State v. Moore, 13 BE 7.

Decision Date30 September 2013
Docket NumberNo. 13 BE 7.,13 BE 7.
Citation999 N.E.2d 223
PartiesSTATE of Ohio, Plaintiff–Appellant v. Johnathon MOORE, Defendant–Appellee.
CourtOhio Court of Appeals

Chris Berhalter, Prosecuting Attorney, Daniel P. Fry Asst., Prosecuting Attorney, St. Clairsville, OH, for PlaintiffAppellant.

Joseph Vavra, St. Clairsville, OH, for DefendantAppellee.

MARY DeGENARO, J., GENE DONOFRIO, J., and JOSEPH J. VUKOVICH, J.

OPINION

DeGENARO, P.J.

{¶ 1} Appellant, the State of Ohio, appeals an April 23, 2013 judgment of the Belmont County Court of Common Pleas granting Appellee Johnathon Lee Moore's motion for early release/shock probation. The State argues that the trial court's decision to release Moore was contrary to law because the former shock probation statute does not apply to Moore; and alternatively if it does apply, Moore was ineligible for shock probation for several reasons. In response, Moore contends first that the trial court's decision is not a final appealable order; and second, it was within the trial court's discretion to order his release, especially considering that the trial court cited concerns about the validity of Moore's 1996 guilty plea as an alternative basis for granting his motion.

{¶ 2} The former shock probation statute, R.C. 2947.061, applies to Moore's motion, not the current judicial release statute. Further, the trial court's judgment granting shock probation and ordering Moore's early release from prison is a final, appealable order, from which the state's right to appeal is discretionary, not absolute.

{¶ 3} The State's arguments are meritorious. First, the trial court should not have considered Moore's motion for shock probation since he had already filed a prior motion, which the court overruled. Second, because Moore committed the offenses with a firearm, he is not eligible for probation, which is a prerequisite for shock probation eligibility under former R.C. 2947.061. Finally, the trial court erred by finding Moore's plea was “constitutionally flawed” and a basis for granting his release; consideration of that issue was barred by res judicata. Accordingly, the judgment of the trial court is reversed, and the order granting Moore judicial release is vacated.

Facts and Procedural History

{¶ 4} This matter arises from a criminal case in Belmont County in the mid–1990's. Moore's actions, having “outraged the community and given rise to a fear of further lawlessness,” were set forth in this court's opinion in Moore's direct appeal:

On October 5, 1995, [Moore], a seventeen year old juvenile at the time, took his father's car without permission. [Moore's] father reported the vehicle stolen to the Martins Ferry Police Department, and the vehicle was later spotted by Officers Caprita and Bumba of the Bridgeport Police Department. A high speed chase ensued, which culminated with [Moore] exiting the vehicle and firing a shotgun at the police cruiser. Officer Bumba was hit in the hand causing serious injury. As the officers proceeded to a local hospital, appellant continued to discharge the shotgun, injuring Cassie Imer, appellant's former girlfriend, and James Carmen, a friend of appellant. Shortly thereafter, the police located appellant inside Imer's residence holding the barrel of the shotgun to his own head. Eventually [Moore] was persuaded by his parents to refrain from taking his own life and to surrender the weapon to police.

State v. Moore, 7th Dist. No. 96–BA–21, 1997 WL 567967, *1 (Sept. 5, 1997)(Moore I )

{¶ 5} Moore was bound over for criminal prosecution as an adult and convicted of four counts of felonious assault, aggravated second-degree felonies (R.C. 2903.11(A)(2) ), each with an accompanying firearm specification (R.C. 2941.141 ), following a guilty plea. Moore was sentenced to an aggregate prison term of 35 to 63 years. Moore appealed his conviction arguing that the juvenile court erred in ordering that he be bound over for trial as an adult and in permitting an incomplete psychological examination to be conducted. He did not challenge his plea or sentence. This court affirmed in Moore I, supra.

{¶ 6} Moore later filed a pro-se post-conviction petition with the trial court which, pertinent to this appeal, asserted trial counsel was ineffective as he allegedly advised Moore that in exchange for pleading guilty he would be sentenced to concurrent terms. Moore argued that had he known consecutive sentences would be imposed he would not have pled guilty. The trial court denied the petition on the merits, finding ‘the defendant was represented by competent counsel and said counsel represented the defendant effectively.’ State v. Moore, 7th Dist. No. 99–BA–5, 2000 WL 341117 (Mar. 31, 2000)(Moore II ) (quoting trial court.) On appeal, this court dismissed for lack of jurisdiction, concluding the post-conviction petition was untimely and neither of the exceptions in R.C. 2953.23(A) applied. Id. at *2–3.

