State v. Gilbert

2013 Ohio 4783

Opinion

[Cite as State v. Gilbert, 2013-Ohio-4783.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 08 MA 206 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION AND ) JUDGMENT ENTRY HATTIE GILBERT ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Appellant’s Application for Reconsideration.

JUDGMENT: Application denied.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Kristopher A. Haines Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: October 29, 2013 [Cite as State v. Gilbert, 2013-Ohio-4783.] PER CURIAM.

{¶1} Appellant Hattie Gilbert requests reconsideration of our Opinion in State

v. Gilbert, 7th Dist. No. 08 MA 206, 2012-Ohio-1165, pursuant to App.R. 26(A).

Appellant contends that we incorrectly held that her convictions on attempted murder

and felonious assault were not allied offenses committed with a single animus.

Appellant was actually convicted of complicity to attempted murder and complicity to

felonious assault, and we determined that while the two crimes were allied offenses,

they should not merge at sentencing because they were committed separately with

separate animus. Id. at ¶44-47. As Appellant has not cited any obvious errors in our

Opinion, nor has she raised any issues that were not considered in the direct appeal,

the application for reconsideration is denied.

{¶2} This case arose from the robbery and shooting of Joseph Kaluza as he

was driving to a bank to make a deposit as part of his regular duties as manager of a

Kentucky Fried Chicken restaurant in Youngstown. Appellant deliberately caused a

traffic accident with Kaluza's vehicle. Her co-defendant, Taran Helms, then walked

up and shot Kaluza in the neck. Kaluza was alive but paralyzed after the shooting.

Helms pushed Kaluza's vehicle to a more secluded spot, where he threatened to

shoot Kaluza in the head. Helms then took the deposit bag and fled. Appellant and

Helms were later apprehended and charged with several crimes stemming from the

shooting and robbery.

{¶3} The test generally applied in reviewing an App.R. 26(A) motion for

reconsideration, “is whether the motion calls to the attention of the court an obvious

error in its decision or raises an issue for the court's consideration that was either not -2-

considered at all or was not fully considered by the court when it should have been.”

State v. Wong, 97 Ohio App.3d 244, 246, 646 N.E.2d 538 (4th Dist.1994). It is clear

that Appellant is not raising any issue that was not previously considered. The basis

for her request for reconsideration is that she simply disagrees with our Opinion.

This is not a valid basis for granting reconsideration. “An application for

reconsideration may not be filed simply on the basis that a party disagrees with the

prior appellate court decision.” Hampton v. Ahmed, 7th Dist. No. 02 BE 66, 2005-

Ohio-1766, ¶16, citing State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956

(1996).

{¶4} Appellant summarily and repeatedly refers to a number of issues

throughout her memorandum in support of reconsideration: that we failed to rely on

the “law of the case” in a previous appeal filed by co-defendant Helms; that we

misinterpreted the standard of review for allied offenses of similar import; that we

usurped the function of the jury; that we violated Appellant's due process and Sixth

Amendment rights; and that there was insufficient evidence of felonious assault. We

will briefly address each of these matters, despite the fact that they were thoroughly

addressed in our underlying Opinion.

{¶5} Appellant contends that we erred by not limiting ourselves to the facts

and analysis as they appeared in our Opinion in her co-defendant’s (first) appeal.

Prior to the release of Appellant’s Opinion, this Court had released a judgment in her

co-defendant’s appeal. State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872

(“Helms I”). In that appeal, under his first assignment of error, Helms argued that his -3-

convictions on attempted murder and felonious assault were allied offenses and

should have merged at sentencing. A majority of the panel of this Court agreed, and

held that the two counts should have merged at sentencing. Id. at ¶43-73. However,

there was a dissent on that issue. The state successfully appealed the issue of allied

offenses to the Ohio Supreme Court. As a result, that portion of Helms I dealing with

allied offenses was vacated. State v. Helms, 128 Ohio St.3d 352, 2011-Ohio-738,

944 N.E.2d 233, ¶3. The case was remanded to us in order to conduct an entirely

new review based on the holding of State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061. Johnson significantly altered Ohio law regarding allied

offenses as it had previously been interpreted under State v. Rance, 85 Ohio St.3d

632, 636, 710 N.E.2d 699 (1999). Rance called for a comparison of multiple

offenses solely in the abstract, whereas Johnson requires for a subjective review of

the defendant's conduct as part of the process of comparing the offenses.

{¶6} Appellant now contends that the facts and analysis contained in the

Opinion in Helms I should be relied on as the law of the case in this appeal, and that

if we had limited our analysis to the factual analysis conducted in Helms I, we should

have found that her crimes, like those of Helms, were allied offenses that merged at

sentencing.

{¶7} In her attempt to advance this argument, Appellant first overlooks the

obvious error in her reliance on the “law of the case” in the separate and distinct

criminal case of her co-defendant, since the very essence of this particular doctrine is

to maintain consistency in legal decisions made at different points in time in the same -4-

case. State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶30. That

said, Appellant's reliance on Helms I faces a much more significant obstacle than her

misapplication of the law of the case doctrine. Appellant is aware that Helms I was

overturned by the Ohio Supreme Court and remanded for a second review on the

issue of allied offenses. The Ohio Supreme Court specifically vacated that entire

section of Helms I dealing with allied offenses and the matter was clearly remanded

for an entirely new review of the issue in light of Johnson. On remand, we rejected

the analysis used by us in Helms I and determined that pursuant to the law of

Johnson, even though felonious assault and attempted murder are allied offenses,

Helms committed his crimes separately with separate animus. State v. Helms, 7th

Dist. No. 08 MA 199, 2012-Ohio-1147 (“Helms II”). It is abundantly clear in Helms II

that the section of Helms I dealing with allied offenses was vacated and the issue

remanded for a new review. Helms II at ¶1, 16.

{¶8} Appellant argues that we did not apply the correct standard in reviewing

the question of allied offenses in her case. We relied on the law of Johnson, which is

cited by Appellant. However, Appellant disagrees with our application of Johnson to

this case. Appellant admits that we were required to consider her conduct when

conducting our allied offense analysis pursuant to R.C. 2941.25. Appellant contends

that we erred, however, in reviewing the matter more broadly (she claims) than did

the trial court. Appellant submits that this Court may only review the facts

surrounding the initial shooting when deciding the question of allied offenses

because Appellant believes the trial court and the jury limited their review to only -5-

these facts. Thus, Appellant argues that it was error for this Court to examine the

entire record as part of our review of this matter.

{¶9} Since this application for reconsideration was filed, the Ohio Supreme

Court reviewed the crucial question as to what standard of review an appellate court

should use when dealing with allied offenses in light of Johnson. Obviously, the

standard of review can significantly affect the outcome of an appeal. As our normal

standard of review for errors relating to allied offenses has been de novo, we

reviewed this underlying appeal accordingly. See, e.g., State v. Ryan, 7th Dist. No.

10-MA-173, 2012-Ohio-1265; State v. Taylor, 7th Dist. No. 07 MA 115, 2009-Ohio-

3334. The Ohio Supreme Court has confirmed that the correct standard is, in fact, to

conduct a de novo review. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699,

¶1. Although Appellant urges that this matter should have been looked at under

some lesser or more restrictive standard and that we should have given deference to

the trial court's analysis, the Supreme Court has spoken on this matter. We properly

conducted a de novo review. Following this review, we determined that Appellant's

crimes, although allied offenses, were committed separately and with separate

animus, and therefore, should not have merged.

{¶10} Appellant merely speculates that the jury confined itself to certain

limited facts in determining her guilt. Even if we could agree with her, the jury has no

role in determining whether they have convicted her of allied offenses; this is a matter

for the trial judge to decide at sentencing. Hence, even if we engaged in speculation

as to what went through the minds of each member of the jury, it would not change -6-

our analysis. As we have stated in the Opinion: “We do not exclude particular

properly admitted facts from our consideration simply because we believe the jury

was paying more attention to the prosecutor's opening and closing remarks rather

than the actual presentation of the evidence. The jury is free to match the facts

presented at trial to the elements of the crime as stated in the indictment. The

indictment here does not specify any facts regarding felonious assault except that

Kaluza was the victim and that it occurred on March 24, 2008. The bill of particulars

does not provide any further explanation about the details of felonious assault.”

Gilbert, supra, at ¶36.

{¶11} Regarding the numerous references to our supposed violation of

Appellant’s Sixth Amendment right to a jury trial, Appellant was duly convicted by the

jury on both complicity to attempted murder and complicity to felonious assault.

Appellant understandably would prefer not be punished for both of these crimes, but

as earlier stated our review in no way interfered with or altered the decision of the

jury. It could be argued that under the facts of this case, we would interfere with the

role of the jury if we did not allow Appellant to be punished for convictions that were

reached in a valid jury verdict and are fully supported by the record.

{¶12} Appellant presents what she claims is a due process argument that she

was prevented from defending herself against the charge of felonious assault as it

refers to facts surrounding co-defendant Helms' threat to shoot Mr. Kaluza in the

head. She appears to be surprised that the actual shooting of the victim and later

threat to kill him could be viewed as two separate incidents. Appellant contends she -7-

was prevented from defending against this charge both at trial and on appeal. There

is nothing in the record supporting this claim. As noted, the indictment and bill of

particulars encompassed all acts that occurred the day of March 24, 2008. There

was a great deal of testimony as to all of the actions that occurred that day.

Appellant should have been prepared to defend herself at trial as to all of these

events. Appellant was duly convicted and sentenced on a number of crimes,

including complicity to attempted murder and complicity to felonious assault. On

appeal, she raised eight assignments of error that required us to examine the entire

record. Her alleged errors encompassed nearly every aspect of this case, from

alleged improper venue all the way through alleged errors in the length and validity of

her prison term. Appellant provided the entire record for us, and invited us to

thoroughly review that record, particularly with regard to the issue of allied offenses.

Appellant now contends that we erred by actually reviewing the entire record, and by

basing our Opinion on what we found in this record. As earlier addressed, however,

this review was not only proper, but necessary based on the pertinent law found in

both Johnson and Williams .

{¶13} Finally, Appellant disagrees that there was sufficient evidence to

support a conviction for complicity to felonious assault. We thoroughly reviewed this

issue in the initial Opinion, and it is clear that Appellant merely disagrees with our

analysis. Again, mere disagreement with an appellate court's reasoning is not a

basis for granting an application for reconsideration. Hampton v. Ahmed, supra.

{¶14} The application for reconsideration is hereby denied. -8-

Waite, J., concurs.

Donofrio, J., concurs.

Vukovich, J., concurs.