State v. Wharton
2011 Ohio 6601
Ohio Ct. App.2011Background
- Wharton was indicted for murder (special felony) and felonious assault, with the first murder count later dismissed.
- Trial One (Feb. 2006): felonious assault convicted; murder charge deadlocked; a hung jury led to a new trial date.
- Trial Two (May 2006): murder conviction and concurrent sentence for felonious assault; post-verdict sentencing occurred in 2006.
- On appeal, this Court affirmed the convictions; in 2010 Wharton filed a motion for resentencing for improper postrelease-control notification.
- A de novo resentencing was conducted under State v. Singleton; the court merged the felonious assault into felony murder and failed to reference postrelease control in the entry.
- Following State v. Fischer, the court held that only postrelease-control issues could be addressed on the resentencing appeal and vacated the September 30, 2010 judgment, remanding for the void portion related to postrelease control while keeping the original sentences intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy for felonious assault | Wharton was tried twice for felonious assault. | No improper double jeopardy; appeal concerns postrelease-control issues. | Court did not address merits; res judicata barred Merits; remanded for postrelease-control void portion. |
| Allied offenses doctrine | Felonious assault and felony murder are allied offenses of similar import. | Alliance/de-merger issues arise at direct appeal, not resentencing. | Issues relating to allied offenses were not properly before the trial court; reviewed only postrelease-control issues. |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (Ohio Supreme Court, 2010) (void sentence for improper postrelease control; scope limited to sentencing issues)
- State v. Singleton, 124 Ohio St.3d 173 (Ohio Supreme Court, 2009) (de novo resentencing to correct postrelease control)
- State v. Jones, 2011-Ohio-4934 (Ohio 9th Dist. Ct. App., 2011) (allied offenses issues not properly before trial court in remand context)
- State v. Brown, 2011-Ohio-1029 (Ohio 9th Dist. Ct. App., 2011) (allied offenses and merger considerations on appeal)
- State v. Saxon, 109 Ohio St.3d 176 (Ohio Supreme Court, 2006) (res judicata governs merits; only void sentence reviewed)
- State v. Cook, 2010-Ohio-6524 (Ohio 9th Dist. Ct. App., 2010) (respective limits on appeal following resentencing)