State v. Allen
2012 Ohio 3364
Ohio Ct. App.2012Background
- Appellant Delbert Allen was indicted in 2003 in Cuyahoga County on multiple counts including five rape, four kidnapping, seven gross sexual imposition, one aggravated robbery, and one attempted rape, with various repeat violent offender and firearm specifications; he pled not guilty.
- In 2004, Allen retracted and pled guilty to two counts of rape, one kidnapping, and two counts of gross sexual imposition; other counts were nolled; he received a cumulative 17-year prison term and was designated a sexual predator.
- In 2004, Allen filed a postsentence motion to vacate his plea alleging ineffective assistance and inaccurate sentencing predictions by counsel; hearing held August 2004; motion denied later that month.
- Allen pursued delayed appeals; one delayed appeal was allowed but dismissed for failure to file a pro se brief; a second delayed appeal was denied in 2009.
- On January 9, 2010, Allen again moved to withdraw his guilty plea (Crim.R. 32.1), arguing ineffective assistance and misrepresentation by counsel; the State contended res judicata and lack of allied offenses, but sought resentencing only for postrelease control.
- The trial court resentenced Allen on October 14, 2011 for postrelease control, denied the Crim.R. 32.1 motion to withdraw, and the court’s resentencing decision was appealed; App.R. 4(A) timeliness and res judicata issues shaped the appellate analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal from denial of Crim.R. 32.1 motion | Allen argues the appeal is timely under App.R. 4(A) | State contends the notice of appeal was untimely or outside jurisdiction | Appeal dismissed for lack of jurisdiction due to untimely notice of appeal |
| Allied offenses/merger issue at resentencing and res judicata | Allen argues Wilson allows challenges to resentencing on allied offenses | State argues res judicata bars new challenges not raised on direct appeal; Fischer limits resentencing scope to postrelease-control issues | Allied-offense challenge barred; res judicata applies; issue not reviewable on resentencing (scope limited by Fischer) |
Key Cases Cited
- State v. Bell, 2007-Ohio-3276 (8th Dist. 2007) (timeliness of Crim.R. 32.1 appeal after postrelease-control issue)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (void portion of sentence for improper postrelease control; scope of resentencing review limited)
- State v. Wilson, 129 Ohio St.3d 214 (2011) (resentencing rights; issues arising at resentencing may be reviewed; not all prior issues survive res judicata)
- State v. Padgett, 2011-Ohio-1927 (8th Dist. 2011) (merger/allied offenses must be challenged on direct appeal; not at resentencing)
- State v. Woods, 2011-Ohio-5825 (8th Dist. 2011) (reaffirmed limits on raising allied-offense challenges at resentencing)
- State v. Ballou, 2011-Ohio-2925 (8th Dist. 2011) (limited scope for challenges at resentencing)
- State v. Hughes, 2012-Ohio-706 (8th Dist. 2012) (res judicata effect on Crim.R. 32.1 motions raised in prior proceedings)
- State v. Grady, 2011-Ohio-5503 (8th Dist. 2011) (application of res judicata to Crim.R. 32.1 claims)