State v. Smith , 2012 Ohio 1891 ( 2012 )

[Cite as State v. Smith, 2012-Ohio-1891.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-11-36
v.
MARK E. SMITH, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 04-CR-5213
Sentence Vacated and Cause Remanded
Date of Decision: April 30, 2012
APPEARANCES:
J. C. Ratliff for Appellant
Denise M. Martin for Appellee
Case No. 9-11-36
PRESTON, J.
{¶1} Defendant-appellant, Mark E. Smith (hereinafter “Smith”), appeals the
Marion County Court of Common Pleas’ judgment entry of resentencing entered
following a remand from the Sixth Circuit Court of Appeals. For the reasons that
follow, we reverse.
{¶2} On October 19, 2004, at approximately 1:20 p.m., the Marion
Community Credit Union located at 810 Kenton Avenue, Marion, Ohio 43302 was
robbed. No customers were present during the robbery; however, three employees
were present when the robber entered the Credit Union and ordered them to get on
the floor. The robber took a total of $9,480.00 from one of the tellers at the Credit
Union.
{¶3} On December 22, 2004 and following an investigation into the
Community Credit Union robbery, the Marion County Grand Jury indicted Smith
on Count One of aggravated robbery in violation of R.C. 2911.01(A)(1), a first
degree felony; and Counts Two, Three, and Four of kidnapping, violations of R.C.
2905.01(A)(2) and second degree felonies. (Doc. No. 1). All four counts included
three-year firearm specifications pursuant to R.C. 2941.145 and 2929.14(D). (Id.).
{¶4} On April 7, 2005, a jury trial commenced. On April 11, 2005, the jury
found Smith guilty on all counts but acquitted him on all four firearm
specifications. (Doc. Nos. 182-185).
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{¶5} On June 6, 2005, the trial court sentenced Smith to nine years on
Count One (aggravated robbery) and four years on each of Counts Two, Three,
and Four (kidnapping). (June 9, 2006 JE, Doc. No. 215). The trial court ordered
that the terms imposed on Counts Two, Three, and Four run concurrently to each
other but consecutive to the term imposed in Count One for a thirteen-year
aggregate sentence. (Id.).
{¶6} On July 13, 2005, Smith filed a notice of appeal. (Doc. No. 220).
{¶7} On October 24, 2005, Smith filed a pro se petition for post-conviction
relief pursuant to R.C. 2953.21 and 2953.23 in the trial court. (Doc. No. 249).
Smith challenged his convictions and sentence, asserting ineffective assistance of
trial counsel due to counsel’s failure to object to his sentence, and that his sentence
violated his Sixth Amendment right to a jury trial as explained in United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), Blakely v. Washington, 542 U.S. 296,
124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348(2000). On November 30, 2005, the trial court dismissed Smith’s petition without
reviewing the merits. (Doc. No. 253).
{¶8} On February 21, 2006, this Court affirmed Smith’s conviction and
sentence, finding that his convictions were supported by sufficient evidence and
not against the manifest weight of the evidence. State v. Smith, 3d Dist. No. 9-05-
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22, 2006-Ohio-735. On June 21, 2006, the Ohio Supreme Court declined
discretionary review. State v. Smith, 109 Ohio St.3d 1507, 2006-Ohio-2998.
{¶9} On March 16, 2007 and after exhausting his state remedies, Smith
filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the United
States District Court for the Northern District of Ohio. Smith v. Moore, N.D. Ohio
No. 3:07CV1121 (July 30, 2008) (Magistrate’s Report & Recommendation). In his
habeas petition, Smith raised three grounds for relief: (1) that he was deprived of
due process of law by a conviction not supported by sufficient evidence; (2) that
he was deprived effective assistance of appellate counsel due to appellate
counsel’s failure to argue that his sentence violated the Sixth Amendment to the
United States Constitution; and (3) that he was denied due process and his Sixth
Amendment right to a jury trial when the state trial court enhanced his sentence
based on judicially-found facts. Id.{¶10} The district court referred Smith’s habeas petition to a magistrate for
a report and recommendation (“R & R”). In his R & R, the magistrate found that
Smith’s claims were not procedurally barred and were properly before the district
court. Id. The magistrate found Smith’s sufficiency of the evidence and ineffective
assistance of appellate counsel claims meritless. Id. However, the magistrate found
that Smith’s Sixth Amendment claim was meritorious as the sentencing judge
enhanced Smith’s sentence based on judicially-found facts in violation of Blakely
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v. Washington. Id. The district court declined to adopt this portion of the R & R,
and denied Smith’s petition altogether, finding that any Sixth Amendment
violation in his sentence was harmless error. Smith v. Moore, N.D. Ohio No.
