State v. Mobley

2012 Ohio 969

• Court: Ohio Court of Appeals
• Decided: March 7, 2012
• Docket: 11CA83
• Status: Published

Opinion

[Cite as State v. Mobley, 2012-Ohio-969.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : BRYAN L. MOBLEY : Case No. 11CA83 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2009CR484D

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 7, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DANIEL J. BENOIT BRYAN L. MOBLEY, PRO SE 38 South Park Street Inmate No. A581-255 Mansfield, OH 44902 Lorain Correctional Institution 2075 South Avon Belden Road Grafton, OH 44044 Richland County, Case No. 11CA83 2

Farmer, J.

{¶1} On January 25, 2010, appellant, Bryan Mobley, was sentenced to an

aggregate term of twenty-four years in prison after being convicted of attempted

aggravated murder in violation of R.C. 2923.02 and 2903.01, aggravated burglary in

violation of R.C. 2911.11, discharging a firearm into a habitation in violation of R.C.

2923.161, and a firearm specification in violation of R.C. 2941.145. Appellant's

convictions and sentence were affirmed on appeal. State v. Mobley, Richland App. No.

2010-CA-0018, 2011-Ohio-309.

{¶2} On August 5, 2011, appellant filed a motion to correct status of illegal

sentence, claiming allied offenses. By order filed August 29, 2011, the trial court denied

the motion.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶4} "THE TRIAL COURT COMMITTED AN ERROR OF LAW WHEN IT DID

NOT GRANT MR. MOBLEY'S 'MOTION TO CORRECT STATUS OF ILLEGAL

SENTENCE.'"

{¶5} Appellant claims the trial court erred in denying his motion to correct his

illegal sentence. We disagree.

{¶6} In his motion to correct status of illegal sentence filed August 5, 2011,

appellant argued the trial court erred in sentencing him to consecutive sentences

because the offenses were allied offenses (R.C. 2941.25). Richland County, Case No. 11CA83 3

{¶7} In his original appeal, State v. Mobley, Richland App. No. 2010-CA-0018,

2011-Ohio-309, ¶32, appellant assigned the following error:

{¶8} "III. THE TRIAL COURT ERRED PREJUDICIALLY BY IMPOSING

SUBSTANTIAL CONSECUTIVE SENTENCES TOTALING 24 YEARS WHEN THERE

WAS ONLY ONE SET OF CRIMINAL OFFENSES IN SHOOTING THE VICTIM, NOT A

SERIES OF SEPARATE CRIMINAL OFFENSES, AND THE TRIAL COURT FAILED

TO CONSIDER THE MENTAL HEALTH ISSUES RAISED BY THE DEFENSE IN

MITIGATION OF THE APPELLANT'S CRIMINAL RESPONSIBILITY IN SHOOTING

THE VICTIM."

{¶9} After review, this court at ¶76 concluded the following:

{¶10} "Accordingly, we find that the trial court properly exercised its discretion in

imposing consecutive sentences for the attempted aggravated murder, aggravated

burglary, and discharging a firearm into a habitation. As appellant concedes, those

offenses were not allied offenses of similar import. (Appellant's Brief at 14). Therefore,

it was within the trial court's discretion to impose consecutive sentences based on

separate and distinct acts that were committed as a part of a course of conduct."

{¶11} We find the arguments herein to be res judicata. Res judicata is defined

as "[a] valid, final judgment rendered upon the merits bars all subsequent actions based

upon any claim arising out of the transaction or occurrence that was the subject matter

of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995–Ohio–331,

syllabus. See, also, State v. Hill, Muskingum App. No. CT11-0020, 2011-Ohio-3644.

{¶12} In support of his argument, appellant cites this court to State v. Johnson,

128 Ohio St.3d 153, 2010–Ohio–6314, wherein the Supreme Court of Ohio held, Richland County, Case No. 11CA83 4

"[w]hen determining whether two offenses are allied offenses of similar import subject to

merger under R.C. 2941.25, the conduct of the accused must be considered." The

Johnson court further held the following at ¶48:

{¶13} "In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one

without committing the other.***If the offenses correspond to such a degree that the

conduct of the defendant constituting commission of one offense constitutes

commission of the other, then the offenses are of similar import." (Emphasis sic.)

{¶14} In its order filed August 29, 2011, the trial court found "[e]ach of the crimes

was a separate and distinct act that was part of a course of conduct." The trial court

reasoned the following:

{¶15} "Mr. Mobley went to a sporting goods store and bought a gun and

ammunition. He then went to his ex-wife's apartment to shoot her. When she refused

to answer the door, he fired his gun through the door, committing the firearm discharge

offense.

{¶16} "One of the shots broke the door lock. He then forced his way into the

apartment knowing she was inside, committing the aggravated burglary crime. When

his ex-wife encountered him in the hall and begged for her life, he shot her at point

blank range. She raised her hand and deflected the bullet from its intended fatal path

when it struck and tore off her thumb, resulting in the attempted aggravated murder

conviction." Richland County, Case No. 11CA83 5

{¶17} We agree with the trial court's analysis and find appellant's arguments on

this issue to lack merit.

{¶18} Upon review, we find the trial court did not err in denying appellant's

motion.

{¶19} The sole assignment of error is denied.

{¶20} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.

_s/ Sheila G. Farmer______________

_s/ W. Scott Gwin_________________

_s/ John W. Wise_________________

JUDGES [Cite as State v. Mobley, 2012-Ohio-969.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : BRYAN L. MOBLEY : : Defendant-Appellant : CASE NO. 11CA83

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.

JUDGES