State v. AnthonyState v. Anthony
JUDGMENT: SENTENCE VACATED; REMANDED
BEFORE: Kilbane, J., Keough, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: May 11, 2017
Charles F. Anthony, pro se
Inmate No. #A651-164
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Andrew J. Santoli
Amy Venesile
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} This is an accelerated appeal brought pursuant to
{¶2} Defendant-appellant, Charles Anthony (“Anthony“), pro se, appeals from his April 25, 2016 resentencing pursuant to our mandate in State v. Anthony, 2015-Ohio-2267, 37 N.E.3d 751 (8th Dist.), discretionary appeal not allowed, 143 Ohio St.3d 1500, 2015-Ohio-4468, 39 N.E.3d 1271. For the reasons set forth below, we vacate his sentence and remand for another resentencing hearing where the state shall elect which allied offense it chooses to proceed with for purposes of sentencing.
{¶3} The procedural history and facts of this case were previously set forth by this court in Anthony as follows:
[In July 2013,] Anthony and the victim [were hanging out in Anthony’s apartment]. [The two friends] had been drinking and doing drugs on the night of the incident. At some point, they started arguing. And then Anthony stabbed the victim four times “on the victim’s backside” [resulting in the victim’s death].
* * *
In August 2013, Anthony was indicted on four counts: one count of aggravated murder and murder and two counts of felonious assault. All counts carried notice of prior conviction and repeat violent offender specifications. Anthony pleaded not guilty to all charges at his arraignment.
In November 2013, Anthony withdrew his former plea of not guilty and entered a plea of guilty to an amended indictment of involuntary manslaughter with both specifications and one count of felonious assault with the specifications. The remaining counts were nolled.
The trial court sentenced Anthony to a total of 13 years in prison, 11 years for involuntary manslaughter and two years for felonious assault, to be served consecutive to one another. The trial court further notified Anthony that he would be subject to five years of mandatory postrelease control upon his release from prison.
Id. at ¶ 48, 3-5.
{¶4} Anthony appealed, arguing the trial court failed to follow
{¶5} Following our remand, the trial court held a resentencing hearing on the matter. At the hearing, the trial court stated:
[W]e are here for the purpose of re-sentencing pursuant to the mandate of the Eighth District.
* * *
With regard to the original sentence it was for 11 years and I ran 2 years consecutive. And the problem was with the consecutive nature of it, so the Court is going to impose the — re-impose the sentence to Count 2 of 11 years with Count 3 being concurrent with Count 2; and of course there will be 5 years of Post-Release Control. Any violation of the terms and conditions of PRC will get you additional prison time under this case.
{¶6} Anthony now appeals from this resentencing, raising the following five assignments of error for review, which shall be discussed together where appropriate.
Assignment of Error One
The sentencing court erred to the prejudice of [Anthony] and abused its discretion when it failed at sentencing to consider
Assignment of Error Two
The sentencing court erred to the prejudice of [Anthony] and imposed a sentence contrary to law in violation of
Assignment of Error Three
[Anthony] was deprived of due process and equal protection of the law as guaranteed under the
Assignment of Error Four
[Anthony] was deprived of due process and equal protection of the law as guaranteed under the
Assignment of Error Five
[Anthony] was deprived of due process and equal protection of the law as guaranteed under the
{¶7} In the second and fifth assignments of error, Anthony challenges his sentence. He contends that his sentence is contrary to law because the trial court did not follow this court’s remand instructions, requiring the state to elect which offense to proceed with for purposes of sentencing. The state concedes that the trial court did not follow our mandate in Anthony, but argues that the merger of involuntary manslaughter
{¶8} Under
{¶9} In State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, the Ohio Supreme Court held that “[t]he imposition of concurrent sentences is not the equivalent of merging allied offenses.” Id. at ¶ 17. The Damron court noted that “[w]hen a defendant has been found guilty of offenses that are allied offenses,
{¶11} Therefore, Anthony’s second and fifth assignments of error are sustained.
{¶12} In the first, third, and fourth assignments of error, Anthony argues that he acted in self-defense. However, Anthony previously filed a direct appeal, challenging his guilty plea and convictions. In Anthony, we addressed his arguments and found them unpersuasive. We remanded the matter solely for resentencing. As a result, Anthony’s arguments are barred by res judicata. Under the doctrine of res judicata, a defendant is barred “from raising and litigating in any proceeding except an appeal from [a final] judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial * * * or on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
{¶14} Anthony’s sentence is vacated and the matter is remanded for resentencing where the state shall elect which allied offense to proceed on before the trial court imposes the sentence.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, A.J., and PATRICIA ANN BLACKMON, J., CONCUR