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State v. Harwell

Court of Appeals of Ohio, Second District, Montgomery

May 18, 2018

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL D. HARWELL Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2012-CR-2367

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Attorney for Plaintiff-Appellee

          MICHAEL D. HARWELL, Defendant-Appellant-Pro Se

          OPINION

          WELBAUM, P.J.

         {¶ 1} Defendant-appellant, Michael D. Harwell, appeals pro se from the judgment of the Montgomery County Court of Common Pleas overruling his motion for resentencing in which he argued that the trial court failed to properly impose post-release control during his resentencing hearing and in the corresponding amended termination entry. Harwell also argues that the trial court failed to merge allied offenses of similar import during his resentencing. For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On November 16, 2012, Harwell was charged in a 14-count indictment with the following offenses:

Count 1: Felony Murder - R.C. 2903.02(B)
Count 2: Felony Murder - R.C. 2903.02(B)
Count 3: Attempted Felony Murder - R.C. 2923.02(A)/R.C. 2903.02(B)
Count 4: Attempted Felony Murder - R.C. 2923.02(A)/R.C. 2903.02(B)
Count 5: Kidnapping - R.C. 2905.01(A)(3) (terrorize/physical harm);
Count 6: Kidnapping - R.C. 2905.01(A)(3) (terrorize/physical harm);
Count 7: Kidnapping - R.C. 2905.01(B)(2) (substantial risk of serious physical harm/restrain personal liberty)
Count 8: Kidnapping - R.C. 2905.01(B)(2) (substantial risk of serious physical harm/restrain personal liberty);
Count 9: Kidnapping - R.C. 2905.01(A)(2) (facilitate felony or flight)
Count 10: Kidnapping - R.C. 2905.01(A)(2) (facilitate felony or flight)
Count 11: Felonious Assault - R.C. 2903.11 (A)(2) (deadly weapon)
Count 12: Felonious Assault - R.C. 2903.11(A)(1) (serious harm)
Count 13: Felonious Assault - R.C. 2903.11(A)(2) (deadly weapon)
Count 14: Weapon Under Disability - R.C. 2923.13(A)(3) (prior drug conviction).

         Each of the foregoing counts, excluding the count for having a weapon under disability, included a three-year firearm specification.

         {¶ 3} According to the record, the aforementioned charges stemmed from Harwell's actions after he purchased two ounces of cocaine that, unbeknownst to him, was cut/diluted with other substances. In an attempt to get his money back from the purchase, it was alleged that Harwell kidnapped two men, Jonathon Lambes and Jason Miller, who were both involved in selling Harwell the cocaine. It was also alleged that Harwell fired gunshots at both men, which resulted in Miller's death.

         {¶ 4} Following his indictment, Harwell pled not guilty to all the charges and the matter proceeded to trial. Thirteen of the fourteen counts against Harwell were tried before a jury, as Harwell elected to have a bench trial on Count 14, having a weapon under disability. After trial, Harwell was found guilty as charged on all counts raised in the indictment. Thereafter, the trial court merged several of the counts and firearm specifications at sentencing and imposed an aggregate prison sentence of 32 years to life. Harwell then appealed.

         {¶ 5} On appeal, we vacated Harwell's two attempted felony murder convictions pursuant to the Supreme Court of Ohio's decision in State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, which held that attempted felony murder is not a cognizable crime in Ohio. State v. Harwell, 2d Dist. Montgomery No. 25852, 2015-Ohio-2966, ¶ 34-35. As a result of vacating these convictions, we remanded the matter to the trial court for resentencing. Id. at ¶ 90. The judgment of the trial court was affirmed in all other respects. Id.

         {¶ 6} On remand, the trial court held a resentencing hearing on August 13, 2015, in accordance with our decision in Harwell. At the resentencing hearing, the trial court vacated the two attempted felony murder counts as instructed and resentenced Harwell for the remaining offenses and firearm specifications. In resentencing Harwell, the trial court once again merged several of the offenses and firearm specifications. The merger resulted in Harwell being sentenced ...


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