STATE OF OHIO, Plaintiff-Appellee, vs. BRANDON A. MOCKBEE, Defendant-Appellant.
Case No. 14CA3601
IN THE COURT OF APPEALS FOURTH APPELLATE DISTRICT SCIOTO COUNTY
DATE JOURNALIZED: 8-18-15
[Cite as State v. Mockbee, 2015-Ohio-3469.]
ABELE, J.
DECISION & JUDGMENT ENTRY
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS
{¶ 1} This is a reopened appeal by Brandon Mockbee, plaintiff-appellant, from a Scioto County Court of Common Pleas judgment that resentenced him upon multiple convictions on remand after his partially successful prior appeal. Because Mockbee has established that the performance of his initial appellate counsel was deficient for failing to raise the assignment of error raised by his current appellate counsel, and that he was prejudiced by that deficiency, we
I. FACTS
{¶ 2} On July 24, 2011, at approximately 11:00 p.m., a motion-detection security camera recorded a break-in at Staker‘s Pharmacy in Portsmouth, Ohio. The security system detected various people entering and exiting the pharmacy between 11:00 p.m. and 1:12 a.m. the next morning. Many items, including over-the-counter medications and scheduled narсotics, were stolen. When reviewing a security tape, Scioto County Sheriff‘s Deputy Detective Denver Triggs recognized that custom-made “wheels” shown on a vehicle seen driving in the area of the pharmacy belonged to either Mockbee or his girlfriend. After Deputy Triggs saw the vehicle‘s custom-made wheels at the residence shared by Mockbee and his girlfriend, he obtained and executed a search warrant. He discovered and seized a number of the stolen medications from the residence.
{¶ 3} The Scioto County Grand Jury returned an indictment charging Mockbee with multiple counts. Following a trial, the jury found Moсkbee guilty of all counts, and the trial court entered the following sentences:
| Count 1: | Aggravated Possession of Drugs (Oxycodone): 8 years | years |
| Count 2: | Possession of Drugs (Hydrocodone): 8 years | |
| Count 3: | Aggravated Possession of Drugs (Methylphenidate): | 12 months |
| Count 4: | Aggravated Possession of Drugs (Amphetamine/Dextroamphetamine): 12 months | |
| Count 5: | Theft of Drugs: 2 years | |
| Count 6: | Receiving Stolen Property: 18 months | |
| Count 7: | Grand Theft: 18 months |
| Count 8: | Receiving Stolen Property: 18 months |
| Count 9: | Vandalism: 12 months |
| Count 10: | Possession of Criminal Tools: 12 months |
| Count 11: | Breaking and Entering: 12 months |
| Count 12: | Tampering with Evidence: 3 years |
{¶ 4} The Scioto County Court Common Pleas Court merged Counts 5 and 7 and Counts 6 and 8. The court further ordered that Mockbee‘s sentences in Counts 1, 2, 3, 4, 5, and 7 would be served consecutively with one another, and that his sentences in Counts 6, 8, 9, 10, 11, and 12 would be served concurrently with each other and with the sentence for Counts 1, 2, 3, 4, 5, and 7. (Id.) The total aggregate prison sentence was 20 years, with 16 years of mandatory incarceration. (Id.)
{¶ 5} On appeal, we sustained a portion of Mockbee‘s assignments of error, reversed and vacated his convictions on Counts 1, 2, 3, 5, and 6, and remanded the cause for resentencing. State v. Mockbee, 2013-Ohio-5504, 5 N.E.3d 50 (4 Dist.) (Mockbee I). The sentences associated with the vacated convictions comprised 17 of the 20 aggregate prison years. In that appeal, Mockbee did not claim that the trial court erred by failing merge Counts 7 and 8 as allied offenses of similar import. Mockbee also did not challenge the sufficiency of the evidence for Count 7.
