State v. Florence ( 2018 )

[Cite as State v. Florence, 2018-Ohio-421.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27478
:
v. : T.C. NO. 03-CR-810
:
LAMAR D. FLORENCE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 2nd day of February, 2018.
...........
HEATHER JANS, Atty. Reg. No. 0084470. Assistant Prosecuting Attorney, 301 West
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LAMAR D. FLORENCE, Inmate # 467506, 1001 Olivesburg Road, P.O. Box 8107,
Mansfield, Ohio 44901
Defendant-Appellant, pro se
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Lamar
Florence, filed February 24, 2017. Florence appeals from the trial court’s February 1,
-2-
2017 “Decision, Order and Entry Overruling Defendant’s Motion to Vacate Sentence
and/or Resentencing.”
{¶ 2} On March 14, 2003, Florence was indicted on two counts of aggravated
murder (Counts One and Three), in violation of R.C. 2903.01(B), an unclassified felony;
one count of kidnapping (Count Two), in violation of R.C. 2905.01(B)(2), a felony of the
first degree; one count of aggravated robbery (Count Four), in violation of R.C.
2911.01(A)(1), a felony of the first degree; and one count of having weapons while under
disability (Count Five), in violation of R.C. 2923.13(A)(2) and (B), a felony of the third
degree. Each count contained a firearm specification. Following a jury trial, Florence
was found guilty of one count of aggravated murder, kidnapping, one count of the lesser
included offense of murder, and having weapons while under disability, along with four
firearm specifications. The court sentenced Florence to life for aggravated murder, five
years for kidnapping, and fifteen years to life for murder, all to be served concurrently.
The court further sentenced Florence to three years for having weapons while under
disability, to be served consecutively to the sentences imposed on Counts One, Two, and
Three. Finally, the court merged the four firearm specifications and imposed an
additional term of three years to be served consecutively and prior to the definite term of
imprisonment. This Court affirmed Florence’s conviction on direct appeal. State v.
Florence, 2d Dist. Montgomery No. 20439, 2005-Ohio-4508. Florence’s original
Judgment Entry of Conviction is dated March 26, 2004, and it does not provide the
manner of his conviction. On November 16, 2011, a Judgment Entry of Conviction Nunc
Pro Tunc was issued which provides that Florence pled guilty to the above offenses. On
December 29, 2011, another Judgment Entry of Conviction Nunc Pro Tunc was issued
-3-
which provides that Florence was found guilty by a jury.
{¶ 3} Florence filed his motion to vacate on December 9, 2016, arguing that the
trial court, “at the time of sentencing failed to mention anything to the Defendant regarding
post release control. * * * And then the Court through the sentencing judgment entry
included language that the Defendant ‘may/will’ be subject to post release control. The
Court clearly failed to comply with R.C. Section 2929.19(B)(2)(c).”
{¶ 4} In overruling the motion, the trial court found as follows:
Pursuant to the doctrine of res judicata, “a valid final judgment on the
merits bars all subsequent actions based on any claim arising out of the
transaction or occurrence that was the subject matter of the previous
action.” State v. Boyce, 2d Dist. Clark No. 11CA0095, 2012-Ohio-3713, ¶
10 (citations omitted). This bar “applies to any defense that was raised or
could have been raised in a criminal defendant’s prior direct appeal from his
conviction and/or sentence.” Id. * * * Defendant has already appealed the
above captioned case twice, with regard to the trial and sentencing, to the
Ohio Second District Court of Appeals. * * * On his first appeal, Defendant
raised six points, none of which claimed that he was insufficiently informed
of his mandatory post release control. * * * Defendant failed to raise this
issue on appeal the first time, and because he did not, he is therefore barred
from raising this claim now based on the doctrine of res judicata. On his
second appeal, Defendant only challenged the Termination Entry entered
Nunc Pro Tunc. The Ohio Second District Court of Appeals dismissed
Defendant’s appeal.
-4-
Further, at the time the Defendant was sentenced, this Court finds
that Judge Hall sufficiently articulated Defendant’s sentence. Defendant
received a life sentence on the Aggravated Murder charge. Given that
Defendant is serving a life sentence for Aggravated Murder, and 15 years
to life for Murder, the Parole Board will decide if, or when, Defendant would
be released and under what type of supervision.
The issue that Defendant raised claiming he was not properly notified
of post release control supervision on the underlying crimes appears to the
Court to be superfluous and moot.
{¶ 5} Florence asserts two assignments of error herein. His first assigned error is
as follows:
THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY
IMPOSE MANDATORY FIVE YEARS POST-RELEASE CONTROL AT
THE SENTENCING HEARING WHICH RESULTED IN APPELLANT’S
SENTENCE BEING CONTRARY TO LAW AND VOID, AND VIOLATING
MR. FLORENCE’S RIGHTS TO EQUAL PROTECTION AND DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
{¶ 6} According to Florence, the “record clearly reflects the trial court failed to
impose the statutory [sic] mandated five years post-release control for Count 1[sic]:
Kidnapping, at the sentencing hearing. * * * Thus Florence[’s] sentence is contrary to law
and void.” He asserts that the doctrine of res judicata does not apply to his motion, and
that he “moves this Court to vacate his sentence on Count 1 [sic] and remand this matter
-5-
to the trial court for resentencing.”
{¶ 7} The record reflects that the trial court did not mention post-release control
at sentencing. Florence’s December 29, 2011 Judgment Entry of Conviction provides in
part: “The Court by this entry advises the defendant that following the defendant’s
release from prison, the defendant will/may serve a period of post-release control under
the supervision of the parole board.”
