State v. Harwell

[Cite as State v. Harwell, 2020-Ohio-4845.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28697
:
v. : Trial Court Case No. 2012-CR-2367
:
MICHAEL D. HARWELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of October, 2020.
...........
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, 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
MICHAEL D. HARWELL, #A687-427, P.O. Box 69, London, Ohio 43140
Defendant-Appellant, Pro Se
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DONOVAN, J.
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{¶ 1} Defendant-appellant Michael D. Harwell appeals from a judgment of the
Montgomery County Court of Common Pleas, which overruled his “Motion to Vacate Void
Sentence.” Harwell filed a timely notice of appeal on January 30, 2020.
{¶ 2} In 2012, Harwell was indicted on 14 counts: two counts of felony murder, two
counts of attempted felony murder, six counts of kidnapping, three counts of felonious
assault, and one count of having weapons while under disability; except for the count of
having weapons under disability, each of the counts included a three-year firearm
specification. We discussed the history of the case in State v. Harwell, 2d Dist.
Montgomery No. 27658, 2018-Ohio-1950, and repeat it herein in pertinent part:
According to the record, the aforementioned charges stemmed from
Harwell's actions after he purchased two ounces of cocaine that,
unbeknownst to him, was cut/diluted with other substances. In an attempt
to get his money back from the purchase, it was alleged that Harwell
kidnapped two men, Jonathon Lambes and Jason Miller, who were both
involved in selling Harwell the cocaine. It was also alleged that Harwell fired
gunshots at both men, which resulted in Miller's death.
Following his indictment, Harwell pled not guilty to all the charges
and the matter proceeded to trial. Thirteen of the fourteen counts against
Harwell were tried before a jury, as Harwell elected to have a bench trial on
Count 14, having a weapon under disability. After trial, Harwell was found
guilty as charged on all counts raised in the indictment. Thereafter, the trial
court merged several of the counts and firearm specifications at sentencing
and imposed an aggregate prison sentence of 32 years to life. Harwell then
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appealed.
On appeal, we vacated Harwell's two attempted felony murder
convictions pursuant to the Supreme Court of Ohio's decision in State v.
Nolan, 141 Ohio St. 3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, which held
that attempted felony murder is not a cognizable crime in Ohio. State v.
Harwell, 2d Dist. Montgomery No. 25852, 2015-Ohio-2966, ¶ 34-35. As a
result of vacating these convictions, we remanded the matter to the trial
court for resentencing. Id. at ¶ 90. The judgment of the trial court was
affirmed in all other respects. Id.
On remand, the trial court held a resentencing hearing on August 13,
2015, in accordance with our decision in Harwell. At the resentencing
hearing, the trial court vacated the two attempted felony murder counts as
instructed and resentenced Harwell for the remaining offenses and firearm
specifications. In resentencing Harwell, the trial court once again merged
several of the offenses and firearm specifications. The merger resulted in
Harwell being sentenced for one count of felony murder, two counts of
kidnapping, one count of felonious assault, and two three-year firearm
specifications.
Harwell received 15 years to life in prison for felony murder, 11 years
in prison for each kidnapping offense, 8 years in prison for felonious assault,
and 3 years in prison for each firearm specification. The trial court ordered
the 11-year sentence for the first kidnapping offense to run consecutively
with the 15-year-to-life sentence for felony murder. The trial court also
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ordered the 11-year sentence for the second kidnapping offense to run
concurrently with the sentences for felony murder and the first kidnapping
offense. The trial court further ordered the 8-year sentence for felonious
assault to run concurrently with the sentences for felony murder and both
kidnapping offenses. The two three-year firearm specifications were then
ordered to run prior [to] and consecutive to all the other sentences and
consecutively to each other, thus resulting in a total prison sentence of 32
years to life.
The trial court journalized Harwell's resentencing via an amended
termination entry filed on August 18, 2015. Approximately a month later,
Harwell filed a notice of appeal from that judgment; however, we
subsequently dismissed the appeal for lack of prosecution. Decision and
Final Judgment Entry (Feb. 1, 2016), 2d Dist. Montgomery App. Case No.