{¶ 7} Moore filed early release motions in 2002 and 2004, both of which he was permitted to withdraw before they came for decision. Moore filed a third motion on April 14, 2006, which the State opposed. A hearing was scheduled, but then the judgment entry setting the hearing was “set aside and held for naught” and the early release motion was overruled in a June 5, 2006 judgment entry.

{¶ 8} On December 30, 2008, Moore was granted a parole hearing for February 2009, but parole was denied.

{¶ 9} On December 7, 2009, the trial court sua sponte set Moore's early release for hearing, which was held on December 14, 2009 with Moore present. Testimony was taken, but ultimately the court stayed decision on the matter. A transcript of this hearing is not included in the trial court record.

{¶ 10} On February 2, 2012, Moore filed another motion for judicial release, citing R.C. 2929.20. By judgment entry, the trial court ruled:

The Court finds that the crimes committed occurred prior to the effective date of § 2929.20, thereby making that section inapplicable.
The Court further finds that the entry of 6/5/2006 was entered in error. Defendant granted an opportunity to withdraw the motion giving rise to the entry of 6/5/2006 by docket entry dated no later than 4/1/2012.
The Court further finds more than 60 days have elapsed since the filing of the motion citing ORC 2929.20. Defendant is granted leave to withdraw said motion and refile pursuant to ORC 2947.061.

{¶ 11} Moore then filed two motions asking the trial court to withdraw his 2012 and 2006 early release motions, which the trial court granted; finding it had entered the 2006 entry overruling Moore's April 14, 2006 early release motion “in error.”

{¶ 12} On April 4, 2012, Moore filed a motion for shock probation/judicial release, this time citing R.C. 2947.061(B). Moore asserted he should be released because he had been sufficiently punished for his conduct; had been an exemplary prison inmate; his behavior and character demonstrated he would respond affirmatively to probationary terms; and that recidivism would be unlikely.

{¶ 13} On May 2, 2012, the State filed a brief in opposition, asserting R.C. 2947.061 did not apply to Moore; and alternatively, assuming it did, Moore was ineligible due to the nature of his crimes. The State did not provide any evidence to rebut Moore's contention that Moore had an exemplary record while incarcerated.1

{¶ 14} No hearing was held on the motion.

{¶ 15} Nearly one year later, on April 23, 2013, the trial court issued a judgment granting Moore's motion and ordering his release from prison. This timely appeal followed the same day, along with a motion for stay, which was opposed by Moore. This court issued a judgment temporarily sustaining the stay motion, pending further hearing on the matter. The State filed an amended notice of appeal and request for leave to file an appeal, along with a supplement to their stay motion on April 30, 2013. After a hearing, this court granted leave to appeal, granted the stay, and placed the matter on the expedited calendar.

Applicable Statute

{¶ 16} On appeal, the State lists one “question of law for appeal,” which is essentially an assignment of error:

{¶ 17} “Whether the Trial Court's decision to release this incarcerated Defendant under Shock Probation or Judicial Release was contrary to law.”

{¶ 18} We must first resolve two threshold legal issues before addressing the merits: 1) whether the old shock probation statute or the current judicial release statute applies; and 2) whether the trial court's judgment releasing Moore constitutes a final appealable order. We will begin our analysis with determining the applicable statute, which in turn will apply to the resolution of both the jurisdictional and merit issues.

{¶ 19} Regarding the applicable law, because Moore committed the crimes in 1995 the current judicial release statute, R.C. 2929.20, which became effective via Senate Bill 2 on July 1, 1996, does not appear to apply to him. See State v. Curik, 8th Dist. No. 80254, 2002-Ohio-963, 2002 WL 366520, *2 (citing cases). Curik and similar cases rely on State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998), at syllabus, which concluded that sentencing provisions of Senate Bill 2 apply only to crimes committed on or after its effective date of July 1, 1996 and, are not to be applied retroactively.

{¶ 20} Instead, the former shock probation statute, R.C. 2947.061, applies. In State v. Young, 8th Dist. No. 79113, 2001 WL 1671431 (Nov. 29, 2001), for example, the Eighth District held that “because [the defendant] was sentenced for crimes committed prior to July 1, 1996, the provisions of R.C. 2929.20 are not applicable to him. Accordingly, he was not eligible for judicial release pursuant to R.C. 2929.20. Individuals who committed crimes prior to July 1, 1996, may, however, seek shock probation in accordance with former R.C. 2947.061.” Id. at *3.

{¶ 21} Further, in State v. Coffman, 91 Ohio St.3d 125, 742 N.E.2d 644 (2001), the Ohio Supreme Court held that despite the fact...

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