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IN THE SUPREME COURT OF OHIO
State of llhio,
Appazls,
Ve .
Ritkey L. Pound, Sr.,
APgellnnt
^^ ^^,,5.:
. ..I^^ .̂iNAL
1 2-1445
On Appeal from the .]udBemex
Ca
triat in Court of Appeals
The Montgomery County Court of
Appeals for the 3ecoad Appellate
CA 24789 & CA 24980
MEMORANDUM OF SUPPORT OF JtIRISUICTI(?N FOR APPELLANT NZCKEY L. POUND SR.
Miahelle D. Philligs, Asst.
Montgomery County Prosseuto
P.O. Box 972
DtSy Lo«, y Ohio 45422
Counsel for Appellee
Zdiokey L. Pound, Sr. 350-806
P.O. B
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ATx^^
^NTEREST AND INVOLVES A
STA'^^ME14T OF CASE A=t^D FA
FIRST PRQFO^ITTf9N OF LAW
OF OR^'.A"T PUBLIC OR t»E
5TITUTI€^^AL QUESTION
WHf N AN APPE7JA.ET'S CC3V11C"t'IQN IS BASED ON KNOW6 ^EPI3UR^:s^-^'^.S'"^.Mt?E^'^,
. D t^^'^'k;R ^`RIA^, AN APPE^NT ;^^tt^DUG^ NtJRELI,^^LE ^FF^^AVITS PRO`+I^ft Tta^ PERJURY Atd€'^ ACTUAL. TNt^^^EffOF THE ^HARGE, A TkI^^ ^OURV^ UFt^SAL TQ REVERSE THE A P1^ELLAN2'`SCONVICTION VItSt,AM THE APPELLANT'S RIGHT TO A PAIit TRIAL A140THE DUE PROCESS OF *cKt^ UNDER aHE 51H AfaD 14111 A^^^4DNENTS OT' THE
Ei^'TO^3 AND ^l^:"^T.CLO tt SECTION 16 O^` ^'fft OHIO, ^ '^Ct I3.S NST y^! e{ v$ ^y^( y^ .̂g^a^T E 6! A+i.itA^^Z. k
°£IO"d 43r LAW .9
,iFti A TRIAL COtlRT IS PRE>EN'^ED WZTti S#JFFZCIE14T OPERATIa'E FACTSAND AFFIDAVITS IN SUPP€JRT, Of THOSE FAC'^^, IT SHtlU'^O HOLD ANEVIDLn^ARY A"- RISO ON TaOSE FACT$, 49D THE ISSUE OF UMVO3DABLEDELAY. THIS IS COMPOUNDED £Y THE FACI' THAT THE COURT VAS L1ktABLb;TO RENDER A OtC,lSION FOR 3 YIARS+ tAt^^t TO aOLD SUCH A REARINQTO CORRECT A MISG^^RIA4E OF JUSTICE VICsLAT^$ AN AP1?ELtANT'SCONSTITUTIONAL i^^GW&S UND1^R THE 5T'H Ai^t3 14TH ^^ENDM'CWTS Of Tt3EU.S. CONSTITUTION AMD ARTZCLE I,^^CTZON 16 OF THE OHIOCONsTt`TUTIO14.
THIRD ?10s<
WliE1kAit APZ'ZLLA^^"'^ SENTGNCE DOES tx43't' ^..'pNZORT 6dIT't3 At.i. M A^.eAT{3PSENTENCING PROVISIONS , IT 15 VOID AS A MATTER OF LAW. UNDER THEPR£9TEC't`IO^ OF THE DOUatE ,3EOPXRD'f CLAUSE AND ,e 341.2Sr ACi APt"ELI.ANTtS
lUS'^ ^^ MERGED FOR OFFE:IS&^S Tl^= A'^XSZ FROM THE SAMZ€i^RE, ^OMA"I'k"TED WITt3 A a1144iwE AC2SO^ AND ANICUSh
Of ^^Y CO[IRT TO MERGE . E OFFENSES VIOI.,^TES THEVT`S IZOHTS UNDvR T.'HE STH AM® 14'?"H AMEi^DMENT'^+" OF THZ^t^STITUTT9N ANA ARTICLE 1o SECTIONS 10 & 16 Of THE OHiQ
ITUTION. .11-14
CURTZFIC" OF SERVICE
APP' DTX STATE V POUND ^ECOSO JIS°
»Z4
.:l,^
F AekiAk.s JULY 27, 2012i
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th the mandates of th
g tho UaS0
and ot'^^^ ^^ort^^^ ^^tigens
mh bog ro$ealc^^^^n by thi
;d by thi
Should a oo"i^tion, ik-, a orta3,ta1 aase be alLoved to staod when. ., _......_ . t_ ^w.. r . ^^^^
.a knof.m by the Tri°al Ccsurt,
when 4i{,^'N (.,$%1Y
5th and
$ ^^^^Ion
Sfa6J}y.' (3^i oite"+} unS`.^.$:L#.y:G.
