The State of Ohio v. KETTERER

• Decision Date: 25 August 2010
• Docket Number: No. 2007-1261,2007-2425.,2007-1261
• Citation: 2010 Ohio 3831,126 Ohio St.3d 448,935 N.E.2d 9
• Parties: The STATE of Ohio, Appellee, v. KETTERER, Appellant.
• Court: Ohio Supreme Court

126 Ohio St.3d 448

935 N.E.2d 9

2010 Ohio 3831

The STATE of Ohio, Appellee,

v.KETTERER, Appellant.

Nos. 2007-1261, 2007-2425.

Supreme Court of Ohio.

Submitted March 9, 2010.

Decided Aug. 25, 2010.

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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).

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.

LANZINGER, J.

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 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 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)

[1] {¶ 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.

[2] {¶ 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 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. 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 ...