State of Ohio, Plaintiff-Appellee, v. Montez J. Long, Defendant-Appellant.
No. 17AP-845 (C.P.C. No. 93CR-5762)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 19, 2018
2018-Ohio-2372
BRUNNER, J.
(REGULAR CALENDAR)
Rendered on June 19, 2018
On brief: Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.
On brief: Montez J. Long, pro se.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Montez J. Long, appeals from a judgment entered on October 31, 2017 by the Franklin County Court of Common Pleas denying his motion for resentencing. Although the trial court‘s original criminal sentencing entry did not comply with a number of procedural rеquirements, because the sentence imposed was not discretionary, because Long has waited 20 years to challenge the sentence, and because he did so by motion for reconsideration rather than a substantiated motion for delayed appeal, there is no basis for granting his motion. In addition, because the State did not cross-appeal on the question of whether the trial court was empowered to suspend Long‘s court costs, we do not consider the merits of that argument. We therefore affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 9, 1993, a Franklin County Grand Jury indicted Long for aggravated murder with a firearm specification. (Nov. 9, 1993 Indictment.) We have
{¶ 3} On March 29, 1996, despite having been instructed on the option of convicting Long on a lesser-included offense of murder, a jury convicted Long of aggravated murder and found he had used a firearm in the commission of the offense. (Apr. 2, 1996 Verdict Form; Tr. Vol. VI at 969-72, 976-79, filed June 3, 1996.) Based on the jury‘s finding, the trial court sentenced Long to 20 years to life with a mandatory consecutive 3 years of incarceration for the firearm specification. (Apr. 2, 1996 Entry at 1.) The trial court ordered in its entry “that the defendant pay the costs of this prosecution” but did not specifically calculate an amount. Id.
{¶ 4} On appeаl, this Court found that the jury‘s verdict was insufficiently supported as a matter of law as to the premeditation element of aggravated murder. Long at *28-29. We, thereafter, modified Long‘s conviction from aggravated murder to the lesser offense of murder and remanded his case for resentencing. Id. at *29.
{¶ 5} On August 7, 1997, the trial court held a resentencing hearing which, in its entirety, consisted of the following:
THE COURT: State of Ohio versus Montez Long, 93CR-5762, set for resentencing. We‘re here on the Montez Long case based on the Court of Appeals decision that has reduced the verdict to that of a finding of guilty on a murder conviction.
Is there anything from either party?
[PROSECUTION]: No, Your Honor. I believe the sentence is statutory. It is murder with a firearm specification. It carries a sentence of 15 years to life. I believe all the parties agree on that.
THE COURT: Anything, [DEFENSE COUNSEL]?
[DEFENSE COUNSEL]: I have nothing.
THE COURT: Court then will go forward with the sentencing.
Mr. Long, if you can stand up for sentencing, please.
Court imposes a statutory sentence of 15 years to life. There is an additional 3 years to be served consecutive for use of a firearm. Thank you.
[DEFENSE COUNSEL]: Thank you.
(Aug. 7, 1997 Resentencing Tr. at 3-4, filed July 31, 2017.) Following its oral pronouncement, the trial court entered judgment sentencing Long to serve 15 years to life with an additional consecutive sentence of 3 years for the firearm specification. (Aug. 7, 1997 Resentencing Entry at 2.) As before, the defendant was ordеred to “pay the costs of this prosecution,” though the trial court did not calculate the exact cost bill in its entry. Id. at 1-2.
{¶ 6} Slightly over 20 years later, Long filed a motion in the trial court seeking another resentencing, alleging that the August 1997 sentencing entry was void. (Oct. 5, 2017 Mot. for Resentencing.) Among other arguments, Long asserted that the trial court had failed to properly impose costs, had failed to inform him of his aрpellate rights, had failed to offer him an opportunity to allocute, had failed to determine his parole eligibility, and failed to state reasons for consecutive and maximum sentences. Id. at 4-10. Long also argued that trial counsel was ineffective in failing to raise some of these issues at sentencing. Id. at 5-6. The State responded that costs were properly imposed, that the trial court lacked jurisdiction to modify costs, and that none of Long‘s arguments supported a conclusion that the trial court‘s sentencing entry was void. (Oct. 20, 2017 Memo in Opp.) The trial court adopted some of the State‘s arguments and summarily denied Long‘s motion. (Oct. 31, 2017 Entry.) However, it did order further collection of court costs to be suspended during Long‘s incarceration. Id.