), does res judi.^ota bar those patita
^upp^rtad by 4ddit3^na1 nQW avideaz^^e not pcesented
ye i.mgos3tiop 0
a tair Trial and tbu^ Du5th end 14th Asaotadwer^s Of the E3,a. Corestitatis?n and Arti:a1e
that. the orsnv3.
16 of the Ohio Constitution
Appellant
tha Due Frca"$r
14tk! A^^endment^,s to the V»S< COn:;t^^uti" an
of CpUstitc^tional question
urt of Appeals' detition in
as it v+wu3.d bo iI1^^laal
fool boutid by the .3uri^^ru,
t "^nited States Supreme Cou
tutiona1 rights
,,,,t9.on 16 of the Ohio CcrmstitrstiOn?
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When it is 00 the; beon used, and additional evidence t
that perjury$ is az^ ^vident.3a^^ ^^^rinato develop that evidence to
,Justioe that has atesstvred? When a h^^rt
App^olls.at's Casostitutianal rights ^nied14th . nciments of the U.S. Gtmatttasfcion
the Ohio Catistitutican2
Constituticrn. undor the 5th and l4th Amezdments and Artia io I
16 of the G1hio Constitution?
u
Court of App"1s violate the Due Prooess Cl.aus^^
^Wa as ttt^^ fal1u
.dableR' paosa't this . trary 4,ealet
When an Appoilant Mas an una .. ^^sed
ostoppol., sad the Due Process Ciaust$ Of the 5th And 14thone ^^^k toter sua sgantat does euoh arealitig viol
h the Court of Appeals grsOts, Only
nts af the U.S. Constitution and Article 1, Section 16
Ohio Constitution?
Theg^ Constitutiona
Appellate Districts
Court of App+et;ls, albeit
this Cou
the oeour
whi:e&t
Given this fact
do Ohiaa
mis^^
one cannot
brought to ligbt caoqui,s^od to the fntare
the miscarri^gaiAren` t
undor both tho 5th andand A^tiele 1) Seet#.on 15
unanswered, as
ca Jusisprudencae of the Second
nstf:tct
of
ful aonsid
p
by
apd result in
tate.
diction
(2)
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memorandum, this Court should ae.cept ,jurisdiaticsn and answer these
Constitutional questions, not only to protect this Appellant's rights
and undo his wrongt'ul eonvietion, but to prevent the erosion of Law
in this state for all phioans.
STATEMENT OF CASE AHD FACTS
An indietment was handed down by the Montgomery County Grand
Jury on April 25, 1997, indict3.ng this Appellant, as the result of
the death of Tim Krimm on July 13, 1996, in whie.h, as the results
of shots fired at iCri:m house, he was killed. Two other persons
also inside the residecsce at the time of the shooting, which
rosulted in additional charges of Attempted Murder and Felonious
Assauit, to whieh the Grand Jury attached weapons spec3.ficatiaans
^hargos, and also indioted the Appellant for dischmrging
a weapon into a habitation
Tim Krimm was k3.l.led by a shot
the ideratitl of the person who f
I. as weapons under disability.
n Assault Ri.fle¢ and
d that wespom is the contested
only at trial, but for purposes af this Appea
Appellant tes d at trial, and stesd.fastly maintains, that he
did not have 3.o his possession or f+i ace that weapon on that day.
The person who did fire that weapon that day is the individual
>qnsibte for the death of Tim Krimm.
During the Jury Trial, Angela.Fioutz, the girlfriend of State's
witness, Elvis Wooliver, cai,led in to the Judge°s chambers to notify
Gourt, at the witnOlss,s ins3.stanee, that he was being coerced
to give false and perjured testimony against this Appellant, howevez,
his testimony was allowed to stend, and no corrective instruction
was issued.
