STATE OF OHIO v. WILLIAM D. MORGAN
Appellate Case No. 27774
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
August 10, 2018
[Cite as State v. Morgan, 2018-Ohio-3198.]
WELBAUM, P.J.
Trial Court Case No. 2008-CR-4516 (Criminal Appeal from Common Pleas Court)
Rendered on the 10th day of August, 2018.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MARK J. BAMBERGER, Atty. Reg. No. 0082053, P.O. Box 189, Spring Valley, Ohio 45370 Attorney for Defendant-Appellant
Facts and Course of Proceedings
{¶ 2} On June 18, 2010, Morgan entered into a plea agreement and pled guilty to numerous felony offenses, including three counts of aggravated robbery, three counts of kidnapping, three counts of possessing criminal tools, and four counts of tampering with evidence. In exchange for Morgan‘s guilty plea, the State agreed to dismiss all specifications attached to the charges, which included six firearm specifications and two body armor specifications. The parties also jointly recommended an agreed total sentence of 24 years in prison.1 After accepting Morgan‘s guilty plea, on June 22, 2010, the trial court imposed the jointly recommended 24-year prison term.
{¶ 3} In imposing the sentence, the trial court merged the three kidnapping counts
{¶ 4} Morgan never filed a direct appeal from his conviction and sentence. However, on November 29, 2016, over six years after the trial court issued its sentencing decision, Morgan filed a combined pro se “Motion for Sentencing” and “Motion for Issuance of a Final Appealable Order.” In the combined motion, Morgan argued that his sentence was void because the July 1, 2010 termination entry: (1) lacked an adjudication of guilt; (2) did not notify him of his appellate rights; (3) did not indicate whether post-release control was mandatory or discretionary; and (4) did not include consecutive-sentence findings required by
{¶ 6} Throughout the resentencing hearing, Morgan expressed concern with his trial counsel‘s ability to represent him due to counsel‘s unfamiliarity with his case. As a result, Morgan requested a continuance of the resentencing hearing so that counsel could have time to review his case. The trial court, however, denied Morgan‘s request for a continuance; the court found a continuance was unwarranted because the court was not imposing a different sentence, but simply making consecutive-sentence findings. After denying Morgan‘s request for a continuance, the trial court made the consecutive-sentencing findings on the record and imposed the same agreed 24-year prison term that
{¶ 7} On July 28, 2017, approximately one month after the trial court resentenced Morgan, the trial court issued a written decision overruling in part and sustaining in part Morgan‘s pro se motions for sentencing and for the issuance of a final appealable order. In so holding, the trial court found that all the claims raised in Morgan‘s motions lacked merit, except for the claim that the trial court had failed to make the required consecutive-sentence findings. Two days after this decision, on July 31, 2017, the trial court issued an amended termination entry that included the consecutive-sentence findings it had made at the resentencing hearing.
{¶ 8} Morgan now appeals from the trial court‘s decision overruling in part and sustaining in part his pro se motions for sentencing and for the issuance of a final appealable order, raising three assignments of error for review.
First Assignment of Error
{¶ 9} Morgan‘s First Assignment of Error is as follows:
THE TRIAL DEFENSE COUNSEL WAS INEFFECTIVE BASED ON AN ADMITTED LACK OF KNOWLEDGE OF THE CASE DETAILS.
{¶ 10} Under his First Assignment of Error, Morgan contends that his trial counsel provided ineffective assistance at his June 26, 2017 resentencing hearing. We disagree.
{¶ 11} As a preliminary matter, we note that “an appellate court lacks jurisdiction to review a judgment or order that is not designated in the appellant‘s notice of appeal.” (Citation omitted.) State v. Howard, 2d Dist. Montgomery No. 21678, 2007-Ohio-3582, ¶ 10. In this case, Morgan‘s notice of appeal indicates that Morgan has only appealed
{¶ 12} Regardless, even if this court had jurisdiction to review Morgan‘s ineffective assistance claim, we would nevertheless find that the claim lacks merit. In order to succeed on an ineffective assistance claim Morgan must establish: (1) his trial counsel‘s performance was deficient; and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697.
