State v. Johnson
2013 Ohio 1788
Ohio Ct. App.2013Background
- Johnson was convicted in Feb. 2010 of murder with a repeat violent offender specification and two counts of child endangering, with aggregate sentences totaling 33 years to life.
- On remand (Aug. 2011), this court held the murder and child endangering convictions were allied offenses and should have merged, and remanded for merger and resentencing after the State elected the sentencing count.
- On remand the State elected the murder count; Johnson was resentenced to 15 years to life for murder, plus 10 years for the repeat violent offender specification, to run consecutively, totaling 25 years to life.
- Johnson challenged his resentencing in a delayed appeal, asserting ineffective assistance of counsel for failing to object to (a) sentence legality or excessiveness, (b) lack of consideration of seriousness or recidivism factors, and (c) costs/fees.
- The trial court’s journal entry on resentencing indicated it considered the required factors; res judicata barred argument about court costs; no indication Johnson was indigent for purposes of costs.
- The appellate court overruled Johnson’s sole assignment of error and affirmed the judgment, remanding for execution of sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for sentencing on remand | Johnson—ineffective for not objecting | Johnson’s counsel failed to object to improperities | Claim overruled; sentence valid on law and record |
| Consideration of seriousness and recidivism factors | Record shows factors considered | Factors adequate at resentencing | No error; court considered required factors |
| Costs/indigency and per-posture | Indigency not clearly shown | Costs may be imposed | Res judicata barred direct appeal; no indigency evidence to support costs |
Key Cases Cited
- State v. Saxon, 109 Ohio St.3d 176 (2006-Ohio-1245) (sentencing on remand limited to issue corrected on appeal)
- State v. Fischer, 2010-Ohio-6238, 942 N.E.2d 332 (Ohio Supreme Court (2010)) (remand sentencing limited to issues found in error; merger issues addressed on remand)
- State v. Burrell, 8th Dist. No. 95512, 2011-Ohio-2533 (8th Dist. 2011) (factors considered prior to imposing sentence sufficient)
- State v. Britton, 8th Dist. No. 98158, 2013-Ohio-99 (8th Dist. 2013) (affidavit of indigency required to support counsel failure to file)