(3)
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The jury convicted this Appellant based on the use of that
perjured testimony. The Court sentenced the Appellant ta multiple
Ccans*c+at3.ve terms of incarceraticano despite the fact that all the
char8es actually resulted frtam o- si.ngle action of firing a weapon
into a habi.tation, irregardless of who aotualiy fired that weapon.
A aantencing memorandum opposing the 5.wpositiou of conaecutive sentences
was filed with the Court, yet the Defendant's Opposition Brief was
ignored, and a total a$grsgata aentenco of 43 years to Life was imposed.
After Direct Appeal was takeA, this Patitioner f3.led the fir
four Post-Conviction patitie>rss, whie'h focua cn the perjured tasti.m
Elvis G7ocslivar, as to the true identity of the person who actua
y
red the Assault Rifle on the date in queation. Eaah petition containe
add:i:ti.omal affidavits and evidence, which each preceedi.ug one did
not conta.in.
The final petition for relief, which eonta3nrad all of the evidence
aecumu2ated during this Appellant`s incarcera.tion, was submitteJ
to the Court with the assistance of an iramatee law cierk; all previous
petitions having been submitted blindly by the Appellant, who did
not tenaw that any adverse ruling c.auld be appealed. It was noticed by
that c1ark that a previously filed petition had not been ruled upon.
After the trial Court denied relief on both petitions on August 5,
2011 and August 8, 2011, a timely appea.l was taken. The trial Court
opposed any transfer of the original trial transcripts for purposes
of Appeal, requiring this Fippeilnnt to seek an order to do so from
this Court. The Appellee missed its deadline for filing, and the
Appellate Court sua sponte extended the filing deadiine,and reordered
(4)
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a response. An uaaoppose^.̂ Motion for CYral Arguments was filed and
granted to this Appellant on April 19, 2012, but one week .iate.r,
on April 26, 2012, with no e.xpla.nation, the Appeals Court reversed
elf, and denied the Oral Argument request and a subsequent 14otion
for Re.considerationa
On July 27^ 2412, the Court of Appeals affirmed the denials
of relief by the Trial Court of the petitl,oras us3.ng rnip f.t'
previous jurislsrudence, campleCel.y ignoring Mandates of both t
Court and Fed.era1. Gonmt
Suprnme Gour. t= It is tla
in
as set fartli by the United States
e improper rulings whfeh form
basis of this Appea3 gby L1•bl:oh this Appellant reqmects the
n of this Court uo re the Secc+nd District Court of
to properly follow Ganstitutl.onai Law in criminal sppeals.
T PROPOSITION OF LAW:
When an Appellant°s eonrTiastion is based on known perjured
testirnony, and aiter Tra.al an Appellant producea multiple reliable
affidavits proving the perjury and Aetua1 Inneaeence of the charge,
a TriaL Court's refusal to reverse the Appei9.ant's convintion
violates the Appellant's Right to a Fair Trial and the Due Process
of Law under tite 5th and 14th Amendments of the U.S. Constitution
and Article 1, Seotion 16 of the CYnio Constitution.
It should be clear that what :onviction o
Appellant on the Aggravated Murder Charge l.n the death of Tim Krimm
was the testimony ;iven at trial that the Appeila.n; kais
possession on that fateful, day, the Assault Rifle, compounded by
the allegation that he was the person who f:ir d t-hat .,re.apon. Tt was
established as fact that the victim, T im Krimm, eiied' as a result
of a bullet to the head from an Assault Rifle. Therefore, whoever
(3)
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s^,tua7;ly possessed and fired i:l^,e Assault Rifle was the person responsible
for the death of the vi,etim. The State, and later ttie Court caf Appe.al.s,
ed that it does not matter who taaci the Assault R3:
Appellant "c-cauld" hhave been Eound guilty Of CGmpl.ictty, or Alxdin$
and Abetting. This contention is redundant, because the fact is set
in stone ttaat ti*e Appellant was convicted of Aggravated Murder a.s
the prine3.pal offender, which even the Court of Appeals claimed an
direot appeal 15 years ago. If this Appellant was the principal
nder for purpcsses of Dtroot Appeal, then be must remain as
principal offender for purposes of these T'ost-eonvict3.pn peti.ti.ons
and resulting Appeals<
uestion of Elvi
3,ntiall.y raised at trial
his
vF ny as perjured was
Llvis tdssolxver, through
made csontaat s:i:.tl the
aeil. The w
lCtie, Ak3lgeia 'tiq3i,X.
original Trial 3udge, Gowdqwn,.
c'hambera:' At that con.Eerexace,
h a con: ; was beld in
was revealed that Elvis Wool:3.vor
was testifying untrutb€ully as to the true identity of the person
who iired the assault rifle, and who is ultimately responsible for
the death of Tiac -lCr3.cet. Rather than declare a mistrial, Judge towdown
allowed the jury to be improperly tnflueneed by this perjury, the
Prosecutor did not ¢osredt it, and the Jury was inElueneed by #.t,
and aonvioted this Appellant improperly and wrongfully.