3:07CV1121 (Aug. 19, 2008). However, the district court granted Smith a
certificate of appealability on the Sixth Amendment issue. Id.{¶11} On February 4, 2011, the Sixth Circuit Court of Appeals reversed,
concluding that judicial fact-finding had deprived Smith of his Sixth Amendment
right to a trial by jury in violation of Blakely, 542 U.S. 296. Smith v. Moore, 415
Fed.Appx. 624, 626-627 (6th Cir. 2011). The Sixth Circuit granted Smith’s writ of
habeas corpus and ordered that Smith be released from prison unless Ohio
resentenced him within 180 days in accordance with its opinion. Id.{¶12} On March 15, 2011, Smith filed a pro se resentencing memorandum
and a motion for appointed counsel with the trial court in light of the Sixth
Circuit’s decision. (Doc. Nos. 255-256). In his resentencing memorandum, Smith
argued, in pertinent part, that his kidnapping convictions were allied offenses of
similar import to his aggravated robbery conviction and should, therefore, be
merged for resentencing. (Doc. No. 255). On March 18, 2011, the State responded
that it was not opposed to the trial court appointing Smith counsel for the
resentencing hearing. (Doc. No. 258). The trial court ultimately appointed J.C.
Ratliff, Esq. to represent Smith for the resentencing hearing. (Doc. No. 264).
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{¶13} On March 24, 2011, the State filed a motion for a resentencing
hearing in light of the Sixth Circuit’s decision. (Doc. No. 259).
{¶14} On July 14, 2011, the State filed a resentencing memorandum. (Doc.
No. 271). In its memorandum, the State argued that Smith failed to preserve the
allied offense argument since he never raised it on direct appeal, and, regardless, a
separate animus existed for the kidnappings; to wit: concealment of Smith’s
identity, facilitation of the crime, and Smith’s flight thereafter. (Id.).
{¶15} On July 15, 2011, the trial court resentenced Smith to ten years on
Count One (aggravated robbery) and three years on each of Counts Two, Three,
and Four (kidnapping). (July 26, 2011 JE, Doc. No. 272); (July 15, 2011 Tr. at
17). The trial court concluded that Count Three was an allied offense of similar
import to Count One and should, therefore, be merged with Count One for
purposes of sentencing. (Id.); (Id.). The trial court further ordered that the terms on
Counts Two and Four (kidnapping) be served concurrently with each other but
consecutively to Count One for an aggregate sentence of 13 years. (Id.); (Id.).
{¶16} On August 19, 2011, Smith filed a notice of appeal. (Doc. No. 277).
Smith now appeals raising two assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT SENTENCED
APPELLANT TO SEPARATE AND CONSECUTIVE TERMS
OF IMPRISONMENT ON AGGRAVATED ROBBERY AND
KIDNAPPING COUNTS AND CONCURRENT TERMS OF
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IMPRISONMENT ON TWO (2) KIDNAPPING COUNTS
WHEN THE OFFENSES CONSTITUTED ALLIED
OFFENSES OF SIMILAR IMPORT AND VIOLATE
PROTECTIONS AGAINST DOUBLE JEOPARDY.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
INCREASED THE SENTENCE ON AGGRAVATED
ROBBERY.
{¶17} In his first assignment of error, Smith argues that the trial court erred
by sentencing him to separate terms of imprisonment on Counts Two and Four of
kidnapping since they were allied offenses of similar import with Count One of
aggravated robbery. In his second assignment of error, Smith argues that the trial
court abused its discretion when it increased his aggravated robbery sentence from
nine years to ten years upon resentencing.
{¶18} Before addressing the merits of Smith’s assignments of error, this
Court should discuss a dispositive procedural issue Smith addressed in his
appellate brief—res judicata. (Appellant’s Brief at 9). Although the State did not
address res judicata in its appellate brief, we may consider legal issues not
specifically raised by the parties if a sufficient basis in the record exists for
determining them. Hungler v. Cincinnati, 25 Ohio St.3d 338, 341-342 (1986);
State v. Peagler, 76 Ohio St.3d 496, 499 (1996). There is a sufficient basis in the
record sub judice to determine whether res judicata applies. To begin with, the
State argued res judicata both in its resentencing memorandum and at the
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resentencing hearing. (Doc. No. 271); (July 15, 2011 Tr. at 7, 15). The trial court
affirmatively considered and rejected this argument at the resentencing hearing.