{¶ 13} To establish deficient performance, Morgan must show that his trial counsel‘s performance fell below an objective standard of reasonable representation. Id. at 688; Bradley at 142. In evaluating counsel‘s performance, a reviewing court “must indulge in a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland at 689.
{¶ 14} To establish prejudice, Morgan must show that there is “a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688; Bradley at paragraph two of the syllabus. “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.‘” Bradley
{¶ 15} In this case, Morgan claims that his trial counsel‘s performance at his resentencing hearing was deficient because counsel was unfamiliar with the details of his case. Morgan also claims that his trial counsel was deficient in failing to speak with him prior to the resentencing hearing. However, even if we were to assume this conduct constituted deficient performance by counsel, Morgan has failed to demonstrate any resulting prejudice. Again, as noted above, the failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697.
{¶ 16} The record indicates that the trial court made it clear at the resentencing hearing that the sole purpose of resentencing Morgan was to make the statutorily required consecutive-sentencing findings, not to modify the agreed 24-year prison term originally imposed. Morgan does not identify how the outcome of the resentencing hearing would have been different had his trial counsel known more about his case or had counsel spoken with him prior to the resentencing hearing. Upon review, we find it would be pure speculation to conclude that Morgan‘s sentence would have been any different had counsel acted in accordance with Morgan‘s expectations. It is well established that mere speculation cannot support either the deficient performance or prejudice requirement of an ineffective-assistance claim. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119; State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 217. Therefore, because Morgan has failed to establish any prejudice resulting from his counsel‘s performance at his June 26, 2017 resentencing hearing, Morgan‘s ineffective assistance claim fails.
Second Assignment of Error
{¶ 18} Morgan‘s Second Assignment of Error is as follows:
THE TRIAL COURT IMPROPERLY SENTENCED THE DEFENDANT TO CONSECUTIVE TERMS FOR CLOSELY-ALIGNED CRIMES.
{¶ 19} Under his Second Assignment of Error, Morgan generally contends that the trial court erred by imposing consecutive sentences for allied offenses that should have been merged at sentencing. Morgan‘s claim fails for several reasons.
{¶ 20} As we previously noted, Morgan‘s notice of appeal indicates that his appeal is from the trial court‘s July 28, 2017 decision sustaining in part and overruling in part his pro se motions for sentencing and for the issuance of a final appealable order. Because Morgan appealed from the trial court‘s judgment on his post-conviction motions, not the subsequently filed amended termination entry journalizing his resentencing, this court lacks jurisdiction to consider Morgan‘s Second Assignment of Error. See Howard, 2d Dist. Montgomery No. 21678, 2007-Ohio-3582, at ¶ 10.
{¶ 21} Morgan‘s sentence is also not subject to appellate review pursuant to
{¶ 22} “A sentence is ‘authorized by law’ and is not appealable within the meaning of
{¶ 23} In this case, Morgan‘s sentence was an agreed sentence that was authorized by law2 and accepted by the trial court. Therefore, not only is Morgan‘s
sentence not subject to appellate review, but the trial court‘s consecutive-sentence findings made at the resentencing hearing were unnecessary. See State v. Connors, 2d Dist. Montgomery No. 26721, 2016-Ohio-3195, ¶ 7 (“consecutive-sentence findings are unnecessary when a trial court imposes a jointly-recommended sentence“).
{¶ 24} We also note that at no point during the trial court proceedings did Morgan raise an allied-offense claim. “An accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error[.]” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Therefore, Morgan‘s alleged error “is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.” Id. For the following reasons, we find no error, plain or otherwise, with regards to the trial court‘s allied offense determination.
{¶ 25} Ohio‘s allied offense statute,
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 26} ” ‘[W]hen determining whether offenses are allied offenses of similar import within the meaning of
{¶ 27} As to the question of import and significance, “two or more offenses of dissimilar import exist within the meaning of
{¶ 28} In this case, the record indicates that Morgan‘s offenses arose from Morgan robbing three separate cash advance stores at gunpoint on August 22, 2008, October 10, 2008, and October 17, 2008. For each of these three dates, Morgan was charged with one count of aggravated robbery, one count of kidnapping, one count of possessing criminal tools, and one count of tampering with evidence. Morgan was also charged with a second count of tampering with evidence for October 17, 2008.
{¶ 29} With the exception of the kidnapping counts, which the trial court merged with the aggravated robbery counts, each type of offense committed by Morgan involved separate conduct and harm. Furthermore, each set of offenses committed on the three dates in question were committed separately and involved separate victims. As for the two counts of tampering with evidence that arose on October 17, 2008, since Morgan failed to provide this court with a transcript of the plea hearing or a complete transcript of the sentencing hearing, we must presume the regularity of the proceedings, meaning that we presume there was evidence of two different acts for those two charges. Accordingly, we find no error, plain or otherwise, with regard to the trial court‘s decision to merge only the kidnapping offenses.
{¶ 30} We further find that Morgan‘s allied-offense claim is barred by the doctrine of res judicata. Under the doctrine of res judicata, “any issue that could have been raised on direct appeal,” and yet was not, “is not subject to review in subsequent proceedings.” (Citations omitted.) State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16. “[W]hen a trial court finds that convictions are not allied offenses of similar import, or when it fails to make any finding regarding whether the offenses are allied,
{¶ 31} As previously noted, the trial court merged Morgan‘s three kidnapping counts into his three aggravated robbery counts. The trial court thereafter imposed separate sentences for each of the three counts of aggravated robbery, three counts of possessing criminal tools, and four counts of tampering with evidence. There is nothing in the record indicating that the trial court found those counts were allied offenses but failed to merge them for purposes of sentencing. Therefore, because Morgan failed to raise his allied-offense argument in a timely direct appeal, res judicata precludes him from doing so now.
{¶ 32} For all the foregoing reasons, Morgan‘s Second Assignment of Error is overruled.
Third Assignment of Error
{¶ 33} Morgan‘s Third Assignment of Error is as follows:
THE DEFENDANT-APPELLANT WAS NOT AFFORDED DUE PROCESS
UNDER OHIO CRIMINAL RULE 32.
{¶ 34} Under his Third Assignment of Error, Morgan raises several arguments as to why he was not afforded due process during both his original sentencing and resentencing hearings. However, as previously noted, this court only has jurisdiction to review the trial court‘s July 28, 2017 judgment overruling in part and sustaining in part Morgan‘s pro se motions for sentencing and for the issuance of a final appealable order, not Morgan‘s sentence. Regardless of this jurisdictional issue, Morgan‘s due process arguments lack merit.
{¶ 35} Initially, Morgan argues that he was denied due process because there was “confusion in terms of the plea deal that [he] was accepting at his re-sentencing hearing.” This argument lacks merit because Morgan never accepted a plea deal at the resentencing hearing. Again, the record indicates that the trial court made it clear that the sole purpose of the resentencing hearing was for the trial court to make the consecutive-sentence findings under
{¶ 36} Next, Morgan argues that he was denied due process because he was not sentenced “without unnecessary delay” as required by
{¶ 37} Morgan also claims that when he was originally sentenced, the trial court failed to notify him of his appellate rights as required by
{¶ 38} Furthermore, in reviewing the record, we note that both the original termination entry and the amended termination entry filed by the trial court include appropriate post-release control notifications with regards to each of Morgan‘s numerous offenses. Specifically, the record indicates that the trial court properly imposed a
{¶ 39} “[I]t is well established that when multiple terms of imprisonment are imposed, a [post-release control] notification need specify only the maximum term of post[-]release control to which the defendant will be subjected as a result.” (Citation omitted.) State v. Harwell, 2d Dist. Montgomery No. 27658, 2018-Ohio-1950, ¶ 27. This is because “the period of post-release control for all of the sentences shall be the period of post-release control that expires last[.]”
{¶ 40} Finally, with regard to the appellate right notifications under
{¶ 41} For the foregoing reasons, Morgan‘s Third Assignment of Error is overruled.
Conclusion
{¶ 42} Having overruled all assignments of error raised by Morgan, the judgment of the trial court is affirmed.
DONOVAN, J. and HALL, J., concur.
WELBAUM, P.J.
Copies mailed to:
Mathias H. Heck, Jr.
Heather N. Jans
Mark J. Bamberger
Hon. Barbara P. Gorman