{¶ 6} On remand, at the trial court‘s resentencing hearing Mockbee‘s counsel initially asked whether the parties would just address the issue of whether Counts 7 and 8 should be merged as allied offenses of similar import or whether the court would like to make the hearing “all encompassing.” The trial court responded that it would make it “all encompassing.” The parties then presented argument on the allied-offenses issue. The trial court determined that Counts 7 and 8 are not allied offenses of similar import and would not be merged for purposes of
{¶ 7} For resentencing, the state presented three arguments to support its contention that Mockbee‘s sentence should be increased for the remaining offenses: (1) “the significant criminal record of the Defendant, both in cоnvictions, time spent in prison, and in prior arrests that were later dismissed or there was no action taken on a criminal case“; (2) the psychological and economic harm suffered by the pharmacist in the case; and (3) Mockbee‘s prison infractions that occurred after his original sentencing. In response to the state‘s argument concerning Mockbee‘s multiple prison infractions, his counsel did not dispute that the infractions occurred, but instead attempted to minimize their impact. Mockbee later conceded that his behavior since his incarceration had not been exemplary, and the trial court noted that this is a reason why he deserved a harsher sentence than his original one.
{¶ 8} The trial court resentenced Mockbee as follows:
Count 4: Aggravated Possession of Drugs (Amphetamine): 12 months
Count 7: Grand Theft: 18 months
Count 8: Receiving Stolen Property: 18 months
Count 9: Vandalism: 12 months
Count 10: Possession of Criminal Tools: 12 months
Count 11: Breaking and Entering: Merged with Count 7
Count 12: Tampering with Evidence: 24 months
{¶ 9} These individual sentences are the same as the original sentences for the offenses, except that the trial court did not originally merge Counts 7 and 11, and the sentence for Count 12 was originally three years instead of two years. Nevertheless, the trial court ordered all sentences to be served consecutively to each other, resulting in an aggregate prison sentence of eight years, longer than the original aggregate prison sentence of three years for these offenses
{¶ 10} On appeal, we affirmed the trial court judgment. Mockbee, 2014-Ohio-4493, 20 N.E.3d 1127 (Mockbee II). We held that: (1) the trial court did not violate Mockbee‘s due process rights by resentencing him to an increased aggregate prison sentence based, in part, on new evidence of his prison infractions that had occurred after his original sentencing; (2) although the trial court erred by independently reviewing and revising the individual sentences for the convictions, it amounted to harmless error because Mockbee suffered no prejudice; (3) neither res judicata nоr the prohibition against the sentence-packaging doctrine prevented the trial court from conducting a de novo determination that a new sentence be served consecutively to the defendant‘s sentences for other offenses, even if they had originally been ordered to be served concurrently; and (4) res judicata barred the trial court from considering Mockbee‘s claim that Counts 7 and 8 were allied offenses of similar import. Id. Mockbee, through his original appellate counsel, filed an appeal from our judgment in Mockbee II and submitted a memorandum in support of jurisdiction. Subsequently, the Supreme Court of Ohio did not accept his appeal for review and dismissed it. State v. Mockbee, 142 Ohio St3d 1449, 2015-Ohio-1591, 29 N.E.3d 1004.
{¶ 11} Subsequent to appealing our judgment in Mockbee II, but prior to the Supreme Court‘s dismissal, Mockbee obtained new appellate counsel and timely submitted an application to reopen his appeal in Mockbee II. The state submitted a response in opposition. We initially denied Mockbee‘s application to reopen his appeal pursuant to
{¶ 12} On reconsideration, however, we determined that Mockbee‘s proposed third assignment of error in his application for reopening raised a genuine issue as to whether he has a colorable claim of ineffective assistance of counsel on appeal. Accordingly, we reconsidered our previous denial and granted Mockbee‘s application for reopening. We specified that “[i]n accordance with
II. ASSIGNMENT OF ERROR
{¶ 13} As specified in his application for reopening, Mockbee asserts that his initial appellate counsel was ineffective for failing to raise the following assignment of error:
“THE TRIAL COURT ERRED BY ALTERING, AND INCREASING, SENTENCES THAT HAD BEEN FULLY EXECUTED.”
III. STANDARD OF REVIEW
{¶ 14} The two-pronged analysis in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the appropriate standard to determine whether a defendant has received ineffective assistance of appellate counsel. State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10. In order to establish ineffective assistance of his
{¶ 15} Moreover, for Mockbee‘s assignment of error raised on reopening, “[w]hen reviewing felony sentences we apply the standard of review set forth in
IV. LAW AND ANALYSIS
Compliance with App.R. 26(B)(7)
{¶ 16} Before we address the merits of Mockbee‘s assigned error, we consider the state‘s preliminary arguments that Mockbee‘s claim is barred by his failure to comply with
{¶ 17} Under
{¶ 18} For the first step, the application “shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective аssistance of counsel on appeal.”
{¶ 19} For the second step, if the applicant satisfies the burden to establish a genuine issue of a colorable claim of ineffective assistance of counsel on appeal, the court grants the application and the applicant must finally establish the ineffective assistance of counsel claim by
If the application is granted, the case shall proceed as on an initial appeal in accordance with these rules except that the court may limit its review to those assignments of error and arguments not previously considered. The time limits for preparation and transmission of the record pursuant to
App.R. 9 and10 shall run from journalization of the entry granting the application. The parties shall address in their briefs the claim that representation by prior appellate counsel was deficient and that the applicant was prejudiced by that deficiency.
As specified in our order granting Mockbee‘s application, this case proceeded as an initial appeal in compliance with the applicable appellate rules and we limited our review to Mockbee‘s third proposed assignment of error, which we had not previously considered in his appeal in Mockbee II from the trial court‘s resentencing entry. Nevertheless, this did not relieve Mockbee of the duty to address in his brief the claim that representation by his prior appellate counsel was deficient and that he was prejudiced by that deficiency. This is expressed in the requirement in
{¶ 20} As for the state‘s claim that Mockbee‘s failure to include any argument concerning his claim of ineffective assistance of appellate counsel requires that we must “deny” his appeal and reaffirm our prior judgment, the state does not cite any precedent that requires this result, nor does
Appellant does not argue, in his sole assignment of error, that he received ineffective assistance of appellate counsel. Instead, appellant merely claims that the trial court erred in denying his motion to suppress. Thus, we will not address the assignment of error because it is not properly before us in accordance with
App.R. 26(B) . Appellant‘s sole assignment of error is overruled. For the foregoing reasons, pursuant toApp.R. 26(B)(9) , we confirm the prior decision of this court.
State v. Dye, 5th Dist. Licking No. 99 CA 2, 2000 WL 1752244 (Nov. 27, 2000); see also State v. Hamilton, 5th Dist. Guernsey No. 96 CA 15A, 2000 WL 1591117 (Oct. 23, 2000).
{¶ 21} Nevertheless, another court of appeals noted that the failure of an appellant to argue ineffective assistance of appellate counsel in his brief in the reopened appeal, but addressed
{¶ 22} In this case, although his initial brief did not comply with
{¶ 23} Therefore, in the interests of justice, we decline to impose the sanction that the state requests, although we warn future litigants that they risk losing their reopened appeal should an appellate court exercise its discretiоn to do so if the appellant fails to strictly comply with
Res Judicata
{¶ 24} The state argues that res judicata bars a consideration of the merits of Mockbee‘s assigned error because he could have raised his claim of ineffective assistance of appellate
{¶ 25} Mockbee‘s original appellate counsel could not have raised the issue of his own ineffectiveness in the appeal to this court or to the Supreme Court because an attorney “cannot realistically be expected to argue his own incompetence.” State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169, fn. 1 (1982). “[T]he doctrine of res judicata does not apply to bar a claim of ineffective assistance of appellate counsel not previously raised in an appeal where a defendant was represented on appeal by the same attorney who allegedly earlier provided the ineffective assistance, even where the defendant was also represented on that appeal by another attorney who had not represented the defendant at the time of the alleged ineffective assistance.” State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-5607, 797 N.E.2d 948, ¶ 42.
{¶ 26} Moreover, the Supreme Court of Ohio has held that “[t]he filing of a motion seeking a discretionary appeal in this court does not create a bar to a merit ruling on a timely filed application to reopen an appeal claiming ineffective assistance of appellate counsel under
C. Resentencing a Defendant for an Offense when the Defendant has Already Served the Sentence
{¶ 27} Having rejected the state‘s preliminary arguments, we now address the merits of Mockbee‘s assigned error. In his sole assignment of error, Mockbee contends that the trial court erred by altering and increasing sentences that had been fully executed at the time of resentencing. Mockbee claims that by the time he was resentenced following our remand in Mockbee I, 21 months had passed so that he could not be resentenced for his original sentences that were less than that—Counts 4 (12 months), 7 (18 months), 8 (18 months), 9 (12 months), and 10 (12 months). In the original sentencing еntry, Counts 4 and 7 were imposed consecutively to each other, and Counts 8, 9, and 10 would run concurrently to each other and to Counts 4 and 7. The sentencing entries in Mockbee‘s criminal case indicate that he was originally sentenced in early July 2012, and that he was resentenced in late January 2014 following our remand in Mockbee I, i.e., over 18 months after his original sentencing.
