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State v. Porter

Court of Appeals of Ohio, Fifth District, Perry

July 22, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JOSHUA I. PORTER Defendant-Appellant

          Appeal from the Perry County Court of Common Pleas, Case No. 16-CR-0074

          For Plaintiff-Appellee: JOSEPH A. FLAUTT PERRY CO. PROSECUTOR

          For Defendant-Appellant:JOSHUA I. PORTER, PRO SE

          Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., Judges.

          OPINION

          Delaney, J.

         {¶1} Appellant Joshua I. Porter appeals from a Judgment Entry of the Perry County Court of Common Pleas dated October 5, 2018. Appellee is the state of Ohio.

         FACTS AND PROCEDURAL HISTORY

         {¶2} A statement of the facts underlying appellant's criminal convictions is not necessary to our resolution of this appeal.

         {¶3} In September 2016, appellant was charged by indictment with one count of kidnapping pursuant to R.C. 2905.01(A)(3), a felony of the first degree [Count I]; two counts of abduction pursuant to R.C. 2905.02, both felonies of the third degree [Counts II and III]; and two counts of felonious assault pursuant to R.C. 2903.11, both felonies of the second degree [Counts IV and V].

         {¶4} Appellant entered pleas of not guilty and the matter proceeded to trial by jury. At the opening of the second day of trial, however, appellant indicated his willingness to change his pleas of not guilty to ones of guilty to Counts I and III; appellee agreed to dismiss Counts II and IV, and Count V had already been dismissed. The trial court explained to appellant the rights he waived by changing his pleas to guilty. Appellant thereupon entered pleas of guilty to one count of kidnapping and one count of abduction. The trial court accepted the guilty pleas, ordered a pre-sentence investigation, and scheduled the matter for sentencing on March 29, 2017.

         {¶5} At sentencing, the trial court imposed an aggregate prison term of 11 years.

         {¶6} A faxed notice of appeal was filed in 5th District Perry No. 17-CA-00003, but the matter was dismissed.

         {¶7} Appellant directly appealed from his convictions and sentence in 5th District Perry No. 17 CA 4. Via an Anders brief, appellant argued the trial court erred in imposing consecutive sentences. We disagreed, overruled the assignment of error, and affirmed. Id.

         {¶8} On May 25, 2018, appellant filed a "Motion for Modification of Sentence Pursuant to O.R.C. Section 2929.41(A)" in which he argued the offenses of kidnapping and abduction are allied offenses of similar import which should have merged for purposes of sentencing. The trial court denied the motion via judgment entry dated June 1, 2018, noting the offenses of kidnapping and abduction involved two different victims and two different time periods.

         {¶9} On July 19, 2018, appellant filed a "Motion for Post Conviction Relief Pursuant to R.C. 2953.21" in which he argued trial counsel was ineffective in: 1) "failure to get the plea bargain that was tendered and to which he agreed in writing;" 2) failure to interview witnesses that would have testified on appellant's behalf at trial; and failure to investigate alleged false statements by appellee's witnesses. Appellant filed a motion to supplement his P.C.R. petition with the ...


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