[Cite as State v. Maple, 2016-Ohio-5024.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      28031

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ANTHONY D. MAPLE                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 00 12 2812C

                                 DECISION AND JOURNAL ENTRY

Dated: July 20, 2016



        HENSAL, Judge.

        {¶1}     Anthony Maple appeals a judgment of the Summit County Court of Common

Pleas that denied his motion for vacation of non-cognizable crime. For the following reasons,

this Court affirms.

                                                I.

        {¶2}     In 2001, a jury found Mr. Maple guilty of attempted aggravated murder,

aggravated robbery, and aggravated burglary. The trial court sentenced him to a total of 20 years

imprisonment. Mr. Maple appealed, but this Court upheld his convictions and sentence. Since

then, Mr. Maple has filed a number of motions in the trial court. Relevant to this appeal, in July

2015, Mr. Maple filed a combined motion for allied offense determination and motion for

vacation of non-cognizable crime. The trial court denied his motions. Mr. Maple has appealed

the denial of his motion for vacation of non-cognizable offense, assigning two errors, which we

will address together.
                                               2


                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN NOT GRANTING RELIEF ON THIS
       APPELLANT’S NOLAN BASED CLAIM SINCE THE OHIO SUPREME
       COURT RULED THAT THE CHARGE ON WHICH THIS APPELLANT IS
       SERVING A PRISON SENTENCE IS NOT A COGNIZABLE CRIME IN OHIO
       THUS VIOLATING THIS APPELLANT’S CONSTITUTIONAL RIGHTS
       UNDER THE 5TH AND 14TH AMENDMENTS OF THE US CONSTITUTION
       AND THE EQUIVALENT ARTICLES AND SECTIONS OF THE OHIO
       CONSTITUTION BY NOT GRANTING IMMEDIATE RELIEF.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY NOT CONDUCTING AN EVIDENTIARY
       HEARING WHEN CONFRONTED WITH PROOF OF A WRONGFUL
       INCARCERATION.     THE COURT’S FAILURE, VIOLATED THIS
       APPELLANT’S CONSTITUTIONAL RIGHTS UNDER THE 5TH AND 14TH
       AMENDMENTS OF THE US CONSTITUTION AND EQUIVALENT
       ARTICLES AND SECTIONS OF THE OHIO CONSTITUTION.

       {¶3}    Mr. Maple argues that he is being held for a crime which the Ohio Supreme Court

has held is not cognizable. He notes that, in State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-

4800, the Court held that a person cannot be convicted of attempting to commit an offense under

Ohio Revised Code Section 2903.02(B). Id. at ¶ 9-10. He also argues that the trial court should

have held a hearing to determine whether Nolan applies to his case.

       {¶4}    In Nolan, the Supreme Court considered whether someone can attempt to commit

felony murder under Section 2903.02(B). Because it is “impossible to purposely or knowingly

cause an unintended death[,]” the Court held that “attempted felony murder is not a cognizable

crime in Ohio.” Id. at ¶ 10.

       {¶5}    Mr. Maple’s convictions are not affected by Nolan because he was not convicted

of attempted felony murder under Section 2903.02(B). Instead, he was convicted of attempted

aggravated murder under Section 2903.01(B). Unlike felony murder, which occurs whenever
                                                 3


someone “cause[s] the death of another as a proximate result of * * * committing or attempting

to commit an offense of violence that is a felony of the first or second degree[,]” aggravated

murder requires that the offender “purposely cause the death of another” while committing

certain specified felonies. R.C. 2903.02(B); R.C. 2903.01(B). Nolan’s rationale does not apply

because it is possible to attempt to purposely cause the death of another while committing a

different felony.

       {¶6}    Because Nolan does not support Mr. Maple’s argument that he is imprisoned for a

non-cognizable offense, we conclude that the trial court correctly denied Mr. Maple’s motion.

We also conclude that he was not entitled to a hearing on the motion. Mr. Maple’s first and

second assignments of error are overruled.

                                                III.

       {¶7}    The trial court correctly denied Mr. Maple’s motion for vacation of non-

cognizable crime. The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                4


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



MOORE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

ANTHONY D. MAPLE, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
