irvolyrs i 3ub$tantial constitutional questior...on appm ffitom m.f.l3t1ttlzeld of "peals,...
TRANSCRIPT
STATE OF OHZR
E^mt 1- ^- 2- ®f Z o
ON APPM FfitOM m
.F.l3T1ttLZELD
OF "PEALS, E`IM
.
CASE No. l;IF-CA -554
f)F APPELLAI?fi
"MMAt4I1UM IN sUPom OF JURISDICTION
MdtcuB H].C1KR18Sl
#59"15
P4as Ckrmecti4nal Institution
16149 State Route 104
P.O. Box 7010
Chillicothe, Ohio 45601
€'.(lC7NSPL OF RECORD
APPELLANT - PnO--Vj - ;.ITIGu:;
Jocelyn S. ICell.y
239 W, M-zn St<, Ste. 101
La.t2castere Ohio 43130
COUNSEL OF RECORD
b1PL'ELLEF.
^uN z 2mt^^J ® 2U^2L CLERK OF COURT
SUPREME COURT OFOHIp
I'vl OL^ Vlz^PPSLLANT - PROO^-SE
OF
J6RVWLlCYYIL IN S
C s GP.SE S..S A. CASE Qi? kt7BLTC
5T APV tNl,'aL't^ A SUBSTANTM
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t2TTaN OF LAW W. 1 *' A SenC,ence that w not
Meege Allied c3ffenses of Siesilar Ltt=t is "Yoids"
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EERTII'TCASE OF : YLtl4<9.YM1Y}lfYYtl^il9Y99}9p.l0
Aq'.'j^yyyyy}•...9991M1>99999Mtlf1tliOf9R1i191HY'.}f* 9t9'9fY9MiiYiiii19UM4 7
Opinion of ti,6.'' OY9.ii9YY94G491.9a
6tltl^M{{tllM99
fiy
EXPLAaNATTO 2y WHY THIS IS A CAS$ 2-F
PURLI OR 6RRAT GRNRHAL INTEREST
IRVOLYRS I 3UB$TANTIAL CONSTITUTIONAL QUESTIOR
Ohio Trial Courts decisions, a£firmed by Cour`ts of
Appeal, are inconsistent in interpreting this Court's
Rulings in State V. beamley, (19W, 14 Ohio St.3d 74s and
State V. Rimpkfns{ ( 2008), 117 Ohio St.3d 420, that a Court's
disregard of Statutory Requirements when imposing a sentence
renders the attempted sentence a Nullity or Void. It seems
that the Court's attention has been focused so intently on
the proper imposition of those of those statutes mandating
Postrelease Control, they have developed a Form of Judicial
Myopia that has prevented them from realizinL, that there are
other sentencing statutes which are Regularly Neglected is
O.R.C. § 2941.25. This Law was enacted by the General
Assembly to protect defendants against Double-Jeopardy. It
reads in Pertinent Part:
"Where the same Conduct by Defendant can be constued
to Constitute two or more Allied Offenses of Sirnilar
Tmport, the indictment or information rnay contain
Counts for all such offenses, But, the Defendant
may be Convicted of only one." [Emphasis Added.]
In the Case at hand, Petitioner Challenged that his
sentence was "Void," because it "railed," to provide the Mandated
Protections against Double-Jeopardy by Failing to conform to
1
the Reguirements of G.R.C. §2g41.25 nergfng Allied Offenses
of Similar Import.
The Court ot Appeais did not add Defendaut's
tere Allied Offenses of Similar Import; Did nyt
discuss the statutory reguirements to Merge Aliied 9ifensea
Cd
make any references to this
andated. The reSult must bs a "Voidr" aentenee
Caset afgenseaa under Q>RXt $ 2941Y25 were aot Merged
," sentence based
"Void."
A sentence ie either "voia," ah initi4, or it is not "Void."
