STATE OF OHZR

E^mt 1- ^- 2- ®f Z o

ON APPM FfitOM m

.F.l3T1ttLZELD

OF "PEALS, E`IM

.

CASE No. l;IF-CA -554

f)F APPELLAI?fi

"MMAt4I1UM IN sUPom OF JURISDICTION

MdtcuB H].C1KR18Sl

#59"15

P4as Ckrmecti4nal Institution

16149 State Route 104

P.O. Box 7010

Chillicothe, Ohio 45601

€'.(lC7NSPL OF RECORD

APPELLANT - PnO--Vj - ;.ITIGu:;

Jocelyn S. ICell.y

239 W, M-zn St<, Ste. 101

La.t2castere Ohio 43130

COUNSEL OF RECORD

b1PL'ELLEF.

^uN z 2mt^^J ® 2U^2L CLERK OF COURT

SUPREME COURT OFOHIp

I'vl OL^ Vlz^PPSLLANT - PROO^-SE

OF

J6RVWLlCYYIL IN S

C s GP.SE S..S A. CASE Qi? kt7BLTC

5T APV tNl,'aL't^ A SUBSTANTM

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t2TTaN OF LAW W. 1 *' A SenC,ence that w not

Meege Allied c3ffenses of Siesilar Ltt=t is "Yoids"

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EERTII'TCASE OF : YLtl4<9.YM1Y}lfYYtl^il9Y99}9p.l0

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Opinion of ti,6.'' OY9.ii9YY94G491.9a

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EXPLAaNATTO 2y WHY THIS IS A CAS$ 2-F

PURLI OR 6RRAT GRNRHAL INTEREST

IRVOLYRS I 3UB$TANTIAL CONSTITUTIONAL QUESTIOR

Ohio Trial Courts decisions, a£firmed by Cour`ts of

Appeal, are inconsistent in interpreting this Court's

Rulings in State V. beamley, (19W, 14 Ohio St.3d 74s and

State V. Rimpkfns{ ( 2008), 117 Ohio St.3d 420, that a Court's

disregard of Statutory Requirements when imposing a sentence

renders the attempted sentence a Nullity or Void. It seems

that the Court's attention has been focused so intently on

the proper imposition of those of those statutes mandating

Postrelease Control, they have developed a Form of Judicial

Myopia that has prevented them from realizinL, that there are

other sentencing statutes which are Regularly Neglected is

O.R.C. § 2941.25. This Law was enacted by the General

Assembly to protect defendants against Double-Jeopardy. It

reads in Pertinent Part:

"Where the same Conduct by Defendant can be constued

to Constitute two or more Allied Offenses of Sirnilar

Tmport, the indictment or information rnay contain

Counts for all such offenses, But, the Defendant

may be Convicted of only one." [Emphasis Added.]

In the Case at hand, Petitioner Challenged that his

sentence was "Void," because it "railed," to provide the Mandated

Protections against Double-Jeopardy by Failing to conform to

1

the Reguirements of G.R.C. §2g41.25 nergfng Allied Offenses

of Similar Import.

The Court ot Appeais did not add Defendaut's

tere Allied Offenses of Similar Import; Did nyt

discuss the statutory reguirements to Merge Aliied 9ifensea

Cd

make any references to this

andated. The reSult must bs a "Voidr" aentenee

Caset afgenseaa under Q>RXt $ 2941Y25 were aot Merged

," sentence based

"Void."

A sentence ie either "voia," ah initi4, or it is not "Void."

