State v. Smith ( 2017 )

[Cite as State v. Smith, 2017-Ohio-2684.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27294
:
v. : T.C. NO. 04-CR-3554
:
RONALD A. SMITH : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___5th __ day of _____May_____, 2017.
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ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
RONALD A. SMITH, Inmate #516-443, London Correctional Institute, P. O. Box 69,
London, Ohio 43140
Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Ronald
Smith, filed October 13, 2016. Smith appeals from the trial court’s “Decision and Order
Overruling Defendant’s Void Sentence Pursuant to State v. Hand 2016-Ohio-5504 Re-
Sentencing Hearing Requested.” Smith’s “Void Sentence” motion was filed on
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September 22, 2016. We hereby affirm the judgment of the trial court.
{¶ 2} Smith was found guilty in 2005 of aggravated burglary and aggravated
robbery. The trial court sentenced Smith to consecutive ten-year prison terms, for an
aggregate sentence of 20 years. This Court affirmed Smith’s convictions on direct
appeal in State v. Smith, 2d Dist. Montgomery Nos. 21463, 22334, 2008-Ohio-6330,
wherein this Court set forth the following facts:
During the evening hours of September 27, 2004, two African-
American males, one identifying himself as “Little Ronnie,” kicked in the
front door of Latisha Robinson’s apartment and entered. The man
identifying himself as Little Ronnie, was armed with a gun. He got in her
face and demanded to know where her boyfriend, Corey Pullings, was. The
other man went to her back door and opened it, allowing three additional
men to enter the apartment.
When Robinson denied any knowledge of Pullings, Little Ronnie
went upstairs in the apartment, tearing the handrail off the wall, and he went
into Robinson’s bedroom putting the gun to her son’s head. He then
demanded Robinson give him something to get him to leave. Robinson
gave one of the men sixty dollars and her cell phone.
Meanwhile, the four men downstairs ransacked Robinson’s
apartment, toppling furniture and rummaging through boxes, throwing
things to the floor. The men took additional items from the apartment,
including radios and CD’s. During the ransacking of the apartment, the
gunman, who repeatedly identified himself as “Little Ronnie,” and Robinson
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were engaged in a confrontation in the dining room where he attempted to
force Robinson to lay on the floor “like execution style.” Finally, after the
other men exited the apartment, “Little Ronnie” ran out, too.
Robinson then escaped to a neighbor’s apartment, where the police
were called. The next day, Detective Ward, of the Montgomery County
Sheriff’s Office prepared a photo spread containing a picture of Ronald
Smith, the only individual the detective knew that called himself “Little
Ronnie.” Robinson could not identify anyone in the photo spread.
Subsequently, when Robinson was viewing serial photos on the detective’s
computer screen, a photo of Smith came up, showing his gold teeth that
were not displayed in the prior photo. Robinson indicated that this picture
of Smith “could possibly be the person who was in her house.”
Subsequently, a neighbor, who had opened his door while Smith and
the others were knocking at Robinson’s door, immediately picked out Smith
from a photo spread as the man at her door, and who had identified himself
as Little Ronnie.
Smith was arrested. After being Mirandized, Smith admitted that he
and four others were knocking at Robinson’s apartment looking for Corey
Pullings, but claimed that he left after being told that he was not there. He
claimed that one of the other men kicked in the door and entered, but denied
that he ever entered the apartment. Prior to trial, Smith made a number of
phone calls attempting to get Robinson to take a payoff to drop the charges,
and attempting to set up an excuse for why he was in the area.
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Smith at ¶s 3-8.
{¶ 3} Since his conviction, Smith has filed fourteen motions for a new trial or for
leave to file such motions. State v. Smith, 2d Dist. Montgomery No. 27015, 2016-Ohio-
7904, ¶ 3 (affirming the trial court’s decision overruling Smith’s October 29, 2015 “Motion
for New – Trial Pursuant to Newly Discovered Evidence Crim[.] R. 33,” and his October
30, 2015 “Motion for A Order Granting Leave to file A Motion for New – Trial Crim.R.
33(B).”) We note that Smith’s October 29, 2015 motion was supported by the affidavit
of Nancy Duke, who averred “she observed Smith driving away from the apartment
complex where the offenses occurred for which he is in prison, and she then saw another
person kick in the door to an apartment.” Smith, ¶ 3. His October 30, 2015 motion was
“supported by essentially the same evidence.” Id.
{¶ 4} On July 16, 2016, Smith filed a motion for re-sentencing, arguing that his
offenses were allied offenses of similar import that should have been merged. The trial
court overruled that motion on August 26, 2016. Smith filed a notice of appeal on
September 16, 2016, in Case No. CA 27272, which remains pending. While CA 27272
and CA 27015 were pending, Smith filed the “Void Sentence” motion at issue herein.
