ¶ 3-6 ("Kendrick I ").

         {¶ 3} Kendrick appealed this Court's decision to the Ohio Supreme Court, which granted a discretionary appeal and reversed and remanded the matter to the trial court for resentencing, based upon the Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 411, 2006-Ohio-2394, 848 N.E.2d 809. Kendrick also filed an application to reopen his appeal, which this Court denied in June 2006.

         {¶ 4} On remand, the trial court "sentenced Kendrick to ten years on the post-S.B. 2 count, to be served consecutive to the other six consecutive sentences, " and Kendrick appealed from this sentence. State v. Kendrick, 2d Dist. Montgomery No. 21790, 2007-Ohio-6136, ¶ 4 ("Kendrick II"). Kendrick asserted in part that "the trial court was only permitted to impose a minimum, consecutive sentence on remand." Id., ¶ 15. In affirming the judgment of the trial court, this Court determined, quoting Foster, ¶ 7, that "the court had 'full discretion to impose a prison sentence within the statutory range' without being required to make any findings or give any reasons for imposing more than minimum sentences or for ordering consecutive sentences." Kendrick II, ¶ 17.

         {¶ 5} Kendrick filed a "Motion to Dismiss and Vacate Conviction Pursuant to R.C. 2502.02 & Crim.R. 32(A)(C)" on January 20, 2011, asserting that the trial court's Resentencing Entry was not a final appealable order; the trial court overruled the motion, and this Court affirmed the decision of the trial court. State v. Kendrick, 2d Dist. Montgomery No. 24626, 2012-Ohio-504, ¶ 5, 14 ("Kendrick III").

         {¶ 6} "On September 12, 2011, Kendrick filed a motion to withdraw his guilty plea pursuant to Crim. R. 32.1 and Crim. R. 32(C). In a judgment entry issued on February 22, 2012, the trial court overruled Kendrick's motion to withdraw his plea without conducting a hearing." State v. Kendrick, 2d Dist. Montgomery No. 25100, 2012-Ohio-5795, ¶ 9 ("Kendrick IV). Appointed counsel for Kendrick then filed an appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Id., ¶ 2. Kendrick IV provides as follows:

In the instant appeal, Kendrick argues that the trial court erred when it overruled his most recent motion to withdraw his guilty plea for the following reasons: 1) he was induced and coerced into entering a guilty plea; 2) his trial counsel was ineffective; 3) the trial court abused it[s] discretion by accepting his "corrupt" plea; and 4) that he was denied equal protection of the law and due process.
Upon review, we find that the entirety of Kendrick's claims in his second motion to withdraw his guilty plea either were or could have been addressed in his direct appeal or in a motion for post-conviction relief. Claims that could have been addressed on direct appeal or in a post-conviction relief motion in support of post-sentence motion to withdraw are insufficient to demonstrate the manifest injustice required by Crim. R. 32.1 in order to vacate a plea. State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746 (Aug. 20, 1999). Additionally, any claims that were raised and rejected in a prior proceeding are barred by res judicata. The claims made by Kendrick regarding the ineffectiveness of his trial counsel were considered and rejected by us in Kendrick I. Those claims are, therefore, barred by res judicata. Any additional out-of-court representations that [Kendrick] claims his trial counsel made could have been the subject of a post-conviction motion for relief. Kendrick did not seek that relief. Accordingly he cannot ...

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