State v. BanksState v. Banks
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-420197 and CR-421541
BEFORE: Stewart, J., Gallagher, A.J., and Dyke, J.
RELEASED: July 8, 2010
JOURNALIZED: July 8, 2010
Paul Mancino, Jr.
75 Public Square, Suite 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin Freeman
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ON RECONSIDERATION1
MELODY J. STEWART, J.:
{¶ 1} This is the fourth appeal by defendant-appellant, Carlton Banks, from his 2002 convictions on drug charges and involuntary manslaughter. This appeal stems from a resentencing ordered due to the court‘s failure to advise Banks that he would be placed on postrelease control upon exрiration of his sentence. Of the several arguments that Banks raises on appeal, he most strenuously argues that some of the offenses he pleaded guilty to were
We find no error and affirm.
I
{¶ 2} In 2002, Banks entered guilty pleas in two separate criminal cases: in CR-420197 he pleaded guilty to charges of drug possession and drug trafficking; and in CR-421541 he pleaded guilty to charges of involuntary manslaughter, failure to comply, and aggravated assault. The court imposed consecutive, one-year prison terms in CR-420197. In CR-421541, the court imposed a ten-year sentence for the manslaughter conviction; a two-year sentence for failure to comply; and a one-year sentence for aggravated vehicular assault. The sentences in CR-421541 were ordered to run сonsecutively, and then consecutively to the sentences imposed in CR-420197, for a total of 15 years.
{¶ 3} Banks appealed, complaining about the length of his sentences, the court‘s disregard of sentencing factors for failure to comply, the court‘s alleged bias in sentencing, that he was denied the effective assistance of counsel, and that his convictions for involuntary manslaughter and failure to comply should have merged for sentencing. We rejected all but one of those arguments: that under the sentencing regime existing at the time, the court failed to provide any reasons on the record that consecutive sentences were not disproportionate to the severity of conduct and the danger posed by the
{¶ 4} Prior to being resentenced, Banks filed a motion to withdraw his guilty plea. The court denied that motion and resentenced Banks to the same sentence. Banks appealed on a number of issues, including the court‘s refusal to permit a withdrawal of the guilty pleas, the length of sentence, and the failure to merge sentences. We rejected all of these arguments and affirmed. See State v. Banks, 8th Dist. Nos. 83782 and 83783, 2004-Ohio-4478.
{¶ 5} In 2008, Banks filed a mоtion to vacate his sentence on grounds that, upon resentencing, the court failed to impose a specific period of postrelease control. The court denied the motion even though the state conceded that Banks‘s sentence did not include postrelease control. On appeal, we found under authority of State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, that the failure to order a term of postrelease control rendered Banks‘s sentence void and that he was entitled to a de novo sentencing hearing. See State v. Banks, 8th Dist. No. 92042, 2009-Ohio-3099, at ¶14.
II
{¶ 7} In this appeal, Banks first argues that he was denied due process of law because the indictment fоr involuntary manslaughter failed to state the culpable mental element as required by State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917. We rejected this same proposition in State v. Lawrence, 180 Ohio App.3d 468, 2009-Ohio-33, 905 N.E.2d 1268, finding that a guilty plea waives any defect in the indictment occasioned by a failure to allege a culpable mental state. Id. at ¶30. See, also, State v. Cochran, 8th Dist. Nos. 91768, 91826, and 92171, 2009-Ohio-1693, at ¶40. Because Banks pleaded guilty to the involuntary manslaughter count, he waived the right to challenge any alleged deprivation of constitutional rights that occurred prior to the entry of his guilty plea.
III
{¶ 8} Banks next argues that his convictions for trafficking and drug possession in CR-420197 should have merged because they were allied offenses of similar import for purposes of
A
{¶ 9} The “law of the case” doctrine states that “the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410.
1
{¶ 10} In State v. Banks, 8th Dist. Nos. 81679 and 81680, we first addressed and rejected Banks‘s allied offenses argument:
{¶ 11} “Looking at the elements of defendant‘s offenses, we determine that involuntary manslaughter and failure to comply with an order of a police officer are not allied offenses of similar import. Involuntary manslaughter requires causing the death of another as a proximate result of committing or attempting to commit a felony.