othei; ahoiCel and not Merged as Mandated. The result
a"Voidl" sentence that may be Challenged at any time and
uire the RetroaGtiVe Application of any CQurt ruling
Court decision in bea pkina. Instead, the Court
of Appeals ignorea this C4urt rUling in st-a:te vo, r
Ohio St.3d 92+ at §40, that an unlawful sentence t
"Voidr" "2e not precluded from Appellate Reviews by PraneipIes
3udieatal and may be reviewed at any timer on Direct
Appeal or by CQllatesal AtteeA" and Rendera a deeision that
bars Petitioner's Challenges of hie
upon the Dactrine of Res Judiaatar
The Court oP Appeals does not seem to realize this and this
Court, should accept tQ consider the L9ouble-Jeuparuy
implications of errant decisions such at that Rendered by
2
tlze" F1Ith Diatri^t Co+^^^t of APp4410 ira
F:!^AND r
^^bl:^
^3^Ida^^a^ fi
fros^ a ^hotc9 LifteuP. "tft+
'Ptess. Appe11ant entered a P:Lea
Trial Court se3 h to twenty
cs p#ositaikity of Judieial Rsloa.ta^ The
; the Lsawer
an Rea q
this dec
pon thie Court's 40
not conform tO
the
f APpeAlS
the SLI^^^E
in Seasl*y
G^E C E ^ V CJUN Q 6 ?,QiZ
CLERkOFCOUR7SI IPREM;f!ni iQr nc A
The 4:301
ac} 3 s^epCi4+a#e
Trial and App
vtrj f:.`LvP3C r
to R,2cosAaiza thqte
as BuS^^ing b3,#o3es.to a aing2e Cesracs',uasian
appaintiog as it is surpris3ny *
cO>7 forRt
4.ki^*, Dictate the wav 6 serttence muzvt9 d t^y an a w
Iampcase t?unisflment, it tol3owe there az:e many waYs in which
a aqatenoe uaay be "Voad.
t,9ao Principles oz Re$
Judicata do not apply and Appe.llate tze
The sent bu Revi4wed
or by Cca2.).ate«°al Atcarsk.
Precluded.
^i?POal
isch*rr 126 Qoa.a &r.:aa
j 294-1.25 - Mandzstera
must morge. 4
While this^ Statute
omer9*o" qhio Courts
4
^t the Multiple 09^04
1& /e
:E the same ,^nimub acd the
5
ccmm8tted by the
itha s;
477.
Ottez`zaca
us that APP411ant"a
c^aaeral
Itaport P3ogga*
nt ra dcses not
be "ceprod by the ScaPVtOe
instiCutiun
16149 Stato Raut* 104
P.O. Bo.ei 7010
t:bt.c3.ia^^theo Oh.ita 4.^'a6tJl
ACTING PRO•-as
CEI'a"'.T°ICA'_'"E Or :SERVIA."H
this
aurisdiction wam zoret by aa:aixxary u.s.. .^ai1 to coaansel for
Appol,iee^^ jocalyra S. Felly< 239 W. Main St
torF Ohio 43130 on this SA day of 3unse 2012.
AeTMs POO-89
STATE OF OHIO
OR IG I NALCOURT OF APPEALS
FAIRFIELD COUNTY, OHIOFIFTH APPELLATE DISTRICT
OCjK of N. 320 ^321o
Plaintiff-Appellee
-vs-
MARCUS HICKMAN
Defendant-Appellant
Hon. W. Scott Gwin, P.J.Hon. William B. Hoffman, J.Hon. Julie A. Edwards, J.
Case No. 11 -CA-54
OPINION
L ;'oZJ1MAY 11 AP1
OE60RAN;'^QLLFA RF K Of COUR $YJELD Cp, OMIO
CHARACTER OF PROCEEDING: Appeal from the Fairfield County CommonPleas Court, Case No. 2008-CR-115
JUDGMENT:
DATE OF JUDGMENT ENTRY:
APPEARANCES:
For Plaintiff-Appellee
GREGG MARXProsecuting AttorneyJOCtLYN S. KELLYAssistant Prosecuting AttorneyFairfield County, Ohio239 W. Main St., Ste. 101Lancaster, Ohio 43130
Affirmed
For Defendant-Appelfant
MARCUS HICKMAN, PRO SEInmate # 598-815Ross Correctional InstitutlonP.O. Box 7010Chillicothe, Ohio 45601
1: (I0
7
Fairfield County, Case No. 11-CA-54
Hoffman, J.
2
{11} Defendant-appellant Marcus T. Hickman appeals the July 26, 2011
Judgment Entry entered by the Fairfield County Court of Common Pleas denying his
motion for resentencing. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{12} On the evening of March 30, 2008, Donna Wade was walking in a
residential area to meet a female friend, Dreama Azbell. Upon meeting Dreama, the two
were approached by a white male, later to be identified as Dreama's brother, Tim
Azbell. Both Tim and Dreama Azbell held Donna Wade at gunpoint. A black male then
exited a parked, red Chevy Blazer and forced Donna Wade into the back seat of the
Blazer. Wade was seated directly behind the black male, who drove the vehicle around
town for a short period of time. The black male then stopped the vehicle, forced Wade
out of the vehicle, and proceeded to shoot her in the neck.
{13} Donna Wade survived the shooting, and was transported to an area
hospital. At the hospital, investigating officers from the Lancaster Police Department
presented Wade with a photo array of six black males. Donna Wade identified Appellant
from the photo array as the man who shot her in the neck.
{14} The Fairfield County Grand Jury indicted Appellant on attempted murder,
felonious assault, kidnapping, aggravated robbery and tampering with evidence, On
July 2, 2008, Appellant filed a motion to suppress the identification from the photo
lineup. Via Judgment Entry of October 7, 2008, the trial court overruled the motion to
suppress. Appellant subsequently entered a plea of no contest to the charges pursuant
to a negotiated plea agreement.
^5
Fairfield County, Case No. 11-CA-543
{15} On March 6, 2009, the trial court sentenced Appellant to a combined
twenty-six year prison term, with no possibility of judicial release.
{16} Appellant filed a direct appeal to this Court, arguing the trial court erred in
overruling his motion to suppress. In State v. Hickman, September 14, 2009, Fairfield
09-CA-15, 2009-Ohio-4911, this Court affirmed the holding of the trial court finding
Appellant could not demonstrate prejudice as result of the trial court's denial of his
motion to suppress because by pleading no contest, he waived the right to challenge his
identification at trial.
{17} On June 13, 2011, Appellant filed a motion to vacate and correct a void
sentence. The State filed a memorandum contra the motion on June 29, 2011. Via
Journal Entry of July 26, 2011, the trial court overruled the motion to vacate and correct
Appellant's sentence. The July 26, 2011 Entry was sent to Appellant at Warren
Correctional Institution.
{¶8} On October 13, 2011, Appellant filed a motion for delayed appeal
asserting he was transferred from Warren Correctional Institution to Ross Correctional
Institution, and, as a result, his mail was delayed, and he did not receive the judgment
entry denying the motion to vacate and correct until after the date for which the filing of
a timely appeal had passed. This Court granted the motion for delayed appeal.
{19} Appellant now appeals, assigning as error:
{110} "I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S
MOTION FOR RESENTENCING TO MERGE ALLIED OFFENSES OF SIMILAR
IMPORT BECAUSE "THE COURT HAD THE BENEFIT OF A SUPPRESSION
HEARING IN THIS CASE."
q
Fairfield County, Case No. 11=CA-544
{111} In the sole assignment of error, Appellant asserts the trial court erred in
imposing prison sentences on allied offenses. Appellant cites the Ohio Supreme Court
decision in State v. Johnson, 128 Ohio St.3d 153, (2010). In Johnson, the Supreme
Court held:
{112} "in determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one offense and
commit the other with the same conduct, not whether it is possible to commit one
without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816
(Whiteside, J., concurring) ('It is not necessary that both crimes are always committed
by the same conduct but, rather, it is sufficient if both offenses can be committed by the
same conduct. It is a matter of possibility, rather than certainty, that the same conduct
will constitute commission of both offenses.' [Emphasis sic]). If the offenses correspond
to such a degree that the conduct of the defendant constituting commission of one
offense constitutes commission of the other, then the offenses are of similar import.
{113} "If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e.,
'a single act, committed with a single state of mind.' Brown, 119 Ohio St.3d 447, 2008-
Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).
{114) "if the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
{115} "Conversely, if the court determines that the commission of one offense
will never result in the commission of the other, or if the offenses are committed
lu
Fairfield County, Case No. 11-CA-545
separately, or if the defendant has separate animus for each offense, then, according to
R.C. 2941.25(B), the offenses will not merge."
{116} As set forth in the Statement of the Facts and Case, supra, Appellant's
direct appeal to this Court was affirmed via Opinion and Judgment Entry of September
14, 2009. The issues raised herein were capable of being raised on direct appeal;
therefore, barred by res judicata.
{117} Further, Appellant's conviction and sentence were final prior to the Ohio
Supreme Court's holding in Johnson, supra, which does not apply retroactively. A new
judicial ruling may be applied only to cases pending on the announcement date. State
v. Parson, 2"d Dist. No. 24641, 2012-Ohio-730. 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. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-
6592. Accordingly, Appellant's arguments are barred by res judicata as they were
capable of being raised on direct appeal, and his reliance on Johnson is misplaced as
his conviction and sentence were already final prior to the date the Supreme Court
pronounced its holding therein.
11
Fairfield County, Case No. 11-CA-54
{118} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur
HON. WILLIAM B. H
6
ARDSA. EDWa
!7.
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, ^I^^ ^^FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
MARCUS HICKMAN
Defendant-Appellant
2012HAY ( I PM 1: 00
t7EBQRAii SHALLEYCLERK OF COtlRTS
FAIRFIELD Co.OHIo
JUDGMENT ENTRY
Case No. 11-CA-54
For the reasons stated in our accompanying Opinion, the judgment of the
Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.
^u-^c'-
N. W. SCO i i GWiN
<W^400N. JULIE A. EDWARDS
13