Helms v. Bowerman, 081219 FED6, 18-3806

Docket Nº:18-3806
Opinion Judge:NALBANDIAN, CIRCUIT JUDGE.
Party Name:TARAN HELMS, Petitioner-Appellant, v. SEAN BOWERMAN, Warden, Respondent-Appellee.
Judge Panel:BEFORE: ROGERS, GRIFFIN, and NALBANDIAN, Circuit Judges.
Case Date:August 12, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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TARAN HELMS, Petitioner-Appellant,

v.

SEAN BOWERMAN, Warden, Respondent-Appellee.

No. 18-3806

United States Court of Appeals, Sixth Circuit

August 12, 2019

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: ROGERS, GRIFFIN, and NALBANDIAN, Circuit Judges.

OPINION

NALBANDIAN, CIRCUIT JUDGE.

Following two rounds of direct appeals and remand, an Ohio appellate court held that Taran Helms's jury convictions for felonious assault and attempted murder, stemming from his shooting a fast-food manager who was driving the day's deposits to the bank, did not merge for sentencing purposes. In a motion for reconsideration under Ohio R. App. P. 26(A), Helms argued that the government violated his due-process right to a fair trial by changing its factual theory on appeal.

Specifically, he contended that at trial the prosecution argued that both Helms's assault and attempted-murder charges were established by Helms's shooting the victim, which merged the two offenses (an argument that initially proved successful on appeal). But later on appeal, in light of a change in the law of merger and following a remand of his case from the Ohio Supreme Court back to the court of appeals, the government changed its tune. The government instead contended that the convictions did not merge because Helms's assault charge was supported by verbal threats, not the shooting, and therefore the convictions did not merge. That argument proved successful and Helms petitioned for habeas relief under 28 U.S.C. § 2254. The district court held that the state-court decision did not unreasonably apply Supreme Court precedent and denied his petition for relief but granted a certificate of appealability on "the question of whether the prosecution's post-conviction embrace of a theory that is inconsistent with the theory pursued during trial and through sentencing violates a defendant's due process rights." We affirm.

I.

Helms's petition stems from his Mahoning County, Ohio, convictions for attempted murder, felonious assault, aggravated robbery, kidnapping, and four firearm specifications relating to his intercepting, shooting, and robbing a fast-food manager who was driving the day's deposits to the bank. At trial, state prosecutors linked both the attempted-murder and felonious-assault charges to Helms's firing his weapon. Despite Helms's argument that the attempted murder and felonious assault counts should have merged, the court sentenced Helms to separate, consecutive sentences for each conviction, leading to an aggregate sentence of fifty years' imprisonment.

Helms appealed. He argued that "[t]he trial court committed reversible error when it sentenced [him] to multiple sentences for allied offenses of similar import committed with a single animus, in violation of Helm[s]'s rights under the Fifth, Sixth, and Fourteenth[] Amendments." State v. Helms, 2010 WL 3904121, at *4 (Ohio Ct. App. Sept. 29, 2010) ("Helms I"). Finding that Helms's attempted murder and felonious assault were linked by one animus, one gunshot, and one victim, the Ohio Court of Appeals held that "the trial court erroneously failed to merge Helms's convictions for attempted murder and felonious assault for sentencing purposes." Id. at *12. It therefore remanded the matter for resentencing.

The State appealed and the Ohio Supreme Court remanded, instructing the court of appeals to apply its recent decision in State v. Johnson, 942 N.E.2d 1061 (Ohio 2010) (analyzing when two offenses are allied offenses of similar import subject to merger). State v. Helms, 944 N.E.2d 233, 234 (Ohio 2011). On remand, the State presented a new argument for why the attempted murder and felonious assault convictions were not subject to merger: while the attempted murder conviction was supported by Helms's shooting the victim, the felonious assault conviction was supported by Helms's later threat that he would shoot the victim again. Thus, the State argued, the acts had separate animuses and were not allied offenses.

Applying Johnson to the State's new theory, the Ohio Court of Appeals reversed course and held that the offenses did not merge. In its opinion, the court of appeals also addressed and refuted the potential due-process problem allegedly caused by the prosecution's using a new theory of the case that depended on a set of facts that did "not correspond to the prosecutor's theory of the case set forth in the opening and closing arguments." State v. Helms, 2012 WL 966810, at *7 (Ohio Ct. App. Mar. 20, 2012) ("Helms II"). The dissent disagreed, arguing that "[t]he State's abandonment of its theory of the case and introduction of a distinct, unexpected and inconsistent theory violates a defendant's due process rights." Helms II, at *13 (DeGenaro, J., dissenting).

Helms filed a motion for reconsideration under Ohio R. App. P. 26(A).1 He argued that the Helms II decision violated: "(1) the right to due process of law; (2) the right to trial by jury, (3) the right not to be put twice in jeopardy; and (4) the right to confront the witnesses against him." DE 5-1, Mot. for Recons., Page ID 383. To support his argument, Helms asserted that since the State did not argue at trial that the threat he made after shooting the victim, rather than the shooting itself, was the factual basis for the felonious assault conviction, the State's changed theory on appeal violated the Sixth Amendment.2 He argued, therefore, based on the State's original theory, that because both convictions were supported by the shooting, the crimes were allied offenses and should have merged for sentencing.

The state appellate court denied his motion. The Helms III majority-authored by the same judge as the Helms II majority-declined to comment on the due-process issue, while a concurring judge noted that since the panel already addressed that issue in Helms II, it would not do so again. The dissent, however, elaborated on why the majority erred in not finding a due-process violation. It concluded that "[i]n raising this new theory well after the trial had ended," the State violated Helms's "ability to effectively defend himself," and that the "use of a novel theory on appeal offends principles of due process[.]" State v. Helms, 2013 WL 6670810, at *9-10 (Ohio Ct. App. Dec. 12, 2013) ("Helms III") (DeGenaro, J., dissenting).

Helms petitioned the Ohio Supreme Court. He argued that "a criminal defendant's constitutional guarantees of due process, a fair trial, the right to...

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