State v. Hare , 2013 Ohio 3102 ( 2013 )

[Cite as State v. Hare, 2013-Ohio-3102.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 13 CAA 01 0008
MONTY SCOTT HARE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 05 CR I 01 0047
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 15, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN KATHERINE A. SZUDY
BRIAN J. WALTER Assistant State Public Defender
Assistant Prosecuting Attorney 250 East Broad Street, Suite 1400
Delaware County Prosecutor's Office Columbus, Ohio 43215
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 13 CAA 01 0008 2
Hoffman, P.J.
{¶1} Defendant-appellant Monty Scott Hare appeals the judgment entered by
the Delaware County Court of Common Pleas denying his motion for an allied-offense
analysis. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant was convicted on two counts of kidnapping, and one count each
of domestic violence, theft, receiving stolen property, burglary, aggravated menacing,
and abduction. Appellant filed a notice of appeal with this court. While his direct appeal
was pending, Appellant also filed with the trial court a petition for post-conviction relief.
{¶3} On July 27, 2006, this court announced its opinion in Appellant's direct
appeal, State v. Hare, 5th Dist. No. 05CAA06038, 2006-Ohio-3926. In that opinion, we
affirmed Appellant's convictions, but reversed his sentence, citing State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We remanded the matter to the trial
court for re-sentencing.
{¶4} Appellant was re-sentenced by the trial court on August 14, 2006. As
memorialized by the judgment entry filed on August 15, 2006, Appellant was sentenced
to a total of twelve years in prison. The trial court also found Appellant was able to work
and ordered Appellant to pay “all prosecution costs, court-appointment counsel costs
and any fees permitted pursuant to R .C. 2929.18(A)(4), for which, all sums judgment is
hereby rendered.” Judgment Entry, August 15, 2006.
{¶5} The trial court also denied Appellant's petition for post-conviction relief. On
October 20, 2006, the trial court made findings of fact and conclusions of law, finding
1
A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Delaware County, Case No. 13 CAA 01 0008 3
Appellant's petition was barred by the principles of res judicata because this court had
already ruled on the issues Appellant raised.
{¶6} Appellant filed an affidavit of indigency with the trial court on November
20, 2006. Appellant filed an appeal of the trial court's decision to deny his petition for
post-conviction relief. We affirmed the trial court's decision in State v. Hare, 5th Dist. No.
06-CAA-11-0088, 2007-Ohio-2802.
{¶7} On January 4, 2008, Appellant filed a motion for writ of coram vobis with
the trial court to prohibit the Clerk of Courts from assessing or collecting court costs in
his underlying criminal case (Case No. 05CR-I-01-0047) and the appeal of the denial of
his petition for post-conviction relief (Case No. 06-CAA-11-0088). The trial court denied
his motion, finding the trial court was permitted to assess costs and the Clerk of Courts
could attempt to collect those costs from an indigent defendant. Judgment Entry, Jan.
22, 2008.
{¶8} Appellant filed a notice of appeal of the decision and affidavit of indigency
on February 28, 2008. This court dismissed Appellant's appeal on March 18, 2008 for
being untimely filed. Appellant filed a motion for leave to file a delayed appeal. We
granted Appellant's motion on April 18, 2008. On June 25, 2008, we affirmed the trial
court's denial of the motion in State v. Hare, 5th Dist. No. 08-CAA-02-0005, 2008-Ohio-
3127.
{¶9} On December 13, 2012, Appellant filed a motion requesting the trial court
conduct an allied-offense analysis as to Appellant's burglary and kidnapping
convictions. Appellant maintains since his conviction, Ohio's case law regarding allied
Delaware County, Case No. 13 CAA 01 0008 4
offenses has changed, citing State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
Via Judgment Entry of January 9, 2013, the trial court denied the motion.
{¶10} Appellant now appeals assigning as error:
{¶11} “I. THE TRIAL COURT ERRED WHEN IT OVERRULED MONTY HARE’S
DECEMBER 13, 2012 MOTION REQUESTING THAT THE DELAWARE COUNTY
COURT OF COMMON PLEAS CONDUCT AN ALLIED-OFFENSE ANALYSIS AS TO
MR. HARE’S BURGLARY AND KIDNAPPING CONVICTIONS.”
{¶12} Appellant's conviction and sentence were final on June 25, 2008. The
Ohio Supreme Court's holding in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, does not apply retroactively. See, State v. Holliday, 5th Dist. No. 11CAA110104,
2012-Ohio-2376; State v. Hickman, 5th Dist. 11CA54, 2012-Ohio-2182, citing State v.
Parson, 2nd Dist. 24641, 2012–Ohio–730.
{¶13} A new judicial ruling may be applied only to cases pending on the
announcement date. State v. Parson, 2nd Dist. No. 24641, 2012–Ohio–730. The new
judicial ruling may not be applied retroactively to a conviction that has become final, i.e.,
where the accused has exhausted all of his appellate remedies. Ali v. State, 104 Ohio
St.3d 328, 2004–Ohio–6592.
{¶14} Accordingly, we find Appellant's arguments are barred by res judicata as
they were capable of being raised on direct appeal, and his reliance on Johnson is
misplaced as his conviction and sentence were already final prior to the date the
Supreme Court pronounced its holding therein.
{¶15} Appellant's sole assignment of error is overruled.
Delaware County, Case No. 13 CAA 01 0008 5
{¶16} The judgment of the Delaware Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN
Delaware County, Case No. 13 CAA 01 0008 6
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MONTY SCOTT HARE :
:
Defendant-Appellant : Case No. 13 CAA 01 0008
For the reason stated in our accompanying Opinion, the judgment of the
Delaware Court of Common Pleas is affirmed. Costs to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN