No.

In the

Supreme Court of Ohio

THE STATE OF OHIO,

Respondent-Appellee

vs. D LDDGAREY SMITH,

Petitioner-Appellant

Jul. 2 1 Zaoi

CLERK OF COUR'CSUPREME COURT OF OHIO

Appeal from the Court of Appeals, Hamilton County, First Appellate District,Case No. C-060387

MEMORANDUM IN SUPPORT OF JURISDICTION FORPETITIONER-APPELLANT GAREY SMITH

BRYAN R. PERKINS, No. 0061871

Law Office of the Hamilton Public Defender230 East Ninth Street2"a FloorCincinnati, Ohio 45202(513) 946-3696Fax: (513) 946-3721

JOSEPH T. DETERS, No. 0012084

Hamilton County Prosecutor230 E. Ninth StreetSuite 4000Cincinnati, Ohio 45202(513) 946-3000Fax: (513) 946-3021

Counsel for Appellant, Garey Smith Counsel for Appellee, State of Ohio

TABLE OF CONTENTS

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ....... 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Proposition of Law No. I: If upon remand from the court of appeals, a trial court sua

sponte unmerges previously merged counts, and the issue of merger was never raised byeither party on appeal, and merger was never addressed by the court of appeals, thesubsequent trial on those previously merged charges is a nullity, and any sentencesimposed on those counts are void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Proposition of Law No. II: The doctrine of res judicata cannot be used to defendor enforce a void judgment or sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Proposition of Law No. III: The imposition of multiple sentences for two counts offelonious assault against the same person, for the same conduct, violates the UnitedStates and Ohio constitutional prohibition against Double Jeopardy . . . . . . . . . . . . . . . .12

Proposition of Law No. IV: A defendant's right to be free from ex post facto laws, andhis right to due process of law, is violated when he is sentenced under a more restrictivesentencing regime, and receives a harsher sentence than he would have received, had hebeen properly sentenced under the statutory sentencing scheme that existed at the timehe was originally sentenced .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ProRosition of Law No. V: An accused is denied his right to a trial by jury when the trialCourt fails to instruct the jury on the defense of extreme emotional distress due toprovocation ............................................................ 15

CONCLUSION .............................................................. 15

CERTIFICATE OF SERVICE .................................................. 15

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

Should this Court decide against accepting jurisdiction in this case, there is a very real

probability that Garey Smith will spend the rest of his life in prison. Should that happen, Smith

will live out his life in prison pursuant to the pretended authority of an unlawful and void

judgment. This prospect for Smith, as well as the implications for other citizens in this State,

should be of grave concern to this Honorable Court.

While Smith convincingly demonstrated to the First District Court of Appeals that the

order that holds him in prison is void, the court of appeals chose to not even address the merits of

his argument. Rather, the court below summarily held that res judicata prohibited Smith from

raising that issue as part of his petition for post-conviction relief. The decision by the court of

appeals to use res judicata to protect and enforce a void sentence is without precedence.

For a court to be complicit in the execution of a void sentence is abhorrent to the most

basic tenets of our system of justice. Long ago, the United States Supreme Court stated that all

persons involved in the execution of a void judgment are "considered, in law, trespassers." Elliot

v. Lessee of Peirsol (1828), 26 U.S. 328, 340. Nothing has changed to soften that stem

condemnation of void judgments or those who would permit such a judgment to be enforced.

This Court has never condoned or allowed the use of res judicata to enforce a void

judgment. To the contrary, this Court has always held that a void judgment is a "mere nullity,"

that could be "disregarded entirely," and "attacked collaterally." See Tarf v. State (1927), 117

Ohio St. 481, 494, 159 N.E. 594.

For any court of law to ignore the fact that a citizen is imprisoned on the basis of a void

judgment is undoubtedly a violation of due process. The Due Process Clause of the Fourteenth

Amendment prohibits state courts from depriving persons of liberty or property as punishment

1

for criminal conduct except as authorized by law. See Whalen v. United States (1980), 445 U.S.

684, 689, 100 S.Ct. 1432.

Due process prescribes an expansive notion of fairness for the government's treatment of

its citizens. It is defined by reference to the "universal sense of justice," and principles of

"justice so rooted in the traditions and conscience of our people as to be ranked fundamental."

See United States v. Russell (1973), 411 U.S. 423, 432, 93 S.Ct. 1637; Kinsella v. United States

(1960), 361 U.S. 234, 246, 80 S.Ct. 297. Due process protects "the individual against arbitrary

action of the government" Wolff v. McDonnell (1974), 418 U.S. 539, 558, 94 S.Ct. 2963.

It should go without saying that due process demands that no American court should ever

affix its imprimatur of approval upon an apparently void prison sentence. Smith stood before the

court of appeals bearing proof that his sentence was void. In response, the court of appeals

bluntly washed it hands of Smith proclaiming res judicata. This Court must accept jurisdiction

of this case and deliver a hasty death to this novel and absurd notion that res judicata could ever

be used to defend or preserve a void judgment.

STATEMENT OF THE CASE AND FACTS

Fifty-one-year-old Garey Smith lived in Cincinnati's crime infested neighborhood, Over-

The-Rhine, for six years. After long days as a welder, Smith came home to be tormented by drug

dealers and street thugs who terrorized his neighborhood. These thugs played loud music until

all hours, constantly threw trash onto his property, burglarized his house, vandalized his cars, and

even killed his pet cat with a brick. Smith's repeated calls to the police were mostly ignored.

On May 13, 2001, just after the "Cincinnati riots," Smith was approved to purchase a new

home. He was relieved that he would be moving. Unfortunately, that same day, five men

attacked and robbed Smith. They warned Smith that he would be killed if he called the police

again. Three of the robbers were identified as Jerry Tolbert, Nicholas Grant, and Kevin Grant.

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Smith called the police, and pointed out Jerry Tolbert and Kevin Grant who were still in

the area. The police had also detained Nicholas Grant nearby as he had matched the description

given by Smith during the 911 call. The police declined to charge any of the suspects with

robbing Smith. Jerry Tolbert and Kevin Grant were released right outside of Smith's residence.

Nicholas Grant was arrested on an unrelated matter and released the following day. A city

councihnan, who lived in Over-The-Rhine, testified at Smith's trial. He described the police as

being detached from the community during this time immediately following the riots.

After the police left Jerry Tolbert and Kevin Grant outside of Smith's home, the duo

again threatened to kill him. Smith called the police, but there was no response. Smith knew

these men were dangerous drug dealers, and he also knew he could not depend upon the police to

protect him. ^Fearing for his life, he retrieved a gun from his landlord's apartment for protection.

The following day, Smith checked into a local motel and hoped to avoid any further

conflict with his tormenters. When Smith returned home to retrieve some personal items, he

parked his car several blocks away so that this band of thugs would not see him return home.

But when he arrived at his house, Smith was confronted by Jerry Tolbert, Jeff King, and another

man. Smith rushed into his house and called the police. Again, the police did not arrive. When

the men left the area, Smith hurried back to his motel room.

Later, Smith returned home to retrieve possessions he had forgotten during his earlier

haste to flee his home. Once again, he parked away from his house hoping to avoid a conflict.

As he approached his house, Smith came upon King who had just finished urinating in the

breezeway next to Smith's house. Smith told King that he was tired of his house being used as a

public toilet. Smith showed King the gun in his waistband. Smith wanted King to know he was

not going to be intimidated by him and his criminal friends. Smith also thought that maybe they

would leave him alone if they knew he was armed. But instead, King tried to wrestle the gun

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away from Smith. The two men fought over the gun. Smith knew that King would kill him if he

got the gun away from him. In the frenzy of the fight, Smith discharged the gun in order to get

King to release his grip. King turned to run away and was shot in the back of his shoulder.

Sniith feared that King would return with his gangster friends, so he tried to get to his

parked car so he could leave the area. As he walked, he was about to pass a carryout store when

he saw Nick Grant. Nick Grant was sitting on a nearby park bench with his gang of thugs and

dope dealers. Grant stated, "There that mother fucker is, right there. Get him!" Grant's cohorts

then started moving towards Smith. One of the gang, Jimmie Gordon, fired a gun at Smith and

was about to shoot again. In fear for his life, Smith fired in self-defense. Gordon later died from

a single gunshot wound to his chest. Primer residue was later found on Gordon's right hand.

Simultaneous to the shooting, Steven Franklin and Andre Ridley rushed towards Smith.

Franklin appeared to be taking something from his pocket. Smith fired a single shot striking

Franklin's leg. When Franklin kept charging, Smith fired twice more causing Franklin to fall to

the ground. Smith then fired once at Ridley, who was still rushing at Smith, striking him in the

stomach. Smith made it to his vehicle and left the area. Two days later, with the assistance of a

radio personality, Smith surrendered himself to the police. Smith was indicted as follows:

Count 1: Aggravated Murder of Jimmie Gordon [R.C. 2903.01(A)]Count 2: Felonious Assault of Steven Franklin [R.C. 2903.11(A)(1)]Count 3: Felonious Assault of Steven Franklin [R.C. 2903.11 (A)(2)]Count 4: Attempted Murder of Steven Franklin [R.C. 2923.02(A)]Count 5: Felonious Assault of Jeff King [R.C. 2903.11(A)(1)]Count 6: Felonious Assault of Jeff King [R.C. 2903.11(A)(2)]Count 7: Attempted Murder of Jeff King [R.C. 2923.02(A)]Count 8: Felonious Assault of Andre Ridley [R.C. 2903,02(A)(1)]Count 9: Felonious Assault of Andre Ridley [R.C. 2903.02(A)(2)]Count 10: Attempted Murder of Andre Ridley [R.C. 2923.02(A)]Count 11: Having Weapons Under Disability [R.C. 2923.13(A)(2)]

Following his first trial, Smith was found not guilty of Count 7; guilty of the lesser

offense of Murder in Count 1, and guilty on the remaining charges. When the trial court

4

sentenced Smith, it did not impose sentences on Counts 2, 3, 5, 8, and 9. Rather, it merged as

allied offenses, Counts 2 and 3 into Count 4; Count 5 into Count 6; and Counts 8 and 9 into

Count 10. In sum, sentences were only imposed on Counts 1, 4, 6, 10, and 11.

Smith appealed his convictions to the First District Court of Appeals. It is critical to note

that neither Smith, nor the State of Ohio, challenged the merger order as part of the direct appeal.

The issue of merger was never raised as error in the court of appeals, and it was not addressed in

that court's decision. Rather, Smith's convictions were reversed on other grounds.

Upon remand, the second trial court somehow sua sponte "unmerged" the previously

ordered merged counts, and allowed Smith to be tried on all counts. Following Smith's second

trial, the jury found Smith guilty of Counts 2, 3, 5, 6, 8, 9, and 11. The jury was unable to reach

verdicts in Counts 1, 4, and 10. The prosecutor asked the trial court for permission to retry

Counts 1, 4, and 10. The trial court permitted a retrial on Count 1, but dismissed Counts 4 and 7.

The trial court imposed maximum consecutive sentences on Counts 2, 3, 5, 6, 8, 9, and 11.

After Sniith's third trial, in which only Count 1 was tried, a jury acquitted him of the

murder of Jimmie Gordon on the basis of self-defense.

Following Smith's second appeal, the First District Court of Appeals reversed Smith's

sentences on Counts 2, 3, 5, 6, 8, 9, and 11, and ordered a new trial on Counts 5 and 6. On

remand, the trial court resentenced Smith to maximum consecutive sentences on Counts 2, 3, 8, 9

and 11. Counts 5 and 6 were not retried, but were dismissed by the prosecution.

During this retrial and appeal process, Smith filed a pro se Petition for Post-Conviction

relief in which he attacked the legitimacy of his convictions and sentences from his second trial.

The trial court denied Smith's petition and he appealed. The court of appeals affirmed the trial

court's denial of Smith's petition. That decision and the sentences that were purported to be

imposed in Counts 2, 3, 8, 9, and 11 are at issue in this appeal.

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ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: If upon remand from the court of appeals, a trial court sua

sponte unmerges previously merged counts, and the issue of merger was never raised byeither party on appeal, and merger was never addressed by the court of appeals, thesubsequent trial on those previously merged charges is a nullity, and any sentencesimposed on those counts are void.

It is well established that any attempt by a court to disregard statutory requirements when

imposing a sentence renders the attempted sentence a nullity. See State v. Beasley (1984), 14

Ohio St.3d 74, 471 N.E.2d 774. If a court acts without legal authority, "its judgments and orders

are regarded as nullities." "They are not voidable, but simply void; and form no bar to recovery

sought, even prior to a reversal, in opposition to them." Elliot v. Lessee of Peirsol (1828), 26

U.S. 328, 340. See also In re Edwards (C.A. 7, 1992), 962 F.2d 641, 644 (a judgment is void if

the court that rendered it lacked authority, or subject matter jurisdiction, or if it acted in a manner

inconsistent with due process of law.)

Merger is waived if not raised on appeal.

Any alleged error in the trial court's merger determination is waived if not raised on

direct appeal. See State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640; State v. Perkins

(1994), 93 Ohio App.3d 672, 684, 639 N.E.2d 833. In State v. Couturier (Sep. 13, 2001), 10`h

Dist. No. OOAP-1293, 2001 Ohio App. LEXIS 4050, the trial court sentenced appellant to five

years in prison for felonious assault, nine months for corrupting another with drugs, and fifteen

months on three counts of corrupting a minor. The trial court ordered the three charges of

corrupting a minor merged. On appeal, the case was reversed on grounds other than the issue of

merger. On remand the trial court felt that the corrupting a minor charges should no longer be

merged, and unmerged the counts. On the second appeal, the court of appeals concluded that the

trial court was without authority to modify the previous merger order. It soundly reasoned:

6

Here, the state never appealed the trial court's original merger determination, and thiscourt's decision in Couturier I never addressed the issue. As such, the State waived anyalleged error in the trial court's determination. Likewise, the trial court was precludedfrom revisiting its prior merger determination on remand. Id at 12.

Smith's case presents the identical scenario. After his first trial, the trial judge ordered

the merger of counts 2, 3, 5, 8, and 9. The State did not appeal that merger order. As a matter of

fact, in its sentencing memorandum, the prosecutor stipulated that these counts should be merged

as allied offenses. Smith obviously never raised merger as an issue on appeal. While the First

District Court of Appeals reversed Smith's convictions for other reasons, it never addressed the

issue of merger, and never ordered the counts unmerged. Yet, on remand, the trial court sua

sponte unmerged those previously merged counts and tried Smith on those charges.

The second trial court was without the legal authority to unmerge counts 2, 3, 5, 8, and 9.

With the merger issue waived, the first trial court's decision to merge those counts became the

law-of-the-case, and the second trial court was without jurisdiction to alter that decision. See

Wiest v. Wiegele, lst Dist. No. C-050880, 2006-Ohio-5348. Everything that followed the

unlawful unmerger of those counts was a nullity. Smith was unlawfully tried on an invalid

indictment. Those previously merged counts were unlawfully put before a jury. The resulting

verdicts are nullities. It necessarily follows that the purported subsequent sentences, which are

the basis of his current imprisonment, are also void.

In Ball v. United States (1985), 470 U.S. 856, 105 S.Ct. 1668, the defendant was

convicted of unlawfully receiving a firearm and unlawful possession of a firearm. The trial court

sentenced the defendant on both, but ran the sentences concurrently. The United States Supreme

Court found that this was improper, and ordered the trial court to vacate one of the convictions

because the merged count (even though it did not increase the sentence) had to be dismissed.

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See also United States v. Throneburg (C.A. 6, 1990), 921 F.2d 654 (when multiplicitous

prosecutions and convictions occur, the only remedy is to vacate the multiplicitous convictions).

In Hattie v. Parker (C.A. 6, 1993), Case No. 91-4079, 1993 U.S. App. LEXIS 14741, a

federal habeas action, the Sixth Circuit Court of Appeals ordered the dismissal of merged counts

from the defendant's conviction record. The court found (as argued by the Ohio Attorney

General) that merger was tantamount to dismissal. See also, Hattie v. Anderson (C.A. 6, 1998),

Case No. 96-3628, 1998 U.S. App. LEXIS 604; Hattie v. Parker (C.A. 6, 1994), Case No. 94-

3158, 1994 U.S. App. LEXIS 28141. It is worth noting that none of Smith's merged counts

appeared on his commitment papers as prepared by the Ohio Department of Corrections

("ODOC") after his first trial. ODOC recognized those counts as being dismissed.

The State of Ohio will likely argue that the decision of the court of appeals in Smith's

first appeal somehow urunerged or reinstated the previously merged counts. This argument must

fail. First, the decision from Smith's first appeal does not even address the merger issue; let alone

fmd error with it, or order the merger reversed. Second, as discussed in more detail infra, there

were no sentences imposed on the merged counts, therefore the court of appeals could not order

a new trial on them. See Crim. R. 33(D). Third, even assuming that the merged counts contained

sentences (which they do not), this Court clearly held that court of appeals cannot reverse an

entire multi-offense sentence when a defendant assigns as error the sentence as to only one or

more offenses, but not the entire multi-offense sentence. See State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, 846 N.E.2d 824. Because neither Smith, nor the State of Ohio, raised error with

regard to the mergers, the court of appeals was without the ability to reverse and remand those

counts. As this Court succinctly stated: "Because Ohio does not `bundle' sentences, nothing is

`unbundled' when one of several sentences is reversed on appeal." Saxon at ¶ 15.

Crim. R. 33(D) prohibits retrial of merged counts.

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When "a new trial is awarded on appeal, the accused shall stand trial upon the charge or

charges on which he was convicted." [emphasis added] Crim. R. 33(D). A judgment of

conviction is defined as setting forth the plea, the verdict or findings, and the sentence. Crim. R.

32(C). A sentence is defined as "the sanction or combination of sanctions imposed by the

sentencing court on an offender who is convicted or pleads guilty to an offense." R.C.

2929.01(FF). In the case at bar, the first trial court did not impose sentences or sanctions of any

nature on any of the merged counts. With no sentences on the merged counts (Counts 2, 3, 5, 8,

and 9) there were no convictions on those counts. With no convictions on the merged counts,

Crim. R. 33(D) prohibited any retrial of those counts. As such, the subsequent trial on those

counts was simply a nullity. The purported convictions and sentences that followed are void.

In Ball v. United States (1985), 470 U.S. 856, 105 S.Ct. 1668, the United States Supreme

Court interpreted Fed. R. Crim. P. 32, which is the same in relevant part as Ohio R. Crim. R.

32(C). In Ball, the Supreme Court stated: "Congress does not create criminal offenses having no

sentencing component." Ball, 470 U.S. at 861-862. The United States Supreme Court held that

"the sentence is a necessary component of a`judgment of conviction."'

Following Smith's first trial, there were no sentences imposed on Counts 2, 3, 5, 8, and 9.

Therefore, Crim. R. 33(D) prohibited the second trial court from retrying Smith on those counts

following remand. No sentence means no conviction - which means no retrial on remand.

Proposition of Law II: The doctrine of res judicata cannot be used to defend or enforce avoid judgment or sentence.

In the court below, the court of appeals did not address the merits of Smith's claim that

he is imprisoned pursuant to a void sentence. Rather, it summarily held that res judicata

precluded him from even raising this issue in his petition for post-conviction relief There is

absolutely no legal basis to justify this decision.

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Res judicata does not attach to a void judgntent

This Court recognizes that res judicata is a rule of fundamental and substantial justice. It

cannot be applied to defeat the ends of justice or so as to work an injustice. Davis v. Wal-Mart

Stores, Inc., 93 Ohio St.3d 488, 2001-Ohio-1593, 756 N.E.2d 657. hi keeping with that rule, res

judicata does not attach to a void sentence. See Phillips v. Cole (Aug. 6, 1997), 9`h Dist. No.

18107, 1997 Ohio App. LEXIS citing to Tari v. State (1927), 227 Ohio St. 481, 159 N.E.2d 594;

Bobala v. Bobala (1940), 68 Ohio App. 63, 33 N.E.2d 845; Leonard v. Teasley (Apr. 30, 1984),

2°d Dist. No. CA8417, 1984 Ohio App. LEXIS 9473.

Within the civil context, even the First District Court of Appeals has held that a void

judgment "can be attacked by motion, on appeal, or collaterally, without time restrictions, and

without the necessity of using the procedures of Civ. R. 60(B)." In re Murphy (1983), 10 Ohio

App.3d 134, 461 N.E.2d 910. Also, in Antoine v. Atlas Turner, Inc. (C.A. 6, 1995), 66 F.3d 105,

the Sixth Circuit Court of Appeals stated: "If the underlying judgment is void, it is aper se abuse

of discretion for a district court to deny a movant's motion to vacate the judgment under Rule

60(B)(4)." It would defy logic and due process protections to apply lesser safeguards when the

issue goes beyond a money judgment, and a citizen's liberty is at stake.

The First District turns res judicata on its head

Instead of improperly applying res judicata to defeat Smith's legitimate attack on his

void sentence, the court of appeals should have properly applied res judicata on the merger

issue. Because no party raised the merger issue on appeal, and because it was not addressed in

the direct appeal, that issue was waived and resolved with finality in Smith's favor. Resjudicata

prohibited the second trial court from unmerging the merged counts. The merger order was final

and could not be altered by the second trial court. The court of appeals cannot be permitted to

stand the doctrine of res judicata on its head in order to summarily defeat Smith's claim.

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When a defendant fails to appeal the sentence for a certain offense, he cannot takeadvantage of an error in the sentence for an entirely separate offense to gain a secondopportunity to appeal upon resentencing. To hold otherwise would essentially abrogatethe doctrine of res judicata for multicount sentences and precludes finality in sentencing.Accordingly, a defendant who fails on direct appeal to challenge the sentence imposed onhim for an offense is barred by res judicata from appealing that sentence following a

remand for resentencing on other offenses.

