THE STATE OF OHIO ON THE RELATION OF JASON W. KIRKPATRICK, Relator,
RONALD J. RICE, JUDGE, TRUMBULL COUNTY COURT OF COMMON PLEAS, Respondent.
Original Action for Writ of Mandamus.
Jason W. Kirkpatrick, pro se, PID: A562137, Marion Correctional Institution, (Relator).
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, (For Respondent).
(¶1} This matter is before this court on the January 10, 2013 petition for a writ of mandamus filed by relator, Jason W. Kirkpatrick. Relator asked this court to compel Judge John M. Stuard to resentence him in Case No. 2007 CR 00905 to "valid community control sanctions."
(¶2} On January 14, 2013, this court issued an alternative writ and ordered Judge Stuard to respond with either an answer, a motion to dismiss pursuant to Civ.R. 12(B), or a Civ.R. 56 motion for summary judgment. In accordance with this court's order, the state filed a motion to dismiss on January 31, 2013. Relator filed a memorandum contra on February 21, 2013.
(¶3} Thereafter, on March 18, 2013, relator filed a motion to substitute Judge Stuard in this matter. Since relator's conviction, Judge Stuard retired from the bench on December 31, 2012, and passed away on February 7, 2013. Thus, this court granted relator's motion to substitute on April 5, 2013, and rendered moot the state's January 31, 2013 motion to dismiss on April 8, 2013. We note that after his retirement, Judge Stuard was replaced by another judge, the Honorable Ronald J. Rice, who is now a proper party to this action.
(¶4} A review of relator's mandamus petition shows that his claim for relief is predicated upon the following factual background:
(¶5} On December 26, 2007, relator was secretly indicted by a grand jury on 34 counts; 19 counts of breaking and entering, fifth degree felonies in violation of R.C. 2911.13(A) and (C); nine counts of grand theft, fourth degree felonies in violation of R.C. 2913.02(A)(1) and (B)(1)(2); five counts of vandalism, fifth degree felonies in violation of R.C. 2909.05(B)(1)(b) and (E); and one count of engaging in a pattern of corrupt activity, a second degree felony in violation of R.C. 2923.32(A)(1) and (B)(1). The indictment alleged that relator had broken into 19 separate Trumbull County businesses over a five-month span, from September 14, 2006 to January 26, 2007.
(¶6} Relator, who was represented by counsel, reached a plea agreement with the state, which the court accepted, pleading guilty to 16 of the 19 counts of breaking and entering, and the one count of engaging in a pattern of corrupt activity. The state entered and the court accepted a nolle prosequi on the remaining counts and the matter was referred for a presentence investigation ("PSI").
(¶7} The first sentencing hearing was held on September 18, 2008. The court reviewed the factors of R.C. 2929.11 and 2929.12, the report that the PSI "did not go well, " and that relator had an extensive prison record, having already served a total of nine years for three separate felonies in the past. The state urged the maximum sentence be imposed. Relator's pastor, who was also in charge of Life Challenge, spoke on relator's behalf. Although the court was initially inclined to sentence relator to a two-year term of imprisonment, the court gave him the option to choose the two-year term of imprisonment, or five years of community control sanctions, which included successful completion of the 12-month Life Challenge program. Relator agreed that in the case of revocation he would serve nine years in prison.
(¶8} Relator was discharged from the program on October 18, 2008. As such, he was arrested and a resentencing/probation violation hearing was held on January 8, 2009. Following that hearing, the state urged the court to sentence relator to the original nine-year term of imprisonment the court and relator had agreed to if he violated his sentence of community control. The state asserted that although relator testified that he chose to leave Life Challenge because it was not what was initially explained to him, he was, in fact, terminated from the program for attempting to construct an electric shotgun and not getting along with others.
(¶9} The court then reviewed the original sentencing hearing, reiterating that relator was offered a two-year term of imprisonment or the five-year term of community control sanctions, which included the successful completion of the Life Challenge program, and that he would be sentenced to a nine-year term of imprisonment if he did not. Because relator failed to do as he agreed, the court imposed the nine-year sentence. Relator filed a timely appeal. State v. Kirkpatrick, 11th Dist. Trumbull No. 2009-T-0007, 2009-Ohio-6519. On December 11, 2009, this court vacated relator's sentence and remanded the matter to the trial court because relator was sentenced outside the range of imprisonment for a second degree felony.
(¶10} In accordance with this court's remand, the trial court held a third sentencing hearing on January 28, 2010, in which relator was sentenced anew. The court heard testimony from relator and arguments of his attorney detailing potentially mitigating factors of relator's bipolar disorder and the fact that he engaged in nonviolent crimes. Relator further argued that he did not construct an electric shot gun, a fact that was noted ...