[Cite as State v. Hudson, 2011-Ohio-3832.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95581
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
TONIO HUDSON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-510582
BEFORE: Blackmon, P.J., Rocco, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: August 4, 2011 2 -i-
ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
John Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
Tonio Hudson, Pro Se Inmate No. A551-480 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
Katherine Mullin Blaise D. Thomas Assistant Prosecuting Attorneys 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 3 PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Tonio Hudson, through counsel, appeals his sentence
and assigns the following error for our review:
“I. Appellant’s sentence is contrary to law and violates due process because the trial court failed to consider whether the sentence was consistent with sentences imposed for similar crimes committed by similar offenders and because a twenty-eight to life sentence for a first time offender is inconsistent with such sentences.”
{¶ 2} Hudson assigns the following pro se errors for our review:
“I. Prosecutorial misconduct/misconduct [sic] of a state’s witness a federal employee.”
“II. Ineffective assistance of counsel.”
“III. The trial judge should have granted objection to flight instruction after defense was prevented from fully cross-examining witness whose testimony was used to establish flight. This denied defendant right to a fair trial under the Ohio and United States Constitution.”
“IV. The trial court abused it’s [sic] discretion by denying defendant’s motion for a mistrial and overruling objection.”
“V. Ineffective assistance of counsel.”
“VI. Trial judge should have granted motion for mistrial after federal witness gave testimony stating that defendant had criminal history.”
“VII. The trial court errored [sic] in overruling motion to suppress identification.” 4 “VIII. The trial court errored [sic] in overruling motion to suppress evidence.”
{¶ 3} Having reviewed the record and pertinent law, we affirm
Hudson’s sentence. The apposite facts follow.
{¶ 4} On May 15, 2008, the Cuyahoga County Grand Jury indicted
Hudson on two counts of aggravated robbery and two counts of aggravated
murder with felony murder specifications. All counts carried three-year
firearm specifications. The state subsequently dismissed the felony murder
specifications. Hudson pleaded not guilty at his arraignment, subsequently
filed a motion to suppress evidence and identification. The trial court denied
the motion and the case proceeded to a jury trial.
{¶ 5} On June 19, 2008, the jury found Hudson not guilty of one count
of aggravated murder as charged, but guilty of the lesser included charge of
murder. The jury found Hudson guilty of the remaining counts along with
the attached firearm specifications. On June 30, 2008, the trial court
sentenced Hudson to an aggregate prison term of 28 years to life.
{¶ 6} On Hudson’s direct appeal, we affirmed his conviction, but
remanded for resentencing, because we found that the trial court erred by
sentencing Hudson on two murder charges involving the same victim. State
v. Hudson, Cuyahoga App. No. 91803, 2009-Ohio-6454. 5 {¶ 7} On July 21, 2010, the trial court conducted the resentencing
hearing, the state elected to proceed on the aggravated murder charge, the
trial court merged all four offenses, and sentenced Hudson to an aggregate
prison term of 28 years to life for aggravated murder. Hudson now appeals.
Sentence Contrary to Law
{¶ 8} In the sole assigned error, through counsel, Hudson argues his 28
years to life sentence was contrary to law. We disagree.
{¶ 9} We review felony sentences using the Kalish framework. State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality
opinion, the Kalish court declared that in applying State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate
courts “must apply a two-step approach.” Kalish at ¶4.
{¶ 10} Appellate courts must first “examine the sentencing court’s
compliance with all applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law.”
Id. at 26. See, also, R.C. 2953.08(G). If this first prong is satisfied, then we
review the trial court’s decision under an abuse of discretion standard. Id. at
¶4 and ¶19.
{¶ 11} In the first step of our analysis, we review whether Hudson’s
sentence is contrary to law as required by R.C. 2953.08(G). As the Kalish 6
court noted, post- Foster “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make
findings and give reasons for imposing maximum, consecutive, or more than
the minimum sentence.” Id. at 11, quoting Foster at paragraph seven of the
syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1,
paragraph three of the syllabus. The Kalish court held that although Foster
eliminated mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12
intact. Kalish at 13. Therefore, the trial court must still consider those
statutes when imposing a sentence. Id., citing Mathis at 38.
{¶ 12} R.C. 2929.11(A) provides that:
“[A] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing [:] * * * to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.”
{¶ 13} R.C. 2929.12 provides a nonexhaustive list of factors a trial court
must consider when determining the seriousness of the offense and the
likelihood that the offender will commit future offenses.
