[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

State v. Ketterer, Slip Opinion No. 2014-Ohio-3973.] 

NOTICE

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2014-OHIO-3973 

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

[Until this opinion appears in the Ohio Official Reports advance sheets, 

it may be cited as State v. Ketterer, Slip Opinion No. 2014-Ohio-3973.] 

Criminal procedure—Resentencing for limited purpose—Res judicata—Discovery 

denied—Costs. 

(No. 2011-0093—Submitted May 13, 2014—Decided September 18, 2014.) 

APPEAL from the Court of Common Pleas of Butler County, 

No. CR 2003-03-0309. 

____________________ 

PFEIFER, J. 

{¶ 1} This is the third direct appeal arising out of Donald Ketterer’s 

capital conviction. This appeal concerns his resentencing hearing before a threejudge panel. We find no error and affirm the sentencing order. 

Background

{¶ 2} In connection with the death of Lawrence Sanders, Ketterer pled 

guilty to aggravated murder, aggravated robbery, aggravated burglary, grand theft 
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of a motor vehicle, and burglary. A three-judge panel convicted Ketterer on all 

charges. The panel sentenced him to death on the capital charge and to various 

prison terms for the noncapital offenses, some sentences to run concurrently and 

others to run consecutively. Butler Cty. C.P. No. CR2003-0309 (Feb. 4, 2004). 

{¶ 3} We affirmed the convictions and death sentence on direct appeal. 

111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48. We later reopened 

Ketterer’s direct appeal and found that his first appellate counsel had been 

ineffective for failing to challenge his noncapital sentences under State v. Foster, 

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 71-81, in which we held 

that the statutory provisions for sentence enhancements for repeat violent 

offenders and major drug offenders violated the Sixth Amendment to the United 

States Constitution because they required the sentencing judge to make findings 

of fact not proven beyond a reasonable doubt. 113 Ohio St.3d 1463, 2007-Ohio1722, 864 N.E.2d 650. We vacated the noncapital sentences and remanded for 

resentencing. 

{¶ 4} The three-judge panel resentenced Ketterer. On appeal, we again 

vacated the sentence, this time because the trial court had not properly imposed 

postrelease control during resentencing. 126 Ohio St.3d 448, 2010-Ohio-3831, 

935 N.E.2d 9, ¶ 65-79, 81. 

{¶ 5} The three-judge panel issued a new sentencing entry. Ketterer 

timely appealed to this court, raising five propositions of law, which we now 

address individually. 

Legal analysis 

1. Denial of discovery 

{¶ 6} On November 29, 2010, following the second remand, Ketterer 

filed a motion in the trial court for discovery. The panel denied the motion, 

concluding that Crim.R. 16 did not apply, because the matter was before the court 

for the limited purpose of correcting the postrelease-control error. See State v. 
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3 

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 28-29 (when an 

offender is entitled to a new sentencing hearing because postrelease control had 

not been properly imposed, the new hearing is limited to proper imposition of 

postrelease control). 

{¶ 7} Ketterer has not alleged that the requested discovery was relevant 

to the imposition of mandatory postrelease control. In fact, the briefs suggest that 

Ketterer sought evidence relevant to his guilt on the underlying death 

specifications. As noted, a limited remand for resentencing does not open the 

door for a defendant to relitigate the capital proceeding. 

{¶ 8} Ketterer argues that even if Fischer and its progeny preclude his 

discovery request, the state waived this argument by failing to raise it during oral 

argument on his discovery motion in the trial court. The narrow scope of the 

remand, however, is a jurisdictional limitation. See State v. Wrenn, 9th Dist. 

Summit No. 25616, 2011-Ohio-5640, ¶ 5, quoting State v. Stiggers, 9th Dist. 

Summit No. 25486, 2011-Ohio-4225, ¶ 6 (“ ‘Because resentencing is limited to 

the imposition of post-release control, any additional action taken by the trial 

court with respect to the sentence is a nullity’ ”). And objections to subjectmatter jurisdiction cannot be waived. State v. Mbodji, 129 Ohio St.3d 325, 2011-

Ohio-2880, 951 N.E.2d 1025, ¶ 10. 

{¶ 9} We conclude that discovery was not improperly denied. 

