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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.
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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,
, 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
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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
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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.
