[Cite as State v. Smith, 2017-Ohio-2684.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

RONALD A. SMITH 

Defendant-Appellant

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C.A. CASE NO. 27294 

T.C. NO. 04-CR-3554 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the ___5th __ day of _____May_____, 2017. 

. . . . . . . . . . . 

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. 

Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee 

 

RONALD A. SMITH, Inmate #516-443, London Correctional Institute, P. O. Box 69, 

London, Ohio 43140 

 Defendant-Appellant 

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DONOVAN, J. 

{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Ronald 

Smith, filed October 13, 2016. Smith appeals from the trial court’s “Decision and Order 

Overruling Defendant’s Void Sentence Pursuant to State v. Hand 2016-Ohio-5504 ReSentencing Hearing Requested.” Smith’s “Void Sentence” motion was filed on 
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September 22, 2016. We hereby affirm the judgment of the trial court. 

{¶ 2} Smith was found guilty in 2005 of aggravated burglary and aggravated 

robbery. The trial court sentenced Smith to consecutive ten-year prison terms, for an 

aggregate sentence of 20 years. This Court affirmed Smith’s convictions on direct 

appeal in State v. Smith, 2d Dist. Montgomery Nos. 21463, 22334, 2008-Ohio-6330, 

wherein this Court set forth the following facts: 

During the evening hours of September 27, 2004, two AfricanAmerican males, one identifying himself as “Little Ronnie,” kicked in the 

front door of Latisha Robinson’s apartment and entered. The man 

identifying himself as Little Ronnie, was armed with a gun. He got in her 

face and demanded to know where her boyfriend, Corey Pullings, was. The 

other man went to her back door and opened it, allowing three additional 

men to enter the apartment. 

When Robinson denied any knowledge of Pullings, Little Ronnie 

went upstairs in the apartment, tearing the handrail off the wall, and he went 

into Robinson’s bedroom putting the gun to her son’s head. He then 

demanded Robinson give him something to get him to leave. Robinson 

gave one of the men sixty dollars and her cell phone. 

Meanwhile, the four men downstairs ransacked Robinson’s 

apartment, toppling furniture and rummaging through boxes, throwing 

things to the floor. The men took additional items from the apartment, 

including radios and CD’s. During the ransacking of the apartment, the 

gunman, who repeatedly identified himself as “Little Ronnie,” and Robinson 
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were engaged in a confrontation in the dining room where he attempted to 

force Robinson to lay on the floor “like execution style.” Finally, after the 

other men exited the apartment, “Little Ronnie” ran out, too. 

Robinson then escaped to a neighbor’s apartment, where the police 

were called. The next day, Detective Ward, of the Montgomery County 

Sheriff’s Office prepared a photo spread containing a picture of Ronald 

Smith, the only individual the detective knew that called himself “Little 

Ronnie.” Robinson could not identify anyone in the photo spread. 

Subsequently, when Robinson was viewing serial photos on the detective’s 

computer screen, a photo of Smith came up, showing his gold teeth that 

were not displayed in the prior photo. Robinson indicated that this picture 

of Smith “could possibly be the person who was in her house.” 

Subsequently, a neighbor, who had opened his door while Smith and 

the others were knocking at Robinson’s door, immediately picked out Smith 

from a photo spread as the man at her door, and who had identified himself 

as Little Ronnie. 

Smith was arrested. After being Mirandized, Smith admitted that he 

and four others were knocking at Robinson’s apartment looking for Corey 

Pullings, but claimed that he left after being told that he was not there. He 

claimed that one of the other men kicked in the door and entered, but denied 

that he ever entered the apartment. Prior to trial, Smith made a number of 

phone calls attempting to get Robinson to take a payoff to drop the charges, 

and attempting to set up an excuse for why he was in the area. 
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Smith at ¶s 3-8. 

{¶ 3} Since his conviction, Smith has filed fourteen motions for a new trial or for 

leave to file such motions. State v. Smith, 2d Dist. Montgomery No. 27015, 2016-Ohio7904, ¶ 3 (affirming the trial court’s decision overruling Smith’s October 29, 2015 “Motion 

for New – Trial Pursuant to Newly Discovered Evidence Crim[.] R. 33,” and his October 

30, 2015 “Motion for A Order Granting Leave to file A Motion for New – Trial Crim.R. 

33(B).”) We note that Smith’s October 29, 2015 motion was supported by the affidavit 

of Nancy Duke, who averred “she observed Smith driving away from the apartment 

complex where the offenses occurred for which he is in prison, and she then saw another 

person kick in the door to an apartment.” Smith, ¶ 3. His October 30, 2015 motion was 

“supported by essentially the same evidence.” Id. 

{¶ 4} On July 16, 2016, Smith filed a motion for re-sentencing, arguing that his 

offenses were allied offenses of similar import that should have been merged. The trial 

court overruled that motion on August 26, 2016. Smith filed a notice of appeal on 

September 16, 2016, in Case No. CA 27272, which remains pending. While CA 27272 

and CA 27015 were pending, Smith filed the “Void Sentence” motion at issue herein. 

