[Cite as State v. Gresham,
2011-Ohio-2519.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95240
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY GRESHAM
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED
IN PART AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-411525
BEFORE: Stewart, P.J., S. Gallagher, J., and Rocco, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Edward M. Graham
Edward M. Graham Co., L.P.A.
13363 Madison Avenue
Lakewood, OH 44107
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶ 1} Defendant-appellant, Gregory Gresham, appeals from a
resentencing ordered as a result of the court’s failure to advise him of
postrelease control during his original sentencing. His sole complaint on
appeal is that the court erred by imposing sentence for a five-year gun
specification on a charge of involuntary manslaughter, a lesser included
offense of the original charge of aggravated murder. He argues that a
five-year gun specification could only be imposed for a felony that includes, as
an essential element, purposely or knowingly causing or attempting to cause
the death of or physical harm to another. The state concedes this argument,
as well as pointing out an error not raised by Gresham — that the court
improperly sentenced Gresham on a weapons disability count.
I
{¶ 2} In 2002, a jury found Gresham guilty of involuntary
manslaughter (a lesser included offense of the original charge of aggravated
murder), three counts of felonious assault (lesser included offenses of the
original charges of attempted murder), and one count of having a weapon
under disability. The counts stemmed from a drive-by shooting in which
Gresham fired a gun from the trunk of a car at people on both sides of the
street, killing one and injuring three others. The manslaughter count
contained one, three, and five-year firearm specifications; the felonious
assault counts contained three and five-year firearm specifications. The
court imposed an eight-year sentence on the involuntary manslaughter count
and imposed three and five-year terms on the firearm specifications for that
count, to run consecutive to one another and prior and consecutive to the base
sentence. The court imposed a two-year sentence on one of the felonious
assault charges, to run consecutive to count one. It imposed a two-year
sentence on each of the remaining counts, to run concurrent with all counts.
All told, the court imposed a total sentence of 18 years.
{¶ 3} Gresham appealed from his conviction, claiming, among other
things, that the court erred by failing to merge the three and five-year
firearm specifications. We rejected this contention, finding that the five-year
firearm specification arose under R.C. 2941.146, and was therefore imposed
“as an additional prison term” as required by R.C. 2929.14(D)(1)(c) and thus
had to be served consecutive to the three-year firearm specification. See
State v. Gresham, 8th Dist. No. 81250, 2003-Ohio-744, ¶14.
{¶ 4} In 2007, Gresham petitioned the court to “vacate” his sentence,
arguing that felonious assault is not a lesser included offense of murder
under State v. Barnes, 94 Ohio St.3d 21,
2002-Ohio-68,
759 N.E.2d 1240.
The court denied the petition. We affirmed, construing Gresham’s motion to
“vacate” as a petition for postconviction relief and finding that his failure to
file it timely deprived the court of jurisdiction to consider it. See State v.
Gresham, 8th Dist. No. 90433,
2008-Ohio-4248, ¶9-11. We also rejected
Gresham’s argument grounded on the Barnes decision, noting that Barnes
had been decided prior to Gresham’s trial in March 2002, yet he failed to raise
the issue at the time of trial or on direct appeal, so it was barred by res
judicata. Id. at ¶13.
{¶ 5} In 2009, Gresham filed a motion for resentencing, claiming that
the court improperly imposed postrelease control at the time of sentencing.
The court granted the motion and resentenced Gresham. It imposed the
same eight-year sentence for involuntary manslaughter, with the three and
five-year firearm specifications to be served consecutive to each other and the
eight-year base sentence. It “set aside” the sentences for felonious assault on
authority of Barnes, and “corrected” the sentence for having a weapon under
disability to 18 months, to be served consecutively to the involuntary
manslaughter count. In total, the court ordered Gresham to serve 17 years
and six months in prison.
II
{¶ 6} We first address the state’s argument that the court erred by
“setting aside” the felonious assault convictions on grounds that they were
barred by the Ohio Supreme Court’s decision in Barnes.
