[Cite as State v. Kendrick, 2022-Ohio-634.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29082 : v. : Trial Court Case No. 2003-CR-4234 : SHAWN D. KENDRICK, SR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 4th day of March, 2022.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SHAUN D. KENDRICK, SR., Inmate No. A489-082, Pickaway Correctional Institution, P.O. Box 209, 11781 State Route 762, Orient, Ohio 43146 Defendant-Appellant, Pro Se
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WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Shaun D. Kendrick, Sr., 1 appeals pro se from the
judgment of the Montgomery County Court of Common Pleas denying his petition for
post-conviction relief filed on March 5, 2021. For the reasons outlined below, the
judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} In 2003 and 2004, Kendrick was charged in three separate indictments for
17 counts of rape, three counts of aggravated robbery, five counts of kidnapping, and
three counts of abduction. Pursuant to a plea agreement, Kendrick pled guilty to seven
counts of rape in exchange for the State’s dismissing all of the other indicted counts.
Prior to sentencing, Kendrick moved to withdraw his guilty plea, but the trial court denied
the motion. At sentencing, the trial court imposed five consecutive terms of 10 to 25
years in prison, one concurrent term of 10 to 25 years in prison, and one term of 10 years
in prison to be served consecutively to all the other terms.
{¶ 3} Kendrick appealed from his conviction and raised several assignments of
error in support of his appeal. Specifically, Kendrick challenged the trial court’s denial of
his presentence motion to withdraw his guilty plea, his motion to suppress, and his motion
to sever certain counts in the indictment for a separate trial. Kendrick also argued that
the trial court erred by imposing maximum, consecutive prison sentences and that his trial
counsel provided ineffective assistance by advising him to enter a guilty plea. We
1 Appellant’s name is spelled both “Shawn” and “Shaun” in the trial court record and in appellant’s various appeals. Notably, all of appellant’s pro se filings use “Shaun”; therefore, we presume that “Shaun” is the correct spelling of appellant’s name. However, in order to be consistent with the trial court’s judgment that is on appeal, we use “Shawn” as opposed to “Shaun” in the caption of this appeal. -3-
overruled all of Kendrick’s assignments of error and affirmed the judgment of the trial
court. State v. Kendrick, 2d Dist. Montgomery No. 20965, 2006-Ohio-311 (“Kendrick I”).
{¶ 4} Kendrick appealed our decision in Kendrick I to the Supreme Court of Ohio.
The Supreme Court granted a discretionary appeal solely on the sentencing issue,
reversed Kendrick’s sentence, and remanded the matter for resentencing in accordance
with 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. On remand, the trial court resentenced Kendrick, and Kendrick thereafter appealed
from the resentencing judgment. Following our review, we affirmed the judgment of the
trial court. State v. Kendrick, 2d Dist. Montgomery No. 21790, 2007-Ohio-6136
(“Kendrick II”). Kendrick then once again appealed to the Supreme Court of Ohio, but
the Supreme Court did not accept the appeal for review. State v. Kendrick, 117 Ohio
St.3d 1441, 2008-Ohio-1279, 883 N.E.2d 458.
{¶ 5} Approximately one month before filing his appeal to the Supreme Court of
Ohio in Kendrick I, on January 10, 2006, Kendrick filed a motion for leave to file a delayed
petition for post-conviction relief and a corresponding petition. In his motion for leave,
Kendrick acknowledged that his petition for post-conviction relief was filed beyond the
180-day deadline that was in effect at that time. Kendrick claimed that he had been
unaware of the deadline because his appellate counsel did not let him know when the
trial court transcript was filed for his appeal. Kendrick also blamed the untimeliness of
his petition on his inability to access the prison law library. The trial court, however,
denied Kendrick’s motion for leave to file an untimely petition for post-conviction relief.
Kendrick did not appeal from that decision. -4-
{¶ 6} Approximately five years later, on January 20, 2011, Kendrick filed a second
petition for post-conviction relief captioned: “Motion to Dismiss and Vacate Conviction
Pursuant to R.C. 2505.02 & Crim.R. 32(A)(C).” In support of the petition, Kendrick
argued that his Sixth and Fourteenth amendment rights were violated because the
resentencing entry had not met the requirements of a final appealable order.
Specifically, Kendrick argued that the resentencing entry failed to set forth the manner of
his conviction, i.e., that Kendrick pled guilty to the crimes for which he was convicted.
