State v. Morrissey

• Decision Date: 03 October 2022
• Docket Number: 6-22-06
• Citation: 198 N.E.3d 554
• Parties: STATE of Ohio, Plaintiff-Appellee, v. John Joseph MORRISSEY, III, Defendant-Appellant.
• Court: Ohio Court of Appeals

198 N.E.3d 554

STATE of Ohio, Plaintiff-Appellee,

v.John Joseph MORRISSEY, III, Defendant-Appellant.

NO. 6-22-06

Court of Appeals of Ohio, Third District, Hardin County.

Date of Decision: October 3, 2022

Howard A. Elliott, Findlay, for Appellant.

McKenzie J. Klinger, for Appellee.

WILLAMOWSKI, J.

{¶1} Defendant-appellant John J. Morrissey, III ("Morrissey") appeals the judgment of the Hardin County Court of Common Pleas, arguing that his two convictions for aggravated robbery should have merged at sentencing; that the Reagan Tokes Law is unconstitutional; and that he was denied his right to the effective assistance of counsel. For the reasons set forth below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} On January 14, 2021, Morrissey was indicted on seven counts. Doc. 1. These charges included two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies of the first degree, and two counts of kidnapping in violation of R.C. 2905.01(A)(2), felonies of the second degree. Doc. 1. The charges arose from an incident on December 20, 2020 in which Morrissey went into a gas station in Hardin County; pointed a gun at two employees; ordered them to give him the money in the cash register; and fled the scene after obtaining approximately $150.00. Doc. 47.

{¶3} After a three-day trial, a jury found Morrissey guilty of all seven charges on March 19, 2021. Doc. 58-64, 66. At a sentencing hearing on March 31, 2021, the trial court imposed sentences for both of the counts of aggravated robbery and for both of the counts of kidnapping. Doc. 69. The trial court did not merge any of these four convictions at sentencing. Doc. 69. The trial court then issued its judgment entry of sentencing on April 2, 2021. Doc. 69.

{¶4} On April 12, 2021, Morrissey filed a notice of appeal that became the basis of Appellate Case No. 6-21-02. Doc. 72. State v. Morrissey , 3d Dist. Hardin No. 6-21-02, 2021-Ohio-4471, 2021 WL 6050890, ¶ 6. In this prior appeal, Morrissey "argue[d] that the trial court should have merged his Aggravated Robbery convictions (under Counts One and Three) with his Kidnapping convictions (under Counts Two and Four) pursuant to R.C. 2941.25 * * *." Id. at ¶ 29. After considering his arguments, this Court reached the following conclusion:

the Aggravated Robbery and Kidnapping offenses of which Morrissey was convicted were allied offenses of similar import. Consequently, the trial court erred by not merging Counts One and Two (involving Arnold) and Counts Three and Four (involving Johnson) for purposes of sentencing.

Id. at ¶ 38.¹ This case was then reversed on the issue of merger and remanded to the trial court for further proceedings. Id. at ¶ 39.

{¶5} On March 31, 2022, the trial court held a resentencing hearing. Doc. 106. The trial judge began this hearing by stating, "the Court of Appeals of the Third District * * * believes that Counts One and Two are allied and Counts Three and Four are allied." Tr. 3. The State elected to proceed on the two counts of aggravated robbery. Tr. 5. Pursuant to the Reagan Tokes Law, the trial court imposed an indefinite sentence of eleven years to sixteen years and six months for Morrissey's conviction for the first count of aggravated robbery and a prison term of eleven years for the other count of aggravated robbery. Tr. 22-23. Doc. 106. The trial court then issued its judgment entry of sentencing on April 8, 2022. Doc. 106.

{¶6} Morrissey filed his notice of appeal on April 25, 2022. Doc. 108. On appeal, he raises the following assignments of error:

First Assignment of Error

Where a singular act constitutes a crime of aggravated robbery, despite the fact that more than one person was the subject of the robbery, a conviction for multiple counts of robbery must merge into a singular count of aggravated robbery as being allied offenses.

Second Assignment of Error

Although counsel for defense failed to argue at sentencing that the Reagan Tokes Act is unconstitutional, the issue can be pursued on appeal as the issue constitutes plain error as the Reagan Tokes Law is unconstitutional.

Third Assignment of Error

The failure of defense counsel to raise to the trial court the unconstitutionality of the Reagan Tokes Act, constitutes ineffective assistance of counsel.

First Assignment of Error

{¶7} Morrissey argues that his two convictions for aggravated robbery should have merged at sentencing.

