2021 Ohio 867
Ohio Ct. App.2021Background
- In March 2004 Lamar D. Florence was convicted (aggravated murder, murder, kidnapping, having weapons under disability, firearm specifications) and received concurrent life and lengthy terms; convictions were affirmed on direct appeal (mid-2000s).
- Years later Florence sought relief after the trial court failed to properly impose and notify him of post-release control; this led to limited resentencings in 2018 and 2019 to correct post-release-control language.
- Florence filed a pro se appeal from the December 2019 amended judgment entry and raised five claims attacking his 2004 trial: failure to evaluate sanity/insanity, failure to merge allied/offending counts, failure to merge aggravated murder with murder, insufficiency of the evidence, and ineffective assistance for not moving for mistrial over allegedly perjured testimony.
- The panel treated Florence’s claims as matters that could have been raised on his original direct appeal and analyzed whether res judicata bars them; Florence argued a partial resentencing created a new judgment (relying on Sixth Circuit’s Stansell).
- The court concluded Stansell is not controlling in Ohio postconviction review, reiterated that Harper restored the traditional (narrow) void-judgment rule, and held that the resentencing for post-release control did not permit relitigation of prior trial-phase claims that were ripe on direct appeal.
- Result: all five assignments of error were overruled as barred by res judicata; the trial court’s amended judgment was affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Florence) | Held |
|---|---|---|---|
| 1) Trial court failed to evaluate sanity/insanity (competency at time of crime) | Claims are barred by res judicata because they could have been raised on direct appeal from 2004 convictions | Resentencing created a new judgment (citing Stansell), so he may challenge prior trial errors now | Barred by res judicata; Stansell not controlling; Harper doctrine limits reopening; assignment overruled |
| 2) Failure to merge allied offenses | Merger/Double Jeopardy arguments could have been and were to be raised on direct appeal; res judicata applies | Merger errors remain subject to attack after a partial resentencing | Barred by res judicata; assignment overruled |
| 3) Failure to merge aggravated murder with murder | Same res judicata position as to merger claims | Same — resentencing created a new judgment permitting challenges | Barred by res judicata; assignment overruled |
| 4) Sufficiency of the evidence | Sufficiency was litigable on direct appeal and is therefore precluded now by res judicata | Post-release-control resentencing created a new judgment allowing review of underlying conviction | Barred by res judicata; assignment overruled |
| 5) Admission of allegedly perjured testimony / ineffective assistance for not moving mistrial | Those trial-phase claims were raised or could have been raised on direct appeal; res judicata bars them | Claims survive because resentencing produced a new judgment tied to custody conditions | Barred by res judicata; assignment overruled |
Key Cases Cited
- Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995) (res judicata bars subsequent actions arising from same transaction)
- Magwood v. Patterson, 561 U.S. 320 (2010) (habeas “second or successive” analysis depends on the judgment challenged)
- In re Stansell, 828 F.3d 412 (6th Cir.) (partial resentencing imposing post-release control can create a new judgment for habeas purposes)
- State v. Harper, 160 Ohio St.3d 480, 159 N.E.3d 248 (2020) (returns to traditional void-judgment rule; sentencing errors that do not affect jurisdiction are voidable, not void)
- State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332 (2010) (discussed void/voidable sentencing; later limited by Harper)
- State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774 (1984) (earlier expansion of void-sentence doctrine)
- State v. Jordan, 104 Ohio St.3d 21, 817 N.E.2d 864 (2004) (post-release control notice precedents later reevaluated in Harper)
- Jones v. Cunningham, 371 U.S. 236 (1963) (defining ‘‘in custody’’ for habeas purposes)