Craycraft v. Warden, Hocking Corr. Facility

• Decision Date: 15 April 2014
• Docket Number: Case No. 1:13-cv-089
• Parties: JEREMIAH CRAYCRAFT, Petitioner, v. WARDEN, Hocking Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JEREMIAH CRAYCRAFT, Petitioner, v. WARDEN, Hocking Correctional Facility, Respondent.

Case No. 1:13-cv-089

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

April 15, 2014

District Judge William O. Bertelsman

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

With the assistance of counsel, Petitioner Jeremiah Craycraft brought this habeas corpus action under 28 U.S.C. § 2254 to obtain relief from his conviction and sentence in the Clermont County Common Pleas Court for child endangering, felonious assault, and domestic violence (Petition, Doc. No. 2, ¶¶ 1, 5). On Magistrate Judge Litkovitz's Order (Doc. No. 3), the Warden has filed a Return of Writ (Doc. Nos. 9, 10). Craycraft filed a Traverse (Doc. No. 15) and, with Court permission, the Warden has filed a Reply to the Traverse (Doc. No. 18). The case is thus ripe for decision.

Craycraft pleads the following ground for relief:¹

Ground One: Petitioner's right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution was violated when the Petitioner was resentenced to a harsher sentence after a remand following the Ohio Supreme Court's decision in State v. Johnson, 128 OhioSt.3d 153, 2010-Ohio-6314.

Supporting Facts: Petitioner, Jeremiah Craycraft was convicted of two counts of felonious assault, two counts of child endangering, and two counts of domestic violence. The trial court sentenced Mr. Craycraft to six years in prison on both felonious assault counts, five years on two child endangering counts, and four years on the domestic violence counts. The court ran Counts 1, 2, 5 and 6 consecutive to one another and ran Counts 7 and 8 concurrent for a total aggregate sentence of 22 years in prison.

After the Twelfth District Court of Appeals affirmed Mr. Craycraft's conviction the Ohio Supreme Court reversed the Twelfth District's decision and remanded the matter to the Twelfth District for application of its decision in State v. Johnson, 128 O.St.3d 153, 2010-0hio-6314.

The Twelfth District held the State relied upon the same conduct to support Mr. Craycraft's convictions for felonious assault, child endangering and domestic violence. Consequently, the offenses were allied offenses of similar import. The Court, therefore, ordered the trial court to merge the allied offenses after the State elected which offense to pursue on remand.

Upon remand, the State elected to pursue the Felonious Assault counts, for each child, for sentencing purposes. The trial court then sentenced Appellant to serve eight years (verses [sic] six) on each of the felonious assault counts, consecutive, for a total aggregate sentence of sixteen years in prison with credit for time served. In support of its sentence, the trial court stated that at the time of the initial sentence, it could have imposed fifty-two years in prison, but chose only to impose twenty-two years. The trial court stated it considered all the charges as a whole and determined individually what the court believed was an appropriate sentence.

Mr. Craycraft was resentenced by the same judge after a successful appeal to Ohio Supreme Court. As a result, the presumption of vindictiveness applies. However, the Twelfth District determined that the presumption of vindictiveness does not apply when a defendant is resentenced following a remand for the application of this Court's decision in Johnson.

The presumption of vindictiveness was not overcome because the trial court relied only upon the information it had before it during the initial sentencing hearing. There was no objective information regarding Mr. Craycraft's conduct or other events that were presented to justify an increase in the sentence. As a result, Mr.Craycraft's right to due process of law was violated when the trial court increased his sentence after the case was remanded.

(Petition, Doc. No. 2, PageID 17-19.)

Procedural History

Craycraft was indicted for felonious assault on his two-month-old twin children, along with counts for endangering those children and domestic violence toward them. He was convicted at trial on two counts of felonious assault, on each of which he was sentenced to six years imprisonment, to be served consecutively. Counts 3 and 4 for child endangering were merged with Counts 5 and 6 and Craycraft was sentenced to five years each on the merged charges, to be served consecutively to each other and consecutively to the felonious assault charges, for a total incarceration of twenty-two years. Craycraft was also sentenced to concurrent time for the domestic violence counts.

On direct appeal Craycraft raised six assignments of error, including a claim that all of the charges of conviction were allied offenses of similar import. The Twelfth District Court of Appeals overruled all six assignments of error. Craycraft appealed to the Ohio Supreme Court on March 24, 2010. The Ohio Supreme Court accepted the appeal on a proposition of law involving the allied offenses claim and held this case for decision pending its decision in State v. Johnson, 128 Ohio St. 3d 153 (2010), which was handed down on December 29, 2010. On the same day, the Ohio Supreme Court reversed the court of appeals in this case and remanded for application of the Johnson decision. State v. Craycraft, 128 Ohio St. 3d 337 (2010).

On remand, the Twelfth District reconsidered its decision on the sixth assignment of error in light of Johnson and wrote:

[**P11] The Ohio Supreme Court established a new two-part test for determining whether offenses are allied offenses of similar import under R.C. 2941.25 in State v. Johnson, 128 Ohio St.3d 153, 2010 Ohio 6314, 942 N.E.2d 1061 (overruling State v. Rance, 85 Ohio St.3d 632, 1999 Ohio 291, 710 N.E.2d 699). The first inquiry focuses on whether it is possible to commit both offenses with the same conduct. Id. at P 48. It is not necessary that the commission of one offense will always result in the commission of the other. Id. Rather, the question is whether it is possible for both offenses to be committed by the same conduct. Id., quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 119, 526 N.E.2d 816. Conversely, if the commission of one offense will never result in the commission of the other, the offenses will not merge. Johnson at P 51.

[**P12] If it is possible to commit both offenses with the same conduct, the court must next determine whether the offenses were in fact committed by a single act, performed with a single state of mind. Id. at P49, quoting State v. Brown, 119 Ohio St. 3d 447, 2008 Ohio 4569, P 50, 895 N.E.2d 149 (Lanzinger, J., concurring in judgment only). If so, the offenses are allied offenses of similar import and must be merged. Johnson at P 50. On the other hand, if the offenses are committed separately or with a separate animus, the offenses will not merge. Id. at P 51.

[**P13] We employ the Johnson analysis to determine whether felonious assault, second and third-degree child endangering, and domestic violence are allied offenses similar import under R.C. 2941.25. First we examine whether it is possible to commit each of these offenses with the same conduct. Johnson at P 48.

[**P14] The offense of felonious assault under R.C. 2903.11(A)(1) requires proof that the defendant knowingly caused serious physical harm. Domestic violence under R.C. 2919.25(A) requires proof that the defendant knowingly caused physical harm to a family or household member. Third-degree felony child endangering under R.C. 2919.22(A) requires proof that a parent or other actor listed in the statute recklessly created a substantial risk to the health or safety of a minor child by violating a duty of care, protection, or support, resulting in serious physical harm. Finally, second-degree felony child endangering under R.C. 2919.22(B)(1)requires proof that the defendant recklessly abused a minor child, resulting in serious physical harm.

[**P15] We conclude that it is possible to commit the offenses of felonious assault, second and third-degree child endangering, and domestic violence with the same conduct. Johnson at P 48. Where, as here, a parent violates his duty of care and thereby knowingly inflicts serious physical harm upon a minor child, it is possible for him to have committed all of these offenses. Because we answer the first inquiry in the affirmative, we must next examine whether appellant in fact committed the offenses by way of a single act, performed with a single state of mind. Id. at P 49.

[**P16] The offenses were based on the following conduct, as revealed by evidence adduced at trial. Appellant sometimes babysat the twins alone while Staci was at work. He conceded that the babies always seemed to sustain their injuries while in his care. However, appellant attributed their injuries to a number of household "accidents." He also admitted to employing certain techniques to soothe the crying babies which may have unintentionally injured them. Appellant described some of these techniques and demonstrated them on a baby doll in videotaped interviews with law enforcement officials. Testimony offered by a number of witnesses referred in depth to the various injuries sustained by both babies and the manner in which such injuries were typically inflicted.

[**P17] Appellant was convicted on two counts for each of the offenses. While one count always pertained to K.C. and the other to S.C., the indictments neglected to specify which victim matched up with which count for any of the offenses. Additionally, the evidence at trial was generally presented and was not allocated to specific counts in the indictment.

[**P18] Due to the way the case was indicted and tried, it is impossible for us to parse out which allegations of appellant's conduct were meant to support which charges. As our own analysis of appellant's manifest weight challenge in Craycraft I reveals, none of the injuries sustained by the twins were explicitly linked to separate counts in the

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