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State of Ohio v. Dana Gibson

June 23, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DANA GIBSON DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-504831

The opinion of the court was delivered by: Kenneth A. Rocco, J.:

Cite as State v. Gibson,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: Rocco, J., Blackmon, P.J., and S. Gallagher, J.

{¶1} Defendant-appellant Dana Gibson, proceeding pro se, appeals from the trial court order that converted his "motion for resentencing" into a motion for post-conviction relief, and denied it as both untimely and barred by the doctrine of res judicata.

{¶2} Gibson presents one assignment of error. He claims the trial court's order was improper pursuant to this court's disposition of his previous appeal in State v. Gibson, Cuyahoga App. No. 91793, 2009-Ohio-3883 ("Gibson I") and the supreme court opinion in State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568.

{¶3} Upon a review of the record, this court finds his argument unpersuasive. His assignment of error, therefore, is overruled, and the trial court's order is affirmed.

{¶4} As relevant to the instant appeal, this court set forth the underlying facts of this case in Gibson I as follows:

{¶5} " * * * On June 6, 2008, the jury returned a verdict of guilty on six counts: murder under section 2903.02(A); murder under 2903.02(B); both felonious assault counts; tampering with evidence, and arson. * * * The defendant was found not guilty of aggravated murder, under R.C. 2903.01, but found guilty of the lesser included offense of murder under Count 1 * * * .

{¶6} "On June 17, 2008, the lower court sentenced Gibson to 15-years-to-life on Counts 1 and 2, to run concurrent. Gibson was also sentenced to five years on Counts 3 and 4, to run concurrent with each other, but consecutive to Counts 1 and 2. He also received five years on Count 5, to run consecutive to the five-year term of incarceration on Counts 3 and 4, which are consecutive to the fifteen-years-to-life sentence on Counts 1 and 2. Finally, Gibson received six months on Count 6, the misdemeanor arson charge, for a total sentence of 25-years-to-life.

{¶7} " * * *

{¶8} " * * * Gibson told Cleveland Police Detective Henry Veverka that he and his half-brother had gotten into a fight over the use of a car * * * , the two of them continued to argue and [the victim] grabbed a butcher knife from the kitchen drawer. * * * Gibson grabbed a nearby crowbar and hit [the victim] with it. The fight continued into the hall and down the stairs with Gibson continually hitting [the victim].

{¶9} "Detective Veverka further testified that Gibson told him that he got rid of the body first, then the car, by setting them on fire.

{¶10} " * * *

{¶11} " * * * [W]e find plain error regarding Gibson's convictions. * * * .

{¶12} "Gibson is currently serving two concurrent terms of incarceration for killing one victim: one term of incarceration for murder pursuant to R.C. 2903.02(A), and the other for murder pursuant to R.C. 2903.02(B).

{¶13} "Furthermore, Gibson is serving two concurrent terms of incarceration for felonious assault against one victim: one term of incarceration for felonious assault pursuant to R.C. 2903.11(A)(1) and the other for felonious assault pursuant to R.C. 2903.11(A)(2).

{¶14} " * * * As it pertains to Gibson's murder convictions: 'The Ohio Supreme Court has held that the conviction and sentence on two counts of murder for a single killing violated R.C. 2941.25 and the Double Jeopardy Clauses of the Ohio and United States Constitutions.' State v. Hudson, 9th Dist. No. 24009, 2008-Ohio-4075; see State v. Huertas (1990), 51 Ohio St.3d 22, 553 N.E.2d 1058. '[Where] a defendant who kills only one victim is convicted of two aggravated murder counts, the trial court may sentence on only one count.' State v. Waddy (1992), 63 Ohio St.3d 424, 588 N.E.2d 819.

{ΒΆ15} "In the instant case, felonious assault pursuant to R .C. 2903.11(A)(1) and R.C. 2903.11(A)(2) are allied offenses of similar import. State v. Smith, 1st Dist. No. C-070216, 2008-Ohio-2469; see, also, State of Ohio v. Goldsmith, Cuyahoga App. No. 90617, 2008-Ohio-5990. This is so because Gibson struck Raymond with multiple ...


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