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State v. Montgomery

Court of Appeals of Ohio, Fifth District, Guernsey

May 31, 2019

STATE OF OHIO, Plaintiff - Appellee
v.
JEPHTHAH I MONTGOMERY, Defendant-Appellant

          Appeal from the Guernsey County Court of Common Pleas, Case No. 00-CR-155

          FOR PLAINTIFF-APPELLEE JASON R. FARLEY MELISSA R. BRIGHT

          FOR DEFENDANT-APPELLANT JEPHTHAH I MONTGOMERY, PRO SE ASSISTANT PROSECUTING ATTORNEYS

          Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Defendant-appellant Jephthah Montgomery appeals from the December 6, 2018 order of the Guernsey County Court of Common Pleas denying his Motion for Resentencing. Plaintiff-appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On May 8, 2001, appellant pleaded no contest to two counts of aggravated murder with capital specifications, one count of aggravated robbery, a felony of the first degree, and one count of aggravated burglary, also a felony of the first degree, pursuant to a negotiated plea. In exchange for the plea, the State dismissed the remaining counts of the indictment and agreed not to seek the death penalty.

         {¶3} The court held a sentencing hearing on November 6, 2001. The trial court, pursuant to a Judgment Entry of sentence filed on the same day, imposed concurrent terms of life imprisonment with parole eligibility after twenty-five years for the aggravated murder convictions, and concurrent terms of nine years imprisonment on the aggravated robbery and aggravated burglary convictions. Appellant did not appeal this judgment.

         {¶4} On August 9, 2010, appellant filed a pro se motion to withdraw his guilty plea pursuant to Crim. R. 32.1. Appellant claimed that his sentence was void because the court improperly imposed post-release control, and that his plea was not knowing, intelligent, and voluntary. The trial court, on October 13, 2010, overruled the motion. Appellant then appealed.

         {¶5} Pursuant to an Opinion filed on November 28, 2011 in State v. Montgomery, 5th Dist. Guernsey No. 10CA42, 2011-Ohio-6145, this Court affirmed the judgment of the trial court.

         {¶6} Thereafter, on September 4, 2018, appellant filed a Motion to Resentencing pursuant to R.C. 2967.28. Appellant, in his motion, argued that the trial court had erred when it failed to comply with R.C. 2967.28(B) 'by failing to impose any post release control on the remaining unclassified felony to witt (sic): C.T. 5: Aggravated Robbery where defendant received nine years." Appellee filed a response to the same on November 26, 2018. Pursuant to an Order filed on December 6, 2018, the trial court denied appellant's motion.

         {¶7} Appellant now raises the following assignments of error on appeal:

         {¶8} "I. THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD A NEW RE SENTENCING HEARING FOR FAILURE TO INCLUDE POST RELEASE CONTROL ON THE FELONY ...


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