2. Merger 

{¶ 10} Ketterer argues that the panel erred when it failed to merge the 

offenses of capital murder, aggravated robbery, and aggravated burglary. This 

argument is barred by res judicata. 

{¶ 11} In his first appeal, Ketterer argued that aggravated robbery and 

aggravated burglary are duplicative offenses. 111 Ohio St.3d 70, 2006-Ohio5283, 855 N.E.2d 48, ¶ 118. We rejected that argument and reaffirmed the rule 

that “ ‘[a]ggravated burglary and aggravated robbery are separate offenses and 
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constitute separate aggravating circumstances because they do not arise from the 

same act.’ ” Id. at ¶ 119, quoting State v. Williams, 74 Ohio St.3d 569, 580, 660 

N.E.2d 724 (1996). We also rejected Ketterer’s contention that the aggravatedrobbery and aggravated-burglary charges were duplicative of the capital 

specifications based on aggravated robbery and aggravated burglary. Ketterer at 

¶ 118. 

{¶ 12} After the panel issued its third sentencing entry, we redefined the 

test for allied offenses. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 

942 N.E.2d 1061. Ketterer argues that under Johnson, the capital-murder, 

aggravated-robbery, and aggravated-burglary charges should have merged. He 

also argues that res judicata should not apply, because of the subsequent change in 

law made by Johnson. We disagree. 

{¶ 13} New judicial rulings are not “applied retroactively to a conviction 

that has become final, i.e., where the accused has exhausted all * * * appellate 

remedies.” Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, 

¶ 6. For purposes of retroactivity analysis, Ketterer’s convictions on the 

noncapital charges became final when this court issued its second decision, which 

occurred before Johnson was decided. The second remand was solely for the 

purpose of correcting the error in postrelease control and did not render his 

original direct appeal a nullity. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 

N.E.2d 332, ¶ 32, 40. 

{¶ 14} We have recognized an exception to the rule against retroactivity 

in cases in which we address the meaning of a statute for the first time. In that 

situation, the rule against retroactive application does not apply, because we are 

not announcing a new rule of law but instead are determining what the relevant 

statutes have meant since their enactment. Hernandez v. Kelly, 108 Ohio St.3d 

395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 23-25; Agee v. Russell, 92 Ohio St.3d 

540, 543-544, 751 N.E.2d 1043 (2001). The exception does not apply in this 
January Term, 2014 

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case, because “Johnson did not merely clarify section 2941.25, but expressly 

overruled [prior case law] and changed more than a decade of Ohio alliedoffenses jurisprudence.” Volpe v. Trim, 708 F.3d 688, 703 (6th Cir.2013).

{¶ 15} We agree with the appellate courts that have declined to apply 

Johnson retroactively to judgments that were final as of the date that case was 

decided. E.g., State v. Dover, 5th Dist. Stark No. 2012CA00204, 2013-Ohio2634, ¶ 19; State v. Musselman, 2d Dist. Montgomery No. 25295, 2013-Ohio1584, ¶ 14-21; State v. Porter, 6th Dist. Lucas No. L-12-1243, 2013-Ohio-1360, 

¶ 13. 

{¶ 16} We reject Ketterer’s argument that the panel erred when it failed to 

merge the offenses of capital murder, aggravated robbery, and aggravated 

burglary. 

3. Consecutive periods of postrelease control 

{¶ 17} Ketterer argues that the three-judge panel violated R.C. 

2967.28(F)(4)(c) by imposing multiple periods of postrelease control that run 

consecutively. 

{¶ 18} The third sentencing order separately imposed postrelease control 

as to each of the noncapital offenses: 

It is ORDERED as to Count Two that the Defendant be 

sentenced to be imprisoned for a stated prison term of nine (9) 

years and pay a fine of two thousand ($2,000.00) dollars, which 

sentence carries five (5) years mandatory post release control 

pursuant to 2967.28(B)(1). 

It is FURTHER ORDERED as to Count Three that the 

Defendant be sentenced to be imprisoned for a stated prison term 

of nine (9) years, which term of imprisonment shall be served 

consecutively with the term of imprisonment heretofore imposed 
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as to Count Two, and pay a fine of two thousand ($2,000.00) 

dollars, which sentence carries five (5) years mandatory post 

release control pursuant to 2967.28(B)(1). 