{¶ 8} The State concedes error and acknowledges that “a defect in the imposition
of post-release control may be raised at any time.” The State asserts as follows:
* * * Considering the sentencing structure, Florence has served his
time on the Kidnapping charge, but has yet to serve his time on the Having
Weapons While Under Disability charge because he is still serving out his
sentences on the murder charges. Therefore, while the trial court cannot
impose a period of post-release control for the Kidnapping charge at re-
sentencing, the trial court must impose a discretionary term of post-release
control of up to three years for the Having Weapons While Under Disability
charge. As such, the State concedes that this case should be remanded
to the trial court for re-sentencing solely for the purposes of imposing post-
release control for Florence’s conviction of having Weapons While Under
Disability.
{¶ 9} “ ‘If a sentence is void for failure to include proper postrelease-
control notification, the trial court—or the reviewing court—has an obligation to recognize
the void sentence, vacate it, and order resentencing.’ * * *.” State v. Hudson, 2d Dist.
Clark No. 2014 CA 53, 2014-Ohio-5363, ¶ 19. “ ‘Post-release control’ involves a period
-6-
of supervision by the Adult Parole Authority after an offender's release from prison that
includes one or more post-release control sanctions imposed under R.C. 2967.28. R.C.
2967.01(N). Post-release control is mandatory for some offenses and is imposed at the
discretion of the Parole Board for others. R.C. 2967.28(B); * * *.” Hudson, ¶ 20. As this
Court further noted in Hudson, at ¶ 21:
The Supreme Court of Ohio has held that when a judge fails
to impose the required post-release control as part of a defendant's
sentence, “that part of the sentence is void and must be set aside.”
(Emphasis in original.) State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–
6238, 942 N.E.2d 332, ¶ 26; State v. Holdcroft, 137 Ohio St.3d 526, 2013–
Ohio–5014, 1 N.E.3d 382. The improper post-release control sanction “may
be reviewed at any time, on direct appeal or by collateral attack,” Fischer at
¶ 27, but “res judicata still applies to other aspects of the merits of a
conviction, including the determination of guilt and the lawful elements of
the ensuing sentence,” id. at ¶ 40.
{¶ 10} As the State asserts, Florence has served his five-year sentence for
kidnapping. Since his sentence for having weapons while under disability, a felony of
the third degree, was ordered to be served consecutively to his sentences on Counts
One, Two, and Three, Florence’s first assignment of error is sustained to the extent that
post-release control was not properly imposed on the having weapons while under
disability count. R.C. 2967.28(C) provides that any sentence for a felony of the third
degree that is not an offense of violence or a felony sex offense, “shall include a
requirement that the offender be subject to a period of post-release control of up to three
-7-
years after the offender’s release from imprisonment, if the parole board, in accordance
with division (D) of this section, determines that a period of post-release control is
necessary for that offender.” Having sustained Florence’s first assignment of error as to
the having weapons while under disability count, the matter is accordingly remanded for
resentencing as set forth above.
{¶ 11} Florence’s second assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT IMPOSED SEP[A]RATE
CONCURRENT SENTENCES ON COUNT 1: AGGRAVATED MURDER
AND COUNT 2: KIDNAPPING, AFTER CONCLUDING BOTH OFFENSES
WERE ALLIED OFFENSE[S] OF SIMILAR IMPORT, THEREBY
RENDERING MR. FLORENCE’S SENTENCES ON BOTH COUNTS
CONTRARY TO LAW AND VOID, AND IN VIOLATION OF THE EQUAL
PROTECTION AND DUE PROCESS CLAUSE UNDER FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶ 12} Florence asserts that his “sentences on Count 1 and Count 2 should be
vacated and remanded to the trial court for resentencing.” The State responds that res
judicata applies to Florence’s argument. In reply, Florence asserts that there “is no doubt
the trial court implicitly determined Kidnapping and Aggravated Murder are allied offenses
of similar import,” and that his sentences for those offenses are void.
{¶ 13} The trial court at the sentencing hearing sentenced Florence in part as
follows:
* * * so with regard to Count 1, this Court is going to sentence you to
life in prison. With regard to Count 2, the kidnapping charge – the Court is
-8-
of the belief that since the kidnapping is also part of the aggravated murder
charge, that the Court cannot sentence you to a separate and distinct or
consecutive anyway charge. I will sentence you on the kidnapping charge
though to a period of 5 years in prison that will run concurrently with the life
in prison charge. With regard to Count 3, I’m sorry, Count 3 was a charge
on which you were found guilty of murder. The Court at some point would
entertain motions whether or not that is merged, however at this point I’m
going to find that it is not and sentence you to 15 years to life in prison on
Count 3. That charge will be served concurrently with the life in prison on
the aggravated murder charge. * * *
{¶ 14} In State v. Byrd, 2d Dist. Montgomery No. 26700, 2015-Ohio-5293, ¶ 10,
this Court noted that the “failure to merge allied offenses does not render a judgment void,
but voidable. * * * Consequently, challenges to the trial court’s failure to merge allied
offenses are barred by the doctrine of res judicata if they could have been, but were not,
raised on direct appeal.” See also State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-
7658, 71 N.E.3d 234, ¶ 26 (“* * *when a trial court finds that convictions are not allied
offenses of similar import, or when it fails to make any finding regarding whether the
offenses are allied, imposing a separate sentence for each offense is not contrary to law
and any error must be asserted in a timely appeal or it will be barred by principles of res
judicata.”) Since the doctrine of res judicata applies to Florence’s second assignment of
error, it is overruled. As noted above, the matter is remanded to the trial court for the
limited purpose of imposing post-release control on Count Five, having weapons while
under disability. The judgment of the trial court is affirmed in all other respects.
-9-
.............
WELBAUM, P.J. AND TUCKER, J., concur.
Copies mailed to:
Heather Jans
Lamar Florence
Hon. Dennis J. Adkins