{¶ 7} Long now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 8} Long alleges six errors for our review:
[1.] The Trial Court erred as a matter of law, аnd abuse its discretion, when the Trial Court failed to address the issue Appellant raised in his Motion For Re-sentencing Based Upon A Void Judgment . . . , filed on October 5th, 2017 when Appellant brought to the Trial Courts attention that the Trial Court did not give Appellant an opportunity to speak at the Re-
sentencing hearing on August 7, 1997 failing to comply with Crim. R. 32(A)(1) andR.C. 2929.19(A) , and(B)(1) , causing Appellant‘s sentence to be Contrary to law[2.] The Trial Court erred as a matter of law, and abused its discretion, when the Trial Court failed to address the issue Appellаnt raised in his Motion For Re-sentencing Based Upon A Void Judgment . . . , filed on October 5th, 2017 when Appellant brought to the Trial Courts attention that the Trial Court failed to give Appellant his Notice of Appeal Rights at the Re-sentencing hearing on August 7th, 1997 Appellant had Rights to Appeal the Re-sentencing hearing, pursuant to
Crim. R. 32 [3.] The Trial Court erred as a matter of law, and abused its discretion, when the Trial Court failed to аddress the issue Appellant raised in his Motion for Re-sentencing Based Upon A Void Judgment . . . , filed on October 5th, 2017 when Appellant brought to the Trial Courts attention that the Trial Court at the Re-sentencing hearing on August 7th, 1997 reflects a lesser included Sentence pursuant to
R.C. 2903.02 , and the Trial Court never addressed the Statutorily mandates pursuant toR.C. 2967.13 the record is silent that if Appellant is eligible or not eligible for Parole, аnd the Trial Court failed to mention the maxium penalty involved in the Crime Appellant was found guilty of, or give its reasons for Consecutive Sentences[4.] Trial Counsel[] * * * provided ineffective assistance, in violation of the Sixth and Fourteenth Amendments to the United State‘s Constitution And Section 10, Article 1 of the Ohio Constitution, for failing to object or even filing objection‘s to Statutory Requirements that are Contrary to law аt this time
[5.] The Trial Court erred as a matter of law, and abused its discretion, when Appellant filed his Motion on 10/5/17 in the Common Pleas Court, Criminal Division, But the Trial Court denied Appellant‘s Motion in the Civil Division
[6.] The Trial Court erred as a matter of law, and abused its discretion, when Appellant raised issues of Statutory provision‘s not being complied with concerning Appellant‘s Order to pay costs of Prosecution, when this Court never pronounced costs of any Kind at the Sentencing hearing in 1996 or at the Re-sentencing hearing in 1997, violating Appellant‘s Due Process Rights for objection‘s and violating Statutory provision‘s required by law, But, suspended further collection‘s of Court costs during Appellant‘s incarceration at ODRC
III. DISCUSSION
A. First Assignment of Error – Failure of the Trial Court to Permit the Defendant the Opportunity to Allocute
{¶ 9} Ohio Rule of Criminal Procedure 32 required at the time Long was resentenced that, “[b]efore imposing sentence the court * * * shall address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment.”
{¶ 10} We review the trial court‘s decision on Long‘s motion with the understanding that this was a resentencing following appellate court modification of a jury‘s conviction with remand ordered for sentencing only. At resentencing, the record indicates that the trial court did not “address [Long] personally,” nor did it give him the opportunity to make a statement or present mitigation. (Resentencing Tr. at 3-4.) Whilе technically error, under these circumstances, it is harmless.
{¶ 11} Long‘s first assignment of error is overruled.
B. Second Assignment of Error – Failure of the Trial Court to Notify Long of his Appellate Rights
{¶ 12}
(2) Notification of Right to Appeal. After imposing sentence in a serious offense that has gone to trial on a plea of not guilty, the court shаll advise the defendant of all of the following:
(a) That the defendant has a right to appeal;
(b) That if the defendant is unable to pay the cost of an appeal, the defendant has the right to appeal without payment;
(c) That if the defendant is unable to obtain counsel for an appeal, counsel will be appointed without cost;
(d) That if the defendant is unable to pay the costs of documents necessary to an apрeal, the documents will be provided without cost;
(e) That the defendant has a right to have a notice of appeal timely filed on his or her behalf.
Upon defendant‘s request, the court shall forthwith appoint counsel for appeal.
(Emphasis sic.)
{¶ 13} Clearly, murder is a “serious offense” within the meaning of the rules. See
{¶ 14} We have previously held that the failure to advise a defendant of his or her
{¶ 15} We have previously explained:
In criminal cases, res judicata generally bars a defendant from litigating claims in a proceeding subsequent to the direct appeal “if he or she raised or could have raised the issue at the trial that resulted in that judgment of conviction or on an appeal from that judgment.” (Emphasis sic.) State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 92; see also State v. Szefcyk, 77 Ohio St.3d 93, 95-96 (1996). Stated differently, in criminal cases res judicata may preclude issues, arguments, or positions that could have beеn (even if they were not actually) litigated. See State v. Breeze, 10th Dist. No. 15AP-1027, 2016-Ohio-1457, ¶ 9.
