[Cite as State v. Wright, 2014-Ohio-4734.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals Nos. L-14-1041
                                                                       L-14-1042
        Appellee                                                       L-14-1043
                                                                       L-14-1044
v.
                                                 Trial Court Nos. CR0201202162
Emmanuel Andre Wright                                             CR0200902364
                                                                  CR0200803927
        Appellant
                                                 DECISION AND JUDGMENT

                                                 Decided: October 24, 2014

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                             *****

        SINGER, J.

        {¶ 1} Appellant, Emmanuel Wright, appeals from three February 19, 2014 judgments

of the Lucas County Court of Common Pleas, entered in case Nos. CR0200803927,

CR0200902364, and CR0201202162, resentencing appellant pursuant to our mandate and
ordering that the sentence in each case be served consecutive to the other sentences.

Appellant also appeals from a February 21, 2014 judgment in case No. CR0201202162,

which dismissed his postconviction relief petition. All four appeals have been consolidated.

For the reasons which follow, we affirm the resentencing judgments dated February 19,

2014, and dismiss the appeal from the February 21, 2014 judgment dismissing appellant’s

postconviction relief petition. Appellant asserts the following assignments of error on

appeal:

              FIRST ASSIGNMENT OF ERROR

              THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED

       TO THE PREJUDICE OF APPELLANT BY RE-IMPOSING MAXIMUM

       SENTENCES IN CR2009-2364 AND CR2008-3927.

              SECOND ASSIGNMENT OF ERROR

              APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

       COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND

       FOURTEENTH AMENDMENTS TO THE UNITED STATES

       CONSTITUTION AND ARTICLE I, SECTION 10 OF THE

       CONSTITUTION OF THE STATE OF OHIO.

              THIRD ASSIGNMENT OF ERROR

              THE TRIAL COURT ERRED IN VIOLATION OF

       APPELLANT’S RIGHT TO DUE PROCESS BY DISMISSING HIS

       PETITION FOR POST CONVICTION [sic] RELIEF WITHOUT A




2.
       HEARING, AND BY NOT MAKING PROPER FINDINGS OF FACT

       AND CONCLUSIONS OF LAW.

       {¶ 2} In case No. CR0200803927, appellant entered a guilty plea pursuant to

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to one count

of burglary. The trial court accepted his plea, and the remaining charges were dismissed.

While Wright was awaiting sentencing, he was indicted in case No. CR0200902364 and

entered an Alford plea to the lesser offense of attempted theft. Wright was sentenced on

December 21, 2009, to two consecutive three-year terms of community control.

Additionally, the court notified Wright that if he violated the terms of his community

control, a longer or more restrictive sanction would be imposed, including a prison term

of eight years in case No. CR0200803927 and one year in CR0200902364.

       {¶ 3} On July 19, 2012, while on community control, Wright was indicted on one

count of passing bad checks in case No. CR0201202162. Wright subsequently entered a

no contest plea in exchange for the state’s recommendation of a six-month prison

sentence. On April 1, 2013, the court accepted the plea and imposed the six-month

recommended prison sentence. Additionally, in judgments of the same date in case Nos.

CR0200803927 and CR0200902364, the court imposed the prison sentences for those

offenses because Wright acknowledged that his conviction for passing bad checks

constituted a violation of the terms of his community control. The court ordered those

prison terms to be served consecutively to each other and the current offense, for a total

prison term of nine and one-half years.




3.
       {¶ 4} Appellant appealed the April 1, 2013, judgments entered in all three cases.

While the consolidated appeal was pending, appellant filed a pro se postconviction relief

petition on October 4, 2013 to vacate or set aside judgment of conviction in case No.

CR020122162. Appellant asserted that his severe sentence was the result of ineffective

assistance of counsel who allegedly failed to thoroughly investigate his case and prepare

a defense. On November 8, 2013, appellant’s appointed counsel filed a second petition

for postconviction relief based on the same grounds. The state moved to dismiss the

petition or for an order of summary judgment.

       {¶ 5} On December 30, 2103, this court affirmed in part and reversed in part the

judgments on appeal. State v. Wright, 6th Dist. Lucas Nos. L-13-1056, L-13-1057, and

L-13-1058, 2013-Ohio-5903. We remanded the cases for resentencing because the trial

court failed to comply with R.C. 2929.14(C)(4) and make the necessary findings to

impose consecutive sentences. Id. at ¶ 37.

