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State v. Howard

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 13, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ANDRE HOWARD, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-554036-C

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

          Clarissa Smith and James R. Willis, for appellant

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

         {¶ 1} Defendant-appellant, Andre Howard ("Howard"), appeals the trial court's denial of his motion for resentencing. For the reasons set forth below, we affirm.

         {¶2} In September 2011, Howard was charged with four counts of felonious assault and two counts of improperly discharging a firearm into a habitation, with attached one-, three-, and five-year firearm specifications. Howard was also charged with one count of having a weapon while under disability ("HWWUD"). These charges arose from Howard's involvement in a drive-by shooting that occurred in June 2011.[1]

         {¶ 3} In November 2011, the matter proceeded to a bench trial and Howard was found guilty of all charges. The trial court sentenced Howard to concurrent prison terms of four years on Counts 1-4 (felonious assault), three years on Counts 5-6 (improperly discharging a firearm into a habitation), and one year on Count 7 (HWWUD). The trial court merged the one-year and three-year firearm specifications, but ordered Howard to serve the three-year and five-year firearm specifications consecutively to each other, for an aggregate term of 12 years in prison.

         {¶ 4} In December 2011, Howard timely appealed. In the appeal, Howard argued that there was insufficient evidence to sustain his convictions, his convictions were against the manifest weight of the evidence, and he was denied the effective assistance of counsel. This court affirmed Howard's conviction and sentence in Howard I.

         {¶5} In February 2013, Howard filed a pro se motion to "Correct a Factually Illegal Sentence." In the motion, Howard argued the trial court should have merged his convictions for felonious assault and improperly discharging a weapon into a habitation, as well as the firearm specifications, because they were allied offenses. The trial court denied the motion and Howard appealed.

         {¶ 6} In October 2013, we affirmed the trial court's decision, in State v. Howard, 8th Dist. Cuyahoga No. 99664, 2013-Ohio-4803 ("Howard II "), finding that Howard's motion was an untimely filed petition for postconviction relief. We also found that Howard's allied offense argument was barred by the doctrine of res judicata, because he could have raised this argument in his direct appeal, but did not. Id.

         {¶ 7} In April 2018, Howard filed a motion for resentencing. In the motion, Howard argued his underlying convictions were allied offenses and should have merged. Howard also argued the trial court should not have imposed consecutive sentences on the firearm specifications. The trial court denied the motion.

         {¶ 8} Howard now appeals, assigning the following three errors for our review:

Assignment of Error One
The trial court erred in imposing consecutive sentences for the firearm specifications in contravention of Ohio's ...

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