This Appellant continued over the last 15 years to add to the
proof of this perjury. Eaeh time he accsumulated more affidavits,
he filed another Post-Conviation, each being denied. In this last
Appeal, the Second District Court of Appeals concluded that relief
should be denied for two reasons, Res Judicata, and the Appellant's
* T.p. 614 Lines 1-6
(6)
-
ure to a.pgea.l the prev*.
proper.
Re;z .T:aels.ca.ta i:> ma.r1e Ina.ppLicab2.e to this case becca.uaei vhile
the ultimate issue could have been, and in fact was, raised on Appeal
not have been supperted by a:aae new affidavits accumulated
by this Appellant. The Sacond District Court of Appeais also erred+tiaA
in fine33.n^4tbe AppelI.antWs failure to appeal prior denials of relief
preczlrzde appealing this denial. Not only does this defy logic, as
each proceeding is itself unique, based on the Law and evidQreom in
suppurt, but pradominantly, the Court of Appeals' determination fails
no statutory requirement for this proposition of Law exists.
Trial court and the Second Dxstricst Court of Appeals
nared we]li-aatablitihae4 Federal Law tsoncerning the use of perjurecl
imony to obtain the oonv#,cstiono Nelthar the Tria3. Court nor the
Court of Appeals addressed the F41eral question of CoaYstitcational
Law raised by this Appellamt. U.S. v NQrris 300 tJS 564 was citad
for the Legal Definition of Perjury. Napoe v 111icots 360 US 264
was cited for the prrapos9.ti Prosesautssrs are required to corrgct
perjured testimony, wk2#.ch qlaariy was not done in this ease. U.S.
v Qi.glio 405 US 150 and U.S. v Agurs 427 US 97 were cited for the
oFosi„tioaa of law that conviet.ions based on perjured testimony
be set aside if the false tastimony aould have in ANV reasonable
likelihQod affected the judgement of the jury. It is crystal ci.ear
that the perjureA tesCianotty affected the jury in this caae, as the
jury based its deeision to conv3,ct this Appellant of the Aggravated
Murder of Tim Kriuam, who died as a result of being shot by an assault
rifle, and the State's wi.tnessy ;Elvis Wooliver, testified falsely
that the Appellant wielded that weapon,
(7)
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^^ 514 US 419a for
luty to ^^^rn ^^ ^
on be.:at.^ of tho
^^^^eed
lue", siak
, shauld ho^e eorr^^^^
^^ but did not do so, Wooliver testified the State
told him to say Appellant fired assault rifle or get life himself.
6asea^^ ^al;^ef+*n an improper oppli,
^^ou^^
of this
or
a Trial Courl
bIl$b*d U*S:
i^vita in suppoon th
, ^^undod by tik for 3 years.
Usti*
s 5th
y refused
c^^ ^ ^^^ab7.ethe Court was unable
ure to hold saaohvieliat^^ an Appollon
14th Am"d" ts of thehe Oh3o
* T.p. 620 Lines 13-25
-
^onar^^^^on ^^titio" to in itself an Abusa of diszar^tiovk and violates
Triai. ^^^^ should
k'%n 260 doys«
y +
ead In sithe
,* dA
took t
would have and should havo boon hold#
any ^^suto that t war
t mc^^^ ^^^^^^^^^^o method to
w ^^^tioult for ^^^ Court to resolve.
