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State v. Montgomery

Court of Appeals of Ohio, Fifth District, Licking

September 1, 2017

STATE OF OHIO Plaintiff-Appellee
v.
ROMAR MONTGOMERY Defendant-Appellant

         Criminal Appeal from the Court of Common Pleas, Case No. 2006 CR 00512

          For Plaintiff-Appellee WILLIAM C. HAYES PROSECUTING ATTORNEY JENNA E. JOSEPH ASSISTANT PROSECUTOR

          For Defendant-Appellant ERIC J. ALLEN ERIC ALLEN LAW CRIMINAL DEFENSE FIRM

          Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E. Wise, J.

          OPINION

          Wise, John J.

         {¶1} Defendant-Appellant Romar Montgomery appeals the decision of the Court of Common Pleas, Licking County, overruling his motion for resentencing pertaining to his 2007 felony trafficking conviction. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

         Appellant's 2007 Conviction and Direct Appeal

         {¶2} On September 22, 2006, appellant was indicted by the Licking County Grand Jury on one count of trafficking in crack cocaine (a felony of the third degree), one count of complicity to commit trafficking in crack cocaine (a felony of the second degree), one count of trafficking in crack cocaine (a felony of the first degree), and one count of trafficking in cocaine (a felony of the second degree). Appellant appeared before the trial court on October 3, 2006, with counsel, and entered a plea of not guilty to all four charges.

         {¶3} Appellant filed a motion to suppress on February 23, 2007. The motion to suppress sought to exclude "any evidence seized by police as a result of a warrantless arrest on September 14, 2006 and any oral statement given by Defendant subsequent to that arrest." The motion generally claimed appellant's warrantless arrest was improper. Appellant did not seek suppression of his statements, oral or written, due to a lack of Miranda warnings. The trial court held a suppression hearing on February 26, 2007, following which the motion to suppress was denied.

         {¶4} On March 20, 2007, the trial court appointed new trial counsel for appellant. On July 9, 2007, a jury trial commenced. Appellant's appointed counsel made a motion in limine, or in the alternative, a new suppression hearing to exclude certain statements made by appellant to police due to a lack of Miranda warnings. In the motion in limine, appellant specifically sought to exclude his written statement. The trial court denied the motion in limine, and further denied the motion for a new suppression hearing as untimely.

         {¶5} After hearing the evidence, the jury found appellant guilty on all counts, including special findings on each count. The court sentenced appellant as follows: Count I, three years in prison; Count II, five years in prison; Count III, ten years mandatory in prison as a major drug offender, plus one additional year in prison; Count IV, six years in prison. The trial court ordered each count to run consecutively, for a total prison sentence of twenty-five years. Appellant was granted 311 days jail credit.

         {¶6} Appellant filed a direct appeal to this Court, raising three Assignments of Error. On November 2, 2008, we affirmed appellant's conviction and sentence. See State v. Montgomery, 5th Dist. Licking 2007 CA 95, 2008-Ohio-6077.

         {¶7} Appellant thereafter filed a pro se motion to re-open his appeal. We denied the application on or about May 26, 2009. Appellant thereafter filed a complaint for mandamus in the Ohio Supreme Court, requesting that the Licking County Appeals Clerk be ordered to serve him with our May 26, 2009 judgment entry denying his application to reopen. On September 30, 2009, the Ohio Supreme Court granted dismissal of appellant's mandamus complaint. See In the State of Ohio, ex rel., Romar Montgomery v. Licking County Court House c/o Clerk of Courts, 5th District Appellate Division, Case Number 2009-1336.

          Appellant's 2010 ...


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