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824

Just as res judicata prohibits a defendant from having another bite at the apple on matters

he failed to challenge on appeal (following a successful appeal on other issues), the State of Ohio

is also precluded from doing so. Res judicata is not a sword to be wielded only when it benefits

the State of Ohio - it protects everybody. Res judicata prohibited the State of Ohio from trying

Smith on counts that had been merged, and which were resolved with finality once the State of

Ohio agreed to the merger and then failed to assign error to that merger order.

In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, this Court found

that when a defendant prevails on the post-release control aspect of a sentence, the aspect of the

sentence that is void must be rectified. "The rest of the sentence, which defendant did not

successfully challenge, remains valid under the principles of res judicata." In Smith's case the

state agreed to the merger and it certainly did not appeal it. Because nobody challenged the

merger order, and it was not addressed on direct appeal, res judicata prohibited the trial court

from revisiting that issue at Smith's second trial.

To hold otherwise would make a mockery of the fundamental principles that prohibit a

citizen from losing his or her freedom without the due process of law. The State of Ohio would

get the benefit of reinstating (or unmerging) multiple counts that had previously been merged. It

would receive this windfall despite the fact that it had agreed with the merger and never raised

that issue on appeal. And, Smith would suffer horribly (36 years of lost liberty) from the

reinstatement of these charges. It would all happen without Smith being provided the slightest

11

opportunity to argue against it, or oppose it in anyway. It just sort of happened. No notice, no

motions, no opportunity to be heard, no oral argument, no nothing. To allow this to stand would

be an absolute and utter disgrace to our American system of justice.

Proposition of Law III: The imposition of multiple sentences for two counts of feloniousassault against the same person, for the same conduct, violates the United States and Ohioconstitutional prohibition against Double Jeopardy.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be

subject for the same offence to be twice put in jeopardy of life or limb." This prohibition also

protects against multiple punishments for the same offense. See North Carolina v. Pearce

(1969), 395 U.S. 711, 717. In Albernaz v. United States (1981), 450 U.S. 333, 344, 101 S.Ct.

1137, the Supreme Court held "the question of what punishments are constitutionally permissible

[under the Double Jeopardy Clause] is no different from the question of what punishment the

Legislative Branch intended to be imposed." Also, U.S. Const., amend. V, XIV; R.C. 2941.25.

In Whalen v. United States (1979), 445 U.S. 684, 100 S.Ct. 1432, the United States

Supreme Court stated that Congress ordinarily does not intend to punish the same offense under

two different statutes. Accordingly, where two statutory provisions proscribe the "same offense"

they are construed not to authorize cumulative punishment.

In the case at bar, Smith is serving two sentences for the same offense. This Court has

never held that felonious assault under subsection (A)(1) and felonious assault under subsection

(A)(2) are not allied offenses. The legislature may have provided the State of Ohio with

alternative ways of proving felonious assault by creating the two subsections, but it never

intended there to be multiple punishments for a single act of felonious assault.

In United States v. Vest (W.D. Mo. 1995), 913 F. Supp. 1345, that court rationally found

that the language and structure of a statute discloses Congress's clear intent not to impose

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cumulative punishment when the same incident violates two subdivisions of the same statute.

See also, United States v. Monoz-Romo (C.A. 5, 1993), 989 F.2d 757.

In this case, Smith was found guilty of violating two different subsections of the same

felonious assault statute. Lawmakers never intended for there to be multiple punishments for the

same offense, under different subsections. One shot, one victim, one crime - two sentences? To

allow this would take State v. Rance, 85 Ohio St.3d 632, 199-Ohio-291, 710 N.E. 2d 699, which

already conflicts with United States Supreme Court precedence, to an absurd new level.

In Smith's case, the constitutional prohibition against Double Jeopardy was violated in

several additional ways. First, in Smith's first appeal, the court of appeals noted that the

prosecutor had engaged in misconduct, but found the issue was moot since it was reversing the

case on other grounds. Smith submits that because the prosecutor acted in such bad faith during

his first trial, the State forfeited the right to try him again a second time.

Second, for the reasons discussed supra, the second trial court was without authority to

unrnerge the counts and convict Smith of multiple, consecutive counts. See State v. Couturier

(Sep. 13, 2001), 10°i Dist. No. OOAP-1293, 2001 Ohio App. LEXIS 4050.

Third, Smith had a reasonable expectation of finality to the merged counts because that

issue was not appealed by the State of Ohio, and those counts were not part of his sentence.

Fourth, the doctrine of merger provides that a judgment of conviction entered for a single

offense merges in it all lesser included offenses. See State v. Rogers (1976), _ Ohio App.3d

346 N.E.2d 352, 358; R.C. 2943.09 (provides that if a defendant is convicted, acquitted or put in

jeopardy, such conviction acquittal or jeopardy works as a bar against further indictment for that

offense or for an offense necessarily included therein.); R.C. 2945.74.

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Fifth, a conviction of a greater offense bars retrial of a lesser offense whether it is a lesser

included offense or not. See Ohio Criminal Practice and Procedure, Section 17.111; Sawyer v.

O'Connor (1978), 54 Ohio St.2d 380, 377 N.E.2d 494.

Proposition of Law No. IV: A defendant's right to be from free ex post facto laws, and hisright to due process of law, is violated when he is sentenced under a more restrictivesentencing regime, and receives a harsher sentence than he would have received, had hebeen properly sentenced under the statutory sentencing scheme that existed at the time hewas originally sentenced.