R.C. 2903.04 . Failure to comply with the order of a police officer does not require that the victim be killed or even injured. Rather, violation of the particular code section with which defendant was charged requires only that the defendant‘s operatiоn of themotor vehicle cause a substantial risk of serious physical harm. R.C. 2921.331(C)(5)(a)(ii) . Failure to comply is only one of the many felonies that may support a charge of involuntary manslaughter. Because each offense requires proof of an element that the other does not, they are not allied offenses of similar import. In sum, involuntary manslaughter and failure to comply are not allied offenses because the commission of one will not automatically result in commission of the other.” Id. at ¶40.
{¶ 12} Banks renewed this same argument in State v. Banks, 8th Dist. Nos. 83782 and 83783. We again rejected it, stating: “Since this identical argument was rejected by this court in State v. Banks, Cuyahoga App. Nos. 81679, 81680, 2003-Ohio-1530, the law of the case dictates that this assignment of error is overruled. See Nolan v. Nolan (1984), 11 Ohio St.3d 1, 462 N.E.2d 410.” Id. at ¶44. Having twice rejected Banks‘s arguments that involuntary manslaughter and failure to comply were allied offenses of similar import, that conclusion is сertainly the law of the case that Banks can no longer challenge.
{¶ 13} We acknowledge that under similar facts, the First Appellate District reached a different conclusion regarding the application of the law of the case doctrine to allied offenses in cases where there has been a remand for a de novo resentencing due to the court‘s prior failure to advise an offender of postrelease control. In State v. Klein, 1st Dist. No. C-080471, 2009-Ohio-2886, the First District held that the consequence of a failure to inform an offender of postrelease control rendered a sentence void; therefore, “the issues and facts were not the same as in the prior appeal, and the law-of-the-case doctrine does not apply or prevent this court from deciding the issue.” Id. at ¶19.
{¶ 14} We disagree with Klein because the remand in that case was, as in this case, on the issue of postrelease control - it was unrelated to any issue of allied offenses. While it is true that Klein‘s original sentence was void, that fact had no bearing on the First District‘s discussion and legal conclusions relating to an issue of allied offenses in Klein‘s first appeal - State v. Klein (Dec. 3, 1999), 1st Dist. No. C-990066. The First District held that the offenses of involuntary manslaughter and child endangerment were not allied offenses within the meaning of
{¶ 15} We have twice rejected Banks‘s arguments that involuntary manslaughter and failure to comply are allied offenses under
2
{¶ 16} Even if the allied offenses issue had not been settled by the law of the case, we would nonetheless find the convictions for involuntary manslaughter and failure to comply were not allied offenses of similar import.
{¶ 17} In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, the supreme court stated:
{¶ 18} “A two-step analysis is required to determine whether two crimes are allied offenses of similar import. See, e.g., State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816; [State v. Rance, 85 Ohio St.3d 632, 636, 1999-Ohio-291, 710 N.E.2d 699]. Recently, in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, we stated: ‘In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements ofthe offenses in the abstract, the offеnses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.’ Id. at paragraph one of the syllabus. If the offenses are allied, the court proceeds to the second step and considers whether the offenses were committed separately or with a separate animus.” Id. at ¶31.
{¶ 19} As we stated in State v. Banks, 8th Dist. Nos. 81679 and 81680, the elements of involuntary manslaughter and failure to comply do not align because each offense requires proof of an element that the other does not.
{¶ 20} In the original opinion in this case, we cited to State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, for the proposition that even though the elements of two offenses do not align exactly, the offenses may still be allied if the offenses are so similar that the commission of one offense would result in the commission of the other offense. We concluded that if Banks‘s offenses were not merged, he would be found guilty of “causing a substantial risk of harm to a person while also convicted of causing the death of that same person, based on one single incident.” State v. Banks, 8th Dist. No. 93880, at ¶32.