The trial court, however, found that the error in the resentencing entry could be corrected
by issuing a nunc pro tunc entry and therefore overruled Kendrick’s petition. Kendrick
appealed from that decision and we affirmed the judgment of the trial court. State v.
Kendrick, 2d Dist. Montgomery No. 24626, 2012-Ohio-504 (“Kendrick III”).
{¶ 7} On September 12, 2011, Kendrick filed a second motion to withdraw his guilty
plea pursuant to Crim.R. 32.1 and Crim.R. 32(C). The trial court overruled the motion
without conducting a hearing, and Kendrick appealed. On appeal, Kendrick’s appellate
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967), which asserted the absence of any issues with arguable merit for
appeal. In response, Kendrick filed a pro se brief arguing that his guilty plea was
rendered involuntary by his trial counsel’s allegedly engaging in coercive tactics and
exerting undue influence over him.
{¶ 8} After reviewing the matter, we found that all of the claims that Kendrick raised
in his second motion to withdraw his guilty plea were either addressed or could have been
addressed in Kendrick’s direct appeal or in a petition for post-conviction relief. State v.
Kendrick, 2d Dist. Montgomery No. 25100, 2012-Ohio-5795, ¶ 17 (“Kendrick IV”). -5-
Because of this, we found no manifest injustice warranting the withdrawal of Kendrick’s
plea. Id. We also found that the claims in Kendrick’s motion were barred by the doctrine
of res judicata. Id. Accordingly, we held that the trial court did not err by overruling
Kendrick’s second motion to withdraw his guilty plea. Id. We also held that there were
no other issues with arguable merit for Kendrick to advance on appeal. Id. at ¶ 19.
{¶ 9} On December 3, 2013, a year after our decision in Kendrick IV, Kendrick filed
a motion requesting the trial court to order the Dayton Municipal Court to release certain
public records pursuant to R.C. 149.43(B)(8). The trial court overruled the motion on
grounds that it did not have jurisdiction to order the municipal court to release the public
records. Kendrick appealed from that decision, which this court later affirmed. State v.
Kendrick, 2d Dist. Montgomery No. 26042, 2014-Ohio-2816 (“Kendrick V”).
{¶ 10} After our decision in Kendrick V, on November 17, 2015, Kendrick filed a
third motion to withdraw his guilty plea. In the motion, Kendrick raised several arguments
challenging a search warrant issued by the Dayton Municipal Court, the territorial
jurisdiction of the Dayton Police Department, the trial court’s Crim.R. 11 plea colloquy,
and one of the three indictments issued in the case, i.e., the “C indictment,” which charged
Kendrick with one count of rape and one count of kidnapping. Kendrick argued that the
trial court dismissed the C indictment and abused its discretion by accepting his guilty
plea to the rape count in that indictment.
{¶ 11} The trial court overruled Kendrick’s third motion to withdraw his guilty plea
on grounds that the motion failed to demonstrate a manifest injustice warranting the
withdrawal of Kendrick’s plea. The trial court reached this conclusion because it found
that all of the arguments asserted in the motion could have been raised on appeal or -6-
through a timely petition for post-conviction relief. The trial court also found that the
arguments were barred by the doctrine of res judicata. Kendrick appealed from the trial
court’s decision overruling his third motion to withdraw guilty plea. We affirmed the
judgment of the trial court. State v. Kendrick, 2d Dist. Montgomery No. 27133, 2017-
Ohio-1306 (“Kendrick VI”). In affirming the trial court’s decision, we noted that Kendrick’s
argument concerning the C indictment lacked merit because the record of the plea
hearing established “that only Count 2 [(kidnapping)] of the C indictment, and not the
entirety thereof, was dismissed, and [that] Kendrick pled guilty to Count 1 [(rape)] of the
C indictment.” Id. at ¶ 17.
