Opinion
No. 106139
04-12-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. PATRICK A. MINEFEE DEFENDANT-APPELLANT
APPELLANT Patrick A. Minefee, pro se Inmate No. A632-751 Grafton Correctional Institution 2500 South Avon Belden Road Grafton, Ohio 44044 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Gregory J. Ochocki Assistant County Prosecutor 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-12-562160-C BEFORE: Keough, J., McCormack, P.J., and Celebrezze, J.
APPELLANT
Patrick A. Minefee, pro se
Inmate No. A632-751
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Gregory J. Ochocki
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.
{¶2} Defendant-appellant, Patrick A. Minefee, pro se, appeals the trial court's denial of his petition for postconviction relief. For the reasons that follow, we affirm.
{¶3} In 2012, Minefee pleaded guilty to the indictment filed against him, including all firearm specifications — kidnapping, attempted murder, two counts of felonious assault, two counts of aggravated robbery, discharge of a firearm on or near prohibited premises, carrying concealed weapons, improperly handling firearms in a motor vehicle, and tampering with evidence. In exchange for his plea, the state recommended a prison sentence of 19 and one-half years. At sentencing, the trial court imposed the recommended sentence after denying Minefee's oral motion to withdraw his plea.
{¶4} Minefee appealed his convictions contending that (1) he did not enter a knowing, voluntary, or intelligent plea; (2) the court should have allowed him to withdraw his plea; (3) court costs were improperly imposed; and (4) he was denied effective assistance of counsel. State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146. This court overruled his assigned errors and affirmed his convictions. Id.
The correct spelling of the defendant's last name is "Minefee." --------
{¶5} In May 2017, Minefee filed a "petition to vacate or set aside judgment of conviction" contending that his sentence was void on Count 2 (the attempted murder offense) because it was contrary to law. Essentially, Minefee's filing was an untimely petition for postconviction relief. The state opposed the petition and the trial court summarily denied the petition without a hearing.
{¶6} Minefee now appeals, raising the following assignment of error:
I. Attempted felony murder is not a cognizable crime in Ohio because it is impossible to commit [whether] its [sic] under R.C. 2923.02/2903.02(A) or (B).
{¶7} In support of his assignment of error, Minefee cites to State v. Hendrix, 11th Dist. Lake No. 2011-Ohio-043, 2012-Ohio-2832, for the proposition that attempted felony murder is not a cognizable crime in Ohio. This issue was firmly decided in State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, where the Ohio Supreme Court held that attempted felony murder, pursuant to R.C. 2923.02 and R.C. 2903.02(B), is not a cognizable crime in Ohio because it is impossible to commit.
{¶8} Minefee, however, was not convicted of attempted felony murder under division (B) of R.C. 2903.02. Rather, Minefee was convicted of attempted murder under division (A) of R.C. 2903.02 for attempting to purposely cause the death of the victim. Accordingly, the holdings in Hendrix and Nolan are not applicable to Minefee's conviction. See State ex rel. Tucker v. Matia, 147 Ohio St.3d 418, 2016-Ohio-7450, 66 N.E.3d 730, ¶ 4; State v. Robinson, 8th Dist. Cuyahoga No. 103559, 2016-Ohio-2931, ¶ 15 (a defendant convicted of attempted murder under division (A) of a murder statute cannot use Nolan to argue the offense is noncognizable).
{¶9} Contrary to Minefee's unsupported assertion, attempted murder pursuant to R.C. 2903.02(A) is a cognizable offense. State v. Collins, 7th Dist. Mahoning No. 16 MA 0045, 2017-Ohio-648, ¶ 17, citing State v. Bryan, 101 Ohio St. 3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 115-121 (finding sufficient evidence the defendant purposely attempted to cause the victim's death under division (A) of R.C. 2903.02 and the attempt statute); State v. Kidder, 32 Ohio St.3d 279, 283, 513 N.E.2d 311 (1987) (the elements of attempted murder, pursuant to R.C. 2923.02 and 2903.02(A), are (1) purposely, (2) engaging in conduct which, if successful, would (3) cause another's death). Accordingly, Minefee's conviction for attempted murder pursuant to R.C. 2903.02(A) is not contrary to law.
{¶10} Minefee also argues on appeal that he lacked the requisite mens rea to commit attempted murder and that mitigating circumstances exist because the victim, an off-duty police officer, did not give a "Van Guard" warning before shooting at him. These arguments were not raised with the trial court in his petition; thus they are waived. See State v. Barb, 8th Dist. Cuyahoga No. 94054, 2010-Ohio-5239, ¶ 25. Moreover, the arguments are barred by res judicata because they could have been raised in his direct appeal. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 826 N.E.2d 824, ¶ 16-17.
{¶11} Accordingly, the trial court did not err in denying Minefee's petition for postconviction relief. The assignment of error is overruled.
{¶12} Judgment affirmed.
It is ordered that appellee recover from appellant 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, JUDGE TIM McCORMACK, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR