United States District Court, S.D. Ohio, Eastern Division, Columbus
A. Sargus, Jr., District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
VanGundy brought this habeas corpus action pursuant to 28
U.S.C. § 2254 to obtain relief from his convictions and
sentence in the Franklin County Court of Common Pleas on two
counts of aggravated robbery, one with a firearm
specification. The case is ripe for decision upon the
Petition (ECF No. 1), the State Court Record (ECF No. 9), the
Return of Writ (ECF No. 10), and Petitioner's Reply to
the Return (labeled by Petitioner as
“Objection”)(ECF No. 14). The Magistrate Judge
reference in the case has been transferred to the undersigned
to help balance the Magistrate Judge workload in the District
(ECF No. 15).
was indicted on October 23, 2014, on one count of aggravated
burglary with a firearm specification; one count of
aggravated robbery with a firearm specification; two counts
of kidnapping, each with a firearm specification; and one
count of having weapons while under disability. After plea
negotiations, VanGundy pleaded guilty to two counts of
aggravated robbery, one of which carried a firearm
specification. He was sentenced to seventeen years
imprisonment on December 8, 2015.
took no direct appeal at that time, but a year later filed a
Notice of Appeal and a motion for leave to file a delayed
appeal which the Tenth District Court of Appeals denied
(State Court Record, ECF No. 9, Ex. 10, PageID 106-12).
VanGundy appealed to the Supreme Court of Ohio, but that
court declined to accept jurisdiction (Entry, State Court
Record, ECF No. 9, PageID 179). On June 17, 2016, VanGundy
moved in the trial court to have his sentence modified.
Id. at Ex. 17, PageID 180-87. The Franklin County
Court of Common Pleas denied that motion on July 29, 2019.
Id. at Ex. 19, PageID 194-96.
13, 2018, VanGundy filed a Motion to Correct a Void Sentence
which is Contrary to Law. Arguing that his convictions were
for allied offenses and the sentences should therefore be
concurrent instead of consecutive. Id. at Ex. 20,
PageID 197-201. The Common Pleas Court denied that Motion on
July 17, 2018, and Petitioner did not appeal. On January 2,
2019, he filed his Petition in this case (ECF No. 1).
pleads one ground for relief:
Ground One: The Tenth Appellate District
violated VanGundy's right to appeal, as his Delayed
Appeal met all of the requirements of Rules 3 and 5, was
supported with an affidavit, and the reason for his delay was
the trial court's violation of his Constitutional rights
when it failed to inform him at or after the imposition of
his unlawful sentence (10 additional years in violation of
his double jeopardy rights), and of his right to appeal.
(Petition, ECF No. 1.)
Warden defends on several bases. First, to the extent that
VanGundy is making a claim that the trial court violated his
right under Ohio R. Crim. P. 32 to be advised of his right to
appeal, which is a claim under Ohio law, not the Federal
Constitution (Return, ECF No. 10, PageID 225). Second,
VanGundy's claim is rebutted by the record which shows
his guilty plea contained written notice of his right to
appeal. Id. at PageID 224. Third, to the extent the
claim raises a federal Double Jeopardy claim, the Warden
asserts the offenses of conviction are not allied offenses of
similar import under Ohio Revised Code § 2941.25 and
VanGundy has, in any event, procedurally defaulted on this
claim by not taking a timely appeal from his convictions and
sentence. Id. at PageID 225-27. Fourth,
VanGundy's complaining of the refusal of the Tenth
District to accept his delayed appeal is also a claim under
Ohio law, not the Federal Constitution. Id. at
Objection (Reply) insists he exhausted state court remedies
each State Court the opportunity to address the merits of his
claim and failure to review ‘VanGundy's habeas
claim as to merger' will result in a fundamental
miscarriage of justice because it is axiomatic that where an
individual's immediate motive involves the commission of
one offense, but in the course of committing that crime he
must, a priori, commit another, then he may well
possess but a single animus, and in that event may be
convicted of only one crime. For example, as in this
case at bar, when VanGundy committed the crime of
Agg. Robbery, he must, by the very nature of the
crime, completed Agg. Burglary. Under our statutes, he
simultaneously commits the offense of Agg. Robbery (R. C.
2911.11 [A] ) by threatening to inflect physical harm the
victim to facilitate the commission of a felony. In that
instance, without more, there exists a single
animus, and R.C. 2941.25 prohibits convictions for
both offenses. Thus, VanGundy's "single habeas claim
in this case" has merit, and this Honorable
Court's failure to review the claims will
result in a fundamental miscarriage of
(ECF No. 14, PageID ...