sible hearings should ho
A^^^V
old
i^oble de$agr, a k^^^ring on that ^^^^^ should ^^o bolon h ldAppo13.aUt SUbmittQa
^^ Peti^ion& to allow the A^fi^ate to testtfy
the Court ^^^^^ oath as to tho
if pro^vea tra^^ ^ would have entitled this ^PPOll4r+t tO
Tho f^iturs of t^o Trial Coc^^^ to a^^^^^^ either or both of
hearings, SU;Vorted v^th substat^
^^^^enot io suppqrt of this AP^OI?lant"S
rfg^^s undtr both the ^^^tt and r^^^al G,.oasstitut
^ ^^aring should have been hold in the inBoa
substantial ^llogations of Aaat^al T;nvoasaa^^
^^^^
^^natituti : "^
^^^^^^^ ^
Ju^^ioe
A►ppol^aut has 3^^on t.^ prison fOr 15 YORrs, ah,^^^od. 004 400ri4t0d
he did not ^ommic^ (Muz^^^) It I
1 2953.23 to allow an Avenue in 14W to
years;
y ^^o legislative
su^^ a situation
-
Constitutional Law u^^^^r United ^^^^ e$
v T "ye "0 $04 US 1_
ry ^^^lring osa
The ^^^^^^ of the factual diu^^^^ v -Va State
y supported by
rd as a who1e;
ac^^^^ ^^oo^^^^ ^mployed by tho State COerr^ ^^s R*t
adequate to affos^d o full and fair bea
Ub^tantial 43
court ^^^^^^^
these criteria were d*va'^op*4 for e^^^^^^^alxi^ ^^^^
grant as hearing at the Federal lesr*1, they are a direct
o^ what the H3gh Court f0*14 t^ ^r*Pur of ^
did
Appiy3nS these crittrid to the caas,
newtlywd3soovered avi^ene^^i
y dowr^^ope,
(10)
-
The randerly ing it tho
obtained by perjured testimony has not been resolved, o
addressed;
by the 1060Vd*
:^ ^^
givon to the Trial Court du
chaotbars by the 1
substantial a:
ted by multigrole affidaviti
n
nted, and t ffit2s $¢5on
his
oak ]Later;
opportunity was afforded the Appellant at aay faot bear:
Given these faetas this Court Should UOC sit idly by and wait
the fed^^al Court to order a hearing #O this case to o^^^eet the
zarri.ane of Justios whi+ah has occurred. A1l o^tisens of Ohio wiI1
this Court is Oqus11y ifttert$ted in
..Sa^^^ice, and is willing t
sustaining of the Propos
THIRD PROPt?STT1014 O8 LA
W'hen an App,all,.alx& provisi
offenses
covndtzct and were eammitted with a s3s^^^o ar-tiOnt`ailur^ ^f the Court to merge these offenses v
Appellant's rights under the 5th and 14th Amendment,6 and Article I, ^eations 10 & 16 of the Ohio
Ff porjury was
jud$e caawdown"s
Houtzi
eyed at al;i#
of oaw1y»d^sooverad evidanot,
held. An UttOPPO
nee of Jea^^^4i-at
does not zompart with all mandatory
void as a matter of t,aw*
Jeopardy Clause and 2941>250 an Appellant
nt
fu1 c^onvf.ctimn by its
-
ourt has hald that the failure to rucrge ail,ied
,ene3ns is Plain error. Sec State v Onderwood 124 Ohio St.
65, 2010-Ohio-1. Aa sueh, Appellant asks this l3onorabis
Court to excreisa its discretion to c
impesed,
unlawful sentence
R.C. 2941.25 Ohio's statute for multiple offenses provides:
Where the same conduet by ttis Defendant uan be construed toconstitute two or more allied offenses of similar import, theindictment or information may contain eounts for all such offensesbut the Defendant may only be convicted of one.
When determining whathor two offenses are allied offenses of
a similar import subject to merger under R.C. 2943.25, the Ohio Supreme
C¢ur.t held in State vJolnsou 2010°Ohio°6314 that the eonduct of
aecussd must be eonsidcred and that a Court must first decide
whether it is possible to eommit one offense and to commit the other
with the sama conduct. Id,
In the case at bar, it should be obvious that all the charges
this Appellant was ehargQd and eonvteted of, including the wrongful
Aggravated Murder, wonviction, resulted from the same conduct and
action, to wit: Discharging a firearm into a habitation. This conduct>
the sole couduct engaged in that day, resulted in every single eh$rga
with the sole exception of the weapons specification and the Weapon
Under Disability charge, which was the only cbarge merged by th4
Gourt at the onaet.
