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State v. Barber

Court of Appeals of Ohio, Second District, Montgomery

August 25, 2017

STATE OF OHIO Plaintiff-Appellee
v.
CURTIS L. BARBER Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case Nos. 2000-CR-1272 and 2000-CR-0497

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Attorney for Plaintiff-Appellee.

          CURTIS L. BARBER, Defendant-Appellant-Pro Se.

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, Curtis L. Barber, appeals pro se from two decisions issued by the trial court on August 24, 2016, in which the court: (1) overruled his motion for sentencing in Case No. 2000 CR 00497 and Case No. 2000 CR 01272; and (2) in the latter case, overruled his motion to vacate. Barber argues that the trial court erred because the termination entries in both cases do not set forth legally sufficient adjudications of guilt; because the termination entries do not indicate the sequence in which he is to serve the consecutive terms of imprisonment to which the court sentenced him; because the termination entries do not comply with the requirements of R.C. 2943.032; and because one of the crimes for which he was convicted in Case No. 2000 CR 01272-attempted aggravated murder-is not a cognizable offense. For the following reasons, the decisions of the trial court are affirmed.

         I. Facts and Procedural History

         {¶ 2} In Case No. 2000 CR 00497, a grand jury issued an indictment against Barber charging him with robbery by inflicting, attempting to inflict or threatening to inflict physical harm on another person while committing or attempting to commit a theft offense, a second degree felony in violation of R.C. 2911.02(A)(2). Barber eventually entered a plea of guilty to a lesser included offense of robbery under R.C. 2911.02(A)(3), using or threatening to use force against another person while committing or attempting to commit a theft offense-a third degree felony.

         {¶ 3} In Case No. 2000 CR 01272, a grand jury issued an indictment against Barber charging him with one count of aggravated robbery under R.C. 2911.01 (A)(3); one count of felonious assault with a deadly weapon under R.C. 2903.11 (A)(2); one count of aggravated burglary under R.C. 2911.11(A)(1); one count of kidnapping under R.C. 2905.01(A)(2); one count of disrupting public services under R.C. 2909.04(A)(1); and three counts of attempted aggravated murder under R.C. 2903.01(B) and 2923.02(A). This case proceeded to a trial by jury and resulted in a verdict of guilty on all counts.

         {¶ 4} On March 5, 2001, Barber appeared before the trial court for sentencing. The court imposed a sentence of five years in Case No. 2000 CR 00497. In Case No. 2000 CR 01272, the court imposed sentences of ten years each for Barber's convictions on the charges of aggravated robbery, aggravated burglary, and kidnapping; one and one-half years for his conviction on the charge of disrupting public services; and ten years for the merged charges of felonious assault and attempted aggravated murder. The court ordered that Barber serve the sentence imposed in Case No. 2000 CR 00497 concurrently with the sentences imposed in Case No. 2000 CR 01272, although it ordered that each of the sentences in Case No. 2000 CR 01272 be served consecutively.

         {¶ 5} Barber filed a direct appeal in Case No. 2000 CR 01272, raising two assignments of error. State v. Barber, 2d Dist. Montgomery No. 18784, 2002-Ohio-7100, ¶ 1-4 [hereinafter Barber I]. First, he argued that the trial court had improperly refused to allow him to introduce into evidence a certain statement allegedly made by the victim, and second, he argued that the State, in its closing statement, had unfairly commented on his choice not to testify in his own defense. We found that "this appeal [was] wholly frivolous" and affirmed the trial court. Id. at ¶ 13.

         {¶ 6} With our decision in his direct appeal still pending, Barber filed a petition for post-conviction relief on October 15, 2002, which the trial court dismissed as untimely. On May 16, 2006, Barber filed another petition for post-conviction relief. The trial court denied this petition, as well, and Barber initiated his second appeal. Raising four assignments of error, Barber argued essentially that "the trial court should have granted his petition because the * * * imposi[tion] [of] maximum, consecutive, and non-minimum sentences * * * violat[ed] * * * Apprendi v. New Jersey, 530 U.S. 466[, 120 S.Ct. 2348, 147 L.Ed.2d 435] (2000), Blakely v. Washington, 542 U.S. 296[, 124 S.Ct. 2531, 159 L.Ed.2d 403] (2004) and State v. Foster, " 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 State v. Barber, 2d Dist Montgomery No 21837, 2007-Ohio-5649, ¶ 3 [hereinafter Barber II] We affirmed, concurring with the trial court's determination that Barber's petition did not meet the jurisdictional requirements of R.C. 2953.23(A). Id. at ¶ 7-9.

         {¶ 7} On August 7, 2008, the trial court resentenced Barber pursuant to R.C. 2929.191 because, when he was originally sentenced, it had not notified him that he would be subject to a mandatory period of postrelease control following his release from prison. The court, on August 8, 2008, accordingly docketed revised, nunc pro tunc termination entries in Case Nos. 2000 CR 00497 and 2000 CR 01272, after which Barber timely filed a third notice of appeal.[1]

         {¶ 8} In his third appeal, Barber presented six assignments of error, arguing that his defense counsel had not provided effective assistance at trial; that the trial court erred by imposing more than one criminal sanction for allied offenses of similar import; and that his convictions for aggravated burglary, aggravated robbery, and attempted aggravated murder were void because the indictment in Case No. 2000 CR 01272 did not specify the mens rea for these offenses. State v. Barber, 2d Dist. Montgomery No. 22929, 2010-Ohio-831, ¶ 4-7, 19-20 and 25-27 [hereinafter Barber III]. We found that Barber's arguments lacked merit, were barred by res judicata, or were unsupported by the record-because Barber had not filed transcripts of his trial and his resentencing hearing-and we affirmed the trial court. Id. at ¶ 12-13, 16-17, 22 and 28-29.

         {¶ 9} On June 14, 2011, Barber filed a motion for resentencing in Case No. 2000 CR 01272. He argued in the motion that the trial court should grant him a hearing, pursuant to R.C. 2941.25 and the then-recent decision of the Ohio Supreme Court in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, to determine whether some or all of the crimes for which he had been convicted were allied offenses. He further argued that the termination entries in the case (i.e. the original entry of March 7, 2001 and the revised entry of August 8, 2008) were not final appealable orders because neither specified the manner of his conviction. The trial court overruled Barber's motion, leading to Barber's fourth appeal. State v. Barber, 2d Dist. Montgomery No. 24770, 2012-Ohio-2332, ¶ 1 [hereinafter Barber IV]. We affirmed, finding that the motion amounted to an untimely petition for post-conviction relief, that Johnson did not apply, and that the trial court's nunc pro tunc termination entry of August 8, 2008 did constitute a final appealable order. Id. at 10, 12-14 and 20-21.

         {¶ 10} Undaunted, Barber filed a combined motion for sentencing and an allied offense determination in Case Nos. 2000 CR 00497 and 2000 CR 01272 on October 3, 2013, asserting that the termination entries of August 8, 2008 did not properly indicate whether postrelease control was mandatory or discretionary; that the trial court did not make the findings required by Crim.R. 25 at his resentencing hearing of August 7, 2008; and, regardless of the fact that the court had merged several offenses during his original sentencing, that additional allied offenses of similar import should also have been merged. The court overruled Barber's motion, and Barber commenced a fifth appeal. State v. Barber, 2d Dist. Montgomery No. 26612, 2015-Ohio-4607, ¶ 9 [hereinafter Barbe ...


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