Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Assistant
Prosecuting Attorney, Montgomery County Prosecutor's
Office, Appellate Division, Montgomery County Attorney for
MICHAEL D. HARWELL, Defendant-Appellant-Pro Se
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
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.
Count 4: Attempted Felony Murder - R.C. 2923.02(A)/R.C.
Count 5: Kidnapping - R.C. 2905.01(A)(3) (terrorize/physical
Count 6: Kidnapping - R.C. 2905.01(A)(3) (terrorize/physical
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
Count 10: Kidnapping - R.C. 2905.01(A)(2) (facilitate felony
Count 11: Felonious Assault - R.C. 2903.11 (A)(2) (deadly
Count 12: Felonious Assault - R.C. 2903.11(A)(1) (serious
Count 13: Felonious Assault - R.C. 2903.11(A)(2) (deadly
Count 14: Weapon Under Disability - R.C. 2923.13(A)(3) (prior
the foregoing counts, excluding the count for having a weapon
under disability, included a three-year firearm
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