{¶ 5} In his instant motion, Smith asserted that the trial court improperly relied upon 

his juvenile record during sentencing to enhance his sentence, citing State v. Hand, Ohio 

Supreme Court Slip Opinion No. 2016-Ohio-5504, ¶ 1 (holding that it “is a violation of due 

process to treat a juvenile adjudication as the equivalent of an adult conviction for 

purposes of enhancing a penalty for a later crime.”) Smith argued that he received “a 

maximum, consecutive sentence which is unconstitutional and violated Defendant’s due 

process rights.” In overruling his motion, the trial court indicated that it “is not persuaded 
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by the Defendant’s arguments and analysis.” 

{¶ 6} Smith asserts the following assignment of error: 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION 

WHICH VIOLATED THE DEFENDANT’S DUE PROCESS RIGHTS BY 

NOT GRANTING THE DEFENDANT’S MOTION FOR RE-SENTENCING 

WHEN IT WAS FOUND BY THE SUPREME COURT IN STATE V. HAND 

2016-Ohio-5504 FOR A TRIAL COURT TO INHANCE [sic] A SENTENCE 

BASED ON THE CONSIDERATION OF A PAST JUVENILE RECORD IS 

UNCONSTITUTIONAL. 

{¶ 7} The State responds that the trial court was divested of jurisdiction to rule on 

Smith’s motion because Smith had two appeals pending before this Court at the time the 

motion was filed, and that the “motion essentially remains open on the trial court’s docket” 

in the absence of a final appealable order. The State further asserts that the record does 

not portray the error Smith asserts, since Hand “does not apply retroactively to convictions 

that were final prior to Hand being decided,” and since “the trial court imposed mandatory 

prison sentences in this case not because Smith had previously been adjudicated 

delinquent, but because he had previously been convicted of aggravated robbery and 

aggravated burglary as an adult.” 

{¶ 8} The State directs our attention in part to State v. Lauharn, 2d Dist. Miami 

No. 2011 CA 10, 2012-Ohio-1572. Therein this Court noted as follows: 

The Supreme Court of Ohio has long held that “[o]nce an appeal is 

taken, the trial court is divested of jurisdiction except ‘over issues not 

inconsistent with that of the appellate court to review, affirm, modify or 
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reverse the appealed judgment, such as the collateral issues like contempt, 

[appointment of a receiver and injunction].’ ” State ex rel. State Fire 

Marshal v. Curl, 87 Ohiio St.3d 568, 570, 722 N.E.2d 73 (2000), quoting 

State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 

Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). Following Special Prosecutors, 

we have repeatedly held that the filing of a notice of appeal from a conviction 

and sentence divests the trial court of jurisdiction to address a motion to 

withdraw the defendant’s plea during the pendency of the appeal. * * ** A 

motion to withdraw a plea is not a collateral issue, because it could directly 

affect the judgment under appeal. State v. Winn, 2d Dist. Montgomery No. 

17194, 1999 WL 76797 (Feb. 19, 1999). 

Id., ¶ 7. 

{¶ 9} In Lauharn, this Court concluded that 

* * * the trial court did not have jurisdiction to address Lauharn’s 

motions to withdraw his plea and for reconsideration of the denial of that 

motion while the case was pending on direct appeal. Consequently, the 

trial court’s rulings on Lauharn’s motions to withdraw his plea and for 

reconsideration of that denial are nullities. Those motions remain pending 

in the trial court, which now has jurisdiction to address them. See State v. 

Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 37 (“We take 

this opportunity to specify that the holding in Special Prosecutors does not 

bar the trial court’s jurisdiction over posttrial motions permitted by the Ohio 

Rules of Criminal Procedure.”). 
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Id., ¶ 13. 

{¶ 10} We initially note that Lauharn is procedurally distinct from the matter 

herein, in that it involved a direct appeal from a conviction and a motion to withdraw a 

plea, which could directly affect the pending appeal. At issue here is whether the 

pendency of CA 27015 and CA 27272 divested the trial court of jurisdiction over Smith’s 

“Void Sentence” motion because any action by the trial court would interfere with this 

Court’s ability to reverse, affirm, or modify the orders on appeal. We conclude that the 

issue of the application of Hand to Smith’s sentence is not inconsistent with this Court’s 

jurisdiction in CA 27015 and CA 27272 and accordingly does not interfere with this Court’s 

appellate review in those appeals. In other words, the decision of the trial court is not a 

nullity. 

{¶ 11} We further agree with the State that Hand does not apply to Smith’s 

sentence. “A new judicial ruling may be applied only to cases that are pending on the 

announcement date, and the new judicial ruling may not be applied retroactively to a 

conviction that has become final, that is, where the accused has exhausted all of his 

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

State v. Greathouse, 2d Dist. Montgomery No. 24935, 2012-Ohio-2414, ¶ 6. 

{¶ 12} Since Smith’s assigned error lacks merit, it is overruled. The judgment of 

the trial court is affirmed. 

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HALL, P.J. and WELBAUM, J., concur. 

Copies mailed to: 

Andrew T. French 

Ronald A. Smith 
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Hon. Dennis J. Langer