Under the Law as interpreted by this Court in J0husen -4 Undetwood
and the United States Supreme Court in Worth Carolina v Piorce 395 US 271
(12)
-
whioh forbids multipLe puuishtnents for the sams aota:on
sentence i.s void as it is not authorized by Law having fai
comport with all mandatory sentencir,g prsrvis3.ons=
The Sec.ond District Court of Appeals su'
a s
jurirprudoraca in this issue for that of this Court. The Seoor.d Di
is of the opinion that se:zter;c.es in whiv`Ya a Court
t'ne senteraQes as allied
not void, as is the ;jurisprudaaeza
2010w®hiom 1, ixi which this Court made i,
Court
are void, sinc^s the Triel. Court's duty to mar
rtisereti,oaaary . The jurisprudence
states that the failure to merge
ree voEdab
a.tt State v Underwood
uch senta'nc
is 42aadatorvj not
Uuderwssod also
hiolh raquixed the
used to follow
Appellant
Court of Appeals to address the claim. T'hay simgly re
the mandate of this Court, claiming it
which it was, under the str3.eture o
should have
which can be seen in the senteuo9,ag memorandum
by Deferaae Counsel. It would laave taeeas futile t
at that time on Appeal. It only beoatue relevant
d previously
seuteia
the Tr3,a1
ra1-se the
and l.ega'L3,y viable
after Johnson overruled Ranee, and required Courts to return to the
ture of Logan. None of the reasons listed by the Second Distiet
of Appeals for disregarding this Court's jurisprudence in favor
own are correct.
Therefor, to correct the errors being eommited by the Second
I)istriet Court of Appek7.s in disregarding the mandate of this Court,
and the refusal of that Court to properly afford appellants the Double
Jeopardy Clause protections in¢orporated in 2941.25, this Court should
rely renders
(13)
-
jUriedi»ei^n of this e.age by sustaining this
urreil, in
gumouts prese^^ted, and in tite interest
ty^ and i^^^^^^rl^ 84
thi
of others similarly situated mi1
Nfc,k,ey Lee Patsttd Sr, $ Prc^^^
LT7C 56UAF SIIRVICZ
aopy of
to the Aio
key Lee Pound Sr., h+^^eby car,
ttot
cy
NE. RAN
U.S. {'aa^..
ounty Prosstov
true and 4064t
T OF` JURISDICTION waa
Augca^t 40> 2012^ by first
N3akey Lee Pou'ad Sr., F
(14)
-
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO
Plaintiff-Appellee C.A. CASE NOS. 24789/24980
vs. . T.C. CASE NO. 96CR3873/3
NICKEY L. POUND, SR. (Criminal Appeal fromCommon Pleas Court)
Defendant-Appellant
O P I N I O N
Rendered on the 27' day of July, 2012.
Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Asst.Pros. Attorney, Atty. Reg. No. 0069829, P.O. Box 972, Dayton, OH
45422Attorneys for Plaintiff-Appellee
Nickey L. Pound, Sr., #350-806, L.E.C.I., P.O. Box 56, Lebanon,OH 45036
Defendant-Appellant, Pro se
CANNON, J., sitting by assignment:
{41 11 Appellant, Nickey Lee Pound, Sr., a.k.a. "Dog,"
appeals the judgment of the Montgomery County Court of Common
Pleas denying his petitions for postconviction relief. For the
reasons that follow, the judgment is affirmed.
{q 2} On August 29, 1997, Pound was convicted, after trial
by jury, of aggravated murder, attempted murder, felonious
assault, improperly discharging a firearm at or into an occupied
structure, having weapons while under disability, and multiple
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
-
2
firearm specifications. The trial court sentenced Pound to
consecutive sentences as follows: 20 years to life imprisonment
for aggravated murder, nine years for attempted murder, seven
years for felonious assault, four years for improperly
discharging a firearm at or into a habitation, and three years
for merged firearm specifications. The trial court additionally
sentenced Pound to a concurrent term of 11 months for having
weapons while under disability.
{$ 3} This court affirmed Pound's conviction in State v.
Pound, 2d Dist. Montgomery No. 16834, 1998 WL 636996 (Sept. 18,
1998). Shortly thereafter, Pound filed a petition to vacate his
sentence, which was construed as a postconviction relief
petition. Pound argued that new evidence surfaced indicating
that a witness, Elvis Wooliver, committed perjury at his trial.
He also argued that he had received ineffective assistance of
counsel. The trial court denied the petition.
