Opinion
No. 103807
05-19-2016
STATE OF OHIO PLAINTIFF-APPELLEE v. KERMIT B. HARRIS DEFENDANT-APPELLANT
FOR APPELLANT Kermit B. Harris, pro se Inmate No. 344-720 Trumbull Correctional Camp P.O. Box 640 Leavittsburg, Ohio 44430 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Gregory J. Ochocki Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-97-346368-ZA BEFORE: E.A. Gallagher, J., Jones, A.J., and Laster Mays, J.
FOR APPELLANT
Kermit B. Harris, pro se
Inmate No. 344-720
Trumbull Correctional Camp
P.O. Box 640
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Gregory J. Ochocki
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Kermit Harris appeals the denial of his motion for resentencing in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.
Facts and Procedural Background
{¶2} Harris was convicted on May 6, 1997 of aggravated robbery, receiving stolen property, attempted murder and felonious assault. The relevant procedural history of Harris's convictions and numerous appeals has been set forth by this court in State v. Harris, 8th Dist. Cuyahoga No. 96887, 2011-Ohio-6762, and need not be revisited here. For our purposes, we simply note that Harris's convictions were upheld on direct appeal in State v. Harris, 8th Dist. Cuyahoga No. 72687, 1998 Ohio App. LEXIS 2788 (June 18, 1998).
{¶3} On March 23, 2015 Harris filed a motion for resentencing arguing that the jury verdict form pertaining to his attempted murder conviction had failed to delineate whether he was convicted of a violation of R.C. 2903.02(A) or (B). Harris argued that pursuant to State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, his verdict form failed to set forth the degree of the offense under R.C. 2903.02 and, therefore, the verdict form must be understood to constitute only a finding of guilt for the least degree of the offense charged. Harris suggested that the least degree of the offense set forth in R.C. 2903.02 is subsection (B), felony murder. Because Harris was convicted of an attempt offense and the Ohio Supreme Court held in State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, ¶ 10, that "[a]ttempted felony murder is not a cognizable crime in Ohio," Harris argued that he was entitled to be resentenced for this offense.
{¶4} The trial court denied Harris's motion, finding that his argument was barred by res judicata and R.C. 2903.02(A) and (B) did not contain separate degrees of murder.
Law and Analysis
{¶5} In his sole assignment of error Harris argues that the trial court erred in denying his motion for resentencing based on the argument presented above.
{¶6} This court has previously held that where an appellant has failed to raise an argument related to the inadequacy of the jury verdict form on direct appeal, res judicata applies to bar subsequent appeals. State v. Holmes, 8th Dist. Cuyahoga No. 100388, 2014-Ohio-3816, ¶ 7.
{¶7} However, even if Harris's assignment of error was not barred by res judicata we note that his argument contains a fatal flaw: at the time of his offenses on December 30, 1996, R.C. 2903.02 did not contain a felony murder provision in subsection (B). The statute at that time read as follows:
(A) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy.
(B) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code.
{¶8} Ergo the jury verdict forms simply referenced the statute rather than specifically subsection (A) or (B). This court rejected a nearly identical argument in State ex rel. Williams v. Sutula, 8th Dist. Cuyahoga No. 103565, 2016-Ohio-408, and noted that R.C. 2903.02 was amended on June 30, 1998 to its present form that contains the felony murder provision in subsection (B). Id. at ¶ 4. Therefore, Harris's argument regarding the jury forms is without merit.
{¶9} Harris's assignment of error is overruled.
{¶10} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
EILEEN A. GALLAGHER, JUDGE LARRY A. JONES, SR., A.J., and
ANITA LASTER MAYS, J., CONCUR