othei; ahoiCel and not Merged as Mandated. The result

a"Voidl" sentence that may be Challenged at any time and

uire the RetroaGtiVe Application of any CQurt ruling

Court decision in bea pkina. Instead, the Court

of Appeals ignorea this C4urt rUling in st-a:te vo, r

Ohio St.3d 92+ at §40, that an unlawful sentence t

"Voidr" "2e not precluded from Appellate Reviews by PraneipIes

3udieatal and may be reviewed at any timer on Direct

Appeal or by CQllatesal AtteeA" and Rendera a deeision that

bars Petitioner's Challenges of hie

upon the Dactrine of Res Judiaatar

The Court oP Appeals does not seem to realize this and this

Court, should accept tQ consider the L9ouble-Jeuparuy

implications of errant decisions such at that Rendered by

2

tlze" F1Ith Diatri^t Co+^^^t of APp4410 ira

F:!^AND r

^^bl:^

^3^Ida^^a^ fi

fros^ a ^hotc9 LifteuP. "tft+

'Ptess. Appe11ant entered a P:Lea

Trial Court se3 h to twenty

cs p#ositaikity of Judieial Rsloa.ta^ The

; the Lsawer

an Rea q

this dec

pon thie Court's 40

not conform tO

the

f APpeAlS

the SLI^^^E

in Seasl*y

G^E C E ^ V CJUN Q 6 ?,QiZ

CLERkOFCOUR7SI IPREM;f!ni iQr nc A

The 4:301

ac} 3 s^epCi4+a#e

Trial and App

vtrj f:.`LvP3C r

to R,2cosAaiza thqte

as BuS^^ing b3,#o3es.to a aing2e Cesracs',uasian

appaintiog as it is surpris3ny *

cO>7 forRt

4.ki^*, Dictate the wav 6 serttence muzvt9 d t^y an a w

Iampcase t?unisflment, it tol3owe there az:e many waYs in which

a aqatenoe uaay be "Voad.

t,9ao Principles oz Re$

Judicata do not apply and Appe.llate tze

The sent bu Revi4wed

or by Cca2.).ate«°al Atcarsk.

Precluded.

^i?POal

isch*rr 126 Qoa.a &r.:aa

j 294-1.25 - Mandzstera

must morge. 4

While this^ Statute

omer9*o" qhio Courts

4

^t the Multiple 09^04

1& /e

:E the same ,^nimub acd the

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ccmm8tted by the

itha s;

477.

Ottez`zaca

us that APP411ant"a

c^aaeral

Itaport P3ogga*

nt ra dcses not

be "ceprod by the ScaPVtOe

instiCutiun

16149 Stato Raut* 104

P.O. Bo.ei 7010

t:bt.c3.ia^^theo Oh.ita 4.^'a6tJl

ACTING PRO•-as

CEI'a"'.T°ICA'_'"E Or :SERVIA."H

this

aurisdiction wam zoret by aa:aixxary u.s.. .^ai1 to coaansel for

Appol,iee^^ jocalyra S. Felly< 239 W. Main St

torF Ohio 43130 on this SA day of 3unse 2012.

AeTMs POO-89

STATE OF OHIO

OR IG I NALCOURT OF APPEALS

FAIRFIELD COUNTY, OHIOFIFTH APPELLATE DISTRICT

OCjK of N. 320 ^321o

Plaintiff-Appellee

-vs-

MARCUS HICKMAN

Defendant-Appellant

Hon. W. Scott Gwin, P.J.Hon. William B. Hoffman, J.Hon. Julie A. Edwards, J.

Case No. 11 -CA-54

OPINION

L ;'oZJ1MAY 11 AP1

OE60RAN;'^QLLFA RF K Of COUR $YJELD Cp, OMIO

CHARACTER OF PROCEEDING: Appeal from the Fairfield County CommonPleas Court, Case No. 2008-CR-115

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

GREGG MARXProsecuting AttorneyJOCtLYN S. KELLYAssistant Prosecuting AttorneyFairfield County, Ohio239 W. Main St., Ste. 101Lancaster, Ohio 43130

Affirmed

For Defendant-Appelfant

MARCUS HICKMAN, PRO SEInmate # 598-815Ross Correctional InstitutlonP.O. Box 7010Chillicothe, Ohio 45601

1: (I0

7

Fairfield County, Case No. 11-CA-54

Hoffman, J.

2

{11} Defendant-appellant Marcus T. Hickman appeals the July 26, 2011

Judgment Entry entered by the Fairfield County Court of Common Pleas denying his

motion for resentencing. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{12} On the evening of March 30, 2008, Donna Wade was walking in a

residential area to meet a female friend, Dreama Azbell. Upon meeting Dreama, the two

were approached by a white male, later to be identified as Dreama's brother, Tim

Azbell. Both Tim and Dreama Azbell held Donna Wade at gunpoint. A black male then

exited a parked, red Chevy Blazer and forced Donna Wade into the back seat of the

Blazer. Wade was seated directly behind the black male, who drove the vehicle around

town for a short period of time. The black male then stopped the vehicle, forced Wade

out of the vehicle, and proceeded to shoot her in the neck.

{13} Donna Wade survived the shooting, and was transported to an area

hospital. At the hospital, investigating officers from the Lancaster Police Department

presented Wade with a photo array of six black males. Donna Wade identified Appellant

from the photo array as the man who shot her in the neck.