26838.
Over a year later, on May 16, 2017, Harwell filed a pro se motion for
resentencing pursuant to R.C. 2967.28. In the motion, Harwell argued that
the trial court did not properly impose post-release control when it
resentenced him, thus rendering his sentence partially void. Specifically,
Harwell claimed the trial court failed to advise that post-release control was
mandatory for his two kidnapping offenses at the resentencing hearing and
in the August 18, 2015 amended termination entry.
On June 27, 2017, the trial court issued a written decision denying
Harwell's motion for resentencing. In so holding, the trial court interpreted
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Harwell's pro se motion as challenging only the post-release control notice
in the amended termination entry, finding the entry “on its face * * * plainly
states that ‘the Defendant Will be supervised by the Parole Board for a
period of FIVE (5) years Post-Release Control after the Defendant's release
from imprisonment’ on both the Count 5 and Count 6 kidnapping
convictions.” Decision, Order and Entry Denying Defendant's Motion for
Resentencing (June 27, 2017), Montgomery County Court of Common
Pleas Case No. 2012-CR-02367, Docket No. 15, p. 5.
Id. at ¶ 3-10.
{¶ 3} Harwell appealed, and we held that the trial court properly imposed a five-
year mandatory term of post-release control for his first-degree felony kidnapping
convictions. State v. Harwell, 2d Dist. Montgomery No. 27658, 2018-Ohio-1950, ¶ 31.
Furthermore, we held that although the trial court failed to impose the applicable three-
year mandatory term of post-release control for Harwell’s felonious assault conviction,
that term of post-release control was subsumed by the five-year term imposed for his
kidnapping convictions, as “the period of post-release control for all of the sentences shall
be the period of post-release control that expires last[.]” R.C. 2967.28(F)(4)(c). In
addition, we concluded that Harwell’s claim that the trial court failed to merge allied
offenses of similar import at sentencing was waived for appeal and barred by the doctrine
of res judicata. Id. at ¶ 36.
{¶ 4} On June 15, 2018, Harwell filed a motion for leave to file a delayed motion
for a new trial. He claimed that his motion was untimely due to ineffective assistance of
trial counsel, namely that his trial counsel did not inform him of the time requirements for
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filing a motion for a new trial. Harwell further claimed he was entitled to a new trial based
on “actual innocence.” Additionally, Harwell argued that his trial counsel was deficient
for failing to object to the trial court's jury instruction on reasonable doubt and the State's
failure to prove all elements of felony murder. Harwell supported his motion for leave
with an “affidavit of verity,” attesting to his attorney's failure to inform him of the time
requirements for a motion for a new trial.
{¶ 5} On August 7, 2018, the trial court denied Harwell's motion for leave. The
court found that Harwell's motion “relie[d] upon arguments that were or could have been
raised in his direct appeal.” The court also found that Harwell failed to present clear and
convincing proof that he was unavoidably prevented from timely filing his motion for a
new trial and, further, that the record did not support that he was unavoidably prevented
from the discovery of evidence upon which he relied.
{¶ 6} Harwell appealed, and we held that the trial court did not err in denying his
motion for leave to file a delayed motion for a new trial. State v. Harwell, 2d Dist.
Montgomery No. 28104, 2019-Ohio-643. Specifically, we held that Harwell’s motion for
a new trial was untimely and he failed to demonstrate that he was unavoidably prevented
from timely filing the motion for a new trial or discovering new evidence within the time
period provided by Crim.R. 33(B). Id. at ¶ 23-24.
{¶ 7} On August 14, 2019, Harwell filed a “Motion to Vacate Void Sentence,”
arguing that the trial court failed to follow R.C. 2929.11 and 2929.12 when it resentenced
him in 2015. In a decision issued on January 3, 2020, the trial court overruled Harwell’s
motion on the basis that his claims were barred by res judicata.
{¶ 8} It is from this judgment that Harwell now appeals.