Legal Standard

{¶8} The doctrine of the law of the case "stems from [the doctrine of] res judicata." State v. Snyder , 3d Dist. Seneca No. 13-12-38, 2013-Ohio-2046, 2013 WL 2152555, ¶ 51, citing State v. Evans , 9th Dist. Medina No. 10CA0127-M, 2011-Ohio-4992, 2011 WL 4526810, ¶ 12.

[U]nder the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant * * * on an appeal from that judgment.

(Emphasis removed.) State v. Rognon , 3d Dist. Logan No. 8-21-24, 2021-Ohio-4564, 2021 WL 6111773, ¶ 15, quoting State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Thus, "[r]es judicata * * * generally deal[s] with preclusion after judgment: res judicata precludes a party from asserting a claim that was litigated in a prior action * * *." (Emphasis added.) State v. Smith , 3d Dist. Marion No. 9-11-36, 2012-Ohio-1891, 2012 WL 1494285, ¶ 26, quoting People v. Evans , 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 680, 727 N.E.2d 1232, 1234 (2000).

{¶9} The "law of the case has been aptly characterized as ‘a kind of intra-action res judicata’[.]" Smith at ¶ 26, quoting Evans , 94 N.Y.2d at 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232.

"The doctrine of the ‘law of the case’ provides that a ‘decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.’ Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410. ‘The doctrine functions to compel trial judges to follow the mandates of reviewing courts.’ Id. When, at a rehearing after remand, a judge ‘is confronted with substantially the same facts and issues as were involved in the prior appeal, the [judge] is bound to adhere to the appellate court's determination of the applicable law.’ Id. ‘Absent extraordinary circumstances, such as an intervening decision by the Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case.’ Id. at syllabus. A judge is without authority to extend or vary the mandate given. Id. at 4, 462 N.E.2d 410.

(Emphasis sic.) State v. Cvijetinovic , 8th Dist. Cuyahoga No. 82894, 2003-Ohio-7071, 2003 WL 23010040, ¶ 18. For this reason, "the decision of an appellate court in a prior appeal will ordinarily be followed in a later appeal in the same case and court."

State v. Ibrahim , 10th Dist. Franklin No. 17AP-557, 2020-Ohio-3425, 2020 WL 3440149, ¶ 37, quoting Nolan at 4, 462 N.E.2d 410.

The law-of-the-case doctrine is ‘a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results.’ Nolan at 3, 11 O.B.R. at 3, 462 N.E.2d at 413. With respect to appellate courts on successive appeals, the doctrine is ‘not a limitation on the courts’ power,’ but merely a rule of practice. Annotation (1963), 87 A.L.R.2d 271, 282 * * *.

State v. Wallace , 121 Ohio App.3d 494, 499, 700 N.E.2d 367, 370 (10th Dist. 1997).

[T]h[is] rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution.

State v. Hardie , 171 Ohio App.3d 429, 2007-Ohio-2755, 870 N.E.2d 1231, ¶ 14 (4th Dist.), quoting Nolan at 3, 462 N.E.2d 410. Accordingly, "[a]n appellate court may choose to reexamine the law of the case it has itself previously created if that is the only means to avoid injustice." State v. Gwynne , 2021-Ohio-2378, 173 N.E.3d 603, ¶ 20 (5th Dist.). However, "[b]ased on these principles, courts have barred defendants from raising allied offenses of similar import issues in subsequent appeals after having raised them in previous appeals." Snyder, supra , at ¶ 51, citing State v. Cottrill , 4th Dist. Pickaway No. 11CA12, 2012-Ohio-1021, 2012 WL 832835, ¶ 11.

Legal Analysis

{¶10} In his prior appeal, this Court heard Morrissey's arguments on the issue of merger and came to the following conclusion: "the trial court erred by not merging Counts One and Two (involving Arnold) and Counts Three and Four (involving Johnson) for purposes of sentencing." Morrissey, supra , at ¶ 38. Thus, our prior opinion instructed the trial court to merge Count One and Count Two into one conviction for sentencing and to merge Count Three and Count Four into one conviction for sentencing. On remand, the trial court precisely followed these instructions. Tr. 3-5. Doc. 106.

{¶11} However, on appeal, Morrissey argues that the trial court erred by failing to merge Counts One, Two, Three, and Four into one conviction for sentencing. Thus, Morrissey essentially argues that the trial court erred by following the instructions of this Court in our prior opinion. Pursuant to the doctrine of the law of the case, the trial court was not free to disregard the instructions of this Court. See Nolan, supra , at 4, 462 N.E.2d 410 (A "trial court is without authority to extend or vary the mandate given."). Accordingly, Morrissey's argument does not demonstrate that the trial court erred at resentencing. Further, since the issue of merger was raised and decided by this Court in Morrissey's prior appeal, we apply the doctrine of the law of the case to the arguments in this assignment of error and decline to revisit our prior opinion. For this...