Cvijetinovic v. Eberlin
| Decision Date | 31 March 2008 |
| Docket Number | No. 04CV2555.,04CV2555. |
| Citation | 617 F.Supp.2d 620 |
| Parties | Alexsandar CVIJETINOVIC, Petitioner, v. Michelle EBERLIN, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
Paul A. Mancino, Jr., Cleveland, OH, for Petitioner.
Jerri L. Fosnaught, Office of the Attorney General-Corrections Litigation, Columbus, OH, for Respondent.
On December 29, 2004, Petitioner, Alexsandar Cvijetinovic ("Cvijetinovic" or "Petitioner"), filed a petition for a writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2254. On January 11, 2005, the Court referred (Doc. 5) this matter to Magistrate Judge Nancy A. Vecchiarelli, ultimately for preparation of a Report and Recommendation ("R & R") regarding Cvijetinovic's petition. On March 17, 2005, Respondent, Michelle Eberlin ("Respondent"), filed a Return of Writ (Doc. 7). On April 15, 2005, Cvijetinovic filed a Traverse (Doc. 14). On April 14, 2006, Magistrate Judge Vecchiarelli issued her R & R (Doc. 16) recommending that this Court deny Cvijetinovic's petition and dismiss this case. On May 17, 2006, Cvijetinovic filed Objections to that R & R (Doc. 19). Respondent filed a Response to Cvijetinovic's Objections on May 19, 2006. Subsequently, both parties have filed supplemental responses identifying supplemental authority in support of their respective positions. Docs. 21-24.
For the reasons articulated below, the Court GRANTS Cvijetinovic's habeas petition with respect to Ground One and the aspect of Ground Four that is subsumed within Ground One. Further, the Court ADOPTS the Magistrate Judge's Report and Recommendation with respect to the remaining Grounds and DISMISSES these Grounds accordingly.
The R & R accurately sets forth the undisputed factual and procedural background of this case. Doc. 16 at pp. 1-5. In the interest of efficiency, therefore, the Court adopts the R & R's articulation of the factual and procedural background. To the extent necessary, if any, the Court will elaborate on factual and/or procedural issues worthy of additional consideration. The following is a brief summary of pertinent facts.
This petition arises out of several convictions in the Cuyahoga County Court of Common Pleas in 1999. Cvijetinovic, eighteen years old at the time, pled guilty to multiple charges related to armed robberies he committed around 1998. He also pled guilty to an intimidation charge related to threats directed toward his girlfriend in the aftermath of his arrest. Judge Kathleen A. Sutula sentenced Cvijetinovic to an aggregate prison term of sixteen years, including terms exceeding the statutory minimum based on judicial fact-finding, consecutive terms of imprisonment, and mandatory firearms specifications.1
After his conviction, Cvijetinovic filed a series of motions in the state court seeking to withdraw his guilty plea and challenging his sentence. These efforts are described in the R & R; the following is a basic timeline of pertinent events:
Timeline
1. 1/19/1999 Guilty Plea
2. 2/10/1999 Sentencing (16 years)
3. 6/26/2000 U.S. Supreme Court decides Apprendi
v. New Jersey, 530 U.S. 466 (2000)
4. 7/12/2002 Cvijetinovic files his first direct appeal
which challenges his guilty plea and
sentence ("Cvijetinovic I")—motion for
leave to file delayed appeal—granted
5. 2/6/2003 Ohio Court of Appeals affirms Cvijetinovic's
convictions, but remands for
re-sentencing (Cvijetinovic I)
6. 3/14/2003 Cvijetinovic files a motion to withdraw
guilty plea in the trial court;
7. 4/15/2003 Trial court denies the motion to withdraw
guilty plea (# 6) and re-sentences
Cvijetinovic to 16 years in prison;
8. 8/8/2003 Cvijetinovic timely files a second direct
appeal ("Cvijetinovic II"), now challenging
the re-sentencing and denial of his
motion to withdraw his guilty plea;
9. 12/24/2003 Ohio Court of Appeals affirms re-sentencing
(Cvijetinovic II);
10. 1/5/2004 Cvijetinovic files an application for
reconsideration in the Ohio Court of
Appeals (Cvijetinovic II);
11. 1/14/2004 Ohio Court of Appeals denies reconsideration
(Cvijetinovic II);
12. 2/23/2004 Cvijetinovic files an appeal with Ohio
Supreme Court (Cvijetinovic II);
13. 5/26/2004 Ohio Supreme Court denies jurisdiction
for lack of a substantial constitutional
question (Cvijetinovic II);
14. 6/24/2004 U.S. Supreme Court issues Blakely v.
