STATE OF OHIO v. SHANE ROUSH
Case No. 13CA0008
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 30, 2014
2014-Ohio-4887
Hon. William B. Hoffman, P. J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Morrow County Court of Common Pleas, Case No. 10CR0178. JUDGMENT: Affirmed.
For Plaintiff-Appellee
CHARLES HOWLAND
PROSECUTING ATTORNEY
K. DAVID HOMER
ASSISTANT PROSECUTOR
60 East High Street
Mt. Gilead, Ohio 43338
For Defendant-Appellant
WILLIAM T. CRAMER
470 Olde Worthington Road
Suite 200
Westerville, Ohio 43082
{¶1}. Defendant/appellant Shane Roush appeals the September 9, 2013 Judgment Entry entered by the Morrow County Court of Common Pleas which denied Appellant‘s pro se motion to correct his felony sentence handed down in 2011. Plaintiff/Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2}. On October 27, 2010, Appellant was indicted on one count of Attempted Aggravated Murder (
{¶3}. A written plea agreement was reached on or about August 22, 2011. Pursuant to the plea agreement, in exchange for Appellant‘s plea of guilty to the charges, the State agreed to recоmmend the following sentence:
{¶4}. Ten years on Count I (Complicity to Attempted Aggravated Murder), plus seven years mandatory consecutive for the firearm specification and two years mandatory consecutive for the body armor specification; six years on Count III (Complicity to Felonious Assault) to be served consecutively; and six years on each of
{¶5}. Following a Plea Hearing, the trial court imposed sentence as follows:
{¶6}. “So in addition to the factors that I have covered with you earlier, also, and I now can consider Deputy Moore‘s statement as in pоint of fact the victim impact statement. So then on the basis of all of the foregoing, I will now proceed to make disposition of your case in the following fashion:
{¶7}. “It is hereby ordered and adjudged that you, Shane Roush, as to the crime of attempted aggravated murder set forth in Count 1 of the indictment, that particular сharge being in violation of
{¶8}. “And it is further ordered you, Shane Roush, as to specification one set forth at the end of the body of Count 1 of the indictment, that specification being so defined by
{¶9}. “And it is further ordered and adjudged that you, Shane Roush, as to specification two set forth at the end of the body of Count 1 of the indictment, that specification being so defined by
{¶10}. “* * *
{¶11}. “Okay. It is further ordered and adjudged that you, Shane Roush, as to the crime of felonious assault set forth in Count 3 of the indictment herein filed, that particular charge being in violation of
{¶12}. “MS. STEFANCIN: Yes, your Honor.
{¶13}. “THE COURT: Counsel agree?
{¶14}. “MR. DAVIS: Yes.
{¶15}. “THE COURT: And it is further ordered and adjudged as to specification two, same as that, that merges. We agree? Okay.
{¶16}. “MS. STEFANCIN: Yes, your Honor.
{¶17}. “THE COURT: All right. And it is further ordered and adjudged, that the sentence hereby imposed by this Court this day upon this defendant as to Count 3 shall run and be served consecutive to the sentence imposed as to Count 1. I think that takes us tо the 25.
{¶18}. “MS. DAVIS: Yes, sir.
{¶19}. “MS. STEFANCIN: Yes, sir.
{¶20}. “THE COURT: Okay. And we‘ll proceed to make disposition of Count 4 in this fashion. It is hereby ordered and adjudged that you, Shane Roush, as to the crime of felonious assault set forth in Count 4 of the indictment, that particular charge being in violation of
{¶21}. “And then moving over to Count 5 and this is going to be a repetition of Count 4. It is hereby ordered and adjudged that you, Shane Roush, as to the crime of felonious assault set forth in Count 5 of the indictment herein filed, that particular charge being in violation of
{¶22}. “And once, again, the court finds that specifications onе and two merge as heretofore placed in the record. Now, there is couple more matters to cover with you, Mr. Roush. If you would like to have a seat, please.
{¶23}. “MR. DAVIS: Judge.
{¶24}. “THE COURT: Yeah, Mr. Davis go ahead.
{¶25}. “MR. DAVIS: I don‘t believe and maybe I didn‘t hear it, I don‘t believe that you indicated that Count Number 5 was concurrent.
{¶26}. “THE COURT: I didn‘t say that and I thank you for telling me that. It is hereby оrdered that the sentence heretofore imposed on this defendant this day by this Court as to Count 5 shall run and be served concurrent with the other sentences.”
{¶27}. Tr. at p. 4-8
{¶28}. Appellant did not file a direct appeal. However, on December 17, 2012, Appellant filed a pro se motion to correct sentence, arguing his sentеnce for the offenses of attempted aggravated murder and felonious assault were “void and illegal.” The State filed a memorandum contra on June 20, 2013, arguing Appellant‘s motion should be denied on grounds of res judicata. Appellant filed a reply thereto onto July 17, 2013.
{¶29}. On September 9, 2013, the trial court denied Appеllant‘s motion to correct sentence, concluding the mandatory terms were “appropriate and legal as the statutes allow,” and the motion was barred by res judicata.
{¶30}. On September 30, 2013, Appellant filed the within appeal, assigning as error:
I.
{¶32}. In his sole Assignment of Error, Appellant in essence contends the triаl court erred in denying his motion to correct sentence. We disagree.
