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Fite v. Hooks

United States District Court, S.D. Ohio, Western Division, Cincinnati

December 11, 2017

DONOVAN FITE, Petitioner,
v.
MARK HOOKS,[1] Warden, Ross Correctional Institution, Respondent.

          Timothy S. Black District Judge.

          DECISION AND ORDER DENYING MOTION TO AMEND; REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         This is 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).

         On 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. 13).

         Respondent 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).

         The case was recently transferred to the undersigned to help balance the workload among the Western Division Magistrate Judges (ECF No. 19).

         Petitioner 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 Appellant.
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. ...

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