[Cite as State v. Holliday, 2012-Ohio-2376.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 11CAA110104 ANTWAUN T. HOLLIDAY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 08CRI060334
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN ANTWAUN HOLLIDAY Delaware County Prosecuting Attorney #599-996 P.O. Box ERIC C. PENKAL 45699 Assistant Prosecuting Attorney SOCF 140 N. Sandusky Street Lucasville, Ohio 45609 Delaware, Ohio 43015 Hoffman, P.J.
{¶1} Defendant-appellant Antwaun T. Holliday appeals the November 4, 2011
Judgment Entry entered by the Delaware County Court of Common Pleas denying his
petition for post-conviction relief. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On April 1, 2009, Appellant entered a plea of guilty to one count of identity
fraud, in violation of R.C. 2913.49(B)(2), and one count of theft, in violation of R.C.
2913.02(A)(3). The charges relate to an incident which occurred on April 5, 2008.
Additionally, Appellant pleaded guilty to two counts each of identity fraud and theft for
an incident(s) which occurred on April 9, 2008. The trial court sentenced Appellant to
three years in prison on the identity fraud count occurring on April 5, 2008, and five
years of community control for the theft count based on the same date.
{¶3} On April 5, 2008, Appellant used the personal information of Gale Nelson
to finance the purchase of a 2007 Suzuki GSXR600 motorcycle at Hinds Motorsports, a
motorcycle dealership in Lewis Center, Ohio. As a result, the Delaware County Grand
Jury charged Appellant with identity fraud and theft in Count One and Two of the
indictment.
{¶4} On April 9, 2008, Appellant again visited Hinds Motorsports, and used the
personal identity information of Gale Nelson to purchase and finance a 2007 Kawasaki
ZX1000 motorcycle. Counts Four and Five of the indictment allege identity fraud and
theft as a result of the incident. In addition, also on April 9, 2008, Appellant used Gale
Nelson's identification information to purchase and finance a 2007 Yamaha YZFR600
motorcycle. Counts Seven and Eight of the indictment charge identity fraud and theft, respectively. As set forth above, Appellant entered a plea of guilty to Counts One, Two,
Five, Seven and Eight of the indictment on April 1, 2009.
{¶5} On February 26, 2010, Appellant filed a petition for post-conviction relief
alleging his sentence was unconstitutional due to the trial court's failure to make the
required statutory findings as to consecutive sentences.
{¶6} On November 4, 2011, the trial court overruled the motion for post-
conviction relief. Appellant now appeals, assigning as error:
{¶7} “I. DOUBLE JEOPARDY CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS AFFORDS A DEFENDANT PROTECTION AGAINST MULTIPLE
PUNISHMENTS FOR SAME OFFENSE.
{¶8} “II. THE EVIDENCE ADDUCED AT TRIAL REVEALED THAT THE
STATE RELIED UPON THE SAME CONDUCT TO SUPPORT THE THREE
OFFENSES AND THE OFFENSES WERE COMMITTED NEITHER SEPARATELY
NOR WITH A SEPARATE ANIMUS AS TO EACH, THEREBY ENTITLING
DEFENDANT TO THE PROTECTION OF R.C. §2941.25.”
I & II
{¶9} As Appellant’s assignments of error raise related issues, we elect to
address them together.
{¶10} “[A] postconviction relief proceeding is not an appeal of a criminal
conviction, but, rather, a collateral civil attack on the judgment.” State v. Calhoun, 86
Ohio St.3d 279, 281, 1996-Ohio-102. As such, a hearing is not always required when a
petition for postconviction relief is filed. Id. at 282-283; State v. Cole (1982), 2 Ohio
St.3d 112, 113, 443 N.E.2d 169; State v. Milanovich (1975), 42 Ohio St.2d 46, 50, 325 N.E.2d 540; State v. Pierce, (1998), 127 Ohio App.3d 578, 585, 713 N.E.2d 498; State
v. Worthy (May 30, 1997), 11th Dist. No. 96-P-0122, 1997 Ohio App. LEXIS 2370, at *5;
State v. Jackson (1980), 64 Ohio St.2d, 107, 110, 413 N.E.2d 819. The test is whether
there are substantive grounds for relief that would warrant a hearing based upon the
petition, the supporting affidavits, and the files and records of the case. Jackson, 64
Ohio St.2d at 110, 413 N.E.2d 819; State v. Strutton (1988), 62 Ohio App.3d 248, 575
N.E.2d 466, at paragraph one of the syllabus; Worthy, 1997 Ohio App. LEXIS 2370, at
*6. “If no such grounds exist, the trial court should dismiss the petition for post-
conviction relief sua sponte.” Id.