Challenge to the Attempted Aggravated Murder Sentence
{¶33}. The underlying offense of aggravated murder in the case sub judice was charged under
{¶34}. Ohio‘s “attempt” statute,
{¶35}. Appellant urges, and we agree,
Challenge to the Felonious Assault Sentences
{¶36}. Appellant was also charged with several counts of felonious assault under
{¶37}. Felonious assault can be charged as a first-degree felony under
{¶38}.
{¶39}. Appellant again urges
{¶40}. Appellant maintains his sеntence is contrary to law as the felonious assault statute does not “require the imposition of a prison term” under the circumstances of this case.
Res Judicata and Estoppel
{¶41}. The State maintains Appellant‘s time frame to raise this challengе is long past, as he failed to file a direct appeal and further entered into a written plea agreement clearly setting forth the various penalties.1
{¶42}. The Ohio Supreme Court has recognized: “*** [I]n the normal course, sentencing errors are not jurisdictional and do not render a judgment void. *** When reviewing a felоny sentence, an appellate court must first review the sentence to ensure the sentencing court clearly and convincingly complied with the applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. A trial court‘s sentence would be contrary to law if, for example, it were outside the statutory range, in contravention to a statute, оr decided pursuant to an unconstitutional statute. Id. In Kalish, the Supreme Court held the trial court‘s decision was not contrary to law when the trial court expressly stated it considered the purposes and principles of
{¶43}. If this inquiry is satisfied, an appellate court then reviews the trial court‘s sentencing decision for abuse of discretion. Id. In order to find an abuse of discretion,
{¶44}. As a general rule, trial courts have full discretion to impоse a prison sentence within the statutory ranges. State v. Freeman, Delaware App. No. 07CAA01-0001, 2008-Ohio-1410.
{¶45}. In State v. May, Morrow App. No. 2010CA2, 2010-Ohio-4625, this Court addressed the inverse of the issue posed herein, “When a mandatory prison term is required, does the sentencing judge have the authority to impose a prison term from the permissible range and make only a portion of the term mandatory?” This Court found,
{¶46}. “The State arguеs that the trial court‘s sentence in this case, consisting of a one-year ‘mandatory’ term within a two-year prison term, is not authorized by statute and is erroneous as a matter of law.
{¶47}. “***
{¶48}. “We recognize that subsequent to the filing of the briefs in this matter, this Court decided State v. Hess, Morrow App. No.2009CA0015, 2010-Ohio-3695, in which we applied the holding of State v. Thomas, Allen App.No. 1-04-88, 2005-Ohio-4616, to conclude the trial court was required to impose a mandatory prison term for the entire length of the sentence prescribed and not create a ‘hybrid sentence.’ Id. at ¶ 32. However, the Generally Assembly has not specifically disallowed the type of partially mandatory sentence crafted by the trial court in the case sub judice, and, as
{¶49}. “Accordingly, we decline to herein adopt our previous rationale in Hess. We find the trial court acted within its discretion in imposing a one-year ‘mandatory’ term, which comports with
{¶50}. Upon review of the statutes set forth above, Appellant‘s sentence was within the range of penalties for the offenses of attempted aggravated murder and felonious assault. The trial court‘s decision was not contrary to law and the trial court expressly stated it considered the purposes and principles of
{¶51}. The trial court‘s inclusion of the term “mandatory” in Appellant‘s sentence does not render his sentence illegal. Any claimed error was capable of being raised on direct appeal. Accordingly, we find Appellant‘s argument is barred by the doctrine of res judicata.
By: Hoffman, P.J.,
Farmer, J., concurs,
Wise, J. dissents
{¶53}. I respectfully dissent from the majority decision in this matter.
{¶54}. The Ohio Supreme Court has recognized: “*** [I]n the normal course, sentencing errors are not jurisdictional and do not render a judgment void. *** But in the modern era, Ohio law has consistently recognized a nаrrow, and imperative, exception to that general rule: a sentence that is not in accordance with statutorily mandated terms is void.” State v. Fischer, 128 Ohio St.3d 92, 94, 2010-Ohio-6238, ¶¶ 7- ¶ 8. The rule of Fischer was supposed to be limited to “a discrete vein of cases: those in which a court does not properly impose a statutorily mandated period of postrelease control.” See Fischer at ¶ 31. However, as Justice Lanzinger aptly noted in her dissent from dismissal in In re: J.S., 136 Ohio St.3d 8, 989 N.E.2d 978, 2013-Ohio-1721, 8, Fischer‘s rationale has since been expanded outside the realm of postrelease control. Moreover, the Ohio Supreme Court has long recognized: “Crimes are statutory, as are the penalties therefor, and the only sentence which a trial court may impose is that provided for by statute. A court has no power to substitute a different sentence for that provided for by statute or one that is either greater or lesser than that provided for by law.” Colegrove v. Burns (1964), 175 Ohio St.437, 438, 195 N.E.2d 811.
{¶55}. I note the State, in its response brief herein, has not challenged the technical aspects of appellant‘s argument regarding his “mandatory” sentences. The focus of the appeal has thus become the application of res judicata, and I do not agree with my colleagues that appellant is barred in this instance from raising a challenge to