It is FURTHER ORDERED as to Count Four that the 

defendant be sentenced to be imprisoned for a stated prison term of 

seventeen (17) months, which term of imprisonment shall be 

served concurrently with the terms of imprisonment heretofore 

imposed as to Counts Two and Three, and which sentence carries 

discretionary three (3) years post release control pursuant to 

2967.28(C). 

It is FURTHER ORDERED as to Count Five that the 

Defendant be sentenced to be imprisoned for a stated prison term 

of four (4) years, which term of imprisonment shall be served 

consecutively with the terms of imprisonment heretofore imposed 

as to Counts Two and Three, and pay a fine of one thousand 

($1,000.00) dollars, which sentence carries discretionary three (3) 

years post release control pursuant to 2967.28(C). 

{¶ 19} Ketterer argues that the language of the order imposes consecutive 

terms of postrelease control. In fact, the order states the opposite. The panel 

clearly indicated in each instance that the “term of imprisonment” would be 

served consecutively. Postrelease control is not part of the term of imprisonment. 

{¶ 20} A later section of the order, in which the panel expressly discussed 

postrelease control, contains a typographical error: 

The Court has notified the Defendant about the terms of 

post release control as previously indicated, and the Court also 

advised the Defendant of the consequences for violating conditions 
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of post release control imposed by the parole Board under Revised 

Code Section 2967.28, and that the Parole Board may impose a 

prison terms [sic] of up to one-half of the prison term originally 

imposed on the offender if he violates supervision or a condition of 

post release control. 

(Emphasis added.) Ketterer argues that the panel’s use of the plural word “terms” 

indicates an intention to impose multiple, consecutive periods of postrelease 

control. He must then assume that the inclusion of the article “a” was a 

typographical error. It is just as probable that the typographical error was the 

inclusion of an “s” at the end of the word “term.” Confronted with two equally 

reasonable alternatives, we will not presume that the panel intended to achieve an 

unlawful result. 

{¶ 21} We conclude that the panel did not impose consecutive terms of 

postrelease control. 

4. Fines 

{¶ 22} Ketterer challenges the imposition of fines at the third sentencing 

hearing without a hearing as to his ability to pay. Res judicata applies. 

{¶ 23} The three-judge panel imposed fines as part of its original 

judgment of conviction. 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, 

¶ 11. Upon remand, the court imposed the same sentence. Ketterer, 126 Ohio 

St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 4. Ketterer does not challenge the 

state’s assertion that the fines imposed in all three entries were the same. 

Therefore, Fischer forecloses Ketterer’s ability to raise the imposition of fees as a 

new argument on appeal. 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, 

¶ 32. 

{¶ 24} Ketterer argues that his fines are an issue arising at the 

resentencing because they were again incorporated into the judgment entry. By 
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that logic, there would be no such thing as a limited remand, because the final 

entry on remand would inevitably include all the judgments that came before, and 

therefore every aspect of his convictions would again be subject to attack on 

appeal. We reject this argument. 

5. Court costs 

{¶ 25} Ketterer challenges the imposition of court costs at the third 

sentencing hearing without a hearing as to his ability to pay. Res judicata applies. 

{¶ 26} Ketterer concedes that both the original judgment entry and the 

second judgment entry contained an assessment of court costs. His argument is 

that the panel did not mention court costs at the third sentencing hearing, and 

therefore he had no opportunity to object before they were included in the third 

judgment entry. 

{¶ 27} The assessment of court costs was already res judicata when the 

panel convened the third sentencing hearing. The panel’s failure to address the 

matter at the hearing was consistent with the limited purpose of the remand. 

These facts distinguish the present case from State v. Joseph, 125 Ohio St.3d 76, 

2010-Ohio-954, 926 N.E.2d 278, where there was no indication that the court 

imposed costs at the first sentencing hearing. 

Conclusion 

{¶ 28} For the reasons stated, we affirm Ketterer’s sentence. 

Judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, and O’NEILL, JJ., 

concur. 

LANZINGER, J., concurs in judgment only. 

____________________ 

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael A. 

Oster Jr. and Lina N. Alkamhawi, Assistant Prosecuting Attorneys, for appellee. 
January Term, 2014 

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Tim Young, State Public Defender, and Randall L. Porter, Assistant State 

Public Defender, for appellant. 

___________________________