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State v. Ketterer

Court of Appeals of Ohio, Twelfth District, Butler

June 5, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DONALD KETTERER, Defendant-Appellant.

         CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR03-03-0309

          Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, for plaintiff-appellee

          Randall L. Porter, for defendant appellant

          OPINION

          M. POWELL, J.

         {¶ 1} Defendant-appellant, Donald Ketterer, appeals a decision of the Butler County Court of Common Pleas denying his two petitions for postconviction relief and other postconviction motions.

         {¶ 2} In 2003, appellant pled guilty to aggravated murder, aggravated robbery, aggravated burglary, grand theft of a motor vehicle, and burglary in connection with the death of Lawrence Sanders. A three-judge panel convicted appellant on all charges. Following a penalty-phase hearing, the panel sentenced appellant to death on the aggravated murder charge and to prison terms for the noncapital offenses. The Ohio Supreme Court affirmed the convictions and death sentence on direct appeal. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283 ("Ketterer I").

         {¶ 3} The supreme court later reopened appellant's direct appeal and found that his first appellate counsel had been ineffective for failing to challenge appellant's noncapital sentences under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. The supreme court vacated the noncapital sentences and remanded for resentencing. On remand, the three-judge panel held a resentencing hearing on the noncapital offenses and resentenced appellant. On appeal, the supreme court again vacated the sentences, this time because the trial court had not properly imposed postrelease control during resentencing. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831 ("Ketterer II"). On remand, the three-judge panel issued a new sentencing entry. On appeal, the supreme court affirmed appellant's sentences for the noncapital offenses. State v. Ketterer, 140 Ohio St.3d 400, 2014-Ohio-3973 ("Ketterer III").

         {¶ 4} As relevant to this appeal, in December 2004, appellant filed a petition for postconviction relief ("PCR") challenging his capital murder conviction and death sentence and raising 16 grounds for relief. In April 2005, appellant moved the trial court to reconvene the three-judge panel that sentenced him to death for the purpose of ruling on his PCR petition. In April 2006, now retired Butler County Common Pleas Court Judge Patricia S. Oney, one of the three judges on the panel, denied appellant's motion.

         {¶ 5} Appellant subsequently filed a complaint in this court for a writ of prohibition to prevent Judge Oney from ruling on his PCR petition. Appellant claimed that R.C. 2945.06 vested the three-judge panel with exclusive jurisdiction over the PCR petition. We granted Judge Oney's motion to dismiss appellant's prohibition complaint.[1] In May 2007, the Ohio Supreme Court affirmed our judgment, finding that "[a]n alleged violation of R.C. 2945.06 is not cognizable in an extraordinary writ action" and that appellant had an adequate remedy by way of appeal. State ex rel. Ketterer v. Oney, 113 Ohio St.3d 306, 2007-Ohio-1954, ¶ 6.

         {¶ 6} In May 2007, appellant filed a supplemental PCR petition challenging his noncapital offenses and raising 16 grounds for relief. Most of the grounds for relief were duplicative of the grounds for relief raised in appellant's first PCR petition. The supplemental PCR petition was filed because the Ohio Supreme Court had remanded the case for resentencing on the noncapital offenses pursuant to its decision in Foster. In the prayers for relief of both PCR petitions as well as in a motion filed in February 2005, appellant requested that the trial court grant him leave to pursue discovery prior to ruling on the merits of his PCR petitions. Appellant further moved for discovery in April 2005 and November 2010.

         {¶ 7} On July 22, 2016, the trial court denied appellant's PCR petitions and discovery motions without a hearing on the basis of the doctrine of res judicata. The trial court found that the issues raised by appellant in the PCR petitions and discovery motions were addressed and rejected by the Ohio Supreme Court in Ketterer I, Ketterer II, or Ketterer III.

         {¶ 8} Appellant now appeals, raising 13 assignments of error which will be addressed out of order.

         {¶ 9} Assignment of Error No. 1:

         {¶ 10} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO RECONVENE THE THREE JUDGE PANEL.

         {¶ 11} Appellant argues the trial court erred in denying his motion to reconvene the three-judge panel that sentenced him to death for the purpose of ruling on his PCR petitions. As he did in his motion, appellant essentially argues that once a capital murder defendant waives a trial by jury and elects to be tried by a three-judge panel pursuant to R.C. 2945.06, all postconviction proceedings in the case, including PCR petitions, must be considered by the three-judge panel. In support of his argument, appellant relies heavily on State v. Stumpf, 32 Ohio St.3d 95 (1987), and cites State v. Davis, 38 Ohio St.3d 361 (1988), and State v. Filiaggi, 86 Ohio St.3d 230 (1999).

         {¶ 12} The trial court denied appellant's motion, finding that a three-judge panel's jurisdiction under R.C. 2945.06 ends after conviction and sentencing, and that the term "court" as used in R.C. 2953.21 must be given its common meaning. Thus, the trial court concluded, "where a defendant waives jury trial and is convicted by a three-judge panel, the postconviction remedies announced in R.C. 2953.21 do not contemplate a reconvening of the three-judge panel to hear postconviction proceedings."

         {¶ 13} R.C. 2945.06 provides in relevant part that

In any case in which a defendant waives his right to trial by jury and elects to be tried by the court * * *, any judge of the court in which the cause is pending shall proceed to hear, try, and determine the cause[.] If the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges[.] The judges or a majority of them may decide all questions of fact and law arising upon the trial; however the accused shall not be found guilty or not guilty of any offense unless the judges unanimously find the accused guilty or not guilty. If the accused pleads guilty of aggravated murder, a court composed of three judges shall examine the witnesses, determine whether the accused is guilty of aggravated murder or any other offense, and pronounce sentence accordingly.

(Emphasis added.)

         {¶ 14} In turn, R.C. 2953.21(A)(1) generally provides that any person who has been convicted of a criminal offense and who claims there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.

         {¶ 15} Appellant relies heavily on the Ohio Supreme Court's Stumpf decision to support his argument that R.C. 2945.06 and 2953.21(A)(1) grant a three-judge panel that sentenced a defendant to death, authority to hear a PCR petition. We find that neither Stumpf nor Davis nor Filiaggi support appellant's argument.

         {¶ 16} In Stumpf, a defendant charged with capital murder waived a jury trial and pled guilty before a three-judge panel. The panel convicted Stumpf and sentenced him to death. Stumpf subsequently moved to withdraw his guilty plea, or in the alternative, to grant him a new sentencing hearing. While the motion was pending, one of the panel members died and the remaining two judges denied Stumpf's motion. On appeal, Stumpf claimed error in the consideration of his motion by only two judges. The supreme court rejected Stumpf's argument, finding that "[u]nanimity is mandated only when the panel finds a defendant guilty or not guilty. Whether [Stumpf] was entitled to withdraw his guilty plea or to a new sentencing hearing were questions of law, properly determined by a majority of the panel." Stumpf, 32 Ohio St.3d at 105.

         {¶ 17} Contrary to appellant's assertion, Stumpf does not explicitly or implicitly hold that a three-judge panel that sentenced a defendant to death must hear the defendant's PCR petition. The case did not involve a PCR petition under R.C. 2953.21 and the supreme court did not expound on the narrow issue presented here. Rather, the supreme court merely held that the two remaining members of a three-judge panel did not err in considering and denying Stumpf's motion to withdraw his guilty plea. Stumpf therefore does not address the proposition for which appellant cites it, and we will not imply such a holding. As the supreme court stated, "[a] reported decision, although [in] a case where the question might have been raised, ...


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