{¶ 5} In his instant motion, Smith asserted that the trial court improperly relied upon
his juvenile record during sentencing to enhance his sentence, citing State v. Hand, Ohio
Supreme Court Slip Opinion No. 2016-Ohio-5504, ¶ 1 (holding that it “is a violation of due
process to treat a juvenile adjudication as the equivalent of an adult conviction for
purposes of enhancing a penalty for a later crime.”) Smith argued that he received “a
maximum, consecutive sentence which is unconstitutional and violated Defendant’s due
process rights.” In overruling his motion, the trial court indicated that it “is not persuaded
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by the Defendant’s arguments and analysis.”
{¶ 6} Smith asserts the following assignment of error:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
WHICH VIOLATED THE DEFENDANT’S DUE PROCESS RIGHTS BY
NOT GRANTING THE DEFENDANT’S MOTION FOR RE-SENTENCING
WHEN IT WAS FOUND BY THE SUPREME COURT IN STATE V. HAND
2016-Ohio-5504 FOR A TRIAL COURT TO INHANCE [sic] A SENTENCE
BASED ON THE CONSIDERATION OF A PAST JUVENILE RECORD IS
UNCONSTITUTIONAL.
{¶ 7} The State responds that the trial court was divested of jurisdiction to rule on
Smith’s motion because Smith had two appeals pending before this Court at the time the
motion was filed, and that the “motion essentially remains open on the trial court’s docket”
in the absence of a final appealable order. The State further asserts that the record does
not portray the error Smith asserts, since Hand “does not apply retroactively to convictions
that were final prior to Hand being decided,” and since “the trial court imposed mandatory
prison sentences in this case not because Smith had previously been adjudicated
delinquent, but because he had previously been convicted of aggravated robbery and
aggravated burglary as an adult.”
{¶ 8} The State directs our attention in part to State v. Lauharn, 2d Dist. Miami
No. 2011 CA 10, 2012-Ohio-1572. Therein this Court noted as follows:
The Supreme Court of Ohio has long held that “[o]nce an appeal is
taken, the trial court is divested of jurisdiction except ‘over issues not
inconsistent with that of the appellate court to review, affirm, modify or
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reverse the appealed judgment, such as the collateral issues like contempt,
[appointment of a receiver and injunction].’ ” State ex rel. State Fire
Marshal v. Curl, 87 Ohiio St.3d 568, 570, 722 N.E.2d 73 (2000), quoting
State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55
Ohio St. 2d 94, 97, 378 N.E.2d 162 (1978). Following Special Prosecutors,
we have repeatedly held that the filing of a notice of appeal from a conviction
and sentence divests the trial court of jurisdiction to address a motion to
withdraw the defendant’s plea during the pendency of the appeal. * * ** A
motion to withdraw a plea is not a collateral issue, because it could directly
affect the judgment under appeal. State v. Winn, 2d Dist. Montgomery No.
17194, 1999 WL 76797 (Feb. 19, 1999).
Id., ¶ 7.
{¶ 9} In Lauharn, this Court concluded that
* * * the trial court did not have jurisdiction to address Lauharn’s
motions to withdraw his plea and for reconsideration of the denial of that
motion while the case was pending on direct appeal. Consequently, the
trial court’s rulings on Lauharn’s motions to withdraw his plea and for
reconsideration of that denial are nullities. Those motions remain pending
in the trial court, which now has jurisdiction to address them. See State v.
Davis, 131 Ohio St. 3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 37 (“We take
this opportunity to specify that the holding in Special Prosecutors does not
bar the trial court’s jurisdiction over posttrial motions permitted by the Ohio
Rules of Criminal Procedure.”).
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Id., ¶ 13.
{¶ 10} We initially note that Lauharn is procedurally distinct from the matter
herein, in that it involved a direct appeal from a conviction and a motion to withdraw a
plea, which could directly affect the pending appeal. At issue here is whether the
pendency of CA 27015 and CA 27272 divested the trial court of jurisdiction over Smith’s
“Void Sentence” motion because any action by the trial court would interfere with this
Court’s ability to reverse, affirm, or modify the orders on appeal. We conclude that the
issue of the application of Hand to Smith’s sentence is not inconsistent with this Court’s
jurisdiction in CA 27015 and CA 27272 and accordingly does not interfere with this Court’s
appellate review in those appeals. In other words, the decision of the trial court is not a
nullity.
{¶ 11} We further agree with the State that Hand does not apply to Smith’s
sentence. “A new judicial ruling may be applied only to cases that are pending on the
announcement date, and the new judicial ruling may not be applied retroactively to a
conviction that has become final, that is, where the accused has exhausted all of his
appellate remedies. Ali v. State, 104 Ohio St. 3d 328, 2004-Ohio-6592, 819 N.E.2d 687.”
State v. Greathouse, 2d Dist. Montgomery No. 24935, 2012-Ohio-2414, ¶ 6.
{¶ 12} Since Smith’s assigned error lacks merit, it is overruled. The judgment of
the trial court is affirmed.
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HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Andrew T. French
Ronald A. Smith
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Hon. Dennis J. Langer