State v. Harwell
2018 Ohio 1950
Ohio Ct. App.2018Background
- Michael D. Harwell was convicted after trial of multiple offenses arising from kidnapping two men and shooting them, one of whom died; convictions included felony murder, two kidnapping counts, felonious assault, and related firearm specifications.
- On direct appeal this court vacated two attempted felony-murder convictions under State v. Nolan and remanded for resentencing; all other convictions were affirmed.
- At resentencing the trial court vacated the attempted-felony-murder counts, merged some counts, and imposed an aggregate sentence of 32 years to life (including two consecutive 3-year firearm specifications and prison terms for murder, two kidnappings, and felonious assault).
- Harwell later filed a pro se motion claiming (1) the trial court failed to properly impose mandatory post-release control for the kidnapping counts (and omitted any post-release control term for felonious assault), rendering part of the sentence void; and (2) the court should have merged additional allied offenses.
- The trial court denied the motion; Harwell appealed. The appellate court affirmed, rejecting both challenges.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Harwell) | Held |
|---|---|---|---|
| Whether trial court failed to impose mandatory post-release control for kidnapping | Trial court notified defendant he "will be supervised" for five years and entry reflected five years; language complies with R.C. and Grimes | Trial court needed to expressly use the word "mandatory"; current advisals insufficient | Court held "will" language satisfied mandatory post-release control notice; claim overruled |
| Whether trial court omitted post-release control for felonious assault | Longest applicable post-release control governs when multiple terms apply; here three-year assault term is subsumed by five-year kidnapping term | Trial court failed to impose any post-release control for felonious assault, rendering that part of the sentence void | Court held single longest term governs (R.C. 2967.28(F)(4)(c)); no error because five-year term subsumed three-year term |
| Whether trial court should have merged additional allied offenses at resentencing | Any merger challenge not raised earlier is barred by waiver and res judicata where the trial court did not expressly find offenses were allied and then fail to merge | Harwell contends additional offenses should have merged because they were part of an ongoing act | Court found argument waived/res judicata; also on merits offenses involved separate victims/separate harms so not allied under Ruff; claim overruled |
| Whether resentencing entry otherwise void or requiring further correction | Trial court’s amended entry and resentencing hearing contained the required notifications and merger choices; no facially void sentencing for the counts at issue | Harwell sought resentencing under R.C. 2967.28 and argued multiple defects | Court affirmed denial of resentencing; sentence upheld |
Key Cases Cited
- State v. Grimes, 151 Ohio St.3d 19 (Ohio 2017) (describing required post-release-control advisals at sentencing and content required in entry)
- State v. Fischer, 128 Ohio St.3d 92 (Ohio 2010) (failure to impose required post-release control renders that part of sentence void)
- State v. Nolan, 141 Ohio St.3d 454 (Ohio 2014) (holding attempted felony murder is not a cognizable offense)
- State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (framework for determining allied offenses of similar import)
- State v. Bezak, 114 Ohio St.3d 94 (Ohio 2007) (void-sentence principles where allied offenses were found but separate sentences imposed)
- State v. Jordan, 104 Ohio St.3d 21 (Ohio 2004) (post-release control advisory requirements)
- State v. Clark, 119 Ohio St.3d 239 (Ohio 2008) (treatment of unclassified felonies and parole eligibility)