State v. Huber

2012 Ohio 6044

Opinion

[Cite as State v. Huber, 2012-Ohio-6044.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2010 CA 100

v. : T.C. NO. 06CR509

JOSEPH W. HUBER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 21st day of December , 2012.

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

JOSEPH W. HUBER, A518-135, Chillicothe Correctional Institute, P. O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant

DONOVAN, J.

{¶ 1} Defendant-appellant Joseph W. Huber, pro se, appeals a judgment of the 2

Clark County Court of Common Pleas wherein the trial court held a re-sentencing hearing on

September 22, 2010, in order to correct an incorrect imposition of post-release control which

occurred on August 1, 2007. Huber filed a timely notice of appeal with this Court on

October 13, 2010.

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

No. 2007-CA-88, 2009-Ohio-1636, and repeat it herein in pertinent part:

{¶ 3} “On March 7, 2006, Joseph W. Huber (Appellant) was caught with a

suitcase chock-full of thousands of narcotic pain-reliever and analgesic tablets–methadone,

hydrocodone, oxycodone, fentanyl patches, and acetaminophen with codeine. He was

convicted on five counts of controlled substance possession in back-to-back trials (Huber I,

No. 06-CR-509, and Huber II, No. 06-CR-674). The prosecutor’s misidentification of the

fentanyl patches in the original indictment required the state to reindict Mr. Huber,

prompting the second trial three months later. The two trials spawned two appeals (this one

and State v. Huber, Clark App. No. 07-CA-122), which we declined to consolidate.” On

April 3, 2009, we affirmed Huber’s conviction and sentence in Case No. 06-CR-509. 2d

Dist. Montgomery No. 2007-CA-88, 2009-Ohio-1636.

{¶ 4} On February 17, 2010, Huber filed a pro se “Motion to Correct Void

Sentence in Accordance with O.R.C. § 2929.191 in Case No. 06-CR-509 only. On

September 22, 2010, the trial court held a re-sentencing hearing wherein it re-sentenced

Huber modifying only his post release control.

{¶ 5} It is from this judgment that Huber now appeals.

{¶ 6} Huber first assignment of error is as follows: [Cite as State v. Huber, 2012-Ohio-6044.] {¶ 7} “APPELLANT WAS DENIED DUE PROCESS AND EQUAL

PROTECTION OF LAW UNDER THE 1ST, 6TH, 8TH, AND 14TH AMENDMENTS TO

THE UNITED STATES AND THE STATE OF OHIO’S CONSTITUTIONS WHERE (1)

THE TRIAL COURT VIOLATED THE DOCTRINE OF STARE DECISIS, (2) FOR

SENTENCING APPELLANT FOR AGGRAVATED DRUG POSSESSION WHICH WAS

AN ALLIED OFFENSE WITH THE CONVICTIONS IN CASE NUMBER 2006-CR-509.”

{¶ 8} In his first assignment, Huber seemingly contends that his conviction for

aggravated drug possession in Case No. 06-CR-674, regarding the fentanyl, is an allied

offense with the other drug possession offenses he was convicted of in 06-CR-509. We,

however, have previously analyzed and decided the same issue in State v. Huber, 2d Dist.

Montgomery No. 2010-CA-83, 2011-Ohio-6175, wherein we held that none of Huber’s drug

possession convictions in Case Nos. 06-CR-674 and 06-CR-509 were allied offenses of

similar import and therefore, did not merge. Id. at ¶ 9.

{¶ 9} Huber’s first assignment of error is overruled.

{¶ 10} Huber’s second and final assignment of error is as follows:

{¶ 11} “THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT

WAS VIOLATED WHEN THE APPELLEE BROUGHT TO TRIAL CHARGES THAT

HAD BEEN PREVIOUSLY DISMISSED.

{¶ 12} In his second and final assignment, Huber argues that his conviction for

aggravated possession of fentanyl in Case No. 06-CR-674 is barred by double jeopardy

because the charge was originally dismissed in Case No. 06-CR-509 after the jury was sworn

in and he was re-indicted. We note that Huber previously raised this argument as an

assignment of error in a prior appeal involving Case No. 06-CR-674 already decided by this 4

Court. State v. Huber, 2d Dist. Montgomery No. 2010-CA-83, 2011-Ohio-6175. In

addressing his argument, we stated as follows:

{¶ 13} “When this court reopened Huber’s appeal, that review was expressly

limited to whether the evidence was sufficient to establish that he possessed the necessary

‘bulk amount’ of fentanyl to support a second-degree felony conviction for aggravated

drug-possession. See App.R. 26(B)(7) (providing that ‘the court may limit its review to those

assignments of error and arguments not previously considered’). The court indicated that

aggravated possession of fentanyl is separate from any of the other four aggravated

possession offenses, citing State v. Duke (Feb. 8, 1995), Montgomery App. No. 14404

(‘Simultaneous possession (or any other prohibited act) of more than one Schedule II

controlled substance constitutes more than one offense.’), and State v. Pitts (Nov. 7, 2000),

Scioto App. No. 99 CA 2675 (concluding that the trial court did not err in imposing separate

prison sentences for trafficking in two different schedule IV drugs). The scope of the remand

was very narrow, and the issue of double jeopardy that Huber raises here exceeds it.

Therefore the double jeopardy argument is beyond the scope of our review. See State v.

Gillard, 78 Ohio St.3d 548, 549, 1997-Ohio-183 (rejecting defendant’s challenges to his

convictions and sentence, in part, because they were beyond the scope of the Court’s

remand). Moreover, this is an issue Huber could have raised in his previous appeal and

therefore the doctrine of res judicata prevents us from considering it now.” Id. at ¶ 5.

{¶ 14} Furthermore, the double jeopardy argument is beyond the scope of our

review in the current appeal in Case No. 06-CR-509, which is limited to the issue of the

imposition of post release control at re-sentencing. [Cite as State v. Huber, 2012-Ohio-6044.] {¶ 15} Accordingly, Huber’s second assignment of error is barred by res judicata

and therefore, overruled.

{¶ 16} All of Huber’s assignments having been overruled, the judgment of the trial

court is affirmed.

FAIN, J. and HALL, J., concur.

Copies mailed to:

Lisa M. Fannin Joseph W. Huber Hon. Richard J. O’Neill