{9[ 4} In 2008, Pound again filed a motion to vacate his
sentence on the ground that Wooliver committed perjury at his
trial. The motion, construed as a postconviction relief
petition, was again denied. In 2009, Pound filed his third
petition, again alleging that Wooliver committed perjury at his
trial. In 2011, Pound filed his fourth petition, advancing the
same argument as his previous petitions.
{9[ 5} In two August 2011 entries, the trial court denied
Pound's 2009 and 2011 petitions. Pound, pro se, now timely
appeals from these denials and asserts three assignments of error
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
-
3
for consideration by this court. This court, sua sponte,
consolidated the respective appeals. Pound's first and second
assignments of error state:
[1.] The trial court erred when it allowed a
conviction to stand in a post conviction proceeding
when that conviction was proven to have been obtained
through the use of known perjured testimony of which
clearly affected the jury's verdict. The trial court
did not afford the multiple affidavits and evidence the
deference it was due them [sic] and all of this
violated the appellant's constitutional right to a fair
trial and the due process of law under the 5th and 14th
Amendments of the U.S. Constitution and Section 16,
Article 1 of the Ohio Constitution.
[2.] The trial court erred in not conducting a
hearing on this appellant's petition after a
substantial showing was made of both constitutional
error and the unavoidable delay which is enhanced by
the fact that the court considered one petition for
over three years. All of which denied this appellant
his constitutional right to a fair trial and the due
process of law guaranteed him [sic] by the 5th and 14th
Amendments of the U.S. Constitution and Section 16,
Article 1 of the Ohio Constitution.
{$ 6} Pound, in his first and second assignments of error,
argues the trial court erred in denying his petitions and in not
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
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4
conducting any hearings on the petitions. Through the years,
Pound has amassed five affidavits from persons claiming that a
witness at his trial, Elvis Wooliver, committed perjury by lying
on the witness stand during Pound's jury trial. It is clear that
Pound believes he did not get a fair trial and was convicted upon
false testimony.
{9[ 7} Initially, it must be noted that a postconviction
proceeding is a collateral civil attack on a criminal judgment.
State v. Duclley, 2d Dist. Montgomery No. 23613, 2010-Ohio-4152,
q 30, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d
67. It is therefore not an appeal of a criminal conviction. Id.
Consequently, post-conviction relief is not a constitutional
right, but instead is afforded to a convicted defendant as a
statutory remedy. Id., citing State v. Moore, 99 Ohio App.3d
748, 751, 651 N.E.2d 1319 (1st Di.st. 1994).
{9[ 8} Moreover, postconviction relief is a particularly
narrow remedy because the doctrine of res judicata bars "any
claim that was or could have been raised at trial or on direct
appeal." Id.
Under the doctrine of res judicata, a final
judgment of conviction bars a convicted defendant who
was represented by counsel from raising and litigating
in any proceeding, except in 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, which resulted in that
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
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judgment of conviction, or on an appeal from that
judgment. State v. Szefcyk, 77 Ohio St.3d 93, 671
N.E.2d 233 (1996), syllabus.
{q 9} Here, the trial court, in denying Pound's petition,
echoed its 1999 decision denying his first petition. The trial
court concluded that Pound's claim regarding perjured testimony
was barred by res judicata. The trial court correctly explained
that this was a matter that could have and should have been
raised in Pound's direct appeal. Indeed, Pound acknowledges in
his merit brief that the issue of perjured testimony was raised
during his trial in chambers. A review of the record confirms
that this issue was raised in chambers with Pound's counsel
present. Thus, Pound could have raised this issue in his direct
appeal. To a certain extent, the perjured-testimony issue was
raised on direct appeal by attacking the credibility and
reliability of Wooliver's testimony under manifest weight and
jury instruction arguments.
{9[ 101 Additionally, Pound could have appealed the trial
court's 1999 judgment, which denied his first petition concerning
Wooliver's alleged perjured testimony. The record indicates
Pound failed to do so. Pound cannot now collaterally attack non-
constitutional evidentiary issues from his original trial through
a postconviction petition. Further, Pound cannot now attack the
denial of a previous postconviction petition by filing additional
postconviction petitions which argue the same issue. Even if the
same argument could be considered, Pound's second, third, and
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fourth petitions were each procedurally barred as untimely under
R.C. 2953.21 (A) (2), as the trial court concluded in its March 3,
2010 entry. The record indicates that Pound likewise failed to
appeal this judgment.