(July 15, 2011 Tr. at 17). Finally, and significantly, this Court already determined
that Smith’s convictions were not allied offenses of similar import in Smith’s
direct appeal. Smith, 2006-Ohio-735, at ¶ 6.
{¶19} “The doctrine of res judicata establishes that ‘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 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. Wilson, 129 Ohio St.3d 214, 2011-
Ohio-2669, ¶ 30, quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine
of the syllabus. “[R]es judicata promotes the principles of finality and judicial
economy by preventing endless relitigation of an issue on which a defendant has
already received a full and fair opportunity to be heard.” State v. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245, ¶ 18, citing State ex rel. Willys–Overland Co. v.
Clark, 112 Ohio St. 263, 268 (1925).
{¶20} Smith was originally sentenced on June 6, 2005. On February 21,
2006, we affirmed Smith’s conviction and sentence and concluded that Smith’s
offenses were not allied offenses of similar import. Smith, 2006-Ohio-735, at ¶ 6.
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The Ohio Supreme Court declined discretionary review of Smith’s appeal on June
21, 2006. Smith, 109 Ohio St.3d 1507, 2006-Ohio-2998. Consequently, Smith’s
aggravated robbery and kidnapping convictions were final on June 21, 2006, at the
latest.
{¶21} Thereafter, in March 2007, Smith filed a petition for writ of habeas
corpus in the federal district court, arguing, in relevant part, that the Ohio trial
court’s sentence violated his Sixth Amendment right to a jury trial as explained in
Booker, 543 U.S. 220, Blakely, 542 U.S. 296, and Apprendi, 530 U.S. 466.
Ultimately, the Sixth Circuit agreed with Smith and ordered that he be released
from custody unless the State resentenced him within 180 days. Smith v. Moore,
415 Fed.Appx. 624, 631.
{¶22} To comply with the Sixth Circuit’s opinion, the Ohio trial court was
required to resentence Smith without making judicial findings, consistent with
Blakely. In other words, the trial court was required to hold a Foster resentencing
hearing. 109 Ohio St.3d 1, 2006-Ohio-856. Although the trial court was required
to vacate Smith’s original sentence for purposes of resentencing Smith under
Foster, Smith’s convictions remained final. 2006-Ohio-856, at ¶ 103-104. Trial
courts determine whether offenses are allied offenses under R.C. 2941.25(A) prior
to sentencing by examining the underlying convictions (elements of the offenses)
and the facts of the case. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶
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47; State v. Mangrum, 86 Ohio App.3d 156, 158 (12th Dist. 1993). If the trial
court determines that offenses are allied, the State elects which offense to pursue
for purposes of sentencing; and then, the trial court merges the allied offenses into
the offense the State elected to pursue for purposes of sentencing. State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 24, citing State v. Brown, 119 Ohio
St.3d 447, 2008-Ohio-4569, ¶ 41. Consequently, trial courts may not merge allied
offenses at Foster resentencing hearings since that determination requires
examination of the offender’s convictions, which are already final. State v. Martin,
2nd Dist. No. 21697, 2007-Ohio-3585; State v. Dillard, 7th Dist. No. 08 JE 35,
2010-Ohio-1407.
{¶23} Permitting trial courts to merge allied offenses at Foster resentencing
hearings—created for the limited purpose of fixing Blakely errors—undermines
the principles of finality underpinning the doctrine of res judicata. Saxon, 2006-
Ohio-1245, at ¶ 18. On the other hand, recognizing the finality of Smith’s
convictions apart from his sentence is consistent with the Ohio Supreme Court’s
recent decision in State v. Fischer, governing post-release control resentencing
hearings. 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 38-40.
{¶24} Aside from the aforementioned, Smith’s allied offense argument is
barred by res judicata because this Court already decided this issue in his direct
appeal. Smith, 2006-Ohio-735, at ¶ 6. Smith is not permitted to re-litigate this
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issue following his Foster resentencing hearing, nor is Smith permitted to use
habeas corpus proceedings to obtain successive appellate review of this issue.
State v. Johnson, 174 Ohio App.3d 130, 2007-Ohio-6512 (1st Dist.); State v. Hill,
5th Dist. No. CT11-0020, 2011-Ohio-3644; State v. McLeod, 7th Dist. No. 07-JE-
17, 2008-Ohio-3405, ¶ 16; State v. Fernbach, 12th Dist. Nos. CA2006-11-130,
CA2006-11-131, 2008-Ohio-5670, ¶ 19; Shie v. State, 123 Ohio St.3d 89, 2009-
Ohio-4079 (habeas corpus may not be used to obtain successive appellate review).
