State v. Herron , 2022 Ohio 2514 ( 2022 )

[Cite as State v. Herron, 2022-Ohio-2514.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
STATE OF OHIO :
: Appellate Case No. 29380
Plaintiff-Appellee :
: Trial Court Case No. 2017-CR-2437
v. :
: (Criminal Appeal from
KEASON HERRON : Common Pleas Court)
:
Defendant-Appellant :
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OPINION
Rendered on the 22nd day of July, 2022.
...........
MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
KEASON HERRON, #A747-515, Chillicothe Correctional Institution, 15802 State Route
104 North, Chillicothe, Ohio 45601
Defendant-Appellant, Pro Se
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.............
DONOVAN, J.
{¶ 1} Defendant-appellant Keason Herron appeals from an order of the
Montgomery County Court of Common Pleas, which overruled his “Motion to Correct
Sentence.” Herron filed a delayed notice of appeal on February 8, 2022, which we
allowed in an entry issued on March 8, 2022.
{¶ 2} We set forth the history of the case in State v. Herron, 2d Dist. Montgomery
No. 28146, 2019-Ohio-3292 ( “Herron I”), and repeat it herein in pertinent part:
The record establishes that on the evening of August 4, 2017, the
victim, Leanette Newton, was socializing at a residence located in Dayton,
Ohio, on Dearborn Avenue (hereinafter “the Dearborn residence”). The
residence in question belonged to the mother of defendant-appellant,
Herron. The Dearborn residence had a detached garage that was used by
people in the neighborhood as a place to congregate and drink alcohol.
Between approximately 4:00 p.m. and 6:00 p.m. that evening, Herron
arrived at the Dearborn residence, briefly spoke to Newton, and left shortly
thereafter. At some point that evening, Newton also left the Dearborn
residence.
Here, we note that Newton and Herron had been involved in an “on-
off” relationship since approximately 2006 or 2007. Herron testified that his
relationship with Newton was marked by periods of instability, volatility, and
violence from both parties. Herron further testified that his and Newton's
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alcohol use greatly exacerbated their relationship difficulties. Herron
testified that, by August 4, 2017, he and Newton were no longer in a
relationship, and Newton had moved all of her personal property out of the
residence she previously shared with Herron on Blanche Street in Dayton,
Ohio.
Later on the night of August 4, 2017, Herron returned to the Dearborn
residence and began drinking with others who were present. Eventually,
Newton arrived back at the Dearborn residence and also began drinking.
Herron testified that, in order to avoid a confrontation with Newton, he
immediately left the Dearborn residence and drove to his current girlfriend's
apartment, but he was unable to gain entrance. Thereafter, Herron drove to
his residence on Blanche Street.
After Herron left, Newton remained at the Dearborn residence and
continued to drink alcohol for a short time. Kimberly Moss, another
individual who was drinking alcohol at the Dearborn residence, testified that
at approximately 11:30 p.m., Newton asked Moss for a ride to her mother's
house nearby. At Newton's request, Moss drove her vehicle past Herron's
residence on Blanche Street. Newton then asked Moss to drop her off at a
park located behind Herron's residence.
Shortly thereafter, Newton walked over to Herron's residence and
began yelling at Herron while they stood in his front yard. Herron testified
that he then went inside his house, leaving Newton outside. Herron testified
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that once he was inside, he observed that it looked as if someone had
broken into and ransacked his house. Herron testified that he thought
Newton had broken into his house. (We note that the police investigation
found that there was no damage to any of the doors or windows in the
residence. The police also found that all of the windows were locked the
next morning on August 5, 2017.) Herron testified that in order to scare
Newton, he picked up a handgun from inside his house, walked outside,
and fired four shots into the ground. Herron testified that after he fired the
warning shots, Newton yelled at him and walked away. (We note here that
the police were unable to find any shell casings in the area where Herron
stated that he fired the handgun. Additionally, no handgun was ever
recovered by the police during their investigation.)
Herron testified that, at this point, he got into his truck and drove over
to Newton's mother's residence where Newton was then living. Upon
arriving, Herron asked Newton's mother to come to his residence and
retrieve her daughter. In the alternative, Herron asked Newton's mother to
send Newton's brother over to help. Newton's mother refused to help, so
Herron left and drove back to his residence.
Herron testified that after entering his residence, he heard a noise
behind him and turned around to see Newton walking toward him with a
“stick.” Herron testified that he ran into his bedroom and retrieved a shotgun
from his closet. Herron testified that he ejected the shells out of the shotgun
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and began to “jab” Newton with the barrel. Admittedly “furious” and “seeing
red,” Herron struck Newton several times, eventually causing her to fall
down on the floor. Herron testified that at this point, he grabbed Newton
around her neck and began choking her in an effort to wrest the stick from
her hand. Herron testified that after successfully doing so, he hit Newton
with the stick and then threw it outside in the yard.
