State v. Herron

2022 Ohio 2514

• Court: Ohio Court of Appeals
• Decided: July 22, 2022
• Docket: 29380
• Status: Published

Opinion

[Cite as State v. Herron, 2022-Ohio-2514.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

: STATE OF OHIO : : Appellate Case No. 29380 Plaintiff-Appellee : : Trial Court Case No. 2017-CR-2437 v. : : (Criminal Appeal from KEASON HERRON : Common Pleas Court) : Defendant-Appellant :

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OPINION

Rendered on the 22nd day of July, 2022.

MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

KEASON HERRON, #A747-515, Chillicothe Correctional Institution, 15802 State Route 104 North, Chillicothe, Ohio 45601 Defendant-Appellant, Pro Se -2-

.............

DONOVAN, J.

{¶ 1} Defendant-appellant Keason Herron appeals from an order of the

Montgomery County Court of Common Pleas, which overruled his “Motion to Correct

Sentence.” Herron filed a delayed notice of appeal on February 8, 2022, which we

allowed in an entry issued on March 8, 2022.

{¶ 2} We set forth the history of the case in State v. Herron, 2d Dist. Montgomery

No. 28146, 2019-Ohio-3292 ( “Herron I”), and repeat it herein in pertinent part:

The record establishes that on the evening of August 4, 2017, the

victim, Leanette Newton, was socializing at a residence located in Dayton,

Ohio, on Dearborn Avenue (hereinafter “the Dearborn residence”). The

residence in question belonged to the mother of defendant-appellant,

Herron. The Dearborn residence had a detached garage that was used by

people in the neighborhood as a place to congregate and drink alcohol.

Between approximately 4:00 p.m. and 6:00 p.m. that evening, Herron

arrived at the Dearborn residence, briefly spoke to Newton, and left shortly

thereafter. At some point that evening, Newton also left the Dearborn

residence.

Here, we note that Newton and Herron had been involved in an “on-

off” relationship since approximately 2006 or 2007. Herron testified that his

relationship with Newton was marked by periods of instability, volatility, and

violence from both parties. Herron further testified that his and Newton's -3-

alcohol use greatly exacerbated their relationship difficulties. Herron

testified that, by August 4, 2017, he and Newton were no longer in a

relationship, and Newton had moved all of her personal property out of the

residence she previously shared with Herron on Blanche Street in Dayton,

Ohio.

Later on the night of August 4, 2017, Herron returned to the Dearborn

residence and began drinking with others who were present. Eventually,

Newton arrived back at the Dearborn residence and also began drinking.

Herron testified that, in order to avoid a confrontation with Newton, he

immediately left the Dearborn residence and drove to his current girlfriend's

apartment, but he was unable to gain entrance. Thereafter, Herron drove to

his residence on Blanche Street.

After Herron left, Newton remained at the Dearborn residence and

continued to drink alcohol for a short time. Kimberly Moss, another

individual who was drinking alcohol at the Dearborn residence, testified that

at approximately 11:30 p.m., Newton asked Moss for a ride to her mother's

house nearby. At Newton's request, Moss drove her vehicle past Herron's

residence on Blanche Street. Newton then asked Moss to drop her off at a

park located behind Herron's residence.

Shortly thereafter, Newton walked over to Herron's residence and

began yelling at Herron while they stood in his front yard. Herron testified

that he then went inside his house, leaving Newton outside. Herron testified -4-

that once he was inside, he observed that it looked as if someone had

broken into and ransacked his house. Herron testified that he thought

Newton had broken into his house. (We note that the police investigation

found that there was no damage to any of the doors or windows in the

residence. The police also found that all of the windows were locked the

next morning on August 5, 2017.) Herron testified that in order to scare

Newton, he picked up a handgun from inside his house, walked outside,

and fired four shots into the ground. Herron testified that after he fired the

warning shots, Newton yelled at him and walked away. (We note here that

the police were unable to find any shell casings in the area where Herron

stated that he fired the handgun. Additionally, no handgun was ever

recovered by the police during their investigation.)

Herron testified that, at this point, he got into his truck and drove over

to Newton's mother's residence where Newton was then living. Upon

arriving, Herron asked Newton's mother to come to his residence and

retrieve her daughter. In the alternative, Herron asked Newton's mother to

send Newton's brother over to help. Newton's mother refused to help, so

Herron left and drove back to his residence.

Herron testified that after entering his residence, he heard a noise

behind him and turned around to see Newton walking toward him with a

“stick.” Herron testified that he ran into his bedroom and retrieved a shotgun

from his closet. Herron testified that he ejected the shells out of the shotgun -5-

and began to “jab” Newton with the barrel. Admittedly “furious” and “seeing

red,” Herron struck Newton several times, eventually causing her to fall

down on the floor. Herron testified that at this point, he grabbed Newton

around her neck and began choking her in an effort to wrest the stick from

her hand. Herron testified that after successfully doing so, he hit Newton

with the stick and then threw it outside in the yard.

Herron testified that Newton remained seated on the floor and began

falling asleep. After Newton began to snore, he went into his bedroom and

fell asleep for a few hours. When Herron woke up, he observed that Newton

had not moved from the position that he last saw her in hours earlier. Herron

testified that he then attempted to rouse Newton, but she did not respond.

Later that morning, Herron's uncle, Dennis Richardson, drove his

truck to Herron's residence for assistance in repairing his lawnmower.

Richardson testified that upon arriving at Herron's residence, he observed

that the front door was standing open. When Richardson approached the

residence, Herron came outside and told Richardson to enter the house.

Once the men were inside the house, Herron gestured toward Newton's

body and stated to Richardson, “she died on me.” Richardson testified that

he initially thought that Herron and Newton were playing a joke on him, and

he tried to leave the residence. Herron, however, blocked the door and

handed Richardson the shotgun, which had been wrapped in a sheet.

Herron told Richardson that he was not supposed to have the shotgun. -6-

Richardson went outside and placed the shotgun in the bed of his truck.

Richardson testified that he then reentered the residence and told

Herron to give him a “video camera” in order to prevent Herron from posting

anything on social media, as Richardson still believed the whole situation to

be a bad prank. Herron then handed Richardson a DVR recording box and

a disc containing surveillance video from cameras installed on and around

Herron's residence. Richardson went back outside, placed the surveillance

items in the bed of his truck, and drove home. Richardson testified that once

he reached his residence, he removed Herron's shotgun and surveillance

gear from his truck and put the items in his garage. Richardson testified that

he believed that Herron would call when and if he needed the items.

After Richardson left, Herron walked down the street to a nearby

convenience store where he encountered William Wagner, his stepfather's

brother. Wagner testified that he was at the store to purchase some items

for another relative while he was on a break from his job at the VA Hospital.

Herron approached Wagner and asked to use his cellphone. Wagner

handed Herron his cellphone. Herron testified that he then used Wagner's

cellphone to call 911 as he walked back toward his residence. Herron was

immediately arrested and taken into custody when the police and other

emergency personnel arrived at his residence.

Shortly thereafter, Dayton Police Officer Craig Stiver was dispatched

to Herron's residence to take photographs of the crime scene. Officer Stiver -7-

took photographs of a long metal bar that had been placed on top of an

animal cage, a crowbar retrieved from the kitchen, bloodstains in the

hallway and on the door to Herron's bedroom, and bloodstains on Herron's

bedroom dresser, stereo cabinet, pillow, and bedsheets. Stiver also

photographed bloodstains on and around the toilet in the bathroom.

On August 10, 2017, Herron was indicted for one count of murder,

one count of reckless homicide, and one count of felonious assault. At his

arraignment on August 15, 2017, Herron appeared and pled not guilty to the

charged offenses.

***

On July 5, 2018, Herron was charged in a “B” indictment with two

counts of tampering with evidence, and one count of having weapons while

under disability. The “B” indictment was based upon the State's discovery

of the shotgun and DVR equipment that Herron had given to Richardson to

hide. On August 9, 2018, Herron filed a jury waiver with respect to the

charge of having weapons while under disability.

A three-day jury trial was held on the remaining counts on August

20-22, 2018. At trial, Montgomery County Coroner's Office forensic

pathologist Dr. Susan Allen testified that she had performed an autopsy on

Newton on August 5 and 6, 2017. Dr. Allen testified that Newton's cause of

death was a combination of blunt force trauma and strangulation. Dr. Allen

testified that she found several bruises on Newton's face and head, as well -8-

as several circular or semi-circular bruises across Newton's entire body,

including her arms, abdomen, and back. Dr. Allen also testified that Newton

suffered deep cuts to her jaw, left ear lobe, lips, and the back of her head.

Significantly, Dr. Allen testified that Newton had a broken left leg, a broken

left arm, and five broken ribs. Lastly, Dr. Allen testified that Newton

presented with petechiae on her eyes, which are broken blood vessels

indicating that she had been strangled. Dr. Allen testified that, based on the

extent of Newton's injuries, she would have lost a great deal of blood and

suffered swelling of her brain.

Following his jury trial, Herron was found guilty of murder, felonious

assault, and both counts of tampering with evidence. The trial court

separately found Herron guilty of having weapons while under disability.

The State dismissed the charge of reckless homicide. The trial court merged

Herron's convictions for murder and felonious assault, with the State

electing to proceed to sentencing for the murder charge. On September 11,

2018, the trial court sentenced Herron to 15 years to life in prison for murder,

three years in prison for each count of tampering with evidence, and three

years in prison for having weapons while under disability. The trial court

ordered the two counts of tampering with evidence to be served

concurrently to one another, but consecutively to the remaining counts. The

trial court also ordered that Herron's conviction for having weapons while

under disability be served consecutively to the other counts, for an -9-

aggregate sentence of 21 years to life in prison.

Id. at ¶ 2-14, ¶ 17-19.

{¶ 3} Herron appealed his convictions. We held that the trial court had erred when

it precluded him from testifying to and introducing into evidence specific instances of the

victim’s past violent conduct toward him pursuant to Evid.R. 405(B), to show Herron’s

state of mind in support of his defense of self-defense. However, we found that the

error had been harmless in light of the overwhelming evidence adduced by the State and

the fact that Herron had been allowed to testify that the victim had attacked him several

times in the past, requiring him to go to the hospital for treatment. Additionally, we held

that Herron’s convictions for murder and tampering with evidence were supported by

sufficient evidence and were not against the manifest weight of the evidence. Finally,

we found that Herron’s trial counsel was not ineffective for failing to call a defense expert

during trial to dispute the testimony of the State’s forensic expert. See Herron I.

{¶ 4} On May 1, 2020, Herron filed a pro se “Verified Motion to Correct a Void

Sentence” in which he argued that his sentence was void because the judgment entry did

not contain the judge’s signature and the trial court did not properly consider the purposes

and principles of sentencing when it imposed Herron’s aggregate 21-year prison term.

On September 24, 2020, the trial court overruled Herron’s motion. Herron did not appeal

the order of the trial court.

{¶ 5} On September 21, 2021, Herron filed a pro se “Motion to Correct Sentence.”

In his motion, Herron raised the following issues: 1) the failure of the trial court to sign his

judgment entry; 2) the failure of the trial court to consider his present and future ability to -10-

pay financial sanctions; 3) the imposition of court costs which could potentially subject

Herron to performing community service; 4) the award of restitution; 5) the trial court’s

alleged failure to comply with the post-release control statutes; 6) the trial court’s decision

to merge his convictions for murder and felonious assault; and 7) the trial court’s failure

to instruct the jury regarding the “Castle Doctrine.”

{¶ 6} On October 14, 2021, the trial court issued an order overruling Herron’s

“Motion to Correct Sentence,” finding that the issues raised in the motion were barred by

res judicata. The trial court also addressed the merits of Herron’s motion. It found that

his judgment entry had been electronically signed by the trial judge. The trial court also

found that Herron’s argument regarding court costs was moot because the trial court had

previously waived any remaining costs in a judgment entry filed on June 22, 2021. In

regard to the restitution order, the trial court found that Herron had waived the argument

because, at his sentencing hearing, he expressly consented to pay the restitution order

to cover the victim’s funeral expenses and also waived a hearing to determine the amount.

The trial court found that Herron had the present and future ability to pay financial

sanctions because he had admitted to owning a house during his jury trial. Furthermore,

the trial court held that Herron’s convictions for murder and felonious assault had been

properly merged for the purposes of sentencing. The trial court found that Herron had

been properly advised at sentencing of all necessary information, including the effects of

violating post-release control. Finally, the trial court found that the jury had been properly

instructed regarding self-defense and that there had been a discussion between the trial

court and the parties regarding which instruction was proper. -11-

{¶ 7} Herron now appeals from the trial court’s order overruling his October 14,

2021 motion.

{¶ 8} Because they are interrelated, all of Herron’s assignments of error will be

discussed together:

THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN

IGNORING THE CASTLE DOCTRINE.

ORDERING FINANCIAL SANCTIONS.

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL.

{¶ 9} In his first assignment, Herron argues that the trial court erred when it failed

to instruct the jury regarding the “Castle Doctrine.” In his second assignment, Herron

contends that the trial court erred by ordering him to pay restitution in the amount of

$2,147.00 for the victim’s funeral expenses. In his third assignment, Herron argues that

he received ineffective assistance when his trial counsel 1) failed to request that the trial

court instruct the jury regarding the Castle Doctrine; and 2) failed to object to unidentified

due process and equal protection violations, the allegedly erroneous post-release control

language used by the trial court, and the “mandated financial sanctions procedures.”

Appellant’s Brief p. 5.

{¶ 10} “Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due -12-

process 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.” State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

Therefore, “any issue that could have been raised on direct appeal,” but was not, is “not

subject to review in subsequent proceedings.” State v. Saxon, 109 Ohio St.3d 176, 2006-

Ohio-1245, 846 N.E.2d 824, ¶ 16, citing State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-

5607, 797 N.E.2d 948, ¶ 37 and State v. D'Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d

710 (1995).

{¶ 11} Even if Herron's three assignments of error raised new arguments that he

had not raised previously, he could have raised them in his direct appeal. Therefore,

any issues regarding the jury instructions, the restitution order imposed by the trial court,

and whether his trial attorney provided ineffective assistance of counsel were barred by

res judicata. Significantly, Herron raised a claim of ineffective assistance of counsel in

Herron I, albeit for a different reason. In light of the foregoing, the trial court did not err

when it overruled Herron’s “Motion to Correct Sentence.”

{¶ 12} Herron’s assignments of error are overruled, and the judgment of the trial

court is affirmed.

WELBAUM, J. and LEWIS, J., concur.

Copies sent to: -13-

Mathias H. Heck, Jr. Elizabeth A. Ellis Keason Herron Hon. Susan D. Solle