{¶11} Furthermore, a petition for postconviction relief may be barred without
hearing by the doctrine of res judicata, “where a petitioner could have raised issues in
his petition at trial or on direct appeal.” Pierce, 127 Ohio App.3d at 575, 713 N.E.2d 494,
citing State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph one of the
syllabus (emphasis added).
{¶12} Appellant asserts his convictions on multiple offenses is void as the
charges arose from two separate incidents but involved the same conduct and are allied
offenses of similar import. Appellant asserts his animus was to obtain three
motorcycles, and provide identity information to secure financing. As a result, he
argues his convictions on multiple counts violates the Double Jeopardy Clause of the
Ohio and United States' Constitutions, and the trial court erred in imposing separate
sentences for the offenses.
{¶13} Appellant cites the recent Ohio Supreme Court decision in State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, which held at syllabus: {¶14} "(1) when determining whether two offenses are allied offenses of similar
import subject to merger statute, the conduct of the accused must be considered;
overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699, and
{¶15} "(2) crimes of felony murder and child endangering, as related to
defendant's conduct, were allied offenses and thus subject to merger."
{¶16} Appellant's conviction and sentence were final on April 1, 2009, and
Appellant did not file a direct appeal. The Ohio Supreme Court's holding in Johnson
does not apply retroactively. State v. Parson, 2nd Dist. 24641, 2012-Ohio-730. A new
judicial ruling may be applied only to cases pending on the announcement date. State
v. Parson, 2nd. Dist. No. 24641, 2012-Ohio-730. The new judicial ruling may not be
applied retroactively to a conviction that has become final, i.e., where the accused has
exhausted all of his appellate remedies. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-
6592.
{¶17} Further, Appellant's petition for post-conviction relief is not a substitute for
direct appeal.
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[Cite as State v. Holliday, 2012-Ohio-2376.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 11CAA110104 ANTWAUN T. HOLLIDAY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 08CRI060334
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN ANTWAUN HOLLIDAY Delaware County Prosecuting Attorney #599-996 P.O. Box ERIC C. PENKAL 45699 Assistant Prosecuting Attorney SOCF 140 N. Sandusky Street Lucasville, Ohio 45609 Delaware, Ohio 43015 Hoffman, P.J.
{¶1} Defendant-appellant Antwaun T. Holliday appeals the November 4, 2011
Judgment Entry entered by the Delaware County Court of Common Pleas denying his
petition for post-conviction relief. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On April 1, 2009, Appellant entered a plea of guilty to one count of identity
fraud, in violation of R.C. 2913.49(B)(2), and one count of theft, in violation of R.C.
2913.02(A)(3). The charges relate to an incident which occurred on April 5, 2008.
Additionally, Appellant pleaded guilty to two counts each of identity fraud and theft for
an incident(s) which occurred on April 9, 2008. The trial court sentenced Appellant to
three years in prison on the identity fraud count occurring on April 5, 2008, and five
years of community control for the theft count based on the same date.
{¶3} On April 5, 2008, Appellant used the personal information of Gale Nelson
to finance the purchase of a 2007 Suzuki GSXR600 motorcycle at Hinds Motorsports, a
motorcycle dealership in Lewis Center, Ohio. As a result, the Delaware County Grand
Jury charged Appellant with identity fraud and theft in Count One and Two of the
indictment.
{¶4} On April 9, 2008, Appellant again visited Hinds Motorsports, and used the
personal identity information of Gale Nelson to purchase and finance a 2007 Kawasaki
ZX1000 motorcycle. Counts Four and Five of the indictment allege identity fraud and
theft as a result of the incident. In addition, also on April 9, 2008, Appellant used Gale
Nelson's identification information to purchase and finance a 2007 Yamaha YZFR600
motorcycle. Counts Seven and Eight of the indictment charge identity fraud and theft, respectively. As set forth above, Appellant entered a plea of guilty to Counts One, Two,
Five, Seven and Eight of the indictment on April 1, 2009.
{¶5} On February 26, 2010, Appellant filed a petition for post-conviction relief
alleging his sentence was unconstitutional due to the trial court's failure to make the
required statutory findings as to consecutive sentences.
{¶6} On November 4, 2011, the trial court overruled the motion for post-
conviction relief. Appellant now appeals, assigning as error:
{¶7} “I. DOUBLE JEOPARDY CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS AFFORDS A DEFENDANT PROTECTION AGAINST MULTIPLE
PUNISHMENTS FOR SAME OFFENSE.
