State v. Wright

[Cite as State v. Wright, 2014-Ohio-4734.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-14-1041
L-14-1042
Appellee L-14-1043
L-14-1044
v.
Trial Court Nos. CR0201202162
Emmanuel Andre Wright CR0200902364
CR0200803927
Appellant
DECISION AND JUDGMENT
Decided: October 24, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Emmanuel Wright, appeals from three February 19, 2014 judgments
of the Lucas County Court of Common Pleas, entered in case Nos. CR0200803927,
CR0200902364, and CR0201202162, resentencing appellant pursuant to our mandate and
ordering that the sentence in each case be served consecutive to the other sentences.
Appellant also appeals from a February 21, 2014 judgment in case No. CR0201202162,
which dismissed his postconviction relief petition. All four appeals have been consolidated.
For the reasons which follow, we affirm the resentencing judgments dated February 19,
2014, and dismiss the appeal from the February 21, 2014 judgment dismissing appellant’s
postconviction relief petition. Appellant asserts the following assignments of error on
appeal:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED
TO THE PREJUDICE OF APPELLANT BY RE-IMPOSING MAXIMUM
SENTENCES IN CR2009-2364 AND CR2008-3927.
SECOND ASSIGNMENT OF ERROR
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE
CONSTITUTION OF THE STATE OF OHIO.
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN VIOLATION OF
APPELLANT’S RIGHT TO DUE PROCESS BY DISMISSING HIS
PETITION FOR POST CONVICTION [sic] RELIEF WITHOUT A
2.
HEARING, AND BY NOT MAKING PROPER FINDINGS OF FACT
AND CONCLUSIONS OF LAW.
{¶ 2} In case No. CR0200803927, appellant entered a guilty plea pursuant to
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to one count
of burglary. The trial court accepted his plea, and the remaining charges were dismissed.
While Wright was awaiting sentencing, he was indicted in case No. CR0200902364 and
entered an Alford plea to the lesser offense of attempted theft. Wright was sentenced on
December 21, 2009, to two consecutive three-year terms of community control.
Additionally, the court notified Wright that if he violated the terms of his community
control, a longer or more restrictive sanction would be imposed, including a prison term
of eight years in case No. CR0200803927 and one year in CR0200902364.
{¶ 3} On July 19, 2012, while on community control, Wright was indicted on one
count of passing bad checks in case No. CR0201202162. Wright subsequently entered a
no contest plea in exchange for the state’s recommendation of a six-month prison
sentence. On April 1, 2013, the court accepted the plea and imposed the six-month
recommended prison sentence. Additionally, in judgments of the same date in case Nos.
CR0200803927 and CR0200902364, the court imposed the prison sentences for those
offenses because Wright acknowledged that his conviction for passing bad checks
constituted a violation of the terms of his community control. The court ordered those
prison terms to be served consecutively to each other and the current offense, for a total
prison term of nine and one-half years.
3.
{¶ 4} Appellant appealed the April 1, 2013, judgments entered in all three cases.
While the consolidated appeal was pending, appellant filed a pro se postconviction relief
petition on October 4, 2013 to vacate or set aside judgment of conviction in case No.
CR020122162. Appellant asserted that his severe sentence was the result of ineffective
assistance of counsel who allegedly failed to thoroughly investigate his case and prepare
a defense. On November 8, 2013, appellant’s appointed counsel filed a second petition
for postconviction relief based on the same grounds. The state moved to dismiss the
petition or for an order of summary judgment.
{¶ 5} On December 30, 2103, this court affirmed in part and reversed in part the
judgments on appeal. State v. Wright, 6th Dist. Lucas Nos. L-13-1056, L-13-1057, and
L-13-1058, 2013-Ohio-5903. We remanded the cases for resentencing because the trial
court failed to comply with R.C. 2929.14(C)(4) and make the necessary findings to
impose consecutive sentences. Id. at ¶ 37.