Washington, 542 U.S. 296 (2004);
15. 7/12/2004 Cvijetinovic files application for delayed
reconsideration of Cvijetinovic I (i.e.,
Ohio Court of Appeals decision affirming
conviction and remanding for
re-sentencing);
16. 7/16/2004 Ohio Court of Appeals denies application
for delayed reconsideration of
Cvijetinovic I;
17. 8/13/2004 Cvijetinovic files an application for writ
of certiorari with U.S. Supreme Court
regarding Cvijetinovic II;
18. 9/30/2004 Cvijetinovic files for reopening of appeal
under Rule 26(B)—ineffective appellate
counsel2;
19. 10/12/2004 U.S. Supreme Court denies cert.
regarding Cvijetinovic II;
20. 12/29/2004 Cvijetinovic files the petition for writ of
habeas corpus currently before the
Court;
21. 1/31/2005 Ohio Court of Appeals denies Rule
26(B) application;
22. 3/8/2005 Cvijetinovic files appeal to Ohio
Supreme Court regarding Rule 26(B)
denial;
23. 4/27/2005 Ohio Supreme Court dismisses appeal
of Rule 26(B) denial;
24. 2/27/2006 Ohio Supreme Court issues State v.
Foster, 109 Ohio St.3d 1 (2006).
In evaluating the propriety of his sentence, the Ohio Court of Appeals summarized the applicable state sentencing guidelines and Judge Sutula's findings at the sentencing hearing. Because these provisions of the Ohio sentencing guidelines and Judge Sutula's findings are pertinent to Cvijetinovic's habeas claims, the Court of Appeals' analysis is included here:
In his fourth and seventh assignments of error, the defendant contends that the trial court did not properly consider the statutory sentencing criteria before imposing more than the minimum sentences on the defendant. We disagree.
R.C. 2929.14 provides:
"(A) Except as provided in division (C), (D)(1), (D)(2), (D)(3), (D)(4), or (G) of this section and except in relation to an offense for which a sentence of death or life imprisonment is to be imposed, if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender pursuant to this chapter and is not prohibited by division (G)(1) of section 2929.13 of the Revised Code from imposing a prison term on the offender, the court shall impose a definite prison term that shall be one of the following: " * * * (3) states: `For a felony of the third degree, the prison term shall be one, two, three, four, or five years * * *'"" The trial court did not sentence the defendant to the minimum prison term, but instead imposed a four-year term of incarceration on the intimidation charge. Therefore, because the defendant had not served a prior prison term, the trial court was required to make a finding on the record that "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others." R.C. 2929.14(B). A review of the transcript reveals that the trial court stated, after a thorough recitation of the specific facts in this case:
(T. 18).
In this case, the trial court complied with R.C. 2929.14(B) in making the findings required prior to imposing more than the minimum term of incarceration on this defendant. Further, we note that under the sentencing procedures enacted as part of Senate Bill 2, an appellate court cannot reduce, modify or vacate the defendant's sentence unless we find that the trial court's decision is clearly and convincingly unsupported by the record and/or contrary to law. R.C. 2953.08; State v. Parker, Clermont App. No. CA 98-04-025, 1999 WL 17732 (Ohio App. Jan. 19, 1999); State v. Garcia (1998), 126 Ohio App.3d 485, 710 N.E.2d 783; State v. Donnelly, Clermont App. No. CA98-05-034, 1998 WL 904718 (Dec. 30, 1998). We cannot say that the trial court's decision in this case is clearly and convincingly unsupported by the record.
The defendant further avers that the trial court failed to comply with R.C. 2929.12(B) in imposing more than the minimum sentence. We disagree. The defendant essentially contends that the trial court did not set forth reasons in support more than the minimum sentence. However, the Ohio Supreme Court has stated:
"R.C. 2929.14(B) does not require that the trial court give its reasons for its finding that the seriousness of the offender's conduct will be demeaned or that the public will not be adequately protected from future crimes before it can lawfully impose more than the minimum authorized sentence." State v. Edmonson, 86 Ohio St.3d 324, 715 N.E.2d 131, 1999-Ohio-110, syllabus. Rather, "the trial court merely has to state, somewhere on the record, that one or both of the findings set forth in R.C. 2929.14(B) justify a longer sentence than the minimum." State v. Bell, No.2001-A-0032, 2002-Ohio-2948, 2002 WL 1270010, *3 (Ohio App.11th Dist. 2002). Furthermore, ...
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