Youngstown Daily Legal News

Motion to correct illegal sentence was untimely, appellate court rules

ANNIE YAMSON
Special to the Legal News
Published: November 13, 2013

A man involved in a Cuyahoga County drive-by shooting had his sentence affirmed recently when the 8th District Court of Appeals upheld the common pleas court’s judgment.

The defendant, Andre Howard Jr., claimed that the trial court violated clearly established state and federal law when it punished him for the same offense twice, resulting in double jeopardy.

According to case summary, Howard was charged in a multi-count indictment for four counts of felonious assault and two counts of improperly discharging a weapon into a habitation, all with one, three and five-year firearm specifications.

He was also charged with having a weapon while under disability.

Howard pleaded not guilty and the matter proceeded to a bench trial where he was found guilty of all charges.

The Cuyahoga County court sentenced him to an aggregate term of 12 years in prison.

Howard proceeded to appeal his convictions but the 8th District affirmed the judgment of the trial court.

He subsequently filed a pro se motion to “correct a factually legal sentence” by arguing that his convictions for improperly discharging a weapon into a habitation and felonious assault, along with the attached firearm specifications, should have merged at sentencing because they were allied offenses of similar import.

The trial court denied the motion and, in his most recent appeal, Howard claimed that it erred in doing so.

“A motion to correct an illegal or improper sentence is not the appropriate vehicle to advance the allied-offense claim in a post-conviction setting,” wrote Judge Patricia Blackmon on behalf of the 8th District’s three-judge appellate panel. “The correct procedure is for the defendant to file a motion for post-conviction relief, and courts should treat any motion to correct an improper sentence, when raising the allied-offense issue, as a petition for post-conviction relief.”

Under R.C. 2953.21(A)(2), Blackmon wrote that when a direct appeal is taken, a petitioner has 180 days to file a petition for post-conviction relief.

The appellate panel found that Howard did not file his motion until well beyond the 180-day time limit.

“Generally, the trial court has no jurisdiction to consider an untimely petition for post-conviction relief,” stated Judge Blackmon.

She stated, however, that there are certain circumstances under which the trial court may entertain an untimely petition.

“If the defendant demonstrates either he was unavoidably prevented from discovering facts necessary for the claim for relief, or the United States Supreme Court recognized a new federal or state right that applies retroactively to persons” in the defendant’s situation, a trial court is allowed to consider a petition filed past the allowed time limit, according to Judge Blackmon.

“Neither of these exceptions apply to the instant case,” she wrote. “Therefore the trial court did not err by denying Howard’s petition.”

Had the record permitted the trial court’s consideration of the allied-offense argument on direct appeal, the appellate panel found that res judicata also prevented the court of appeals’ review of the issue.

“Accordingly, Howard’s sole assignment of error is overruled,” Judge Blackmon concluded.

Presiding Judge Mary Boyle and Judge Larry Jones joined Judge Blackmon in a unanimous affirmation of the Cuyahoga County court’s decision.

The case is cited State v. Howard, 2013-Ohio-4803.

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