Herron testified that Newton remained seated on the floor and began
falling asleep. After Newton began to snore, he went into his bedroom and
fell asleep for a few hours. When Herron woke up, he observed that Newton
had not moved from the position that he last saw her in hours earlier. Herron
testified that he then attempted to rouse Newton, but she did not respond.
Later that morning, Herron's uncle, Dennis Richardson, drove his
truck to Herron's residence for assistance in repairing his lawnmower.
Richardson testified that upon arriving at Herron's residence, he observed
that the front door was standing open. When Richardson approached the
residence, Herron came outside and told Richardson to enter the house.
Once the men were inside the house, Herron gestured toward Newton's
body and stated to Richardson, “she died on me.” Richardson testified that
he initially thought that Herron and Newton were playing a joke on him, and
he tried to leave the residence. Herron, however, blocked the door and
handed Richardson the shotgun, which had been wrapped in a sheet.
Herron told Richardson that he was not supposed to have the shotgun.
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Richardson went outside and placed the shotgun in the bed of his truck.
Richardson testified that he then reentered the residence and told
Herron to give him a “video camera” in order to prevent Herron from posting
anything on social media, as Richardson still believed the whole situation to
be a bad prank. Herron then handed Richardson a DVR recording box and
a disc containing surveillance video from cameras installed on and around
Herron's residence. Richardson went back outside, placed the surveillance
items in the bed of his truck, and drove home. Richardson testified that once
he reached his residence, he removed Herron's shotgun and surveillance
gear from his truck and put the items in his garage. Richardson testified that
he believed that Herron would call when and if he needed the items.
After Richardson left, Herron walked down the street to a nearby
convenience store where he encountered William Wagner, his stepfather's
brother. Wagner testified that he was at the store to purchase some items
for another relative while he was on a break from his job at the VA Hospital.
Herron approached Wagner and asked to use his cellphone. Wagner
handed Herron his cellphone. Herron testified that he then used Wagner's
cellphone to call 911 as he walked back toward his residence. Herron was
immediately arrested and taken into custody when the police and other
emergency personnel arrived at his residence.
Shortly thereafter, Dayton Police Officer Craig Stiver was dispatched
to Herron's residence to take photographs of the crime scene. Officer Stiver
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took photographs of a long metal bar that had been placed on top of an
animal cage, a crowbar retrieved from the kitchen, bloodstains in the
hallway and on the door to Herron's bedroom, and bloodstains on Herron's
bedroom dresser, stereo cabinet, pillow, and bedsheets. Stiver also
photographed bloodstains on and around the toilet in the bathroom.
On August 10, 2017, Herron was indicted for one count of murder,
one count of reckless homicide, and one count of felonious assault. At his
arraignment on August 15, 2017, Herron appeared and pled not guilty to the
charged offenses.
***
On July 5, 2018, Herron was charged in a “B” indictment with two
counts of tampering with evidence, and one count of having weapons while
under disability. The “B” indictment was based upon the State's discovery
of the shotgun and DVR equipment that Herron had given to Richardson to
hide. On August 9, 2018, Herron filed a jury waiver with respect to the
charge of having weapons while under disability.
A three-day jury trial was held on the remaining counts on August
20-22, 2018. At trial, Montgomery County Coroner's Office forensic
pathologist Dr. Susan Allen testified that she had performed an autopsy on
Newton on August 5 and 6, 2017. Dr. Allen testified that Newton's cause of
death was a combination of blunt force trauma and strangulation. Dr. Allen
testified that she found several bruises on Newton's face and head, as well
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as several circular or semi-circular bruises across Newton's entire body,
including her arms, abdomen, and back. Dr. Allen also testified that Newton
suffered deep cuts to her jaw, left ear lobe, lips, and the back of her head.
Significantly, Dr. Allen testified that Newton had a broken left leg, a broken
left arm, and five broken ribs. Lastly, Dr. Allen testified that Newton
presented with petechiae on her eyes, which are broken blood vessels
indicating that she had been strangled. Dr. Allen testified that, based on the
extent of Newton's injuries, she would have lost a great deal of blood and
suffered swelling of her brain.
Following his jury trial, Herron was found guilty of murder, felonious
assault, and both counts of tampering with evidence. The trial court
separately found Herron guilty of having weapons while under disability.
The State dismissed the charge of reckless homicide. The trial court merged
Herron's convictions for murder and felonious assault, with the State
electing to proceed to sentencing for the murder charge. On September 11,
2018, the trial court sentenced Herron to 15 years to life in prison for murder,
three years in prison for each count of tampering with evidence, and three
years in prison for having weapons while under disability. The trial court
ordered the two counts of tampering with evidence to be served
concurrently to one another, but consecutively to the remaining counts. The
trial court also ordered that Herron's conviction for having weapons while
under disability be served consecutively to the other counts, for an
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aggregate sentence of 21 years to life in prison.
Id. at ¶ 2-14, ¶ 17-19.