State v. Barber, 10th Dist. No. 16AP-172, 2017-Ohio-9257, ¶ 19. Yet the Supreme Court of Ohio has several times stated that, ” ‘the doctrine of res judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.’ ” (Emphasis sic.) Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d 488, 491 (2001), quoting Grava v. Parkman Township, 73 Ohio St.3d 379, 386 (1995) (Douglass, J., dissenting); 46 American Jurisprudence 2d, Judgments, Section 522, at 786-87 (1994); see also, e.g., State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, ¶ 47.
{¶ 16} Not having been informed of his appellate rights concerning the second sentencing, it is conceivable that Long did not know at the time that he had any. It is therefore possible that he “could [not] have raised” the trial court‘s failure to inform him of his appellate rights in a timely direct appeal from his re-sentencing. Barber at ¶ 19. We would thus generally refrain from applying res judicata in a circular fashion tо bar his claim that he was not informed of his right to appeal.
{¶ 17} However, once Long learned of his right to appeal, Long‘s remedy was not a motion for reconsideration but, rather, a motion for a delayed appeal stating the reason he failed to timely perfect an appeal as of right (i.e., that he was not informed of his right to appeal).
{¶ 18} Long‘s second assignment of error is overruled.
C. Third Assignment of Error – Whether the Trial Court Erred in Failing to State the Date on Which Long was to Become Parole Eligible
{¶ 19}
Chapter 2967. of the Revised Code, as it existed prior to July 1, 1996, applies to a person upon whom a court imposed a term of imprisonment prior to July 1, 1996, and а person upon whom a court, on or after July 1, 1996, and in accordance with law existing prior to July 1, 1996, imposed a term of imprisonment for an offense that was committed prior to July 1, 1996.
According to the version of
{¶ 20} Long argues that the trial court failed to comply with
{¶ 21} Long‘s third assignment of error is overruled.
D. Sixth Assignment of Error – Whether the Trial Court Erred in Imposing Financial Sanctions
{¶ 22} Long argues that the trial court erred in imposing financial sanctions (costs) without considering his ability to pay in violation of
{¶ 23} When Long was sentenced, costs were required to be assessed pursuant to
{¶ 24} But even when in the exercise of discretion it would seem costs should have been waived, success on a subsequent challenge does not render void the entire decision. Joseph at ¶ 1, 19-21. And the current statutory languagе providing for that retention of jurisdiction to “waive, suspend, or modify” a cost order does not imbue a court with the authority to reach back and now apply it. State v. Banks, 10th Dist. No. 17AP-210, 2017-Ohio-7135, ¶ 10. Long is not legally entitled to such relief.
{¶ 26} Long‘s sixth assignment of error is overruled.
E. Fourth Assignment of Error – Whether Long‘s Trial Attorneys were Ineffective
{¶ 27} Long argues that counsel should have made objections but does not specifically clarify to what counsel should have objected. (Long‘s Brief at 13-14.) Even assuming that Long means that trial counsel were ineffective for failing to raise the errors he alleged in the other assignments of error, his argument fails.
{¶ 28} Ineffective assistance of counsel claims are reviewed using the two-pronged approach рrescribed by Strickland v. Washington, 466 U.S. 668, 687 (1984). “First, the defendant must show that counsel‘s performance was deficient. * * * Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687. ” ‘To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.’ ” State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 42, quoting State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
{¶ 29} While objections and greater diligence by counsel and the trial court during post-appeal sentencing hearing might have alleviated Long‘s filing of his motion, there is no “reasonable probability” that a different substantive outcome would have occurred had the objections been made. Long‘s fourth assignment of error is overruled.
F. Fifth Assignment of Error – Whether Reversible Error Exists in an Entry Captioned “Civil” Rather than “Criminal” Division
{¶ 30} Long argues in his fifth assignment of error that there was some impropriety in the fact that he filed a motion in his criminal case but the trial court‘s entry denying his motion was captioned, “IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY,
{¶ 31} Long‘s fifth assignment of error is overruled.
IV. CONCLUSION
{¶ 32} Long‘s sentence was not discretionary; thus, we find that the trial court‘s procedural error in failing to allow him to allocute was harmless. Reconsideration was not the proper means by which to challenge the trial court‘s failure to inform Long of his appellate rights. There was no requirement that the trial court calculate or state the date of parole eligibility when sentencing Long, nor was there any requirement in Long‘s case that the court consider his ability to pay before impоsing costs. Long does not sufficiently state what failures resulted in his attorneys being ineffective, nor does he sufficiently support or explain how an incorrect division of the same court in the caption of the trial court‘s entry entitles him to any relief now. Accordingly, we overrule all of Long‘s assignments of errors and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., and TYACK, J., concur.