{¶ 6} In three judgments journalized on February 19, 2014, appellant was
resentenced pursuant to our mandate and the trial court imposed consecutive sentences
“to fulfill the purposes of R.C. 2929.11.” Although the court did not specifically cite
R.C. 2929.14(C)(4), the court did recite the language of the statute and found that the
consecutive sentences were “not disproportionate to the seriousness of the offender’s
conduct or the danger the offender poses” and that because “the defendant was under
community control when the offense was committed, the defendant’s criminal history
requires consecutive sentences.”
4.
{¶ 7} In a judgment journalized February 21, 2014, in case No. CR0201202162,
the trial court dismissed appellant’s postconviction relief petition without a hearing and
without making findings of fact and conclusions of law.
{¶ 8} On March 11, 2014, appellant filed an appeal from the February 19, 2014
judgments in all three cases (CR0200803927, CR0200902364, and CR0201202162) and
from the February 21, 2014 judgment in case No. CR0201202162. All of the appeals
have been consolidated.
{¶ 9} In his first assignment of error, appellant argues that the trial court erred by
re-imposing the maximum sentences in the first two case Nos. CR0200803927 and
CR0200902364. Appellant asserts that the trial court failed to consider the principles and
purposes of sentencing under R.C. 2929.11 and the seriousness of appellant’s crimes and
recidivism as required by R.C. 2929.12. Appellant also argues that the trial court abused
its discretion by imposing the maximum sentences.
{¶ 10} In our decision and judgment of December 30, 2103, we remanded the
consolidated cases solely for the purpose of resentencing to comply with R.C.
2929.14(C)(4). Wright, 6th Dist. Lucas Nos. L-13-1056, L-13-1057, and L-13-1058,
2013-Ohio-5903, at ¶ 37. We specifically addressed and found not well-taken the issues
of whether the trial court abused its discretion by imposing the maximum sentences in
case Nos. CR0200803927 and CR0200902364 and whether the trial court complied with
R.C. 2929.11 and 2929.12 when imposing the sentences. Id. at ¶ 15-25. Our ruling on
these issues remains the law of the case for all subsequent proceedings, Nolan v. Nolan,
5.
11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984), and the issue is barred from consideration by
the doctrine of res judicata. State v. Davis, 139 Ohio St.3d 122, 2014-Ohio-1615,
9 N.E.3d 1031, ¶ 27-28. The trial court would not have had jurisdiction to exceed our
mandate and reconsider this issue. Therefore, appellant’s first assignment of error is not
well-taken.
{¶ 11} We next address the appeal of the dismissal of appellant’s petition for
postconviction relief and begin with appellant’s third assignment of error. In his third
assignment of error, appellant argues that the trial court denied appellant due process by
dismissing his petition for postconviction relief without a hearing and without making
findings of fact and conclusions of law. The state concedes that the judgment is not a
final, appealable order.
{¶ 12} Before granting a hearing on a timely-filed petition for postconviction
relief, “* * * the court shall determine whether there are substantive grounds for relief.”
R.C. 2953.21(C). If the court does not find grounds for relief, it must file findings of fact
and conclusions of law along with either its order granting the motion to dismiss or its
order denying relief. R.C. 2953.21(C) and (G). Until the court complies with this
requirement, the judgment is not a final, appealable order. State v. Mapson, 1 Ohio St.3d
217, 218, 438 N.E.2d 910 (1982).
{¶ 13} Therefore, the judgment journalized February 21, 2014, in case No.
CR0201202162, is not a final, appealable order and the appeal from that judgment is
ordered dismissed at appellant’s costs.
6.
{¶ 14} In his second assignment of error, appellant argues that his appointed
counsel rendered ineffective assistance by failing to attach evidentiary affidavits prepared
by appellant in support of his petition for postconviction relief. Because we must dismiss
the appeal of the judgment dismissing the petition for postconviction relief, this
assignment of error is rendered moot.
{¶ 15} Having found that the trial court did not commit error prejudicial to
appellant as to the judgments journalized on February 19, 2014, in all three cases, the
judgments of the Lucas County Court of Common Pleas resentencing appellant are
affirmed. Appellant is ordered to pay the court costs of this consolidated appeal pursuant
to App.R. 24.
Judgments affirmed
and appeal dismissed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
7.