2016 Ohio 7003
Ohio Ct. App.2016Background
- In 2004 Marco Feagin was convicted by a jury of murder (with a firearm specification), possession of a firearm in a liquor permit premises, and possession of a weapon under disability; he was sentenced to 15 years-to-life plus consecutive terms.
- Feagin was resentenced on March 25, 2010 to include a five-year term of mandatory post-release control (PRC); he appealed and prior appeals largely affirmed his convictions and sentences.
- In prior appellate proceedings this court found the trial court erred in imposing PRC on a murder conviction and, on March 7, 2016, vacated the portion of the 2010 entry imposing PRC.
- The trial court issued a March 9, 2016 entry vacating the PRC portion of the 2010 resentencing entry. Feagin then filed a March 24, 2016 motion seeking to be conveyed to the trial court for a hearing after that vacation.
- The trial court denied Feagin’s motion to convey as moot on April 5, 2016. Feagin appealed that denial, raising three assignments of error: (1) court exceeded jurisdiction / failed to convey for hearing when vacating PRC; (2) court erred by not vacating court costs when vacating PRC; and (3) prosecutorial misconduct at trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Feagin) | Held |
|---|---|---|---|
| Whether a hearing / conveyance was required before vacating improperly imposed PRC | Trial court may correct clerical/sentencing errors without a new hearing; nunc pro tunc entry is proper | Court exceeded jurisdiction and violated Crim.R. 32(C) / Crim.R. 43 by vacating PRC without conveying Feagin for hearing | Court: No hearing required; vacatur of PRC by entry was proper (citing analogous precedent) |
| Whether court erred by not vacating court costs when vacating PRC | Any challenge to costs must have been raised earlier; entry vacating PRC was not appealed and issue is waived/res judicata | Court should have cured or addressed assessed court costs when vacating resentencing entry | Court: Feagin waived the issue by not appealing the March 9 entry and res judicata bars relitigation of costs; no error shown |
| Whether prosecutorial misconduct at trial warrants relief now | Prosecutorial-misconduct claim was not raised in the motion being appealed and has been previously rejected; thus it is waived / barred by res judicata | Prosecutorial misconduct at trial was egregious and merits plain-error or other review | Court: Claim is waived in this appeal and previously rejected on the merits or barred by res judicata; no relief granted |
Key Cases Cited
- State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (Ohio 1967) (res judicata bars relitigation of claims that were or could have been raised on direct appeal)
Disposition: The April 5, 2016 trial-court entry denying Feagin’s motion to convey (as moot) was affirmed; all three assignments of error were overruled.