{¶ 3} Herron appealed his convictions. We held that the trial court had erred when
it precluded him from testifying to and introducing into evidence specific instances of the
victim’s past violent conduct toward him pursuant to Evid.R. 405(B), to show Herron’s
state of mind in support of his defense of self-defense. However, we found that the
error had been harmless in light of the overwhelming evidence adduced by the State and
the fact that Herron had been allowed to testify that the victim had attacked him several
times in the past, requiring him to go to the hospital for treatment. Additionally, we held
that Herron’s convictions for murder and tampering with evidence were supported by
sufficient evidence and were not against the manifest weight of the evidence. Finally,
we found that Herron’s trial counsel was not ineffective for failing to call a defense expert
during trial to dispute the testimony of the State’s forensic expert. See Herron I.
{¶ 4} On May 1, 2020, Herron filed a pro se “Verified Motion to Correct a Void
Sentence” in which he argued that his sentence was void because the judgment entry did
not contain the judge’s signature and the trial court did not properly consider the purposes
and principles of sentencing when it imposed Herron’s aggregate 21-year prison term.
On September 24, 2020, the trial court overruled Herron’s motion. Herron did not appeal
the order of the trial court.
{¶ 5} On September 21, 2021, Herron filed a pro se “Motion to Correct Sentence.”
In his motion, Herron raised the following issues: 1) the failure of the trial court to sign his
judgment entry; 2) the failure of the trial court to consider his present and future ability to
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pay financial sanctions; 3) the imposition of court costs which could potentially subject
Herron to performing community service; 4) the award of restitution; 5) the trial court’s
alleged failure to comply with the post-release control statutes; 6) the trial court’s decision
to merge his convictions for murder and felonious assault; and 7) the trial court’s failure
to instruct the jury regarding the “Castle Doctrine.”
{¶ 6} On October 14, 2021, the trial court issued an order overruling Herron’s
“Motion to Correct Sentence,” finding that the issues raised in the motion were barred by
res judicata. The trial court also addressed the merits of Herron’s motion. It found that
his judgment entry had been electronically signed by the trial judge. The trial court also
found that Herron’s argument regarding court costs was moot because the trial court had
previously waived any remaining costs in a judgment entry filed on June 22, 2021. In
regard to the restitution order, the trial court found that Herron had waived the argument
because, at his sentencing hearing, he expressly consented to pay the restitution order
to cover the victim’s funeral expenses and also waived a hearing to determine the amount.
The trial court found that Herron had the present and future ability to pay financial
sanctions because he had admitted to owning a house during his jury trial. Furthermore,
the trial court held that Herron’s convictions for murder and felonious assault had been
properly merged for the purposes of sentencing. The trial court found that Herron had
been properly advised at sentencing of all necessary information, including the effects of
violating post-release control. Finally, the trial court found that the jury had been properly
instructed regarding self-defense and that there had been a discussion between the trial
court and the parties regarding which instruction was proper.
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{¶ 7} Herron now appeals from the trial court’s order overruling his October 14,
2021 motion.
{¶ 8} Because they are interrelated, all of Herron’s assignments of error will be
discussed together:
THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN
IGNORING THE CASTLE DOCTRINE.
THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN
ORDERING FINANCIAL SANCTIONS.
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.
{¶ 9} In his first assignment, Herron argues that the trial court erred when it failed
to instruct the jury regarding the “Castle Doctrine.” In his second assignment, Herron
contends that the trial court erred by ordering him to pay restitution in the amount of
$2,147.00 for the victim’s funeral expenses. In his third assignment, Herron argues that
he received ineffective assistance when his trial counsel 1) failed to request that the trial
court instruct the jury regarding the Castle Doctrine; and 2) failed to object to unidentified
due process and equal protection violations, the allegedly erroneous post-release control
language used by the trial court, and the “mandated financial sanctions procedures.”
Appellant’s Brief p. 5.
{¶ 10} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack of due
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process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment.” State v.
Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
Therefore, “any issue that could have been raised on direct appeal,” but was not, is “not
subject to review in subsequent proceedings.” State v. Saxon, 109 Ohio St.3d 176, 2006-
Ohio-1245, 846 N.E.2d 824, ¶ 16, citing State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-
5607, 797 N.E.2d 948, ¶ 37 and State v. D'Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d
710 (1995).
{¶ 11} Even if Herron's three assignments of error raised new arguments that he
had not raised previously, he could have raised them in his direct appeal. Therefore,
any issues regarding the jury instructions, the restitution order imposed by the trial court,
and whether his trial attorney provided ineffective assistance of counsel were barred by
res judicata. Significantly, Herron raised a claim of ineffective assistance of counsel in
Herron I, albeit for a different reason. In light of the foregoing, the trial court did not err
when it overruled Herron’s “Motion to Correct Sentence.”
{¶ 12} Herron’s assignments of error are overruled, and the judgment of the trial
court is affirmed.
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WELBAUM, J. and LEWIS, J., concur.
Copies sent to:
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Mathias H. Heck, Jr.
Elizabeth A. Ellis
Keason Herron
Hon. Susan D. Solle