{¶ 14} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Instead,
they “serve as an overarching guide for trial judges to consider in fashioning 7
an appropriate sentence.” Kalish at 17. Thus, “[i]n considering these statutes
in light of Foster, the trial court has full discretion to determine whether the
sentence satisfies the overriding purposes of Ohio’s sentencing structure.” Id.
{¶ 15} In the instant case, Hudson specifically argues that his sentence
is contrary to law because it is inconsistent with sentences imposed for
similar crimes committed by similar offenders.
{¶ 16} We note that “[c]onsistency in sentencing is achieved by weighing
the sentencing factors.” State v. Dowell, Cuyahoga App. No. 88864,
2007-Ohio-5534, ¶8, citing State v. Georgakopoulos, Cuyahoga App. No.
81934, 2003-Ohio-4341.
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[Cite as State v. Hudson, 2011-Ohio-3832.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95581
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
TONIO HUDSON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-510582
BEFORE: Blackmon, P.J., Rocco, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: August 4, 2011 2 -i-
ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
John Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
Tonio Hudson, Pro Se Inmate No. A551-480 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
Katherine Mullin Blaise D. Thomas Assistant Prosecuting Attorneys 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 3 PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Tonio Hudson, through counsel, appeals his sentence
and assigns the following error for our review:
“I. Appellant’s sentence is contrary to law and violates due process because the trial court failed to consider whether the sentence was consistent with sentences imposed for similar crimes committed by similar offenders and because a twenty-eight to life sentence for a first time offender is inconsistent with such sentences.”
{¶ 2} Hudson assigns the following pro se errors for our review:
“I. Prosecutorial misconduct/misconduct [sic] of a state’s witness a federal employee.”
“II. Ineffective assistance of counsel.”
“III. The trial judge should have granted objection to flight instruction after defense was prevented from fully cross-examining witness whose testimony was used to establish flight. This denied defendant right to a fair trial under the Ohio and United States Constitution.”
“IV. The trial court abused it’s [sic] discretion by denying defendant’s motion for a mistrial and overruling objection.”
“V. Ineffective assistance of counsel.”
“VI. Trial judge should have granted motion for mistrial after federal witness gave testimony stating that defendant had criminal history.”
“VII. The trial court errored [sic] in overruling motion to suppress identification.” 4 “VIII. The trial court errored [sic] in overruling motion to suppress evidence.”
{¶ 3} Having reviewed the record and pertinent law, we affirm
Hudson’s sentence. The apposite facts follow.
{¶ 4} On May 15, 2008, the Cuyahoga County Grand Jury indicted
Hudson on two counts of aggravated robbery and two counts of aggravated
murder with felony murder specifications. All counts carried three-year
firearm specifications. The state subsequently dismissed the felony murder
specifications. Hudson pleaded not guilty at his arraignment, subsequently
filed a motion to suppress evidence and identification. The trial court denied
the motion and the case proceeded to a jury trial.
{¶ 5} On June 19, 2008, the jury found Hudson not guilty of one count
of aggravated murder as charged, but guilty of the lesser included charge of
murder. The jury found Hudson guilty of the remaining counts along with
the attached firearm specifications. On June 30, 2008, the trial court
sentenced Hudson to an aggregate prison term of 28 years to life.
{¶ 6} On Hudson’s direct appeal, we affirmed his conviction, but
remanded for resentencing, because we found that the trial court erred by
sentencing Hudson on two murder charges involving the same victim. State
v. Hudson, Cuyahoga App. No. 91803, 2009-Ohio-6454. 5 {¶ 7} On July 21, 2010, the trial court conducted the resentencing
hearing, the state elected to proceed on the aggravated murder charge, the
trial court merged all four offenses, and sentenced Hudson to an aggregate
prison term of 28 years to life for aggravated murder. Hudson now appeals.
Sentence Contrary to Law
{¶ 8} In the sole assigned error, through counsel, Hudson argues his 28
years to life sentence was contrary to law. We disagree.
{¶ 9} We review felony sentences using the Kalish framework. State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality
opinion, the Kalish court declared that in applying State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate
courts “must apply a two-step approach.” Kalish at ¶4.
{¶ 10} Appellate courts must first “examine the sentencing court’s
compliance with all applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law.”
Id. at 26. See, also, R.C. 2953.08(G). If this first prong is satisfied, then we
review the trial court’s decision under an abuse of discretion standard. Id. at
¶4 and ¶19.
{¶ 11} In the first step of our analysis, we review whether Hudson’s
sentence is contrary to law as required by R.C. 2953.08(G). As the Kalish 6
court noted, post- Foster “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make
findings and give reasons for imposing maximum, consecutive, or more than
the minimum sentence.” Id. at 11, quoting Foster at paragraph seven of the
syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1,
paragraph three of the syllabus. The Kalish court held that although Foster
eliminated mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12
intact. Kalish at 13. Therefore, the trial court must still consider those
statutes when imposing a sentence. Id., citing Mathis at 38.
{¶ 12} R.C. 2929.11(A) provides that:
“[A] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing [:] * * * to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.”
{¶ 13} R.C. 2929.12 provides a nonexhaustive list of factors a trial court
must consider when determining the seriousness of the offense and the
likelihood that the offender will commit future offenses.
{¶ 14} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Instead,
they “serve as an overarching guide for trial judges to consider in fashioning 7
an appropriate sentence.” Kalish at 17. Thus, “[i]n considering these statutes
in light of Foster, the trial court has full discretion to determine whether the
sentence satisfies the overriding purposes of Ohio’s sentencing structure.” Id.
{¶ 15} In the instant case, Hudson specifically argues that his sentence
is contrary to law because it is inconsistent with sentences imposed for
similar crimes committed by similar offenders.
{¶ 16} We note that “[c]onsistency in sentencing is achieved by weighing
the sentencing factors.” State v. Dowell, Cuyahoga App. No. 88864,
2007-Ohio-5534, ¶8, citing State v. Georgakopoulos, Cuyahoga App. No.
81934, 2003-Ohio-4341.
{¶ 17} As an appellate court, we are not required to decide whether the
lower court “imposed a sentence in lockstep with others, but whether the
sentence is so unusual as to be outside the mainstream of local judicial
practice. Although the offense[s] may be similar, distinguishing factors may
justify dissimilar treatment.” State v. Rabel, Cuyahoga App. No. 91280,
2009-Ohio-350, ¶15, citing State v. Dawson, Cuyahoga App. No. 86417,
2006-Ohio-1083.
{¶ 18} In the instant case, there is nothing in the record to demonstrate
that Hudson’s sentence is “outside the mainstream of local judicial practice.”
Hudson was convicted of aggravated murder in violation R.C. 2903.01, which 8 provides that he could be imprisoned for an indefinite term of fifteen years to
life.
{¶ 19} Therefore, a sentence of 28 years to life is within the statutory
range allowed by law. Since Hudson was sentenced within the statutory
range and has failed to demonstrate how his sentence violated Ohio’s
sentencing statutes, we do not find that it was contrary to law.
{¶ 20} We next consider whether the trial court abused its discretion.
Kalish at ¶4 and ¶19. An “abuse of discretion” is more than an error of law
or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140, citing State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d
144.
{¶ 21} We find nothing in the record to suggest that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. A review of the
record indicates that the trial court also expressly stated, at the original
sentencing hearing, that it had considered all factor of the law and found that
prison was consistent with the purposes and principles of R.C. 2929.11.
Also, at Hudson’s resentencing, the trial court restated that it had considered
all factors of the law and found that prison was consistent with the purposes 9 and principles of R.C. 2929.11. Accordingly, we overrule Hudson’s sole
assigned error through counsel
Pro Se Errors
{¶ 22} A review of the record indicates that all eight pro se assigned
errors were either raised or could have been in Hudson’s direct appeal of his
conviction. As such they are barred by the doctrine of res judicata. The
doctrine of res judicata bars further litigation in a criminal case of issues that
were raised previously or could have been raised previously in a direct appeal.
State v. Reddy, Cuyahoga App. No. 95814, 2011-Ohio-2927, citing State v.
Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the
syllabus.
{¶ 23} Since we have addressed or could have addressed these issues,
our disposition of them remains the “law of the case,” and Hudson’s pro se
assigned errors are barred by the doctrine of res judicata. State v. Saxon,
109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824. Accordingly, we
overrule Hudson’s pro se assigned errors.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal. 10 It is ordered that a special mandate be sent to said court to carry this
judgment into execution. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
KENNETH A. ROCCO, J., and EILEEN A. GALLAGHER, J., CONCUR