State v. OrrState v. Orr
RELEASED AND JOURNALIZED: March 24, 2011
William D. Mason
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Wendi L. Overmyer
Office of the Federal Public Defender
50 S. Main Street, Suite 700
Akron, Ohio 44308
EILEEN A. GALLAGHER, J.:
{¶ 1} The state of Ohio (“State“) appeals from the trial court decision granting Wylee Orr‘s (“Orr“) pro se petition for postconviction relief and dismissing his original conviction as violating the protections of double jeopardy. The State argues the trial court erred in not conducting a hearing
{¶ 2} On January 16, 2008, Cleveland police officers were on routine patrol when they observed a white 1990 Chevy Astro minivan operating with a license plate belonging to another vehicle. The police officers activated their lights аnd sirens but the van failed to pull over, fleeing the scene. During the pursuit, the two passengers, Lavelle Jackson and Orr, jumped out of the moving van and fled on foot. The officers followed and arrested both Orr and Lavelle Jackson hiding in a garage located at 4090 East 80th Street in Clevеland, Ohio.
{¶ 3} Mr. Orr‘s actions on January 16, 2008 resulted in two separate convictions for the same underlying conduct. The first was from the Cleveland Municipal Court, Case No. 2009-TRD-002944. On January 29, 2008, Orr pleaded no contest to a violation of Cleveland City Codified Ordinance 403.02, compliance with the lawful order of a police officer, in addition to a plea of no contest on two other charges, driving under suspension, and display of fictitious plates. On March 6, 2008, the trial court sentenced Orr to 180 days of imprisonment, with 100 suspended and a suspended fine of $1,300.
{¶ 5} This Court of Aрpeals granted Orr permission to file a delayed direct appeal of his Cuyahoga County conviction. In the direct appeal, Orr asserted for the first time that his conviction violated the prohibition against double jeopardy, in addition to four other claims for reliеf. This court affirmed Orr‘s conviction and sentence on direct appeal. State v. Orr, Cuyahoga App. No. 92005, 2009-Ohio-4038. This court did not address the double jeopardy claim on its merits; rather, the Court found the issue to be based on evidence outside the record and therefore, not proper on direct appeal. Id. The Ohio Supreme Court declined jurisdiction and dismissed the appeal. State v. Orr, 123 Ohio St.3d 1511, 2009-Ohio-6210, 917 N.E.2d 813.
{¶ 7} With his direct appeal pending, Orr filed a pro se petition for pоstconviction relief in the trial court, claiming his conviction violated the Double Jeopardy Clause. The State filed a brief in opposition to the petition, asking the trial court to dismiss the petition. The trial court denied the petition, claiming it had no jurisdiction to entertain a postconviction petition while an appeal was pending. Orr successfully appealed the denial to this Court, which reversed and remanded the petition for postconviction relief to the trial court for review. State v. Orr, Cuyahoga App. No. 93796, 2010-Ohio-366.
{¶ 8} On remand, the State filed a supplemental response to the defendant‘s original petition. The trial court did not conduct an evidentiary hearing, but granted Orr‘s petition, dismissing his conviction for failure to comply with order or signal of a police officer as violating the protections of
{¶ 9} In its first assignment of error, the State argues the trial court abused its discretion when it ruled on Orr‘s petition for postconviсtion relief without first holding a hearing. We find this assigned error to have no merit.
{¶ 10}
(A)(1) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidаble under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
* * *
(C) Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In mаking such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including but not limited to, the
indictment, the court‘s journal entries, the journalized records of the clerk of the court, and the court reporter‘s transcript. * * * If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. * * *
(E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending. * * *
{¶ 11} A postconviction proceeding is not an appeal of a criminal conviction, but rather, a сollateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639 N.E.2d 67. In postconviction cases, a trial court acts as a gatekeeper, determining whether a defendant will even receive a hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. In State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905, the Ohio Supreme Court held that the trial court‘s gatekeeping function in the postconviction relief process is entitled to deference, including the court‘s decision regarding the sufficiency of the facts set forth by the petitioner and the credibility of the affidavits submitted. Accordingly, we review appellant‘s postconviction claims brought pursuant to
{¶ 12} In the instant case, Orr filed a petition for postconviction relief, claiming his conviction for failure to comply with order or signal of a police оfficer violated the Double Jeopardy Clause. In support of his pro se motion, Orr attached a copy of the citation, a copy of the final judgment in the Cleveland Municipal Court case, and copies of
{¶ 13} The instant case presents this court with the unique factual circumstance in which the trial court granted Orr‘s petition for postconviction relief without first conducting a hearing. Nonetheless, the trial court was able to review and consider Orr‘s petition, the brief in opposition to the petition, the indictment and attendant common pleas court records, and the
{¶ 14} We therefore find that the trial court conducted an in camera hearing and rendered judgment accordingly. Based on the foregoing, the state‘s first assignment of errоr is overruled.
{¶ 15} In its second assignment of error, the State argues that the trial court erred when it ruled Orr‘s conviction violated the constitutional protections against double jeopardy. Specifically, the State claims that Orr‘s protections against double jeopardy wеre not violated because Orr‘s minor misdemeanor conviction in municipal court was not a lesser included offense of
{¶ 16} The guarantees against double jeopardy secured by the
{¶ 17} In accordance with Blockburger, the trial court in the present case correctly examined the statutes at issue to determine whether the two offenses require different elements of proof. The statutes, in their entirety, read as follows:
(A) No рerson shall fail to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic.
(B) No person shall operate a motor vehicle so as to willfully elude or flee a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop.
(A) No person shall fail to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic.
(B) No persоn shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop.
{¶ 18} The trial court quoted each law and found that paragraphs A and B of each enactment were substantively identical to the first two paragraphs of the other. Additionally, the trial court determined it was impossible to violate Cleveland Codified Ordinance 403.02(B) and
{¶ 19} We agree with the trial court‘s conclusions. Moreover, the State offers no legal support or analysis in its brief in support of its argument that paragraph (A) is not a lesser-included offense to paragraph (B). Based on the
{¶ 20} The trial court did not abuse its discretion in granting Orr‘s petition for postconviction relief on the basis of double jeopardy protections. The judgment of the trial court is affirmed.
{¶ 21} Nonetheless, when the trial court vacated Orr‘s plea and entry of sentence, it vacated the State‘s dismissal of the first count of the indictment, breaking and entering. Accordingly, this case must be remanded for trial on the reinstated charge of breaking and entering.
It is ordered that appellant and appellee share the 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR
Assignments of Error:
I. A trial court errs in ruling on a motion for post сonviction relief without first holding a hearing. (
II. The trial court erred when it held pursuant to its findings of fact and conclusions of law that the Double Jeopardy Clause of the United States Constitution precluded the prosecution of count two, failure to comply with order, signal of police officer.