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{¶ 9} Because they are interrelated, Harwell’s three assignments of error will be
discussed together as follows:
THE TRIAL COURT COMMITTED PLAIN AND PREJUDICIAL
ERROR IN GRANTING THE APPELLEE THE EQUIVALENT OF A
SUMMARY JUDGMENT SUA SPONTE IN VIOLATION OF THE
APPELLANT’S ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS
OF LAW AS GUARANTEED BY THE OHIO AND U.S. CONSTITUTION[S].
IT WAS PLAIN AND PREJUDICIAL ERROR FOR THE TRIAL
COURT TO DISMISS THE APPLICATION WITHOUT FIRST ORDERING
AND CONDUCTING AN EVIDENTIARY HEARING IN THE CASE
CONTRARY TO APPELLANT’S ABSOLUTE RIGHT TO PROCEDURAL
DUE PROCESS OF LAW AS GUARANTEED BY THE OHIO AND U.S.
CONSTITUTION[S].
IT WAS PLAIN AND PREJUDICIAL ERROR FOR THE TRIAL
COURT NOT TO GRANT RELIEF IN THE CASE IN VIOLATION OF
APPELLANT’S PROCEDURAL SUBSTANTIVE RIGHTS TO DUE
PROCESS IN VIOLATION OF THE OHIO AND U.S. CONSTITUTION[S].
{¶ 10} In his first assignment, Harwell contends that the trial court erred when it
granted summary judgment to the State regarding Harwell's claims as set forth in his
motion to vacate or void his sentence. In his second assignment, Harwell argues that
the trial court erred when it overruled his motion without first conducting a hearing. In
his third assignment, Harwell argues that the trial court erred when it overruled his motion.
{¶ 11} Initially, we note that R.C. 2953.21(E) (relating to post-conviction relief
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petitions) provides that either party may move for summary judgment on petitions for post-
conviction relief “[w]ithin twenty days from the date the issues are raised.” Having
reviewed the record before us, we find that no motion for summary judgment was ever
filed by the State in this case, nor did the court grant summary judgment. The trial court
merely denied Harwell’s motion, properly treating it as a motion to vacate not a request
for post-conviction relief. Significantly, the trial court decided the motion on the merits,
having concluded that an evidentiary hearing was not required due to res judicata.
Accordingly, there is no basis for Harwell's summary judgment argument, and we need
not address it any further. See State v. Jones, 2d Dist. Clark No. 2018-CA-119, 2019-
Ohio-2250, ¶ 18-19.
{¶ 12} In his second and third assignments of error, Harwell contends that the trial
court erred when it overruled his motion to vacate his sentence because it failed to follow
R.C. 2929.11 and 2929.12 when it resentenced him in 2015. Harwell's argument is
barred by res judicata because he was required to raise the above arguments in a direct
appeal of his 2015 resentencing. See State v. Reid, 2d Dist. Montgomery No. 25790,
2014-Ohio-1282, ¶ 7-9. In Reid, we stated:
“Pursuant to the doctrine of res judicata, a valid final judgment on the
merits bars all subsequent actions based on any claim arising out of the
transaction or occurrence that was the subject matter of the previous
action.” State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645,
¶ 9, citing Grava v. Parkman Twp., 73 Ohio St. 3d 379, 382, 653 N.E.2d 226
(1995). Moreover, “[a]rguments challenging the imposition of a sentence
that is voidable are barred by the doctrine of res judicata if not raised on
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direct appeal.” State v. Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-
Ohio-3654, ¶ 42, citing State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-
1197, 884 N.E.2d 568, ¶ 30. (Other citation omitted.) In other words,
“defendants with a voidable sentence are entitled to re-sentencing only
upon a successful challenge on direct appeal.” Id. at ¶ 40, quoting State v.
Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 30.
{¶ 13} Upon review, we therefore conclude that Harwell's claims are barred by res
judicata. Accordingly, the trial court did not err when it overruled Harwell's motion to
vacate his sentence without conducting an evidentiary hearing. Jones at ¶ 14-15.
{¶ 14} Harwell’s first, second, and third assignments of error are overruled.
{¶ 15} All of Harwell’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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FROELICH, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Michael D. Harwell
Hon. Mary L. Wiseman