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State v. Simmonds

Court of Appeals of Ohio, Tenth District

May 9, 2017

State of Ohio, Plaintiff-Appellee,
v.
Devonere Simmonds, Defendant-Appellant.

         Appeal from the Franklin County Court of Common Pleas C.P.C. No. 14CR-232

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

          Timothy Young, Ohio Public Defender, Charlyn E. Bohland, and Katherine R. Ross-Kinzie, for appellant.

         Argued:

          Seth L. Gilbert.

          Charlyn E. Bohland.

          DECISION

          BRUNNER, J.

         {¶ 1} Defendant-appellant, Devonere Simmonds, appeals a March 30, 2016 decision of the Franklin County Court of Common Pleas, dismissing his petition for postconviction relief without a hearing. Because we agree that Simmonds failed to demonstrate "substantive grounds for relief, " we affirm the trial court's decision to dismiss the petition without a hearing.

         I. INTRODUCTION AND BACKGROUND

         {¶ 2} On July 21, 2013, Simmonds shot both James Norvet and Quinten Prater in the head. Prater, who was shot with a shotgun, did not survive. Three days later, on July 24, Simmonds fatally shot a third person, Imran Ashgar, a convenience store clerk during a robbery. He shot him in the eye; departed briefly; then returned and shot him a second time in the head as he lay wounded on the floor. Three days after that, during

          Simmonds' attempt to flee Ohio, Simmonds approached William Rudd at a gas station, shot him in the face, and stole his truck. Rudd managed to survive. Simmonds was 17 years old when he committed these offenses.

         II. FACTS AND PROCEDURAL HISTORY

         {¶ 3} On July 25, August 28, and August 29, 2013 respectively, Simmonds was charged as a juvenile for the shootings of Ashgar, Prater, and Rudd. (July 25, 2013 Compl. 13JU-10445; Aug. 28, 2013 Compl. 13JU-11920; Aug. 29, 2013 Compl. 13JU-11966.) In a hearing held on January 13 2014, the prosecution noted that during the events underlying common pleas case No. 13JU-11920 Simmonds also shot another person (Norvet). (Jan. 13, 2014 Hearing Tr. at 9-10, filed on Jan. 5, 2015.) The juvenile court issued decisions on January 13, and 14, 2014 binding over Simmonds for trial as an adult in each of the three cases. (Jan. 13, 2014 Bindover Decision 13JU-10445; Jan. 14, 2014 Bindover Decision 13JU-11920; Jan. 14, 2014 Bindover Decision 13JU-11966.)

         {¶ 4} On January 16, 2014, having been bound over to stand trial as an adult, a Franklin County Grand Jury indicted Simmonds for two counts each of aggravated murder and murder (Ashgar and Prater), five counts of aggravated robbery (Prater, Norvet, Ashgar, and Rudd[2]), two counts each of attempted murder and felonious assault (Norvet and Rudd), and one count of having a weapon while under a disability. (Jan. 16, 2014 Indictment.) Each offense (except the weapon offense) included a gun specification under R.C. 2941.145. Id.

         {¶ 5} Simmonds was tried by a jury on the counts relating to Ashgar, Rudd, and one count (for which he was eventually acquitted) related to another party; the remaining counts relating to Prater and Norvet were severed for later trial, and the weapon under disability count was tried to the bench. (Dec. 5, 2014 Jury Verdict Count 4; July [1], 2014 Hearing Tr. at 16-17; Dec. 8, 2014 Hearing Tr. at 797-98.) A previous decision of this Court summarized the facts adduced at trial:

Simmonds basically executed the store clerk by shooting him in the eye once and then returning to shoot the clerk in the head a second time after the clerk briefly survived the first shot. A few days later, while fleeing central Ohio, Simmonds found himself in need of a motor vehicle. He shot the owner of a vehicle in the head while stealing the car. The owner miraculously survived the shooting and was able to testify at the trial.

State v. Simmonds, 10th Dist. No. 14AP-1065, 2015-Ohio-4460, ¶ 2. Our previous decision noted that the weight of evidence against Simmonds was "massive" and included, among other things, a surveillance tape showing Simmonds executing the clerk, Ashgar. Id. at ¶ 7. Following trial, on December 5, 2014, the jury returned a verdict of "guilty" on all counts related to Ashgar and Rudd. (Dec. 5, 2014 Verdicts Counts 1-3, 5-7.)

         {¶ 6} On Friday, December 5, 2014, after the jury delivered its verdicts, the trial court denied a request for a presentence investigation as to Simmonds and asked counsel if they would be amenable to convening for sentencing the following Monday, December 8, 2014. (Dec. 5, 2014 Tr. Vol. 5 at 788-89.) Counsel indicated that date would be agreeable. Id. Other than the request for a presentence ...


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