The Ex Post Facto Clause of the Article I, Section 10 of the United States Constitution

prohibits, among other things, any law that "changes the punishment, and inflicts greater

punishment, than the law annexed to the crime when committed." Miller v. Florida (1987), 482

U.S. 423, 429, 107 S.Ct. 2446. Even though the Ex Post Facto Clause does not of its own force

apply to the judicial branch of government, the United States Supreme Court has recognized

"that limitations on ex post facto judicial decision making are inherent in the motion of due

process." Rogers v. Tennessee (2001), 532 U.S. 51, 456, 121 S.Ct. 1693.

At the time that Smith was initially sentenced, Ohio statutory sentencing law required the

trial court to make certain factual findings before imposing maximum or consecutive sentences.

However, the United States Supreme Court has held that such factual determinations must be

made by a jury, not the judge. See Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531.

In Smith's case, no factual determinations affecting sentencing were made by a jury. Therefore,

applying the sentencing law that existed at the time of Smith's initial sentencing, his maximum

consecutive sentences are unconstitutional. Absent any factual findings made by a jury, the trial

court was limited to imposing minimum concurrent sentences. To apply the unfettered

sentencing scheme that is set forth in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, results in a violation of the prohibition against ex post facto lawmaking.

14

Proposition of Law No. V: An accused is denied his right to a trial by jury when the trialcourt fails to instruct the jury on the defense of extreme emotional distress due toprovocation.

At Smith's second trial, the trial court prohibited Smith from presenting a defense by

refusing to instruct the jury on Aggravated Assault (R.C. 2903.12) as a crime of "inferior degree"

to felonious assault. The court of appeals found it was reversible error not to give this instruction

as it related to Smith's encounter with King, but not with Franklin and Ridley.

It is logically inconsistent to believe that Smith was under the influence of extreme

emotional distress when he encountered King, but just seconds later the extreme emotional

distress just suddenly disappeared as he fled for his life from Gordon's gunfire and as Franklin

and Ridley continued to charge at him. By failing to instruct the jury on a proper defense, Smith

was denied his right to a trial by jury. See also U.S. Const., amend. VI, XIV; Keeble v. United

States (1973), 412 U.S. 205, 1993 S.Ct. 1993; Barker v. Yunkins (C.A. 6, 1999), 199 F.2d 867.

CONCLUSION

For all the reasons discussed above, this case involves matters of public and great general

interest and a substantial constitutional question. The Appellant requests that this Court accept

jurisdiction in this case so that the important issues will be reviewed on the merits.

Respectfully Sujt^d,

BryaffR. Perkins (0061871)COUNSEL FOR APPELLANT, GAREY SMITH

Certificate of ServiceI certify that a copy of this Memorandum in Support of Jurisdiction was personally

served on counsel to appellee, Joseph T. Deters, Hamilton County Prosecutor'koffice, 230 E.Ninth Street, Suite 4000, Cincinnati, Ohio 45202 on this 20`h ay f Ju

-a-Bryaf'rR. PerkinsCOUNSEL FOR APPELLANT, GAREY SMITH

15

IN THE COURT OF APPEALS

-------FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

`^ 13655926D'

STATE OF OHIO,

Respondent-Appellee,

vs.

GAREY SMITH,

Petitioner-Appellant.

FiLEDCOURT OF APPEALS

JUN - 8 2007

mREQCRYHARTMANNC66PK OF COURTSI4AMIL7ON COUNTY

APPEAL NO.C-o6o387TRIAL NO. B-o1o3491

DECISION.

PRESENTED TO THE CLERKOF COURTS FOR FILING

JUN 0 8 2007

COURT OF APPEALS

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 8, 2007

JosepV. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,Assistant PrasNutingAttorney, fpr:Respondent-Appellee,

aryan2. Perkins? for Petitioner-Appellant.o•

LLJco

J I ^OU

Z ( Y_^LL

N ('

Please note: we have removed this case from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS

l

Per Curiam.

{11} Petitioner-appellant Garey Smith appeals the Hamilton County Common

Pleas Court's judgment denying-his postconviction petition. We affirm the court's

judgment. ;

{12} In May of 2ooi, Smith shot and killed Jimmy Gordon and shot and

seriously injured Jeff King, Andre.l2idley, and Steven Franklin. In September of 2002,

Smith was convicted upon jury verdicts finding him guilty of murder in the death of

Gordon; of attempted murder and two counts of felonious assault with specifications

for shooting Ridley; of attempted murder and two counts of felonious assault with

specifications for shooting Franlclin; of two counts of felonious assault with

specifications for shooting King; and of a single count of having a weapon under a

disability. On appeal, we reversed Smith's convictions on the ground that he had been

denied his right to represent himself at trial l

{413} In Smith's second trial, in October of 2oo4, the jurors failed to reach

verdicts on the murder and attempted-murder charges. But they found Smith guilty of

having a weapon under a disability and of two counts of felonious assault each for

shooting Ridley, Franklin, and King.

{14} In March of 20o5, the state tried Smith a third time on the charge of

murder in the shooting death of Gordon. The jury acquitted him.

{¶S} In the interim between the second and third trials, Smith challenged his

October 2004 convictions in a direct appeal to this court. We reversed his convictions

for felonious assault upon King and remanded for a new trial on the charges. We also

vacated the sentences imposed on the remaining counts and remanded for resentencing

i State u. 3nmith, ist Dtst. No. Go2o616, 2oo4-Ohio-25o.

2

OHIO FIRST DISTRICT COURT OF APPEALS

under State v. Foster.2 And we affirmed the balance of the judgment of conviction.3

The Ohio Supreme Court dismissed Smith's appeal of our decision.4

{¶6} Smith also, in the interim, challenged his October 2004 convictions by

filing with the common pleas court a petition for postconviction relief under R.C.

2953•21 et seq. The common pleas court denied his petition, and this appeal followed.

k

I. Motion to Appoint Counsel

{17} Smith presents on appeal nine assignments of error s We address first,

and overrule, that aspect of his first assignment of error that challenges the common

pleas court's refusal to appoint,counsel to assist him in filing his postconviction

petition. Smith was not entitled to appointed counsel because neither the state nor the

federal constitution confers upon;an indigent petitioner the right to be represented by

counsel in a postconviction proceeding.6

fl. Postconviction Petition

{¶8} Smith also assai]s,, in his first assignment of error, the common pleas

court's failure to conduct an evidentiary hearing on his petition. And in his remaining

assignments of error, he essentially restates eight of the ten claims advanced in his

petition. Read together and reduced to their essence, the assignments of error

challenge the denial of his postcoriviction petition without an evidentiary hearing. The

challenge is untenable:

{¶9} To prevail on a postconviction claim, the petitioner must denionstrate an

infringement of his rights in the proceedings resulting in his conviction that rendered

2 io9 Ohio St.3d i, zoo6-Ohio-856, 845 N.E. 2d 470.3 State v. Smith, ist Dist. No. C-o4o778, 2004-Ohio-250.4 State u. Smith, 222 Ohio St.3d 1407, 2oo6-Ohio-6447. 858 N.E.2d 818.6In his appellate brief, Smith has mislabeled his assignments of error as "Claim[s]:"6 See Pennsylvania u. Finley, 481 U.S. 551, 556-59, to7 S.Ct, i9go; State u. Crowder (ig9i), 6oOhio St.3d 151, 573 N.E.2d 652, paragraph one of the syllabus.

3

OHIO FIRST DISTRICT COURT OF APPEALS

the conviction void or voidable under the state or federal constitution.7 The petitioner

bears the initial burden of demonstrating, through his petition, supporting affidavits,

and the case record, "substantive grounds for relief."e A common pleas court may

dismiss a postconviction claim without a hearing if the petitioner has failed to submit

with his petition evidentiary material setting forth sufficient operative facts to

demonstrate substantive grounds for relief.9

A. Res Judicata

{110} The common pleas court denied Smith's petition upon its conclusion

that his posteonviction claims were barred under the doctrine of res judicata. "Under

the doctrine of res judicata, a final judgment of conviction bars a convicted defendant

who was represented by counsel ftom raising and litigating in any proceeding[,] except

an appeal from that judgment, any defense or any claimed lack of due process that was

raised or could have been raised'by the defendant at the trial [that] resulted in that

judgment of conviction[] or on an appeal from that judgment."lo Thus, a common pleas

court may apply the doctrine of res judicata to dismiss a postconviction claim if the

claim presents a matter that can fairly be determined in a direct appeal without resort

to evidence outside the record.11

(¶11) In his third postconviction claim, Smith asserted that the trial court had

denied him the right of compulsory process and the right to present witnesses in his

defense when it quashed his subpoena of Cincinnati's mayor. In his sixth claim, Smith

asserted that the court had denied him his right to represent himself at trial. In his

seventh claim, he contended that he had been twice placed in jeopardy and had

7 See R.C. 2953.21(A)(1); State v. Powetl (1993), 9o Ohio App.3d 260, 264, 629 N.E.2d 13.s See R.C. 2953.21(C),9 See id.; State u. Pankey (ig81), 68 Ohio St.2d 58, 59, 428 N.E.2d 413; State u. Jackson (198o),64 Ohio St.2d 107,03 N.E.2d 819, syllabus.° State u. Perry (1967), io Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus.» See State v. Cote (1982), 2 Ohio St.3d 112, 114, 443 N.E.2d 16g; State v. Perry, supra, paragraphnine of the syllabus.

4

OHIO FIRST DISTRICT COURT OF APPEALS

received multiple punishments for a single offense. In his eighth claim, he asserted that

the trial court had denied him due process and equal protection when it sentenced him

to maximum, consecutive prison t terms based upon factors not found by a jury or

supported by the evidence. And in his ninth claim, he contended that his convictions

had been based upon the victims' perjured testimony.

{¶12} Smith's third, sixth, seventh, eighth, and ninth postconviction claims

were wholly based upon matters contained in the trial record. Thus, the claims either

were or could have been fairly determined in Smith's direct appeal. Therefore, the

common pleas court properly • applied the doctrine of res judicata to dismiss the

claims.12

{113} In his first postconviction claim, Smith challenged the trial court's

impartiality. In his fourth claim, he contended that the trial court had denied him due

process and equal protection when it had refused to instruct the jury on aggravated

assault as an offense of inferior degree to felonious assault And in his fifth claim, he

contended that he had been denied a fair trial when the assistant prosecutor, during

closing arguments, had referred to facts not in evidence.

{¶14} In support of his first, fourth, and fifth claims, Smith offered evidence

outside the record. Nevertheless,;these claims were also subject to dismissal under the

doctrine of res judicata, because they presented matters that either were or could have

been fairly determined in his direct appeal without resort to such evidence!s

B. Expert Opinion Testimony

{115} In his tenth postconviction claim, Smith assailed the trial court's

admission of expert opinion testimony by crime-scene examiner Ronald Camden

12 See id.; see, also, App.R. 6(which provides that when, as here, an appellate court vacates asentence in the direct appeal, a common pleas court reviewing a postconviction claim challenging thesentence may dismiss the claim on the ground that it is "moot").13 See id.

5

OHIO FIkST DISTRICT COURT OF APPEALS

concerning ballistics. Smith asser,ted that Camden had not been qualified as a ballistics

expert. - And he argued that Camden's unqualified opinion was demonstrably

prejudicial, because the opinion had contradicted Smith's testimony in the second trial,

but had comported with his testimony in the third trial, and he had been acquitted of

murder in the third trial.