{¶ 28} In State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, at
{¶ 29} Here, the state argues that Mockbee‘s reliance on the Supreme Court‘s discussion in Holdcroft is misplaced and that it applies only to cases in which postrelease сontrol is attempted to be imposed after the sentence for the corresponding offense has been served. We, however, disagree. Although the Supreme Court‘s specific holding in Holdcroft is limited to postrelease control, the general rule that the court discussed to reach that holding is not. In so holding, the Supreme Court recognized that “[n]either this court‘s jurisprudence nor Ohio‘s criminal-sentencing statutes allow a trial court to resentence a defendant for an offense when the defendant has already completed the prison sanction for that offense.” Holdcroft at ¶ 19. In these circumstances, “[i]t is irrelevant whether the defendant is still in prison for other offenses.”
{¶ 30} In this regard, the state relies on State v. Martin-Williams, 5th Dist. Stark No. 2014CA86, 2015-Ohio-780, in which the court of appeals recently declined to apply Holdcroft to a case in which the resentencing occurred after a remand for the limited purpose of the trial court making the statutory findings required to support its imposition of consecutive sentences. That case is inapposite to the resentencing here, which modified concurrent sеntences that had already expired to run them consecutive to each other. This case does not involve resentencing to include findings to support previously imposed consecutive sentences, i.e., the sentences were not altered or the aggregate time of the pertinent offenses increased in Martin-Williams.
{¶ 31} At the time Mockbee was resentenced, his original sentences for Counts 8, 9, and 10 were for 18 months or less, and they were ordered to be served concurrently to each other and to his Count 12 conviction. In addition, Mockbee‘s original sentences for Counts 4 and 7 were also less than 18 months, but they were ordered to be served consecutively to each other for an aggregate term of 30 months—and concurrent to the other counts—including Counts 8, 9, 10, and 12.
{¶ 32} “[W]hen a defendant is sentenced to concurrent terms, * * * the sentences are served simultaneously.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 22. By the time he was resentenced, Mockbee had already served his original sentences for his convictions on Counts 8, 9, and 10, which had been ordered to be served concurrently to each
{¶ 33} For Counts 4 (12 months) and 7 (18 months), which the trial court ordered to be served consecutively in its original sentencing entry, the aggregate 30-month term had not expired at resentencing. In Holdcroft, the court held that for consecutive sentences, the defendant served the lengthier sentence first (i.e., Holdcroft served his ten-year sentence for aggravated arson before his five-year sentence for arson). See also State v. Powell, 2d Dist. Montgomery No. 24433, 2014-Ohio-3842, ¶ 28 (noting the general absence of authority for the order in which a defendant serves his or her sentences when consecutive sentences are imposed on multiple counts, but observing that the court should construe any ambiguity in sentencing entry in favor of the defendant). The state relies on
{¶ 34} Consequently, we conclude that the trial court erred by resentencing Mockbee on Counts 7, 8, 9, and 10 because his original sentences for those convictions had been completely
V. CONCLUSION
{¶ 35} Mockbee has established that his original appellate counsel provided deficient counsel by failing to raise the assignment of error to contest the trial court‘s authority to resentence him and to increase his aggregate prison term based on convictions for which he had already served the originally imposed sentences. There is no rational justification for appellate counsel to fail to raise this meritorious issue. In addition, Mockbee has proven that he was prejudiced by his apрellate counsel‘s failure to raise this issue. Therefore, we vacate our prior judgment in Mockbee II, reverse the trial court‘s judgment in part, and remand the cause to that court to vacate its judgment resentencing Mockbee on Counts 7, 8, 9, and 10. The trial court retained authority to resentence him on Counts 4 and 12, and it did so with an aggregate three-year prison term and we affirm that portion of the resentencing judgment. Consequently, the trial court shall determine on remand whether Mockbee has now served the properly imposed three-year prison term and discharge him if he has done so.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that thе CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.