State v. Millette , 2011 Ohio 6357 ( 2011 )

[Cite as State v. Millette, 2011-Ohio-6357.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Sheila G. Farmer, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 11-CA-23
:
:
ROGER MILLETTE : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County
Court of Common Pleas Case No.
04CR032
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 6, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT WILLIAM CRAMER
Licking County Prosecutor 470 Olde Worthington Road, Ste. 200
Westerville, Ohio 43082
BY: TRACY F. VAN WINKLE
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
[Cite as State v. Millette, 2011-Ohio-6357.]
Edwards, J.
{¶ 1} Appellant, Roger G. Millette, appeals a judgment of the Licking County
Common Pleas Court resentencing him to an aggregate prison term of 33 years and
adding a 5-year term of mandatory postrelease control. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶ 2} In 2005, appellant was indicted on charges of aggravated robbery,
aggravated burglary, kidnapping, attempted rape, intimidation of a witness and two
counts of gross sexual imposition following an incident where he broke into the home of
a pregnant woman to rob her, threatened her with a knife, made her strip nearly naked
and tied her to a bed. In exchange for dismissal of the attempted rape charge,
appellant pleaded guilty to the remaining charges. He was sentenced to 8 years
incarceration for aggravated burglary, 8 years for aggravated robbery, 8 years for
kidnapping, 3 years for intimidation and 3 years for each count of gross sexual
imposition. All counts were to run consecutively for an aggregate term of 33 years.
{¶ 3} On January 10, 2011, appellant filed a motion seeking to correct his
sentence for failure to impose postrelease control. The State responded by requesting
that appellant be resentenced pursuant to State v. Fischer, 128 Ohio St. 3d 92, 942
N.E.2d 332, 2010-Ohio-6238. Resentencing was scheduled for February 16, 2011 and
counsel was appointed to represent appellant at resentencing.
{¶ 4} On February 15, 2011, the day before the resentencing hearing, appellant
filed a motion to withdraw his guilty plea on the basis that postrelease control was not
validly imposed, and a motion to dismiss the resentencing proceedings on the grounds
that his sentence is now res judicata.
Licking County App. Case No. 11-CA-23 3
{¶ 5} The case proceeded to a resentencing hearing in the Licking County
Common Pleas Court. The court overruled appellant’s motion to withdraw his plea and
his motion to dismiss the proceedings. Appellant orally argued that the convictions for
robbery, burglary, kidnapping and intimidation of a witness should merge as allied
offenses of similar import. The court sentenced appellant to the same sentence
originally imposed in this case with the addition of a mandatory term of five years
postrelease control on all counts other than intimidation of a witness, on which the court
imposed three years of postrelease control. Appellant assigns a single error:
{¶ 6} “DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND PROTECTIONS FROM DOUBLE JEOPARDY WERE VIOLATED
WHEN THE COURT IMPOSED MULTIPLE SENTENCES FOR ALLIED OFFENSES IN
VIOLATION OF R.C. 2941.25.”
{¶ 7} We note at the outset that appellant did not raise this issue in the trial
court in a manner in which the court could properly consider his request for merger.
Appellant did not raise this issue in any of his written motions pending before the court;
thus, the court believed the only issues before it were appellant’s request to withdraw
his plea based on the fact that his sentence was void, the motions filed by both the
State and appellant to resentence appellant to properly impose postrelease control, and
appellant’s seemingly contradictory motion to dismiss the resentencing proceeding on
the grounds that his sentence is now res judicata. When appellant raised the issue of
merger for the first time at the resentencing hearing, he did so in a conclusory way
without presenting the court with specific facts from the record and law supporting his
argument that the offenses are allied offenses of similar import:
Licking County App. Case No. 11-CA-23 4
{¶ 8} “MS. LARIMER: In addition, Your Honor, we would argue that the robbery,
burglary, kidnapping and intimidation of witness charges pursuant and in accordance
with State v. Johnson are allied offenses of similar import and request that they merge
for purposes of sentencing, and it was a single act committed, single state of mind and
the offenses correspond to such a degree that the conduct of the Defendant constituted
- - the commission of one offense constitutes the commission of the other and,
therefore, they are offenses of similar import. Under that holding in State v. Johnson we
ask the Court to consider those offenses allied and merge them for purposes of
sentencing at this time.” Tr. 9-10.
{¶ 9} From this argument raised for the first time at the hearing, the trial court
had virtually no legal or factual basis on which to consider appellant’s request.
{¶ 10} Further, in Fischer, supra, the Ohio Supreme Court held that when a
sentence is void because of improper imposition of postrelease control, a defendant is
entitled only to a hearing for proper imposition of postrelease control and is not entitled
to a de novo sentencing hearing at which he may raise new issues. This Court has
held that Fischer applies to the issue of merger of offenses and a trial court does not err
in failing to consider whether offenses for which the defendant was convicted are allied
offenses of similar import; res judicata is a valid basis for rejecting these claims. State
v. Griffis, Muskingum App. No. CT2010-57, 2011-Ohio-2955, ¶35-38.
Licking County App. Case No. 11-CA-23 5
{¶ 11} Appellant’s assignment of error is overruled.
{¶ 12} The judgment of the Licking County Common Pleas Court is affirmed.
By: Edwards, J.
Farmer, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0823
[Cite as State v. Millette, 2011-Ohio-6357.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ROGER G. MILLETTE :
:
Defendant-Appellant : CASE NO. 11-CA-23
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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JUDGES