State v. Pollard
2012 Ohio 2311
Ohio Ct. App.2012Background
- Pollard pleaded guilty to two counts of carrying a concealed weapon and one count of having a weapon under disability (2008).
- Court sentenced to 3 years total incarceration with three years of postrelease control on each count, all concurrent.
- Appellate court reversed postrelease-control imposition and remanded for a limited hearing under R.C. 2929.191 (Pollard I).
- Pollard filed multiple motions to vacate/resentence; trial court denied the motion to correct an unlawful sentence (Oct. 4, 2011).
- This appeal concerns the denial of the motion to correct an unlawful sentence; the court also addresses timeliness and scope issues related to prior appeals and remand proceedings.
- Court remands to comply with the prior mandate and conduct the required R.C. 2929.191 hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is timely and the court has jurisdiction to review the 2008 sentencing | Pollard argues the trial court erred in the original sentencing and that the appeal should proceed | State contends the appeal is untimely and lacking direct appeal jurisdiction | Untimely/No jurisdiction to review the 2008 sentencing |
| Whether merger/allied-offenses issues are barred by res judicata | Pollard asserts merger of allied offenses should be reviewed | State argues such issues should have been raised on direct appeal and are barred | Barred by res judicata; such claims should have been raised on direct appeal |
| Whether the withdrawal-of-plea issues are within scope of this appeal | Pollard contends dispositive issues include plea-withdrawal rulings | State contends these issues are outside the scope of the October 4, 2011 order | Not addressed; outside the scope of the present appeal |
| Whether remand was proper to compel R.C. 2929.191 hearing per prior mandate | Remand to conduct 2929.191 hearing is necessary | Remand for compliance with prior mandate and to conduct the 2929.191 hearing |
Key Cases Cited
- State v. Pollard, 2011-Ohio-725 (2011-Ohio-725) (remand for 2929.191 hearing following Pollard I)
- State v. Lopez, 2005-Ohio-3711 (2005-Ohio-3711) (lack of jurisdiction without timely direct appeal)
- State v. Church, 1995 WL 643794 (1995 WL 643794) (bootstrapping to appeal a prior order is improper)
- State v. Jones, 2012-Ohio-584 (2012-Ohio-584) (res judicata; merger issues barred when not raised on direct appeal)
- State v. Davis, 2008-Ohio-4608 (2008-Ohio-4608) (merger issues barred by res judicata)
- Parks v. Baltimore & Ohio RR., 77 Ohio App.3d 426 (1991-Ohio-?) (notice of appeal designation governs reviewing scope)
- Nolan v. Nolan, 11 Ohio St.3d 1 (1984) (law of the case doctrine)
- Piper v. Kokosing Constr. Co., 81 Ohio St.3d 214 (1998) (law-of-the-case principle in appellate Mandates)