See also Smith v. Voories, 119 Ohio St.3d 345, 2008-Ohio-4479, ¶ 10, citing
Mosley v. Echols, 62 Ohio St.3d 75 (1991) (allied offense argument is not
jurisdictional and, therefore, subject to res judicata).
{¶25} Finally, the application of State v. Johnson at Smith’s resentencing
hearing was erroneous as a matter of law, because “[a] new judicial ruling may be
applied only to cases that are pending on the announcement date.” Ali v. State, 104
Ohio St.3d 328, 2004-Ohio-6592, ¶ 6, citing State v. Evans, 32 Ohio St.2d 185,
186 (1972). “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.” Id., citing Evans at 186; State v. Lynn, 5 Ohio St.2d 106, 108
(1966). Smith’s conviction was final after the Ohio Supreme Court denied review
on June 21, 2006; State v. Johnson was not released until December 29, 2010.
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Consequently, the trial court erred by applying State v. Johnson at the resentencing
hearing. Hill, 2011-Ohio-3644, at ¶ 23.
{¶26} In his brief, Smith argues that the law-of-the-case doctrine is
inapplicable here since State v. Johnson is an “intervening decision.” (Appellant’s
Brief at 9). This argument lacks merit. “The law-of-the-case doctrine holds that
‘the decision of a reviewing court in a case remains the law of that case on the
legal questions involved for all subsequent proceedings in the case at both the trial
and reviewing levels.’” State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, ¶ 30,
quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). “Res judicata is a substantive
rule of law that applies to a final judgment, whereas the law-of-the-case doctrine is
a rule of practice analogous to estoppel.” Hopkins v. Dyer, 104 Ohio St.3d 461,
2004-Ohio-6769, ¶ 22, citing Gohman v. St. Bernard, 111 Ohio St. 726, 730
(1924); Hart Steel Co. v. RR. Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506 (1917).
As the Court in People v. Evans further explained:
* * * law of the case addresses the potentially preclusive effect of
judicial determinations made in the course of a single litigation
before final judgment. [Citations omitted]. Res judicata and
collateral estoppel generally deal with preclusion after judgment: res
judicata precludes a party from asserting a claim that was litigated in
a prior action [citations omitted] while collateral estoppel precludes
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relitigating an issue decided in a prior action [citation omitted].
Accordingly, law of the case has been aptly characterized as ‘a kind
of intra-action res judicata[.]’ [Citation omitted]. 94 N.Y.2d 499,
502, 727 N.E.2d 1232 (2000) (emphasis in original).
See also 20 American Jurisprudence 2d, Courts, Section 130 (2012); 18B Federal
Practice and Procedure Jurisprudence 2d, Law of the Case, Section 4478 (2012).
Since Smith’s convictions were final judgments subject to res judicata, the law-of-
the-case doctrine does not have application here. Dyer, 2004-Ohio-6769, at ¶ 22;
Evans, 94 N.Y.2d at 502; State v. Greenleaf, 9th Dist. No. 25848, 2012-Ohio-686,
¶ 15 (Belfance, J., dissenting).
{¶27} For all the aforementioned reasons, Smith’s convictions were final
and subject to res judicata; and therefore, the trial court did not err by refusing to
merge Smith’s kidnapping convictions on Counts Two and Four into his
aggravated robbery conviction. Nevertheless, since Smith’s kidnapping conviction
on Count Three was also final and subject to res judicata, the trial court erred as a
matter of law by merging it with Smith’s aggravated robbery conviction. As such,
Smith’s sentence must be vacated, and this matter must be remanded for the trial
court to resentence Smith on all four convictions consistent with State v. Foster
and without regard to merger. R.C. 2953.08(G)(2)(b).
{¶28} Smith’s first assignment of error is, therefore, overruled.
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{¶29} Smith’s second assignment of error concerns the trial court’s
imposition of an increased sentence on his aggravated robbery conviction. Our
remand for resentencing renders this assignment of error moot, and thus, we
decline to address it. App.R. 12(A)(1)(c). State ex rel. Davila v. Bucyrus, 194 Ohio
App.3d 325, 2011-Ohio-1731, ¶ 38.
{¶30} Smith’s second assignment of error is, therefore, overruled as moot.
{¶31} Having found an error of law with respect to the trial court’s July 15,
2011 resentencing, we vacate Smith’s sentence and remand for the trial court to
conduct a Foster resentencing hearing without consideration of merger, consistent
with our opinion herein.
Sentence Vacated and
Cause Remanded
SHAW, P.J. concurs.
ROGERS, J. concurs in Judgment Only.
/jlr
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