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State v. Smith

Court of Appeals of Ohio, Tenth District

December 24, 2019

State of Ohio, Plaintiff-Appellee,
v.
Myron Smith, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas, No. 89CR-1002

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

         On brief:

          Myron Smith, pro se.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Defendant-appellant, Myron Smith, appeals from a decision and entry of the Franklin County Court of Common Pleas denying his motion for resentencing. For the following reasons, we affirm.

         I. Factual and Procedural Background

         {¶ 2} By indictment filed March 7, 1989, plaintiff-appellee, State of Ohio, charged Smith with three counts of aggravated murder in violation of R.C. 2903.01, unclassified felonies (each with four death-penalty specifications); one count of aggravated robbery in violation of R.C. 2911.01, a felony of the second degree; and one count of kidnapping in violation of R.C. 2905.01, a felony of the first degree. All five charges related to the death of Betty Calloway. A jury found Smith guilty on all counts and three of the four death-penalty specifications attached to the aggravated murder counts (Counts 1, 2, and 3). The jury recommended a sentence of 30 years to life in prison as to the aggravated murder counts. At the sentencing hearing, the court indicated its finding that Counts 1, 2, and 3 must merge for the purpose of sentencing, and thus it was imposing only one sentence for that offense. The prosecution did not indicate a preference as to which of the aggravated murder counts it sought to pursue. On December 5, 1989, the trial court entered judgment. The court imposed a sentence of "LIFE imprisonment with no parole eligibility for a period of THIRTY (30) full years as to Counts I, II and III (merging Counts)." (Entry at 2.) The court also sentenced Smith to 10 to 25 years each on the aggravated robbery and kidnapping counts, with these prison sentences to be served consecutively to each other and to the aggravated murder sentence.

         {¶ 3} Smith appealed, arguing that his conviction and sentence on the kidnapping count was in error because that offense was an allied offense of similar import to the aggravated robbery and aggravated murder charges. He also challenged a jury instruction regarding proof of his state of mind in causing death. This court rejected Smith's jury instruction challenge but agreed with his allied offense argument. Accordingly, this court affirmed in part and reversed in part and remanded the matter to the trial court with instructions to merge Smith's conviction for kidnapping with the other convictions, and to sentence him accordingly. State v. Smith, 10th Dist. No. 90AP-6, 1990 Ohio App. LEXIS 3818 (Aug. 28, 1990) ("Smith I "). In May 1996, the trial court entered a "modified judgment entry of conviction" vacating the conviction and sentence as to the kidnapping count and noting that the "rest of the sentence imposed in the previously entered judgment of conviction remains unchanged." (May 15, 1996 Entry at 1.) Smith did not appeal from the modified sentencing entry.

         {¶ 4} In September 2012, Smith filed a "motion for sentencing," alleging the trial court's entry correcting his sentence should be vacated because he was not physically present when the trial court corrected his sentence. In November 2012, Smith filed an additional "motion for sentencing," contending that his sentence was void, must be vacated, and he was entitled to a new sentencing hearing. In January 2013, the trial court denied Smith's motions.

         {¶ 5} Smith appealed from the denial of his "motion[s] for sentencing." In the appeal, Smith's assignments of error "essentially challenged] the validity of the trial court's 1996 sentencing entry." State v. Smith, 10th Dist. No. 13AP-129, 2013-Ohio-4674, ¶ 7 ("Smith II "). This court determined that the doctrine of res judicata barred Smith's arguments and therefore affirmed the trial court's judgment. Id. at ¶ 13.

         {¶ 6} In March 2019, Smith filed a "motion for resentencing to correct sentence" alleging the trial court erroneously imposed separate sentences on each of the three aggravated murder counts. He asserted the trial court failed to properly merge these counts involving allied offenses of similar import. In April 2019, the trial court denied Smith's March 2019 motion.

         {¶ 7} Smith ...


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