{14} The Fairfield County Grand Jury indicted Appellant on attempted murder,

felonious assault, kidnapping, aggravated robbery and tampering with evidence, On

July 2, 2008, Appellant filed a motion to suppress the identification from the photo

lineup. Via Judgment Entry of October 7, 2008, the trial court overruled the motion to

suppress. Appellant subsequently entered a plea of no contest to the charges pursuant

to a negotiated plea agreement.

^5

Fairfield County, Case No. 11-CA-543

{15} On March 6, 2009, the trial court sentenced Appellant to a combined

twenty-six year prison term, with no possibility of judicial release.

{16} Appellant filed a direct appeal to this Court, arguing the trial court erred in

overruling his motion to suppress. In State v. Hickman, September 14, 2009, Fairfield

09-CA-15, 2009-Ohio-4911, this Court affirmed the holding of the trial court finding

Appellant could not demonstrate prejudice as result of the trial court's denial of his

motion to suppress because by pleading no contest, he waived the right to challenge his

identification at trial.

{17} On June 13, 2011, Appellant filed a motion to vacate and correct a void

sentence. The State filed a memorandum contra the motion on June 29, 2011. Via

Journal Entry of July 26, 2011, the trial court overruled the motion to vacate and correct

Appellant's sentence. The July 26, 2011 Entry was sent to Appellant at Warren

Correctional Institution.

{¶8} On October 13, 2011, Appellant filed a motion for delayed appeal

asserting he was transferred from Warren Correctional Institution to Ross Correctional

Institution, and, as a result, his mail was delayed, and he did not receive the judgment

entry denying the motion to vacate and correct until after the date for which the filing of

a timely appeal had passed. This Court granted the motion for delayed appeal.

{19} Appellant now appeals, assigning as error:

{110} "I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S

MOTION FOR RESENTENCING TO MERGE ALLIED OFFENSES OF SIMILAR

IMPORT BECAUSE "THE COURT HAD THE BENEFIT OF A SUPPRESSION

HEARING IN THIS CASE."

q

Fairfield County, Case No. 11=CA-544

{111} In the sole assignment of error, Appellant asserts the trial court erred in

imposing prison sentences on allied offenses. Appellant cites the Ohio Supreme Court

decision in State v. Johnson, 128 Ohio St.3d 153, (2010). In Johnson, the Supreme

Court held:

{112} "in determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one

without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) ('It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct

will constitute commission of both offenses.' [Emphasis sic]). If the offenses correspond

to such a degree that the conduct of the defendant constituting commission of one

offense constitutes commission of the other, then the offenses are of similar import.

{113} "If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

'a single act, committed with a single state of mind.' Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

{114) "if the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

{115} "Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

lu

Fairfield County, Case No. 11-CA-545

separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge."

{116} As set forth in the Statement of the Facts and Case, supra, Appellant's

direct appeal to this Court was affirmed via Opinion and Judgment Entry of September

14, 2009. The issues raised herein were capable of being raised on direct appeal;

therefore, barred by res judicata.

{117} Further, Appellant's conviction and sentence were final prior to the Ohio

Supreme Court's holding in Johnson, supra, which does not apply retroactively. A new

judicial ruling may be applied only to cases pending on the announcement date. State

v. Parson, 2"d Dist. No. 24641, 2012-Ohio-730. The new judicial ruling may not be

applied retroactively to a-conviction that has become final, i.e., where the accused has

exhausted all of his appellate remedies. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-

6592. Accordingly, Appellant's arguments are barred by res judicata as they were

capable of being raised on direct appeal, and his reliance on Johnson is misplaced as

his conviction and sentence were already final prior to the date the Supreme Court

pronounced its holding therein.

11

Fairfield County, Case No. 11-CA-54

{118} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

HON. WILLIAM B. H

6

ARDSA. EDWa

!7.

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, ^I^^ ^^FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vs-

MARCUS HICKMAN

Defendant-Appellant

2012HAY ( I PM 1: 00

t7EBQRAii SHALLEYCLERK OF COtlRTS

FAIRFIELD Co.OHIo

JUDGMENT ENTRY

Case No. 11-CA-54

For the reasons stated in our accompanying Opinion, the judgment of the

Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.

^u-^c'-

N. W. SCO i i GWiN

<W^400N. JULIE A. EDWARDS

13