Lytle v. Warden

• Decision Date: 27 December 2018
• Docket Number: CASE NO. 2:18-CV-529
• Parties: DANIEL W. LYTLE, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DANIEL W. LYTLE, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:18-CV-529

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

December 27, 2018

CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Chelsey M. Vascura

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that this action be DISMISSED.

I. Facts and Procedural History

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 2} The charges against appellant arose from a series of threats and violent acts toward his estranged wife, Tammy Lytle. The first of these involved a break-in at Tammy's apartment in the early morning hours of October 28, 2012, in which appellant allegedly kicked down the apartment door and held a knife to her throat. Subsequently, at various times through November and December 2012, appellant allegedly engaged in conversations and preparatory actions with other individuals to arrange the murder or disfigurement of Tammy.

{¶ 3} The trial court's judgment entry contains two errors on its face: The kidnapping conviction is entered in error on a charge that was dismissed before trial, and the jury's guilty verdict on a further charge of conspiracy to commit kidnapping is not addressed in the entry at all. To ascertain the posture of this appeal, we must therefore recapitulate the basic procedural history of the case in detail, bearing in mind that a trial court speaks through its journal and that any defects in the entry are paramount. State v. Miller, 127 Ohio St.3d 407, 2010-Ohio- 5705. " 'A court of record speaks only through its journal and not by oral pronouncement or mere written minute or memorandum.' " State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶ 83, quoting Schenley v. Kauth, 160 Ohio St. 109, 113 (1953), paragraph one of the syllabus.

{¶ 4} The Franklin County Grand Jury originally returned an eight-count indictment: Count 1 alleged conspiracy to commit aggravated murder; Count 2 alleged aggravated burglary; Count 3 alleged aggravated robbery; Count 4 alleged kidnapping; Count 5 alleged violation of a protection order; Count 6 alleged abduction; Count 7 alleged domestic violence; and Count 8 alleged conspiracy to commit kidnapping.

{¶ 5} On the eve of trial, the prosecution submitted an entry to amend the indictment, dropping the domestic violence and kidnapping charges and changing the conspiracy to commit aggravated murder charge to conspiracy to commit murder. The amended indictment renumbered the counts as follows: Count 1 alleged conspiracy to commit murder; Count 2 alleged aggravated burglary; Count 3 alleged aggravated robbery; Count 4 alleged violation of a protection order; Count 5 alleged abduction; and Count 6 alleged conspiracy to commit kidnapping. The case went to trial on the charges as alleged and numbered in the amended indictment, and the jury received verdict forms suitably numbered and defined for each charge.

{¶ 6} The jury returned guilty verdicts on all counts except Count 3, aggravated robbery, for which it returned a verdict of not guilty. At the sentencing hearing, the trial court verbally and accurately announced the verdicts. The court logically determined that Counts 2 and 4, respectively aggravated burglary and violation of a protection order, would merge for sentencing. The court acknowledged that the state elected to sentence appellant on the aggravated burglary charge pursuant to this merger. The court further determined that Counts 1 and 6, respectively conspiracy to commit murder and conspiracy to commit kidnapping, were committed through separate conduct and would not merge. The court then announced sentences as follows: for Count 1, conspiracy to commit murder, 11 years; for Count 2, aggravated burglary, 11 years; for Count 5, abduction, 2 years; and for Count 6, conspiracy to commit kidnapping, 5 years. The sentences for Counts 1, 2, and 6 were to be served consecutively and that for Count 5 concurrently, for a total of 27 years.

{¶ 7} When reducing the announced sentences to a written entry, however, the trial court did not duplicate the above determinations. The court erroneously revived the numbering used in the original indictment and, as a result, sentenced appellant on the kidnapping charge for which he had been neither tried nor convicted. Conversely, the court made no finding of guilt and imposed no sentence pursuant to the jury's guilty verdict on the charge of conspiracy to commit kidnapping.

{¶ 8} In addition to the convictions for conspiracy to commit murder and aggravated burglary, which retained their original numbering (Counts 1 and 2)across both versions of the indictment, the court's entry thus reflects guilt for "KIDNAPPING, in violation of Section 2905.01, a Felony of the First Degree, as charged in Count Four of the Indictment; * * * VIOLATING A PROTECTION ORDER * * *, in violation of Section 2919.27, a Felony of the Third Degree, as charged in Count Five of the Indictment; and * * * ABDUCTION, in violation of Section 2905.02, a Felony of the Third Degree, as charged in Count Six of the Indictment." Using this partially incorrect numbering, the court then specified the following sentences: Count 1 (conspiracy to commit murder), 11 years; Count 2 (aggravated burglary), 11 years; Count 5 (violation of a protection order), 2 years; and Count 6 (abduction), 5 years. The court merged Count 4 (kidnapping) with Count 2 (aggravated burglary) for sentencing.

