Court of Appeals of Ohio, Fifth District, Licking
Appeal from the Court of Common Pleas, Case No. 2006 CR 00512
Plaintiff-Appellee WILLIAM C. HAYES PROSECUTING ATTORNEY
JENNA E. JOSEPH ASSISTANT PROSECUTOR
Defendant-Appellant ERIC J. ALLEN ERIC ALLEN LAW CRIMINAL
W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E.
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.
2007 Conviction and Direct Appeal
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
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.
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.
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.
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,
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 ...