United States District Court, S.D. Ohio, Western Division, Cincinnati
Timothy S. Black District Judge.
DECISION AND ORDER DENYING MOTION TO AMEND; REPORT
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
a habeas corpus case brought pro se by Petitioner Donovan
Fite in 2012 to obtain relief from conviction in the Adams
County Common Pleas Court on counts of murder and involuntary
manslaughter with companying firearm specifications and his
consequent sentence of twenty-eight years to life (Petition,
ECF No. 3, PageID 27). The Warden filed an Answer as ordered
by Magistrate Judge Bowman (ECF No. 6). Petitioner combined
his Reply with Motions to Stay and Amend (ECF No. 8). The
Court granted the stay and delayed ruling on the motion to
amend pending exhaustion (Report and Recommendations, ECF No.
9; Decision and Order, ECF No. 11).
August 15, 2016, Fite moved to reinstate the case on the
active docket and to require a supplemental return of writ
(ECF No. 12). Judge Black granted the motion and ordered
Respondent to file a supplemental return which would include
Respondent's position on the motion to amend (ECF No.
filed his Supplemental Return of Writ December 20, 2016 (ECF
No. 16). Mr. Fite then filed a Reply to the Supplemental
Return (ECF No. 18).
case was recently transferred to the undersigned to help
balance the workload among the Western Division Magistrate
Judges (ECF No. 19).
pleads three grounds for relief in his Petition:
Ground One: Donovan Fite's guilty plea
was not knowing, voluntary, and intelligent because the trial
court misinformed him that he would be subject to a limited
period of post-release control upon his release from prison.
Supporting Facts: The trial court
incorrectly informed Mr. Fite that he would be subject to a
five-year term of post-release control upon his release from
prison. But because murder is a special felony, he would
actually be placed on an indefinite period of parole, not
post-release control, following his release. Thus, the trial
court materially misinformed Mr. Fite of the consequences of
his plea, and his plea was not made knowingly, intelligently,
and voluntarily. Further, because of the profound nature of
the difference between the representations of the trial court
that supervision would terminate five years after Mr.
Fite's release, and the reality that Mr. Fite, and his
guilty pleas must be set aside.
Ground Two: The trial court unlawfully
imposed consecutive terms of imprisonment when it did not
make the findings required by statute.
Supporting Facts: It is unlawful for the
trial court to conduct sentencing hearing in accordance with
the procedure set forth in the legislature that has
re-enacted the consecutive-sentencing statutes after that
decision, and Oregon v. ice [sic], has held that such
statutes are constitutional. Mr. Fite's sentencing
occurred after Ice upheld an indistinguishable sentencing
statute, the trial court was required to make the requisite
statutory findings before imposing consecutive sentences on
Ground Three: The trial court erred in
imposing a sentence that contains an order of restitution
without identification of the individual or entity entitled
to receive such restitution.
Supporting Facts: The trial court ordered
Mr. Fite “to pay restitution in the amount of $12,
779.66, ” Amended Judgment Entry of Sentence, April 8,
2010. The entry is silent regarding which person or entity
was to receive such payment. Mr. ...