{¶16} In support of his tenth claim, Smith relied upon the record from his third

trial. Because the claim depended for its resolution upon evidence outside the record of

the second trial, the doctrine of res judicata did not operate to bar the claim.'4

{117} But the common pleas court properly dismissed Smith's tenth claim,

albeit for the wrong reason.ts Smith did not provide the court with the record from his

third trial. Because Smith failed to support his tenth claim with outside evidence

setting forth sufficient operative facts to demonstrate substantive grounds for relief, the

claim was subject to dismissal without a hearing.t6

C. Continuance

{118} In his second postconviction claim, Smith contended that he had been

denied the effective assistance of counsel when the trial court denied his recently

retained counsel's request for a contnxuance. The claim effectively challenged both trial

counsel's competence in preparing for trial and the trial court's exercise of its discretion

in refusing to grant a continuance to allow defense counsel more time to prepare.

>a State v. Cole, 2 Ohio St.3d at 114.'g See State v. Peagler, 76 Ohio St.3d496, 1996-Ohio-73, 668 N.E.2d 4897, paragiaph one of thesyllabus (holding that "an appellate court may decide an issue on grounds different from thosedetermined by the trial court," provided that "the evidentiary basis upon which the court ofappeals decides a legal issue [has] been adduced before the trial court and [has] been made a partof the record thereof'); State v. Blainkenship (1988), 38 Ohio St.3d ii6, tt9, 526 N.E.2d 8t6(noting that a reviewing court will affirm a court that "reached the correct result even though forthe wrong reason").i6 See R.C. 2953•21(C); State v. Pankey (t98i), 68 Ohio St.zd 58, 59, 428 N.E.2d 413; State U.Jackson (i98o), 64 Ohio St.2d 107,413 N.E.2d 8i9, syllabus.

6

OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} The decision to grant or deny a continuance is committed to the sound

discretion of the trial court. It will not be disturbed in the absence of some

demonstration that the court abused its discretion.17

{120} To prevail on a postconviction claim of ineffective assistance of defense

counsel, the petitioner must demonstrate (i) that counsel's performance fell below an

objective standard of reasonableness, and (2) that counsel's deficient performance

prejudiced him.18 To establish prejudice, the petitioner must show that counsel's

deficient performance "so undeimined the proper functioning of the adversarial

process that the trial could not have reliably produced a just result."19

{121} In support of his second claim, Smith argued that the trial court, by

denying a continuance, had denied his trial counsel adequate time to prepare his

defense, and that his acquittal in his third trial demonstrated that he had been thereby

prejudiced. And he asserts on appeal that res judicata did not bar his claim.

{122} Smith is right that res judicata did not bar this claim. Res judicata wiD

not bar a postconviction challenge to trial counsel's effectiveness, when, as here, the

same counsel represented the petitioner at trial and in his direct appeal, and when the

challenge depends for its resolution upon evidence outside the record.20 The same

counsel represented Smith at trial and in his direct appeal. Moreover, his challenge to

counsel's effectiveness depended for its resolution on the motion for a continuance,

with trial counsel's supporting affidavit, and the judgment of acquittal entered in

Smith's third trial. The motion and the affidavit were part of the record in the direct

appeal; the judgment of acquittal was not.

17 State u. Bayless, (1976), 48 Ohio St.3d 73, 357 N.E.2d 1035, vacated in part (1978), 438 U.S.

911, 98 S.Ct. 3135 }ie See Strickland v. Washington (1984), 466 U.S. 668, 694,104 S.Ct. 2052.19 Stqte v. Powell (1993), 9o Ohio App.3d 260, 266, 629 N.E.2d 13 (citing Lockhart v. Fretwell119931, 506 U.S. 364, 113 S.Ct. 838, and Strickland, supra).20 See State v. Cole, supra, syllabus. ,

7

OHIO FIRST DISTRICT COURT OF APPEALS

{123) In Smith's direct appeal, we addressed challenges to the trial court'sc

exercise of its discretion in denying the continuance and to its effect on his trial

counsel's performance. We noted that trial counsel had been well acquainted with

Smith's case because he had successfully prosecuted Smith's first appeal. And we

determined that the trial record showed that trial counsel's representation had been

"more than adequate," and that the trial court had based its denial of the motion for a

continuance on a sound reasoning process.

(Q241 Although Smith proposed to support his claim with outside evidence in

the form of the judgment of acquittal entered following his third trial, he neglected to

submit with his postconviction petition either the judgment entry or the record of the

proceedings leading to his acquittal. Thus, Smith failed to provide any outside evidence

that might be said to alter our assessment in the direct appeal of the trial court's

decision or of trial counsel's performance. We, therefore, hold that the common pleas

court, again for the wrong reason, properly dismissed Smith's second postconviction

claim without a hearing.21

!lL Conclusion

{125) Upon our determination that the common pleas court properly declined

to appoint counsel to assist Smith in submitting his postconviction petition and

properly dismissed his postconvict9on claims without a hearing, we overrule the

assignments of error. Accordingly, we affirm the court's judgment.

Judgment affirmed.

PAmim, P.J., CtnvrrsicaAivt and Wi[via,sR, JJ.

RALPH WiNKi.ER, retired, from the First Appellate District, sitting by assignment:

21 See R.C. 2953.21(C); State v. Pankey, supra, at 59; State v. Jackson, supra, syllabus.

8

OHIO FIRST DISTRICT COURT OF APPEALS

Please Note:

The court has recorded its own entry on the date of the release of this decision.

9