{9[ 11} Pound's first and second assignments of error are
without merit.
{$ 12} Pound's third assignment of error states:
This appellant's sentence is void as a matter of
law as it does not comport with all mandatory
sentencing provisions. This appellant's separate
sentences are for offenses that arose from the same
conduct and were committed with a single action and
amicus [sic] and as such should have been merged for
sentencing purposes under [R.C.] 2941.25. The failure
to do so violates the appellant's rights under the 5th
and 14th Amendments of the U.S. Constitution and
Sections 10 and 16, Article 1 of the Ohio Constitution.
{9[ 13} In his third assignment of error, appellant argues
that his sentence is void because many of his offenses should
have merged for the purposes of sentencing, pursuant to State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.
fl 14} As explained above, any issues that could have been
raised by a defendant on direct appeal are barred by res judicata
and not subject to appellate review. However, Pound argues that
his sentences are void and therefore not precluded from review by
principles of res judicata. While Pound correctly notes that the
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doctrine of res judicata does not preclude review of a void
sentence, this court has previously held the failure to merge
sentences does not render a judgment void, but voidable;
therefore, such challenges, if not raised on direct appeal, are
barred by the doctrine of res judicata. State v. Parson, 2d
Dist. Montgomery No. 24641, 2012-Ohio-730, 4 10. Thus, when an
appellant does not raise the issue of merger in a timely direct
appeal, the challenge is barred by the doctrine of res judicata.
State v. Martin, Montgomery 2d Dist. No. 21697, 2007-Ohio-3585,
1 3. See also State v. Poole, 8th Dist. Cuyahoga No. 94759,
2011-Ohio-716, 4 13 ("the time to challenge a conviction based on
allied offenses is through a direct appeal-not a resentencing
hearing"); and State v. Goldsmith, 8th Dist. Cuyahoga No. 95073,
2011-Ohio-840, 4 11 ("[b]ecause [appellant] failed to raise on
direct appeal from his conviction the issue concerning whether
the offenses challenged herein are allied offenses of similar
import subject to merger, we find that the issue is barred by the
doctrine of res judicata").
{$ 15} Pound is attempting to use the denials of his
petitions to raise issues that could and should have been raised
on a direct appeal. Pound's direct appeal was initiated in 1998.
At that point, Pound had the opportunity to timely raise any
prospective errors in his sentencing. He failed to do so.
{q 16) Further, as this court explained in Parson, an
appellant seeking to challenge his pre-Johnson sentencing on the
grounds of merger cannot rely on Johnson "because `[a] new
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judicial ruling may be applied only to cases that are pending on
the announcement date. * * * The new judicial ruling may not be
applied retroactively to a conviction that has become final, i.e.
where the accused has exhausted all of his appellate remedies."'
Parson, 2012-Ohio-730, 9[ 11, quoting All v. State,104 Ohio St.3d
328, 2004-Ohio-6592, 819 N.E.2d 687, 1 6.
{9[ 17} Pound's third assignment of error is without merit.
{9[ 181 The judgment of the Montgomery County Court of Common
Pleas is hereby affirmed.
FAIN, J., And FROELICH, J., concur.
(Hon. Timothy P. Cannon, Eleventh District Court of Appeals,sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
Copies mailed to:
Michele D. Phipps, Esq.Nickey L. Pound, Sr.Hon. Timothy N. O'Connell
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
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IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO
Plaintiff-Appellee C.A. CASE NOS. 24789/24980
vs.
NICKEY L. POUND, SR.
Defendant-Appellant
T.C. CASE NO. 96CR3873/3
FINAL ENTRY
Pursuant to the opinion of this court rendered on the2?thday of July , 2012,
the judgment of the trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), it is ordered that the Clerk of the Montgomery
County Court of Appeals shall immediately serve notice of this judgment upon all
parties and make note in the docket of the mailing.
MIKE FAIN, JUDGE
TIM&TH`Y P. C I^ON, JUDGE
BY ASSIGNMENT
(Hon. Timothy P. Cannon, Eleventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
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Copies mailed to:
Michele D. Phipps
Asst. Pros. Attorney
301 W. Third Street, 5 th Fl.
P.O. Box 972Dayton, Ohio 45422
Nickey L. Pound, Sr.
#305-806, L.E.C.I.
P.O. Box 56
Lebanon, Ohio 45036
Hon. Timothy N. O'Connell
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
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