Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vangundy v. Warden Noble Correctional Institution

United States District Court, S.D. Ohio, Eastern Division, Columbus

November 27, 2019

TIMOTHY VANGUNDY, Petitioner,
v.
WARDEN Noble Correctional Institution, Respondent.

          Edmund A. Sargus, Jr., District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         Timothy 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).

         Litigation History

         VanGundy 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.

         VanGundy 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.

         On May 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).

         Analysis

         VanGundy 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.)

         Return of Writ

         The 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 PageID 227.

         Petitioner's Reply

         VanGundy's Objection (Reply) insists he exhausted state court remedies by giving

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] [1]) 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 justice.

(ECF No. 14, PageID ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.