{¶ 9} The mere misnumbering of certain counts in the entry's recitation of verdicts is of little importance with respect to those charges that can be clearly discerned from the amended indictment, jury verdicts, and verbal pronouncements of the court at the sentencing hearing. The numbering of charges in an indictment is not essential to the validity of the charges therein if the elements and operative facts of the alleged offenses are otherwise clearly stated and distinct for each offense. Braxton v. Maxwell, 1 Ohio St.2d 134 (1965). For this reason, the state of the record does not preclude our review of the guilty verdicts for conspiracy to commit murder, aggravated burglary, violation of a protection order, and abduction. The charges against appellant were clearly and consistently numbered for these charges from the time of the amended indictment to the sentencing hearing, and, in particular, there is no possibility that the trial court's subsequent confusion of charges had any impact on the jury's consideration of the case. State ex rel. Douthard v. Warden, 11th Dist. No.2002-T-0145, 2003-Ohio-325.

{¶ 10} The misidentification in the judgment entry of the conspiracy-to-commit-kidnapping verdict as kidnapping proper, however, complete with reference to the kidnapping statute (R.C. 2905.01) rather than the conspiracy statute (R.C. 2923.01) is more serious and requires us to vacate this conviction and remand the matter before we can review appellant's conviction for conspiracy to commit kidnapping. Likewise, the trial court's erroneous renumbering of counts in its recitation of sentences has resulted in the merger of the wrong counts and imposition of inapposite sentences and compels resentencing on all charges. Collectively, these constitute more than mere a scrivener's error and should not be corrected by means of a nunc pro tunc entry. See generally State v. Henderson, 5th Dist. No.2013-CR-0409, 2014-Ohio-3121.

{¶ 11} With these considerations settled, we review appellant's three assignments of error:

[I.] THE TRIAL COURT ERRED IN FAILING TO DISMISS APPELLANT'S CASE FOR A VIOLATION OF HIS RIGHT TO SPEEDY TRIAL.

[II.] INSUFFICIENT EVIDENCE EXISTED TO CONVICT APPELLANT AND CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

[III.] THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENSE COUNSEL'S MOTION PURSUANT TO RULE 29 AT THE CLOSE OF THE STATE'S CASE.

State v. Lytle, 10th Dist. No. 13AP-866, 2015 WL 1372810, at *1-3 (Ohio Ct. App. March 26, 2015). On March 26, 2015, the appellate court held as follows:

{¶ 89} In summary, appellant's first assignment of error is overruled. His second and third assignments of error are overruled in part and mooted to the extent that they address the charge of conspiracy to commit kidnapping. Appellant's conviction for kidnapping is vacated. His convictions for aggravated burglary, abduction, violation of a protection order, and conspiracy to commit murder are affirmed. The judgment of the Franklin County Court of Common Pleas is affirmed in part and vacated in part, and this cause is remanded to that court to enter judgment reflecting the jury's verdict on the conspiracy to commit kidnapping charge and to resentence appellant on all convictions.

Id. at *19. Petitioner did not file a timely appeal. On May 1, 2017, he filed a motion for a delayed appeal. (ECF No. 7, PAGEID # 403.) On June 21, 2017, the Ohio Supreme Court denied his motion for a delayed appeal. State v. Lytle, 149 Ohio St.3d 1430 (Ohio 2017).

Pursuant to the remand of the Ohio Court of Appeals, on May 14, 2015, the trial court issued a new judgment entry of sentence. (ECF No. 7, PAGEID # 258-261.) Petitioner filed a timely appeal. The state appellate court summarized the facts as follows:

{¶ 1} Defendant-appellant, Daniel W. Lytle, appeals the May 14, 2015 judgment of the Franklin County Court of Common Pleas resentencing him following this court's decision in State v. Lytle, 10th Dist. No. 13AP-866, 2015-Ohio-1133. For the following reasons, we reverse the judgment of the trial court.

I. Facts and Procedural Background

{¶ 2} Appellant challenges only his conviction for conspiracy to commit kidnapping. As we extensively reviewed the factual and procedural history of

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