State v. Johnson, Case No. 16CAA030011
Decision Date | 23 June 2016 |
Docket Number | Case No. 16CAA030011 |
Parties | STATE OF OHIO Plaintiff-Appellee v. BRIAN A. JOHNSON Defendant-Appellant |
Court | Ohio Court of Appeals |
OPINION
For Plaintiff-Appellee:
CAROL O'BRIEN
DELAWARE CO. PROSECUTOR
JAHAN KARAMALI
140 N. Sandusky St., 3rd Floor
Delaware, OH 43015
For Defendant-Appellant:
BRIAN A. JOHNSON, pro se
#707-245
Chillicothe Correctional Inst.
P.O. Box 5500
Chillicothe, OH 45601
{¶1} Appellant Brian A. Johnson appeals from the March 3, 2016 "Judgment Entry Denying the Defendant's 3/2/16 Motion for Resentencing" of the Delaware County Court of Common Pleas. Appellee is the state of Ohio.
{¶2} This case has a lengthy procedural history. A statement of the facts underlying appellant's convictions upon two counts of rape is not necessary to our resolution of this appeal.
{¶3} Appellant was charged by indictment upon one count of rape pursuant to R.C. 2907.02(A)(1)(c) [Count I]; one count of rape pursuant to R.C. 2907.02(A)(2) [Count II]; one count of rape pursuant to R.C. 2907.02(A)(1)(c) [Count III]; one count of rape pursuant to R.C. 2907.02(A)(2) [Count IV]; one count of sexual battery pursuant to R.C. 2907.03(A)(2) [Count V]; one count of sexual battery pursuant to R.C. 2907.03(A)(1) [Count VI]; one count of sexual battery pursuant to R.C. 2907.03(A)(2) [Count VII]; and one count of sexual battery pursuant to R.C. 2907.03(A)(1) [Count VIII]. Appellant entered pleas of not guilty.
{¶4} At trial, the trial court amended Counts III, IV, VII, and VIII to attempted offenses and appellant was found guilty as charged.
{¶5} At sentencing, the trial court found Counts I, II, V, and VI merge, and Counts III, IV, VII, and VIII merge. The trial court sentenced appellant upon Counts II and IV to an aggregate prison term of 14 years.
{¶6} Appellant directly appealed the convictions and sentence; we affirmed in State v. Brian A. Johnson, 5th Dist. Delaware No. 14CAA070039, 2015-Ohio-1676, appeal not allowed, 43 Ohio St.3d 1501, 2015-Ohio-4468, 39 N.E.3d 1271. Appellant applied to reopen both appeals and the applications were overruled.
{¶7} Appellant filed his first petition for postconviction relief on February 26, 2015 and the trial court denied the petition without a hearing on March 12, 2015. A motion to reconsider was overruled. Appellant appealed from the trial court's decision but we dismissed the appeal in State v. Johnson, 5th Dist. Delaware No. 15CAA030027.
{¶8} Appellant filed a second petition for postconviction relief on October 21, 2015, which the trial court overruled the next day. Appellant appealed from that decision in State v. Johnson, 5th Dist. Delaware No. 15 CAA 11 0092, 2016-Ohio-1213. A memorandum in support of jurisdiction is pending before the Ohio Supreme Court in case number 2016-0650.
{¶9} On November 25, 2015, appellant moved for appointment of counsel and the trial court overruled the motion. Appellant appealed the decision in State v. Johnson, 5th Dist. Delaware No. 15 CAA 12 0096 and we dismissed the appeal.
{¶10} Appellant then filed, e.g., a motion to compel and a motion for judicial release, both of which were overruled.
{¶11} On March 3, 2016, appellant filed a motion for resentencing and the trial court overruled the motion in a judgment entry dated March 3, 2016.
{¶12} Appellant now appeals from the March 3, 2016 "Judgment Entry Denying the Defendant's 3/2/16 Motion for Resentencing."
{¶13} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶14} (sic throughout, parentheses in original.)
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; ARTICLE I, SECTION 2, 10, AND 16 OF THE OHIO CONSTITUTION; WAS VIOLATED WHEN (TRIAL COUNSEL) 'FAILED TO OBJECT' PURSUANT TO R.C. 2945.09; CRIM.R. 44(A); AS IT PERTAINS TO THE ISSUES RAISED WITHIN GROUND ONE (1) OF THIS SYLLABUS; FURTHERMORE, (COUNSEL) FAILED TO INFORM, CONSULT, ADVISE AND OR EXPLAIN, THE POSSIBLE PENALTY INVOLVED AS A RESULT OF PROCEEDING TO TRIAL, IN THE EVENT OF CONVICTION, VERSUS THE POSSIBLE ADVANTAGEOUS, LESSER PENALTY INVOLVED, AS A RESULT OF ENTERING AN ALFORD PLEA IN THE MATTER, AS OFFERED BY THE STATE OF OHIO, AND AS IT RELATES TO THE MANDATORY SENTENCING DISPARITY, WHICH THEREBY (PRECLUDED) INFORMED, CONSENSUAL DECISIONS BY THE APPELLANT REGARDING PLEA NEGOTIATIONS; AS (COUNSEL) VIOLATED PROF. COND. R. 1.1, COMMENT 5; PROF. COND. R. 1.4 (a)(1), (2), (4), (b), COMMENT 5; PROF. COND. R. 2.1; PROF. COND. R. 3.1; PREAMBLE 1, 2, 4; THUS RENDERING COUNSEL'S PERFORMANCE CONSTITUTIONALLY DEFICIENT, BELOW AN OBJECTIVE STANDARD OF REASONABLENESS, AND A SUBSTANTIAL PREJUDICE SUFFERED BY APPELLANT. (sic throughout; parentheses in original.)
{¶16} This case comes to us on the accelerated calendar. App.R. 11.1 governs accelerated-calendar cases and states in pertinent part:
{¶17} One of the most important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts, and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983).
{¶18} In his first assignment of error, appellant argues the trial court failed to properly advise him his prison sentence is mandatory and therefore we should vacate his sentence. We agree to the extent that the trial court must enter a nunc pro tunc sentencing entry stating the prison terms upon the rape counts are mandatory.
{¶19} Appellant was convicted upon two counts of rape pursuant to R.C. 2907.02(A)(1)(c). The trial court is required to impose a prison term upon these convictions. R.C. 2929.13(F)(2). Relevant to appellant, the trial court may not reduce the stated prison terms and appellant is ineligible for judicial release. R.C. 2929.20. Appellant argues the trial court violated the following portions of R.C. 2929.19 (B)(2):
{¶20} Appellee acknowledges the trial court did not explicitly describe the prison terms as "mandatory" at the sentencing hearing.
{¶21} Neither party provided us with the Judgment Entry on Sentence of July 8, 2014. Upon our review of the sentencing entry and of the sentencing hearing, we note the trial court did not state that the prison terms are mandatory. This omission, however, does not render the sentence void. R.C. 2929.19(B)(7) specifically provides:
The failure of the court to notify the offender that a prison term is a mandatory prison term pursuant to division (B)(2)(a) of this section or to include in the sentencing entry any information required by division (B)(2)(b) of this section does not affect the validity of the imposed sentence or sentences. If the sentencing court notifies the offender at the sentencing hearing that a prison term is mandatory but the sentencing entry does not specify that the prison term is mandatory, the court may complete a corrected journal entry and send copies of the corrected entry to the offender and the department of rehabilitation and correction, or, at the request of the state, the court shall complete a corrected journal entry and send copies of the corrected entry to the offender and department of rehabilitation and correction.
{¶22} Appellant argues the error requires us to...
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