{¶ 21} On reconsideration, we find that analysis faulty. Williams involved a defendant who had been charged with attempted murder and felonious assault from the act of firing a single shot - although there were
B
{¶ 22} Banks also complains, for the first time on appeal, that his convictions in CR-420197 for drug trafficking and drug possession should have merged on authority of State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, which held that “[t]rafficking in a controlled substance under
{¶ 23} Principles of res judicata state that “a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.” State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus.
{¶ 24} In three prior appeals, Banks did not raise any allied offenses issues relating to the drug trafficking and drug possession counts. Those issues could have and should have been raised in the first appeal, so res judicata bars the assertion of those issues in any subsequent appeal. We also recognize that even though Cabrales modified the analysis relаting to allied offenses, res judicata applies even if there has been a subsequent change in decisional law. See Mosely v. Echols (1991), 62 Ohio St.3d 75, 578 N.E.2d 454; State ex rel. Sneed v. Anderson, 114 Ohio St.3d 11, 2007-Ohio-2454, 866 N.E.2d 1084, at ¶9.
IV
{¶ 25} The fourth and fifth assignments of error raise issues relating to sentencing factors and complain that the court failed to consider the
{¶ 26} A violation of
{¶ 27} Despite there being no obligation for the court to address the factors set forth in
{¶ 28} “The court made reference to the high rate of speed during the pursuit, the fact that the pursuit occurred on highly traveled roads, and the great harm the pursuit caused other motorists, which are all relevant factors
under R.C. 2921.331(C)(5)(b)(i-ix) that indicate defendant‘s conduct was more serious than conduct normally constituting the offense. The court also made reference to the fact that defendant was awaiting trial and sentencing or under conditions of post-release [sic] control at the time he committed the offense and that defendant had a criminal record that indicates he has not responded favorably to community control sanctions imposed for previous convictions. These are all relevant factors thatR.C. 2929.13(C) states shall be considered underR.C. 2929.12 and indicate that defendant is likely to commit future crimes.” Banks, 8th Dist. No. 81697, at ¶31.
{¶ 29} While the court did not repeat these factors when it most recently resentenced Banks, those factors were manifest in the record from the first sentencing and were equally applicable to subsequent sentencing proceedings. At all events, the record supported the court‘s decision to find Banks guilty of a third degree fеlony.
{¶ 30} We reach the same conclusion regarding Banks‘s argument that the court ordered consecutive sentences without considering the purposes and principles of sentencing.
{¶ 31} The court‘s sentencing entry stated that it “considered all of the required factors of the law.” By itself, this statement, in conformity with a sentence within the applicable statutory range, would be sufficient under the statutes. See State v. Lang, 8th Dist. No. 92099, 2010-Ohio-433, at ¶20. But the court also mentioned on the record several other factors, including that Banks‘s action caused the death of an innocent bystander, that Banks ran numerous stop signs and traffic signals, and that Banks committed his offenses in a residential neighborhood while driving at speеds of 50 miles per hour. The recitation of these factors put the court in full compliance with its obligation to consider the purposes and factors guiding sentencing discretion.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
MELODY J. STEWART, JUDGE
SEAN C. GALLAGHER, A.J., CONCURS
ANN DYKE, J., DISSENTS WITH SEPARATE OPINION
ANN DYKE, J., DISSENTING:
{¶ 32} I respectfully dissent. I would conclude that defendant did not waive the argument that the offenses are allied offenses of similar import by entering a guilty plea to the two distinct offenses of involuntary manslaughter in violation of
{¶ 33} With regard to the issue of whether defendant waived the argument that the offenses are allied offenses of similar import because he pled guilty to the two distinct offenses, the Ohio Supreme Court in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, has determined that a defendant‘s plea to multiple counts does not affect the court‘s duty to merge those allied counts at sentencing.
{¶ 35} Here, the statute governing involuntary manslaughter,
{¶ 36} Employing the same reasoning used in Williams to the case at hand, I find the offenses of involuntary manslaughter in violation of