State v. Keith, 2014 Ohio 169

In 2005, a 46-count indictment charged Keith with operating a mortgage foreclosure scheme taking money from homeowners facing foreclosure.
Convictions in 2005 included six grand theft, three elderly-victim theft, 17 thefts, 14 tampering with records, and one count of engaging in a pattern of corrupt activity; he was sentenced to 23 years and two months plus restitution.
Keith filed a motion for new trial (Feb. 2006) and a postconviction relief petition; both were denied.
This court (Keith I) affirmed in part and reversed in part in 2008, remanding for reduced offenses and resentencing and addressing restitution per Foster.
Keith was resentenced in 2008 to 24 years and two months with restitution; he challenged the sentence in Keith II, which denied vindictiveness.
In 2012 Keith filed a fourth postconviction relief petition arguing sentencing errors; the trial court denied, and the court of appeals affirmed on appeal to vacate the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Keith’s theft offenses are allied offenses of similar import requiring merger.	Keith argued the offenses should merge under R.C. 2941.25.	Keith contends the re-sentencing violated double jeopardy and allied-offense principles.	First assignment overruled; Johnson analysis not retroactive; no merit shown.
Whether Keith received due process issues or cruel/unusual punishment due to judicial bias at re-sentencing.	Keith asserted biased, vindictive sentencing by Judge Hedric.	Keith asserted the re-sentencing variably punished him due to bias.	Barred by res judicata; challenges could have been raised earlier.
Whether remand and re-sentencing complied with this court’s mandate.	Keith argued failure to follow mandating sentencing statutes on remand.	Keith’s claims rest on sentencing error raised previously.	Barred by res judicata; no new ground shown.

State v. Foster, 109 Ohio St.3d 1 (2006) (restitution and allied-offense jurisprudence in resentencing (Foster))
State v. Johnson, 2010-Ohio-6314 (Supreme Court of Ohio (2010)) (allied offenses analysis not retroactive to final judgments)
State v. Carter, 2006-Ohio-4205 (12th Dist. Clinton (2006)) (R.C. 2953.23(A)(1)(b) applicability limited to trial errors)
State v. Schroyer, 2006-Ohio-1782 (12th Dist. Clermont (2006)) (limitations on postconviction relief for sentencing issues)
State v. Dillingham, 2012-Ohio-5841 (12th Dist. Butler (2012)) (postconviction relief standard; abuse of discretion)
State v. Piasecki, 2013-Ohio-1191 (8th Dist. Cuyahoga (2013)) (time-bar exceptions for untimely petitions)
State v. Wagers, 2012-Ohio-2258 (12th Dist. Preble (2012)) (abuse of discretion standard for postconviction appeals)
State v. Reynolds, 79 Ohio St.3d 158 (1997) (definition and scope of postconviction relief)
State v. Kelly, 2012-Ohio-2930 (8th Dist. Cuyahoga (2012)) (retroactivity of new rulings on final judgments)
State v. Boyce, 2012-Ohio-3713 (2d Dist. Clark (2012)) (retroactivity and remediability of new rulings)