{¶8} “II. THE EVIDENCE ADDUCED AT TRIAL REVEALED THAT THE
STATE RELIED UPON THE SAME CONDUCT TO SUPPORT THE THREE
OFFENSES AND THE OFFENSES WERE COMMITTED NEITHER SEPARATELY
NOR WITH A SEPARATE ANIMUS AS TO EACH, THEREBY ENTITLING
DEFENDANT TO THE PROTECTION OF R.C. §2941.25.”
I & II
{¶9} As Appellant’s assignments of error raise related issues, we elect to
address them together.
{¶10} “[A] postconviction relief proceeding is not an appeal of a criminal
conviction, but, rather, a collateral civil attack on the judgment.” State v. Calhoun, 86
Ohio St.3d 279, 281, 1996-Ohio-102. As such, a hearing is not always required when a
petition for postconviction relief is filed. Id. at 282-283; State v. Cole (1982), 2 Ohio
St.3d 112, 113, 443 N.E.2d 169; State v. Milanovich (1975), 42 Ohio St.2d 46, 50, 325 N.E.2d 540; State v. Pierce, (1998), 127 Ohio App.3d 578, 585, 713 N.E.2d 498; State
v. Worthy (May 30, 1997), 11th Dist. No. 96-P-0122, 1997 Ohio App. LEXIS 2370, at *5;
State v. Jackson (1980), 64 Ohio St.2d, 107, 110, 413 N.E.2d 819. The test is whether
there are substantive grounds for relief that would warrant a hearing based upon the
petition, the supporting affidavits, and the files and records of the case. Jackson, 64
Ohio St.2d at 110, 413 N.E.2d 819; State v. Strutton (1988), 62 Ohio App.3d 248, 575
N.E.2d 466, at paragraph one of the syllabus; Worthy, 1997 Ohio App. LEXIS 2370, at
*6. “If no such grounds exist, the trial court should dismiss the petition for post-
conviction relief sua sponte.” Id.
{¶11} Furthermore, a petition for postconviction relief may be barred without
hearing by the doctrine of res judicata, “where a petitioner could have raised issues in
his petition at trial or on direct appeal.” Pierce, 127 Ohio App.3d at 575, 713 N.E.2d 494,
citing State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph one of the
syllabus (emphasis added).
{¶12} Appellant asserts his convictions on multiple offenses is void as the
charges arose from two separate incidents but involved the same conduct and are allied
offenses of similar import. Appellant asserts his animus was to obtain three
motorcycles, and provide identity information to secure financing. As a result, he
argues his convictions on multiple counts violates the Double Jeopardy Clause of the
Ohio and United States' Constitutions, and the trial court erred in imposing separate
sentences for the offenses.
{¶13} Appellant cites the recent Ohio Supreme Court decision in State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, which held at syllabus: {¶14} "(1) when determining whether two offenses are allied offenses of similar
import subject to merger statute, the conduct of the accused must be considered;
overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699, and
{¶15} "(2) crimes of felony murder and child endangering, as related to
defendant's conduct, were allied offenses and thus subject to merger."
{¶16} Appellant's conviction and sentence were final on April 1, 2009, and
Appellant did not file a direct appeal. The Ohio Supreme Court's holding in Johnson
does not apply retroactively. State v. Parson, 2nd Dist. 24641, 2012-Ohio-730. A new
judicial ruling may be applied only to cases pending on the announcement date. State
v. Parson, 2nd. Dist. No. 24641, 2012-Ohio-730. The new judicial ruling may not be
applied retroactively to a conviction that has become final, i.e., where the accused has
exhausted all of his appellate remedies. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-
6592.
{¶17} Further, Appellant's petition for post-conviction relief is not a substitute for
direct appeal. State v. Thompson, 9th Dist. 08CA20, 2009-Ohio-200. We find the
arguments raised herein were capable of being raised on direct appeal, and Appellant
has not established new information which has arisen subsequent to trial excusing him
of the burden of filing a direct appeal. Accordingly, we find Appellant's assigned errors
are barred by the doctrine of res judicata. {¶18} The November 4, 2011 Judgment Entry of the Delaware County Court of
Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, J. and
Edwards, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________ HON. JOHN W. WISE
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ANTWAUN T. HOLLIDAY : : Defendant-Appellant : Case No. 11CAA110104
For the reason stated in our accompanying Opinion, the November 4, 2011
Judgment Entry of the Delaware County Court of Common Pleas is affirmed. Costs to
Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS