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State v. Parker

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 7, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-549438-A

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor

          BEFORE: Blackmon, J., E.A. Gallagher, P.J., and S. Gallagher, J.



         {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11. Appellant Corey Parker ("Parker") challenges the trial court's denial of his motion to vacate his conviction and mandatory eight-year sentence for aggravated robbery, with a notice of prior conviction stemming from a juvenile delinquency adjudication, and having a weapon while under disability. He assigns the following error for our review:

The Ohio Supreme Court's decision in State v. Hand, [149 Ohio St.3d 94');">149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448], which declared R.C. 2901.08 unconstitutional under both the state and federal constitutions [because it treats juvenile adjudications as penalty-enhancing convictions] applies retroactively to invalidate sentences previously enhanced under that unconstitutional provision.

         {¶2} Having reviewed the record and pertinent law, we reverse in part and remand for further proceedings consistent with this opinion.

         {¶3} The facts of this matter were set forth in Parker's direct appeal, as follows:

On April 16, 2011, Parker drove two codefendants, Emmanuel Scott and Antwon Carrington, to a pet store located on Cleveland's east side. Scott and Carrington entered the store to commit a robbery while Parker remained in the car. There was an exchange of gunfire in the store, and Scott received a nonfatal gunshot wound. He returned to the car, and Parker drove him to the emergency room at Cleveland Clinic. After the police identified Parker from video footage at the clinic, they arrested Parker, Scott, and Carrington.
Parker was indicted on May 12, 2011, along with Scott and Carrington, and charged with Count 1, aggravated robbery; Count 2, aggravated burglary; Counts 3 through 5, kidnapping; Counts 6 through 8, felonious assault; Count 9, carrying a concealed weapon; Count 10, having weapons while under disability; and Count 11, theft. Counts 1 through 8 included one-year and three-year firearm specifications. Counts 1 through 8 also included a notice of prior conviction specification under R.C. 2929.13(F)(6), [stemming from] a juvenile delinquency adjudication in juvenile court for felonious assault, and a repeat violent offender specification under R.C. 2941.149(A).
Parker pleaded guilty on September 21, 2011, to aggravated robbery, a first-degree felony, and having weapons while under disability, a third-degree felony. In exchange for Parker's agreement to cooperate with the police and testify against Scott and Carrington, the state dismissed all other charges and specifications excluding the one reflecting notice of prior conviction. The trial court sentenced Parker on November 30, 2011, to eight years in prison [mandatory, due to the juvenile delinquency adjudication in the notice of prior conviction] with five years of postrelease control.

See State v. Parker, 8th Dist. Cuyahoga No. 97841, 2012-Ohio-4741, ¶ 3-5 ("Parker I "). Scott pled guilty to aggravated robbery with a firearm specification and felonious assault, and was sentenced to a total of eight years of imprisonment. Apart from the three-year term for the firearm specification, Scott was not sentenced to a mandatory term. Carrington pled guilty to felonious assault and was sentenced to nonmandatory eight-year term. See State v. Carrington, Cuyahoga C.P. No. CR-11-549438 (Nov. 30, 2011); State v. Scott, Cuyahoga C.P. No. CR-11-549438 (Nov. 30, 2011). According to appellant's counsel, both Scott and Carrington were granted judicial release prior to the completion of their eight-year terms.

         {¶4} On direct appeal, Parker challenged his sentence and also asserted that R.C. 2901.08 is unconstitutional because it permits juvenile delinquency adjudications that are not determined by a jury to be included as prior convictions for purposes of imposing mandatory prison terms under R.C. 2929.13(F)(6).

         {¶5} This court rejected Parker's challenge to R.C. 2901.08, and affirmed. Applying the reasoning set forth in the majority of jurisdictions deciding the issue, this court held that prior juvenile delinquency adjudications fell within the "prior conviction exception" set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that there were "sufficient procedural safeguards to satisfy the reliability requirement that is at the heart of Apprendi ." Id. at ¶ 24. The Ohio Supreme Court declined Parker's motion for discretionary appeal, with three justices dissenting. See State v. Parker, 134 Ohio St.3d 1471, 2013-Ohio-553, 983 N.E.2d 370.

         {¶6} On October 31, 2016, Parker filed a motion to vacate his conviction and sentence, arguing that his constitutional rights were violated when the juvenile delinquency adjudications served as the basis of both the notice of prior conviction specifications, and the disability element of the weapons while under disability conviction. The trial court denied the motion. Parker now appeals.

         Postconviction Relief

         {¶7} "Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. ...

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