State v. Howard , 2013 Ohio 4803 ( 2013 )

[Cite as State v. Howard, 2013-Ohio-4803.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99664
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANDRE HOWARD, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-554036
BEFORE: Blackmon, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: October 31, 2013
APPELLANT PRO SE
Andre Howard, Jr.
Inmate No. 621-200
P.O. Box 788
Mansfield Correctional Institution
1150 North Main Street
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adam M. Chaloupka
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Andre Howard, Jr. (“Howard”) appeals pro se his sentence and
assigns the following error for our review:
The trial court violates clearly established state and federal law when
punishing appellant for the same offenses placing appellant twice in
jeopardy.
{¶2} Having reviewed the record and pertinent law, we affirm Howard’s
sentence. The apposite facts follow.
{¶3} Howard was charged in a multi-count indictment for four counts of
felonious assault and two counts of improperly discharging a weapon into a habitation, all
with one-, three-, and five-year firearm specifications, along with one count of having a
weapon while under disability. The charges arose from Howard’s involvement in a
drive-by shooting that occurred on June 13, 2011.1
{¶4} Howard pled not guilty and the matter proceeded to a bench trial; the trial
court found Howard guilty of all charges. The trial court sentenced Howard to a total
aggregate prison term of 12 years. The sentences on each count were run concurrently,
except the firearm specifications. The trial court merged the one-and three-year firearm
specifications, but ordered the three-year firearm specifications be served consecutive to
the five-year specifications.
{¶5} Howard appealed his convictions, and this court in State v. Howard, 8th
Dist. Cuyahoga No. 97695, 2012-Ohio-3459, affirmed. Thereafter, Howard filed a pro
se motion to “Correct a Factually Illegal Sentence.” Howard argued his convictions for
1
For a more detailed recitation of the facts, consult this court’s opinion in
State v. Howard, 8th Dist. Cuyahoga No. 97695, 2012-Ohio-3459.
improperly discharging a weapon into a habitation and felonious assault and the attached
firearm specifications should have merged because they are allied offenses. The trial
court denied the motion.
Allied Offenses
{¶6} In his sole assigned error, Howard argues the trial court erred by denying
his motion to correct his sentence.
{¶7} This court recently addressed a similar issue in State v. Marks, 8th Dist.
Cuyahoga No. 99474, 2013-Ohio-3734. In Marks we held:
[A] motion to correct an illegal or improper sentence is not the
appropriate vehicle to advance the allied-offense claim in a postconviction
setting. The correct procedure is for the defendant to file a motion for
postconviction relief pursuant to R.C. 2953.21, and courts should treat any
motion to correct an improper sentence, when raising the allied-offense
issue, as a petition for postconviction relief. (Citations omitted.)
Id. at ¶ 3. This court went on to state that the defendant must file the motion within the
time limit for petitions for postconviction relief set forth in R.C. 2953.21(A)(2). Under
R.C. 2953.21(A)(2), when a direct appeal is taken, a petitioner must file his petition for
postconviction relief no later than 180 days “after the date on which the trial transcript is
filed in the court of appeals in the direct appeal of the judgment of conviction.”
{¶8} In the instant case, the transcript in Howard’s direct appeal was filed on
January 23, 2012. Thus, the 180-day time limit for Howard to file a petition for
postconviction relief expired on July 23, 2012. He did not file his motion until February
19, 2013, well beyond the 180-day time limit.
{¶9} Generally, the trial court has no jurisdiction to consider an untimely petition
for postconviction relief. State v. Schultz, 8th Dist. Cuyahoga No. 85430,
2005-Ohio-6627. The trial court may, however, entertain untimely petitions for
postconviction relief if the defendant demonstrates either (1) he was unavoidably
prevented from discovering facts necessary for the claim for relief, or (2) the United
States Supreme Court recognized a new federal or state right that applies retroactively to
persons in defendant’s situation. R.C. 2953.23(A)(1)(a). Neither of these exceptions
apply to the instant case. Therefore, the trial court did not err by denying Howard’s
petition.
{¶10} Moreover, given this was a bench trial with a developed record that would
allow for the consideration of the allied-offenses argument on direct appeal, res judicata
also prevents our review of Howard’s appeal. Marks, 8th Dist. Cuyahoga No. 99474,
2012-Ohio-3734, at fn. 1. Accordingly, Howard’s sole assigned error is overruled.
{¶11} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR