STATE OF OHIO, Plaintiff-Appellee, v. TROY LEE KEITH, Defendant-Appellant.
CASE NO. CA2013-07-131
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
1/21/2014
2014-Ohio-169
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2005-04-0646
Troy Lee Keith, #A515-428, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601, defendant-appellant, pro se
OPINION
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Troy Lee Keith, appeals pro se a decision of the Butler County Court of Common Pleas denying his motion to vacate his sentence as a result of a sentencing error. For the reasons discussed below, we affirm the judgment of the trial court.
{¶ 2} In April 2005, the Butler County Grand Jury returned a 46-count indictment against appellant stemming from his role in a mortgage foreclosure scheme. The indictment
{¶ 3} Following a jury trial in October 2005, appellant was convicted of six counts of grand theft, three counts of theft with a specification that the victim was elderly, 17 counts of theft, 14 counts of tampering with records, with the specification that the records were government documents, and one count of engaging in a pattern of corrupt activity. Appellant was sentenced by Judge Keith M. Spaeth to serve 23 years and two months in prison and ordered to pay restitution to his victims in the amount of $98,250.50.
{¶ 4} In February 2006, prior to directly appealing his conviction and sentence, appellant filed a motion for new trial. He subsequently filed a petition for postconviction relief on the basis that the prosecutor failed to disclose evidence pertinent to his defense and on the basis that he received ineffective assistance of counsel. Appellant‘s motion for new trial and his motion to vacate were denied by the trial court on June 5, 2006.
{¶ 5} Thereafter, appellant directly appealed his conviction and sentence. In State v. Keith, 12th Dist. Butler No. CA2007-07161, 2008-Ohio-348 (hereafter, Keith I), this court
{¶ 6} Appellant was resentenced in April 2008 by Judge Craig D. Hedric to serve 24 years and two months in prison and pay restitution to his victims in the amount of $92,274.21. Appellant, who was represented by appointed counsel, appealed his sentence, arguing in his sole assignment of error that the trial court erred by vindictively ordering a greater sentence on reduced charges. In an accelerated judgment entry, this court overruled appellant‘s assignment of error after concluding that appellant failed to demonstrate that the new sentence was motivated by actual vindictiveness. State v. Keith, 12th Dist. Butler No. CA2008-05-129 (Jan. 30, 2009) (Accelerated Calendar Judgment Entry) (hereafter, Keith II). This court concluded that the increased sentence, “pronounced by a judge different from the one who imposed the original sentence” was supported by the record. Id.
{¶ 7} In June 2007, while appellant‘s direct appeal in Keith I was pending before this court, appellant filed his second petition for postconviction relief with the trial court, again arguing that his trial counsel was ineffective. The motion was denied by the trial court in August 2007. This court upheld the denial of appellant‘s second petition for postconviction relief in State v. Keith, 12th Dist. Butler No. CA2007-09-210 (Nov. 3, 2008) (Accelerated Calendar Judgment Entry).
{¶ 8} Appellant filed a third petition for postconviction relief in August 2008, which was subsequently denied by the trial court on September 2, 2008. Four years later, on September 17, 2012, appellant filed his fourth petition for postconviction relief, entitled
{¶ 9} Appellant timely appealed the denial of his motion, setting forth three assignments of error. For ease of discussion, we will address appellant‘s second and third assignments of error together.
Assignment of Error No. 1:
{¶ 11} [THE] TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED [APPELLANT] TO MULTIPLE DEFENSES STEMMING FROM THE SAME CONDUCT WITHOUT HOLDING A MERGER HEARING TO MAKE A DETERMINATION IF [SIC] [APPELLANT‘S] CONDUCT CONSTITUTED ALLIED OFFENSES OF SIMILAR IMPORT PURSUANT TO
{¶ 12} In his first assignment of error, appellant argues the trial court erred in denying his motion to vacate his sentence without considering the issue of whether his multiple theft offenses constituted allied offenses of similar import pursuant to
{¶ 13} “Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶ 14} A postconviction relief proceeding is not an appeal of a criminal conviction, but rather, is a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist. Butler Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, ¶ 8. “In reviewing an appeal of postconviction relief proceedings, this court applies an abuse of discretion standard.” State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 10, citing State v. Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶ 15. For this court to find an abuse of discretion we must find more than an error of judgment; we must find that the trial court‘s ruling was unreasonable, arbitrary, or unconscionable. Id. Furthermore, a reviewing court will not overrule the trial court‘s finding on a petition for postconviction relief where the finding is supported by competent and credible evidence. Wagers at ¶ 15.
{¶ 15}
{¶ 16}
{¶ 17} Here, appellant has not met the requirements of
{¶ 18} Even if appellant had met the requirements of
{¶ 19} Accordingly, appellant‘s first assignment of error is overruled.
Assignment of Error No. 2:
{¶ 21} THE APPELLANT WAS DENIED DUE PROCESS OF LAW AND INFLICTED WITH CRUEL AND UNUSUAL PUNISHMENT BY THE JUDICIAL BIAS OF JUDGE CRAIG D. HEDRIC.
Assignment of Error No. 3:
{¶ 23} UPON REMAND THE TRIAL COURT FAILED TO FOLLOW THIS COURT‘S MANDATE TO RE-SENTENCE THE APPELLANT PURSUANT TO APPLICABLE SENTENCING STATUTES.
{¶ 24} In his second and third assignments of error, appellant challenges his April 2008 resentencing, arguing that he received a “grossly disproportionate” sentence by a vindictive judge.
{¶ 25} We find that appellant‘s claims are barred by the doctrine of res judicata, which states that “a final judgment of conviction bars a convicted defendant who was represented by counsel 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.” Wagers, 2012-Ohio-2258 at ¶ 10, citing State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. In Keith II, appellant challenged his resentencing on the basis of Judge Hedric‘s alleged vindictiveness. We found no merit to his argument and res judicata bars appellant from attempting to re-litigate this issue. Similarly, the doctrine of res judicata also
{¶ 26} Appellant‘s second and third assignments of error are, therefore, overruled.
{¶ 27} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.