{¶ 7} The state did not file a cross-appeal, so it cannot raise claims of
substantive errors that occurred during resentencing as a means of changing
the court’s judgment. See App.R. 3(C)(1). Nevertheless, we can recognize
the existence of plain error, and do so on this record.
{¶ 8} The court purported to set aside the felonious assault convictions
under authority of Barnes, which held that felonious assault is not a lesser
included offense of attempted murder. Barnes, 94 Ohio St.3d at 26. The
court had no discretion to do so because we rejected the same argument in
Gresham’s appeal from the denial of postconviction relief:
{¶ 9} “We note that Barnes was decided in January 2002 and
Gresham’s trial began in March 2002. Thus, Gresham had the opportunity
to raise Barnes to the trial court at that time. However, he failed to raise
this issue to the trial court and he failed to raise it in his first appeal in 2002
in Gresham I. It is well established that any claim for postconviction relief
that was or could have been raised on direct appeal is barred from
consideration by the doctrine of res judicata. State v. Perry (1967), 10 Ohio
St.2d 175,
226 N.E.2d 104. Because his claim was not raised at the earliest
possible opportunity, it is barred by res judicata.” Barnes,
2008-Ohio-4248,
at ¶13.
{¶ 10} Our opinion thus set forth the law of the case and the court had
no discretion to deviate from that law, particularly since our opinion made it
clear that Barnes was not an “intervening” decision. See Nolan v. Nolan
(1983), 11 Ohio St.3d 1,
462 N.E.2d 410, syllabus (“Absent extraordinary
circumstances, such as an intervening decision by the Supreme Court, an
inferior court has no discretion to disregard the mandate of a superior court
in a prior appeal in the same case.”). In any event, it is plain that vacation of
the felonious assault counts on substantive legal grounds exceeded the scope
of the resentencing as defined by State v. Fischer,
128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332. We therefore recognize the court’s action
as plain error and order that it reinstate Gresham’s convictions on the
felonious assault counts.
III
{¶ 11} Gresham argues, and the state agrees, that the court improperly
imposed a five-year firearm specification under R.C. 2929.14(D)(1)(c) because
that specification is only available to a felony “that includes, as an essential
element, purposely or knowingly causing or attempting to cause the death of
or physical harm to another[.]” He maintains that involuntary
manslaughter contains no element requiring the offender to “purposely or
knowingly” cause the death of another, so the specification cannot apply.
A
{¶ 12} Before considering the substantive issue on appeal, we must
decide whether the issue is properly before us. Principles of res judicata
apply to bar in “any proceeding except an appeal from that judgment” an
argument that “was raised or could have been raised by the defendant at the
trial, which resulted in that judgment of conviction, or on an appeal from that
judgment.” See State v. Perry (1967), 10 Ohio St.2d 175,
226 N.E.2d 104,
paragraph nine of the syllabus. In his direct appeal, Gresham raised the
issue of whether the three and five-year firearm specifications should have
merged. He did not, but could have raised on direct appeal, the issue
relating to the lack of evidence on the culpable mental state for the offense of
involuntary manslaughter as a predicate for the five-year firearm
specification under both R.C. 2929.14(D)(1)(c) and 2941.146(A).
{¶ 13} On its face, Gresham’s argument might appear to raise a
“sentencing” issue, but in reality, he is raising an evidentiary issue.
Although not “offenses,” see State v. Ford, 128 Ohio St.3d 398,
2011-Ohio-765,
945 N.E.2d 498, syllabus, sentence enhancements like firearm specifications
must be proven by evidence beyond a reasonable doubt. State v. Gaines,
46
Ohio St.3d 65,
545 N.E.2d 68, syllabus (because the R.C. 2929.71(A) sentence
enhancement for using a firearm in the commission of an offense increases
the punishment beyond the maximum set by the legislature, it must be
proven beyond a reasonable doubt). Gresham is doing nothing more
than arguing that there was insufficient evidence to prove the mental
element of the R.C. 2929.14(D)(1)(c) and 2941.146(A) enhancements. This
argument could have been raised on direct appeal, so it is barred by res
judicata. Moreover, this case being an appeal from a resentencing for the
sole purpose of imposing postrelease control, a direct appeal from the
resentencing is “limited to issues arising at the resentencing hearing.”
Fischer, at paragraph four of the syllabus. Again, evidentiary issues from
the trial are not properly before us in this appeal. We therefore find
Gresham’s claim barred.
B
{¶ 14} Even had the claim not been barred by res judicata or otherwise
have been beyond the scope of an appeal from a resentencing ordered for the
sole purpose of imposing postrelease control, we would find no merit to
Gresham’s argument in light of our discussion in section II of this opinion.
{¶ 15} The five-year firearm specification contained in the original
charge was premised on R.C. 2941.146(A), which is imposed “for committing a
felony that includes, as an essential element, purposely or knowingly causing
or attempting to cause the death of or physical harm to another and that was
committed by discharging a firearm from a motor vehicle[.]” R.C.
2929.14(D)(1)(c) states that if an offender is found guilty of a felony “that
includes, as an essential element, purposely or knowingly causing or
attempting to cause the death of or physical harm to another” and is also
convicted of “a specification of the type described in section 2941.146 of the
Revised Code,” the court, after imposing a prison term on the offender for the
felony “shall impose an additional prison term of five years upon the offender
that shall not be reduced ….”
{¶ 16} The original count of aggravated murder as charged under R.C.
2903.01(A) charged that Gresham “purposely” caused the death of another.
The culpable mental state for involuntary manslaughter, as defined by R.C.
2903.04, is supplied by the predicate offense — as charged here, felonious
assault. See State v. Wilson, 182 Ohio App.3d 171,
2009-Ohio-1681,
912
N.E.2d 133, at ¶36, citing State v. Campbell (1991),
74 Ohio App.3d 352,
358-359,
598 N.E.2d 1244. The mental state for felonious assault, as defined
in R.C. 2903.11, is “knowingly.” So the jury could only find Gresham guilty
of involuntary manslaughter if he caused the death of another as a proximate
result of committing a felonious assault; that is, while knowingly causing
physical harm to another.
{¶ 17} We therefore find for purposes of R.C. 2941.146(A) and R.C.
2929.14(D)(1)(c) that Gresham was found guilty of a felony (involuntary
manslaughter) that included as an essential element that he knowingly
caused physical harm to another (felonious assault) and that he committed
these acts by discharging a firearm from a motor vehicle. It follows that the
court did not err by imposing the five-year sentence enhancement. See State
v. Beauford, 10th Dist. No. 01AP-1166, 2002-Ohio-2016. We therefore reject
the state’s concession on this issue.
IV
{¶ 18} Finally, the state offers another concession — that the sentence
for the weapons under disability count exceeded the applicable maximum
sentence available at the time that Gresham committed the offense. If this
is so, the sentence would be an illegal sentence and thus void, taking it within
the ambit of plain error.
{¶ 19} The statute that applies to a criminal offender is the one in effect
at the time of the commission of the offense. State v. Williams, 103 Ohio
St.3d 112,
2004-Ohio-818,
814 N.E.2d 818, syllabus. Gresham committed the
weapons disability offense in July 2001, and the version of R.C. 2923.13(C) in
effect at that time made the offense a felony of the fifth degree (the statute
was amended in 2004 to make a violation of R.C. 2923.13 a third degree
felony). Fifth degree felonies were, and still are, punishable by prison terms
not to exceed 12 months. See R.C. 2929.14(A)(5).
{¶ 20} The court sentenced Gresham to 18 months in prison on the
weapons under disability count. This sentence thus exceeded the applicable
statutory maximum and was illegal, rendering it void. Fischer, 128 Ohio
St.3d at ¶8; State v. Beasley (1984), 14 Ohio St.3d 74, 75,
471 N.E.2d 774.
We therefore remand to the court for resentencing on the having weapons
under disability count.
{¶ 21} This cause is affirmed in part, reversed in part and remanded for
further proceedings consistent with this opinion.
It is ordered that the parties bear their own 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
