State v. Holdcroft

• Decision Date: 02 July 2012
• Docket Number: No. 16–10–13.,16–10–13.
• Citation: 973 N.E.2d 334,2012 -Ohio- 3066
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Henry Allen HOLDCROFT, Defendant–Appellant.
• Court: Ohio Court of Appeals

973 N.E.2d 334

2012 -Ohio- 3066

STATE of Ohio, Plaintiff–Appellee,

v.Henry Allen HOLDCROFT, Defendant–Appellant.

No. 16–10–13.

Court of Appeals of Ohio,

Third District, Wyandot County.

July 2, 2012.

Kristopher A. Haines, for appellant.

Jonathan K. Miller, Upper Sandusky, for appellee.

PRESTON, J.

{¶ 1} Defendant-appellant, Henry Allen Holdcroft (hereinafter “Holdcroft”), appeals the November 16, 2010 judgment of the Wyandot County Court of Common Pleas resentencing him to include post-release control (“PRC”) for a mandatory period of five years for aggravated arson and a discretionary period of up to three years for arson to be run concurrently to one another.

{¶ 2} On November 13, 1998, the Wyandot County Grand Jury indicted Holdcroft on three counts: Count One, aggravated arson in violation of R.C. 2909.02(A)(3), a first degree felony; Count Two, complicity to commit aggravated arson in violation of R.C. 2923.03(A)(1), a first degree felony; and Count Three, arson in violation of R.C. 2909.03(A)(4), a third degree felony. (Doc. No. 1). The charges stemmed from an incident where Holdcroft hired a third party to set fire to his then-wife's automobile and home.

{¶ 3} On June 9, 1999, the State filed a motion to dismiss Count Two of the indictment on the basis that the charge was an allied offense of similar import to Count One, aggravated arson. (Doc. No. 58). The trial court granted the State's motion to dismiss Count Two on June 25, 1999. (Doc. No. 79). On July 6–9, 1999, a jury trial was held on the remaining two counts of the indictment against Holdcroft. The jury returned guilty verdicts on both counts. (Doc. Nos. 106–07). On July 29, 1999, the trial court filed a judgment entry of conviction. (Doc. No. 114).

{¶ 4} On September 10, 1999, the trial court sentenced Holdcroft to ten years imprisonment on Count One, aggravated arson, and five years imprisonment on Count Three, arson. The trial court ordered “that the sentence imposed for Count Three shall be served consecutively to the sentence imposed in Count One.” (Sept. 13, 1999 JE, Doc. No. 116). Holdcroft was ordered to make restitution to the victim, Kathy Hurst, or the insurance carrier, in the sum of $5,775.00, and $400.00 to Eric Goodman. The trial court also notified Holdcroft “that a period of post-release control shall be imposed,” and that if he violated his post-release control further restrictions upon his liberty could follow as a consequence. ( Id.) Holdcroft was also taxed with the costs of prosecution and all other fees permitted under R.C. 2929.18(A)(4). This entry was journalized on September 13, 1999. ( Id.)

{¶ 5} On September 14, 1999, Holdcroft, pro se, filed a notice of appeal. (Doc. No. 117). The trial court appointed appellate counsel, and the appeal was assigned case no. 16–99–04. (Doc. No. 124). On appeal, Holdcroft asserted one assignment of error, arguing that his convictions were against the manifest weight of the evidence. State v. Holdcroft (Mar. 31, 2000), 3d Dist. No. 16–99–04, 2000 WL 348985. The State also appealed the judgment of the trial court regarding “other acts” evidence that was excluded from trial. This Court subsequently overruled Holdcroft's assignment of error, sustained the State's assignment of error, and upheld the convictions. Id.

{¶ 6} While his direct appeal was pending before this Court, Holdcroft filed a motion for the appointment of counsel in order to pursue post-conviction relief. (Doc. No. 131). The trial court granted the motion and appointed counsel on February 3, 2000. (Doc. No. 132).

{¶ 7} On May 5, 2000, Holdcroft, pro se, filed a notice of appeal to the Ohio Supreme Court from this Court's March 31, 2000 decision. (Doc. No. 134). The Ohio Supreme Court, however, declined review. State v. Holdcroft, 89 Ohio St.3d 1464, 732 N.E.2d 997 (2000).

{¶ 8} On June 9, 2000, Holdcroft, through appointed appellate counsel, filed a motion for a new trial, along with a motion to withdraw as appellate counsel. (Doc. No. 135–136). The trial court granted the motion to withdraw but denied the motion for a new trial. (Doc. Nos. 138, 141). On June 26, 2000, Holdcroft filed a motion for judicial release, which the trial court also denied. (Doc. Nos. 137, 139).

{¶ 9} On July 13, 2006, Holdcroft filed a “motion to vacate or set aside and modify sentence pursuant to R.C. 2945.25(A) & Crim.R. 52(B).” (Doc. No. 161.) On July 20, 2006, the trial court overruled this motion, finding it was untimely and lacked substantive merit “as the Defendant was not convicted of allied offenses of similar import. There were separate and distinct felonies committed by the Defendant, one involving a dwelling and the other involving an automobile.” (Doc. No. 163.)

{¶ 10} On August 16, 2006, Holdcroft, pro se, filed a notice of appeal from the trial court's denial of his motion. (Doc. No. 165). On appeal, Holdcroft argued that his sentence was void because he was sentenced on two offenses that were allied offenses of similar import. This Court overruled Holdcroft's assignment of error, finding that his motion was an untimely post-conviction motion, and, under a plain error analysis, that the offenses were not allied offenses of similar import. State v. Holdcroft, 3d Dist. No. 16–06–07, 2007-Ohio-586, 2007 WL 437794.

{¶ 11} On December 11, 2009, the State filed a motion to correct Holdcroft's sentence pursuant to R.C. 2929.191. (Doc. No. 186). On December 30, 2009, the State filed a motion for a de novo sentencing hearing to correct Holdcroft's sentence pursuant to State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. (Doc. No. 195). The trial court granted this motion and conducted a de novo sentencing on January 26, 2010. (Doc. No. 198). Once again, the trial court sentenced Holdcroft to ten years on Count One and five years on Count Three. The trial court further ordered that Count Three be served consecutively to Count One for an aggregate term of fifteen years. The trial court notified Holdcroft that he would be subject to five years of mandatorypost-release control as to Count One and three years of discretionary post-release control as to Count Three. The trial court also noted that the terms of post-release control would not be served consecutively to each other. The trial court further ordered that Holdcroft “pay restitution to Kathy Hurst, or the insurance carrier, in the sum of $5,775.00; and make restitution to Eric Goodman in the amount of $400.00.” (Feb. 2, 2010 JE, Doc. No. 205)

{¶ 12} On February 12, 2010, Holdcroft filed a notice of appeal from the trial court's judgment entry of sentence. (Doc. No. 210). On May 26, 2010, while the appeal was pending, Holdcroft, pro se, filed a petition for post-conviction relief and various motions relating to that petition. (Doc. Nos. 223–26). The trial court noted that Holdcroft was appointed counsel to handle the direct appeal of his conviction, which was pending before this Court. (Doc. No. 227). The trial court subsequently dismissed Holdcroft's petition, concluding that it lacked jurisdiction to rule because his appeal was pending before this Court. ( Id.).

{¶ 13} However, on September 13, 2010, this Court dismissed Holdcroft's direct appeal from the trial court's de novo resentencing in January of 2010. State v. Holdcroft, 3d Dist. No. 16–10–01, 2010-Ohio-4290, 2010 WL 3529240. As the basis for dismissing the case, we determined that the judgment entry imposing Holdcroft's sentence and conviction did not constitute a final appealable order. Id. at ¶ 19. More specifically, we found that the trial court's de novo sentencing entry failed to allocate the amount of restitution between the victim, Kathy Hurst, and the insurance company and that an order of restitution must set forth the amount or method of payment as to each victim receiving restitution in order to be a final appealable order. Id., citing State v. Kuhn, 3d Dist. No. 4–05–23, 2006-Ohio-1145, 2006 WL 587343, ¶ 8;State v. Hartley, 3d Dist. No. 14–09–42, 2010-Ohio-2018, 2010 WL 1839109, ¶ 5. Because Section 3(B)(2), Article IV of the Ohio Constitution limits our jurisdiction to reviewing “final appealable orders,” we remanded Holdcroft's appeal of his de novo sentence to the trial court to resolve the restitution issue.¹

{¶ 14} Subsequently, on November 16, 2010, the trial court issued a new judgment entry pursuant to our decision. (Doc. No. 238). In this entry, the trial court ordered Holdcroft to pay $5,775.00 to Kathy Hurst and also noted that certain portions of the record supported this sum and that “Ms. Hurst will be obligated to reimburse her insurance carrier for any money paid to her by it over and above that which she spent for repairing the vehicle.” ( Id.) The trial court further noted that “[t]he defense interposed no objection to the restitution figures offered.” ( Id.)

{¶ 15} On November 29, 2010, Holdcroft filed a notice of appeal. (Doc. No. 240). Holdcroft asserts nine assignments of error for our review. We elect to address Holdcroft's first assignment of error last and to combine his other eight assignments of error for discussion.

SECOND ASSIGNMENT OF ERROR

THE CONSECUTIVE, MAXIMUM SENTENCES VIOLATED THE 6TH AMENDMENT TO THE U.S. CONSTITUTION, AND THE DUE PROCESS CLAUSES CONTAINED IN THE OHIO AND U.S. CONSTITUTIONS.

THIRD ASSIGNMENT OF ERROR

THE MAXIMUM, CONSECUTIVE SENTENCES AND THE RESTITUTION ORDER WERE CONTRARY TO LAW AND ABUSIVE.

FOURTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN CONVICTING AND SENTENCING THE APPELLANT ON AGGRAVATED ARSON AND ARSON COUNTS IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE 5TH AMENDMENT OF THE U.S. CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND OHIO'S MULTIPLE–COUNT STATUTE.

FIFTH ASSIGNMENT OF ERROR

THE SENTENCE SHOULD BE REVERSED AS IT VIOLATES CRIMINAL RULE 32, AND THE 5TH, 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, BECAUSE IT WAS IMPOSED OVER TEN YEARS AFTER THE GUILTY VERDICT.

SIXTH ASSIGNMENT OF...