REPORT AND RECOMMENDATIONS This habeas corpus case, brought pro se by Petitioner Victor Hartsook, is before the Court for decision on the merits. The Court has before it the Petition (ECF No. 3), the State Court Record (ECF No. 10), a Return of Writ (ECF No. 11), and Petitioner's Traverse and Reply (ECF No. 15).
As with all habeas corpus cases filed in this District, the case has been referred to a United States Magistrate Judge for a recommended disposition. 28 U.S.C. § 636(b)(1)(B). The case was recently transferred to the undersigned Magistrate Judge to balance the workload among Western Division Magistrate Judges and prevent undue delay in deciding these cases.
Petitioner Victor Hartsook was indicted by the Warren County grand jury on two counts of operating a motor vehicle under the influence of alcohol,1 one count under Ohio Revised Code § 4511.19(A)(1)(a) and one count under Ohio Revised Code § 4511.19(A)(1)(h). State v. Hartsook, 2014-Ohio-4528, ¶ 2, 2014 Ohio App. LEXIS 4440 (12th Dist, Oct. 13, 2014) (hereafter "State v. Hartsook"). Each count carried the specification under Ohio Revised Code § 2941.1413(A) that Hartsook had, within the previous twenty years, been convicted of five or more equivalent offenses (Indictment, State Court Record, ECF No. 10, PageID 116).
Hartsook eventually waived his right to trial and pleaded guilty to one of the counts plus a specification. State v. Hartsook, supra, at ¶ 3. Hartsook did not appear for sentencing when ordered. He was arrested in December 2013 and then sentenced to consecutive terms of two years for the OVI offense and four years for the specification. Id. at ¶ 7. The Twelfth District affirmed the conviction. Id. The Ohio Supreme Court allowed Petitioner to file a delayed appeal, but then declined to accept jurisdiction. State v. Hartsook, 2015-Ohio-2341, 2015 Ohio LEXIS 1577 (2015). Hartsook then timely filed his Petition in this Court on September 16, 2015.
Petitioner pleads the following grounds for relief:
Ground One: THE TWELFTH DISTRICT COURT OF APPEALS ABUSED THEIR DISCRETION ERRING TO THE PREJUDICE OF THE APPELLANT BY ALLOWING THE APPELLANT'S GUILTY PLEA TO REMAIN BINDING.
Issue presented for review: A " [sic] guilty plea is not knowingly, voluntarily, or intelligently made when a defendant is given inconsistent, conflicting and incorrect information about the mandatory sentences required for his convictions.
Ground Two: THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
Issue presented for review: An additional sentence on a specification based on prior offenses places a defendant in double jeopardy when his offense to which the specification attached was already enhanced to a higher degree of punishment due to the same prior offenses.
Supporting Facts: The trial court erred and the Twelfth District Court of Appeals violated Mr. Hartsook's rights to be free from double jeopardy when the trial court sentenced Mr. Hartsook to an additional 4 years for a specification based on prior offenses, consecutive to his underlying felony sentence which was already enhanced to a higher degree of punishment for the same priors (facts). (See additional pages attached)
Ground Three: THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT IN VIOLATION OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS PURSUANT TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
Issue presented for review: An additional sentence on a specification based on prior offenses is a denial of equal protection and due process of law where the specification is based on the same facts/information and convictions that elevate the offense to a higher offense level before application of the specification.
Supporting Facts: Both the Ohio and United States Constitutions provide that no person shall be deprived of life, liberty, or property without due process of law or be denied the equal protection of the law. Ohio Constitution, Article I, Section 2; Fourteenth Amendment to the U.S. Constitution. " [sic] Every person has a fundamental right to liberty in the sense that the Government may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees.
(Petition, ECF No. 3, PageID 60-63.)
Ohio Constitutional Claims In both Grounds Two and Three, Petitioner pleads claims purporting to arise under the Ohio Constitution. Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The Ohio constitutional portions of Grounds Two and Three do not state claims upon which federal habeas corpus relief can be granted.
Standard for Review of Constitutional Decisions by the State Courts The Warden does not raise any procedural defenses to Mr. Hartsook's claims, but rather defends on the merits. When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005);Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). The Twelfth District Court of Appeals decided all of Mr. Hartsook's federal constitutional claims on the merits. His burden in this Court under 28 U.S.C. § 2254(d) is to show that that decision was contrary to or an objectively unreasonable application of clearly established United States Supreme Court decisional law.
Ground One: Invalid Guilty Plea In his First Ground for Relief, Mr. Hartsook claims his plea of guilty was not knowing intelligent, and voluntary and therefore is not valid. The invalidating facts are said to be the contradictory information he was given about the possible sentences he could receive as a result of his guilty plea.
This claim was raised as the first assignment of error on direct appeal and the Twelfth District decided it as follows:
[*P8] Assignment of error No. 1:
[*P9] THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA.
[*P10] In his first assignment of error, Hartsook argues that his plea was not knowing, intelligent, and voluntary because he was given inconsistent, conflicting, and incorrect information about the mandatory sentences he faced. Hartsook notes that the plea form incorrectly indicates that a mandatory prison term was "N/A" for the OVI specification, yet the trial court told him the specification carried a mandatory prison term. He also points out that the court told him the minimum mandatory sentence was one year for the specification and 30 days for the underlying OVI charge, for an aggregate of 13 months. He asserts that he really faced a minimum mandatory sentence of two years. [Footnote omitted.] Hartsook claims that had he been provided with accurate information,"different considerations would be made, and a plea might not even be made at all."
[*P11] The defendant's plea in a criminal case is invalid if not made knowingly, intelligently, and voluntarily. State v. Ackley, 12th Dist. Madison No. CA2013-04-010, 2014-Ohio-876, ¶ 8, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, 897 N.E.2d 621. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States and Ohio Constitutions. State v. Hendrix, 12th Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, ¶ 8.
[*P12] Crim.R. 11(C) facilitates an accurate determination as to whether a plea to a felony charge meets these criteria by ensuring an adequate record for review. State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Crim.R. 11(C)(2) requires the trial court to hold a plea colloquy with the defendant for the purposes of:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
In conducting this colloquy, the trial judge must convey accurate information to the defendant so that the defendant can understand the
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