State v. LathanState v. Lathan
Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Darek Lathan, pro se.
* * * * *
OSOWIK, P.J.
{¶ 1} This is a pro se appeal from a judgment of the Lucas County Court of Common Pleas that denied appellant‘s pro se petition for postconviction relief and his motion for “Immediate Remand and Release.” For the reasons that follow, the judgment of the trial court is affirmed.
{¶ 3} Appellant was originally convicted and sentenced in 1999 on one count of aggravated robbery with a firearm specification and one count of robbery of a Toledo Rent-A-Center store. (Case No. CR199802941.) Appellant was sentenced to terms of five years on the first count and five years on the second count to be served concurrently, along with three years for the firearm specification, which was to be served consecutively to the sentence on the first count, for a total term of eight years. A 2010 trial court decision related to that case is the subject of the appeal before us and is discussed below. Appellant unsuccessfully appealed this conviction as well as the denial of his pro se motion for a new trial in State v. Lathan (May 12, 2000), 6th Dist. No. L-99-1101, L-99-1276.
{¶ 4} Also in 1999, appellant was convicted of one count of aggravated robbery and one count of kidnapping in connection with the robbery of TGI Friday‘s, a Toledo restaurant. Each count included a firearm specification. (Case No. CR00-1588.) On appeal, this court reversed the conviction and remanded to the trial court. State v. Lathan, 6th Dist. No. L-01-1030, 2002-Ohio-2686. After a second trial, appellant was again convicted of the same charges but without the firearm specifications. Appellant was sentenced to two concurrent six-year terms, to be served consecutively to the terms imposed in CR98-2941 (the Rent-A-Center case).
{¶ 6} On September 2, 2010, appellant filed a pro se “Motion for Immediate Remand and Release” in which he asserted that the notice of postrelease control obligations in case No. CR98-2941 was improper because the notification, given at a re-sentencing hearing on May 19, 2010, was given after the eight-year sentence imposed in 1999 had expired. On October 26, 2010, appellant filed a postconviction relief petition based on the decision in State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (”Colon I“).
{¶ 7} On November 23, 2010, the trial court denied the motion for release and the petition for postconviction relief. It is from that decision that appellant appeals.
{¶ 8} Appellant sets forth the following assignments of error:
{¶ 9} “Assignment of Error (I)
{¶ 10} “The trial court errored when it dismissed appellant post conviction after the appellant court vacated the denial of prior post conviction once it was predicated that appellant case was pending in 2008 when ‘Colon I & II’ was journalized.
{¶ 12} “The trial court errored by not applying crim.R. 52(B) when it was predicated that appellant indictment for ‘Robbery’ lacked a ‘mens rea.’
{¶ 13} “Assignment of Error (III)
{¶ 14} “The trial court errored by not applying the ‘Plain Error’ analysis pursuant to ‘Colon II’ and crim.R. 52(B).
{¶ 15} “Assignment of Error IV
{¶ 16} “The trial court errored by imposing post release control on appellant when appellant has completed the sentence.”
{¶ 17} Appellant‘s first three assignments of error arise from the trial court‘s denial of his petition for postconviction relief. Appellant appears to argue that the trial court‘s denial was in error because appellant‘s 1998 indictment for robbery was invalid for failing to allege a mens rea of recklessness. The trial court concluded that the Ohio Supreme Court‘s decision in State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, lays to rest appellant‘s “oft asserted” argument that his 1998 indictment was defective for failure to charge a mens rea of recklessness. We agree.1
{¶ 18} In Horner, the Ohio Supreme Court held that “* * * when an indictment fails to charge a mens rea element of the crime, but tracks the language of the criminal statute
{¶ 19} Count II of the indictment reads in relevant part that appellant, “* * * on or about the 15th day of October, 1998, in Lucas County, Ohio, in attempting or committing a theft offense, or in fleeing immediately after the attempt or offense, did inflict, attempt to inflict, or threaten to inflict physical harm on another, in violation of § 2911.02(A)(2) of the Ohio Revised Code, Robbery * * *.”
{¶ 20} At the time of appellant‘s offense,
{¶ 21} Horner, supra, further held that “[b]y failing to timely object to a defect in an indictment, a defendant waives all but plain error on appeal.” Id. at paragraph three of the syllabus. Because the indictment was not defective, as discussed above, plain error cannot be applied herein.
{¶ 22} Based on the foregoing, we find that the trial court did not err by denying appellant‘s petition for postconviction relief and appellant‘s first, second and third assignments of error are not well-taken.
{¶ 24} The trial court herein based its decision on the language of
{¶ 25} Ohio case law supports the conclusion that a journalized sentence that includes consecutive sentences does not expire until the aggregate time of the consecutive sentences expires. See State v. Tharp, 5th Dist. No. 07-CA-9, 2008-Ohio-3995, citing State v. Bodiford, 9th Dist. No. 10CA009770, 2010-Ohio-5923; State v. Deskins, 9th Dist. No. 10CA009875, 2011-Ohio-2605. In Tharp, Bodiford and Deskins, the defendants had served some portion of the sentences imposed but had not completed their prison terms at the time of their resentencing hearings; the appellate courts found that the trial court in
{¶ 26} Based on the foregoing, we find that appellant has not completed his prison term of 14 years or been released from prison. Therefore, the trial court had jurisdiction to resentence him in May 2010.
{¶ 27} Appellant continues to argue that the sentence in case No. CR98-2941was void. According to appellant, this means that the sentence in case No. CR03-1194 would have begun running earlier and would have been complete well before the May 2010 resentencing hearing, which would result in his release from incarceration without an order for postrelease control. This court has already determined that appellant‘s sentence in case No. CR98-2941was not void; therefore, this argument is without merit.
{¶ 28} Based on the law and the facts as set forth above, we find that appellant‘s fourth assignment of error is not well-taken.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, P.J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.