{¶ 12} Approximately four years later, on March 5, 2021, Kendrick filed a third
petition for post-conviction relief—the petition that is the subject of this appeal. In the
petition, Kendrick argued that his conviction should be vacated based on five ineffective
assistance of counsel claims, the first four of which center around Kendrick’s C
indictment. Kendrick argued that his trial counsel was ineffective for: (1) allowing him to
plead guilty to the rape count in the allegedly dismissed C indictment; (2) failing to argue
that he had the right to a new grand jury proceeding on the counts in the allegedly
dismissed C indictment; (3) failing to argue that he had the right to confront his accusers
at a new grand jury proceeding on the counts in the allegedly dismissed C indictment;
and (4) failing to object to the State and/or the trial court not journalizing the alleged
dismissal of the C indictment. For his fifth ineffective assistance of counsel claim,
Kendrick argued that his trial counsel failed to object to Dayton Police Detective Phillip
Olinger’s authority to investigate his case on territorial jurisdiction grounds. According to
Kendrick, Det. Olinger was restricted to investigating matters within Dayton, Ohio. -7-
{¶ 13} On March 13, 2021, the State filed a motion to dismiss Kendrick’s petition
for post-conviction relief on grounds that the trial court lacked jurisdiction to consider the
petition based on the petition’s untimeliness. Shortly thereafter, on March 18, 2021, the
trial court issued a decision and entry denying Kendrick’s petition on grounds that it did
not have jurisdiction over the matter. Approximately two weeks after the trial court issued
its decision, Kendrick filed a motion requesting a 30-day extension to file a reply to the
State’s motion to dismiss. Kendrick then filed the instant appeal from the trial court’s
decision denying his March 5, 2021 petition for post-conviction relief.
{¶ 14} In support of his appeal, Kendrick raised six assignments of error for this
court to review. For purposes of clarity, we will address Kendrick’s assignments of error
out of order.
Second, Third, Fourth, Fifth, and Sixth Assignments of Error
{¶ 15} Kendrick’s second, third, fourth, fifth, and sixth assignments of error mirror
the ineffective assistance of counsel claims that Kendrick raised in his March 5, 2021
petition for post-conviction relief. As previously noted, the first four of those claims
revolve around the C indictment, as Kendrick asserts that his trial counsel was ineffective
for allowing him to plead guilty to the rape count in the allegedly dismissed C indictment,
and by failing to raise various objections related to that matter. Kendrick also claims that
his trial counsel was ineffective for failing to object to Det. Olinger’s authority to investigate
his case on territorial jurisdiction grounds. For the following reasons, the trial court did
not err by denying Kendrick’s March 5, 2021 petition for post-conviction relief. -8-
(1) The trial court lacked jurisdiction to review Kendrick’s petition for post-conviction
relief because the petition was untimely and successive.
{¶ 16} When, as in this case, a direct appeal from a conviction has been taken, a
petition for post-conviction relief must be filed no later than 365 days after the date on
which the trial transcript is filed in the court of appeals in the direct appeal of the judgment
of conviction. R.C. 2953.21(A)(2)(a). A trial court lacks jurisdiction to consider an
untimely petition for post-conviction relief unless the untimeliness is excused under R.C.
2953.23(A). State v. Current, 2d Dist. Champaign No. 2012-CA-33, 2013-Ohio-1921,
¶ 16, citing State v. Johnson, 2d Dist. Montgomery No. 24775, 2012-Ohio-2542, ¶ 11.
(Other citations omitted.)
{¶ 17} “Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or
successive petition for post-conviction relief unless (1) the defendant was unavoidably
prevented from discovering the facts upon which he or she relies to present the claim, or
(2) the United States Supreme Court recognizes a new federal or state right that applies
retroactively to his or her situation and the petition asserts a claim based on that right.”
State v. Baker, 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 13. “The petitioner
must also show by clear and convincing evidence that, if not for the constitutional error
from which he suffered, no reasonable factfinder would have found him guilty.” Id., citing
R.C. 2953.23(A)(1)(b).
{¶ 18} In this case, Kendrick’s March 5, 2021 petition for post-conviction relief was
filed almost 16 years after the transcript of the trial court proceedings was filed as part of
Kendrick’s direct appeal. Kendrick also filed two prior petitions for post-convictions
relief—one in January 2006 and one in January 2011. Therefore, the petition for post- -9-
conviction relief at issue in this appeal is both untimely and successive. As a result, the
petition could have been properly considered by the trial court only if the statutory
exceptions in R.C. 2953.23(A)(1) applied.
{¶ 19} Upon review, we find that Kendrick failed to establish any of the statutory
exceptions for filing an untimely, successive petition for post-conviction relief. The
ineffective assistance claims that Kendrick asserted in his petition are not based on a new
federal or state right and Kendrick was not unavoidably prevented from discovering the
pertinent facts underlying those claims. Rather, the pertinent facts were apparent from
the trial court record and could have been discovered “through the exercise of reasonable
diligence.” (Citations omitted.) State v. Shabazz, 2d Dist. Greene No. 2017-CA-11,
2017-Ohio-7199, ¶ 12.
{¶ 20} In so holding, we note that Kendrick blamed the untimeliness of his petition
on his trial counsel’s alleged failure to notify him of the time limitation for filing a petition
for post-conviction relief. However, “[w]e generally have held that a defendant’s lack of
knowledge of time limitations, even due to the failure of his attorney to notify him of such,
does not establish that a defendant was ‘unavoidably prevented’ from filing a timely
[petition].” State v. Harwell, 2d Dist. Montgomery No. 28104, 2019-Ohio-643, ¶ 22, citing
State v. Wells, 2d Dist. Champaign No. 2010 CA 5, 2010-Ohio-3238, ¶ 23.
{¶ 21} Kendrick also blamed the untimeliness of his petition on his appellate
counsel’s alleged failure to timely provide him with a transcript of the trial court
proceedings. However, Kendrick’s petition included a March 16, 2006 letter from the
Supreme Court of Ohio indicating that Kendrick’s appellate counsel “forwarded all
documents in his possession including [Kendrick’s] trial transcripts to [Kendrick] on -10-
January 25, 2006.” Petition, Ex. 9. According to that letter, Kendrick had a transcript of
the trial court proceedings 15 years before he filed his March 5, 2021 petition for post-
conviction relief. Kendrick, however, provides no explanation for the 15-year delay in
filing his petition.
{¶ 22} Regardless of that extreme delay, the transcript does not even support the
ineffective assistance of counsel claims that Kendrick asserted in his petition for post-
conviction relief, particularly those claims concerning the C indictment. As we noted in
Kendrick VI, the transcript of Kendrick’s plea hearing established that “only Count 2
[(kidnapping)] of the C indictment, and not the entirety thereof, was dismissed, and [that]
Kendrick pled guilty to Count 1 [(rape)] of the C indictment.” Kendrick VI, 2d Dist.
Montgomery No. 27133, 2017-Ohio-1306, at ¶ 17; Plea Hearing Trans. (Jan. 24, 2005),
p. 76-78, 83-84. The plea hearing transcript “further reflects that Kendrick acknowledged
his understanding of the nature of his conduct as represented in Count 1 of the C
indictment.” Id.
{¶ 23} For all of the foregoing reasons, the untimely, successive nature of
Kendrick’s petition for post-conviction relief was not excused under R.C. 2953.23(A).
Therefore, the trial court lacked jurisdiction to consider the petition.
(2) The ineffective assistance of counsel claims that Kendrick raised in his petition for
post-conviction relief were barred by the doctrine of res judicata.
{¶ 24} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack of due -11-
process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment.” State v.
Perry, 10 Ohio St.2d 175, 176, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
{¶ 25} “ ‘If an alleged constitutional error [such as ineffective assistance of counsel]
could have been raised and fully litigated on direct appeal, the issue is res judicata and
may not be litigated in a post[-]conviction proceeding.’ ” State v. Lane, 2d Dist. Greene
No. 2014-CA-54, 2015-Ohio-2712, ¶ 13, quoting State v. Franklin, 2d Dist. Montgomery
No. 19041, 2002-Ohio-2370, ¶ 9, citing Perry at 180. Therefore, “[a]ny ineffective
assistance claim relating to matters contained within the record should be brought through
a direct appeal.” Id., citing State v. Wilson, 2d Dist. Montgomery No. 23129, 2013-Ohio-
180, ¶ 47-48; State v. Crossley, 2d Dist. Clark No. 2020-CA-10, 2020-Ohio-6640, ¶ 21.
{¶ 26} “Res judicata not only applies to claims that could have been or were raised
on direct appeal, ‘ “but to all post[-]conviction proceedings in which an issue was or could
have been raised.” ’ ” State v. Becraft, 2d Dist. Clark No. 2018-CA-96, 2019-Ohio-2348,
¶ 15, quoting State v. Heid, 4th Dist. Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 18,
quoting State v. Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 42 (8th Dist.) “More
specifically, ‘res judicata applies to bar raising piecemeal claims in successive post[-]
conviction relief petitions or motions to withdraw a guilty plea that could have been raised,
but were not, in the first post-conviction relief petition or motion to withdraw a guilty plea.’ ”
Id., quoting State v. McCain, 2d Dist. Montgomery No. 27195, 2017-Ohio-7518, ¶ 35.
{¶ 27} As previously discussed, the first four ineffective assistance of counsel
claims that Kendrick raised in his March 5, 2021 petition for post-conviction relief revolved
around Kendrick’s trial counsel’s allowing Kendrick to plead guilty to the rape charge in -12-
the C indictment, which Kendrick incorrectly claims was dismissed. Kendrick’s fifth
ineffective assistance of counsel claim concerned his trial counsel’s failing to object to the
investigating detective’s allegedly acting outside of his territorial jurisdiction. All of these
claims are barred by res judicata because they concern matters that were contained
within the record and therefore could have been raised in Kendrick’s direct appeal or in
one of Kendrick’s prior petitions for post-conviction relief. Moreover, although not
couched as ineffective assistance of counsel claims, Kendrick raised similar claims
concerning his C indictment and the Dayton Police Department’s territorial jurisdiction in
his third motion to withdraw his guilty plea, and we affirmed the trial court’s decision
overruling those claims in Kendrick VI. Therefore, the claims in Kendrick’s petition have
already been addressed by this court and are barred by res judicata for that reason as
well.
{¶ 28} Because the trial court did not have jurisdiction to consider Kendrick’s
untimely, successive petition for post-conviction relief, and because the ineffective
assistance of counsel claims raised in the petition were barred by the doctrine of res
judicata, Kendrick’s second, third, fourth, fifth, and sixth assignments of error are
overruled.
First Assignment of Error
{¶ 29} Under his first assignment of error, Kendrick contends that the trial court
erred by prematurely denying his petition for post-conviction relief. Kendrick asserts that
pursuant to Crim.R. 6(C) and (D), he had until March 23, 2021, to file a reply to the State’s -13-
motion to dismiss his petition, and that the trial court denied his petition five days before
that date, on March 18, 2021. The State concedes the trial court erred in that regard,
but claims that said error was harmless. We agree.
{¶ 30} Crim.R. 52(A) defines harmless error in the context of criminal cases and
provides that: “Any error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded.” Under the harmless-error standard of review, “the
government bears the burden of demonstrating that the error did not affect the substantial
rights of the defendant.” (Emphasis omitted.) State v. Perry, 101 Ohio St.3d 118, 2004-
Ohio-297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113
S.Ct. 1770, 123 L.Ed.2d 508 (1993). (Other citation omitted.) The Supreme Court of
Ohio has stated that to affect the substantial rights of the defendant, “ ‘the error must have
been prejudicial: It must have affected the outcome of the [trial] court proceedings.’ ”
(Emphasis omitted.) State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d
222, ¶ 7, quoting Olano at 734. “Accordingly, Crim.R. 52(A) asks whether the rights
affected are ‘substantial’ and, if so, whether a defendant has suffered any prejudice as a
result.” State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36,
quoting State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24-25.
{¶ 31} Considering the trial court’s lack of jurisdiction over Kendrick’s petition for
post-conviction relief, and the application of res judicata to the ineffective assistance of
counsel claims asserted therein, we find that the outcome of the petition would not have
changed even if the trial court had waited the correct amount of time before denying the
petition. That is, Kendrick’s petition would have been denied regardless of whether
Kendrick was given the opportunity to file a reply to the State’s motion to dismiss his -14-
petition, as Kendrick would not have been able to raise any new arguments in his reply.
See R.C. 2953.21(A)(4) (“A petitioner shall state in the original or amended petition * * *
all grounds for relief claimed by the petitioner. * * * [A]ny ground for relief that is not so
stated in the petition is waived.”). Because of this, we find that the trial court’s error did
not affect a substantial right and did not prejudice Kendrick. Therefore, the trial court’s
error was harmless and may be properly disregarded under Crim.R. 52(A).
{¶ 32} Kendrick’s first assignment of error is overruled.
Conclusion
{¶ 33} Having overruled all assignments of error raised by Kendrick, the judgment
of the trial court denying Kendrick’s March 5, 2021 petition for post-conviction relief is
affirmed.
DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Andrew T. French Shaun D. Kendrick, Sr. Hon. Gerald Parker