       {¶ 6} In three judgments journalized on February 19, 2014, appellant was

resentenced pursuant to our mandate and the trial court imposed consecutive sentences

“to fulfill the purposes of R.C. 2929.11.” Although the court did not specifically cite

R.C. 2929.14(C)(4), the court did recite the language of the statute and found that the

consecutive sentences were “not disproportionate to the seriousness of the offender’s

conduct or the danger the offender poses” and that because “the defendant was under

community control when the offense was committed, the defendant’s criminal history

requires consecutive sentences.”




4.
       {¶ 7} In a judgment journalized February 21, 2014, in case No. CR0201202162,

the trial court dismissed appellant’s postconviction relief petition without a hearing and

without making findings of fact and conclusions of law.

       {¶ 8} On March 11, 2014, appellant filed an appeal from the February 19, 2014

judgments in all three cases (CR0200803927, CR0200902364, and CR0201202162) and

from the February 21, 2014 judgment in case No. CR0201202162. All of the appeals

have been consolidated.

       {¶ 9} In his first assignment of error, appellant argues that the trial court erred by

re-imposing the maximum sentences in the first two case Nos. CR0200803927 and

CR0200902364. Appellant asserts that the trial court failed to consider the principles and

purposes of sentencing under R.C. 2929.11 and the seriousness of appellant’s crimes and

recidivism as required by R.C. 2929.12. Appellant also argues that the trial court abused

its discretion by imposing the maximum sentences.

       {¶ 10} In our decision and judgment of December 30, 2103, we remanded the

consolidated cases solely for the purpose of resentencing to comply with R.C.

2929.14(C)(4). Wright, 6th Dist. Lucas Nos. L-13-1056, L-13-1057, and L-13-1058,

2013-Ohio-5903, at ¶ 37. We specifically addressed and found not well-taken the issues

of whether the trial court abused its discretion by imposing the maximum sentences in

case Nos. CR0200803927 and CR0200902364 and whether the trial court complied with

R.C. 2929.11 and 2929.12 when imposing the sentences. Id. at ¶ 15-25. Our ruling on

these issues remains the law of the case for all subsequent proceedings, Nolan v. Nolan,




5.
11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984), and the issue is barred from consideration by

the doctrine of res judicata. State v. Davis, 139 Ohio St.3d 122, 2014-Ohio-1615,

9 N.E.3d 1031, ¶ 27-28. The trial court would not have had jurisdiction to exceed our

mandate and reconsider this issue. Therefore, appellant’s first assignment of error is not

well-taken.

       {¶ 11} We next address the appeal of the dismissal of appellant’s petition for

postconviction relief and begin with appellant’s third assignment of error. In his third

assignment of error, appellant argues that the trial court denied appellant due process by

dismissing his petition for postconviction relief without a hearing and without making

findings of fact and conclusions of law. The state concedes that the judgment is not a

final, appealable order.

       {¶ 12} Before granting a hearing on a timely-filed petition for postconviction

relief, “* * * the court shall determine whether there are substantive grounds for relief.”

R.C. 2953.21(C). If the court does not find grounds for relief, it must file findings of fact

and conclusions of law along with either its order granting the motion to dismiss or its

order denying relief. R.C. 2953.21(C) and (G). Until the court complies with this

requirement, the judgment is not a final, appealable order. State v. Mapson, 1 Ohio St.3d

217, 218, 438 N.E.2d 910 (1982).

       {¶ 13} Therefore, the judgment journalized February 21, 2014, in case No.

CR0201202162, is not a final, appealable order and the appeal from that judgment is

ordered dismissed at appellant’s costs.




6.
       {¶ 14} In his second assignment of error, appellant argues that his appointed

counsel rendered ineffective assistance by failing to attach evidentiary affidavits prepared

by appellant in support of his petition for postconviction relief. Because we must dismiss

the appeal of the judgment dismissing the petition for postconviction relief, this

assignment of error is rendered moot.

       {¶ 15} Having found that the trial court did not commit error prejudicial to

appellant as to the judgments journalized on February 19, 2014, in all three cases, the

judgments of the Lucas County Court of Common Pleas resentencing appellant are

affirmed. Appellant is ordered to pay the court costs of this consolidated appeal pursuant

to App.R. 24.

                                                                        Judgments affirmed
                                                                      and appeal dismissed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                               _______________________________
                                                            JUDGE
Stephen A. Yarbrough, P.J.
                                                _______________________________
James D. Jensen, J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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