Opinion
No. 09-CA-25.
DATE OF JUDGMENT ENTRY: October 26, 2009.
Criminal appeal from the Fairfield County Court of Common Pleas, Case No. 05-CR-255.
Affirmed.
Gregg Marx, Assistant Prosecuting Attorney, for Plaintiff-Appellee.
Eric J. Allen, for Defendant-Appellant.
Before: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Julie A. Edwards, J.
OPINION
{¶ 1} Defendant-appellant David Mobley appeals from the March 24, 2009 Judgment Entry of the Fairfield County Court of Common Pleas overruling his Motion for Relief. Plaintiff-appellee is the State of Ohio.
STATEMENT OF FACTS IN THE CASE
{¶ 2} On April 29, 2005, the Fairfield County Grand Jury indicted appellant on three counts of aggravated robbery, two counts of kidnapping, two counts of abduction, and one count of aggravated burglary. Each count carried a firearm specification. The matter proceeded to jury trial. After considering the evidence presented the jury found the appellant guilty on all charges.
A Statement of the Facts underlying the offenses upon which appellant was convicted is not necessary to our disposition of this appeal; therefore, such shall not be contained herein.
{¶ 3} Appellant appealed his conviction and sentence. This Court affirmed the convictions, but remanded the matter to the trial court for resentencing pursuant to State v. Foster (2006), 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470. See, State v. Mobley (February 15, 2007), Fairfield App. No. 06-CA-00003, 2007-Ohio-851.
{¶ 4} At the resentencing hearing, appellant was represented by retained counsel. Appellant, pro-se, appealed the trial court's re-sentencing decision. This Court affirmed the trial court's decision. State v. Mobley (November 5, 2007), Fairfield App. Case No. 07-CA-26, 2007-Ohio-6101. Appellant sought review to the Ohio Supreme Court, which denied leave to appeal. State v. Mobley (June 20, 2007), 114 Ohio St.3d 1428, 2007-Ohio-2904, 868 N.E.2d 681. Appellant, with current counsel, filed a Motion for Reconsideration, which was denied by this Court on December 28, 2007. State v. Mobley (December 28, 2007), Fairfield App. Case No. 07-CA-26. The Ohio Supreme Court denied jurisdiction over the case. State v. Mobley (April 9, 2008), 117 Ohio St.3d 1458, 2008-Ohio-1635, 884 N.E.2d 67.
{¶ 5} Appellant filed a petition for certiorari with the United States Supreme Court, which was denied October 6, 2008. Mobley v. Ohio (Oct. 6, 2008), ___ U.S.___, 129 S.Ct. 207, 172 L.Ed.2d 168.
{¶ 6} Appellant filed a motion for relief pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 with the trial court on December 8, 2008. By Judgment Entry filed March 24, 2009, the trial court denied appellant's motion.
{¶ 7} It is from the trial court's Judgment Entry filed March 24, 2009 denying his motion for relief that appellant appeals raising as his sole assignment of error:
{¶ 8} "I. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR RELIEF."
I.
{¶ 9} Appellant argues in his sole assignment of error that his indictment violated State v. Colon ( 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, because it did not specify the requisite mens rea element for his aggravated robbery charges. Specifically, appellant notes that Colon I was decided April 9, 2008. Appellant argues that his appeal to the Ohio Supreme Court was pending at the time that Court decided Colon I. We disagree.
{¶ 10} First, it is important to note that Colon was a direct appeal from the appellant's judgment of conviction, while this is an appeal from the dismissal of a motion for relief seeking to vacate or set aside his sentence. See, e.g. State v. Lucky, Delaware App. No. 09-CA-39, 2009-Ohio-4737; State v. Levette, Richland App. No. 2008 CA 109, 2009-Ohio-2864; State v. Kimbrough, Licking App. No. 2008-CA-0075, 2008-Ohio-4438.
{¶ 11} In State v. Colon ("Colon II "), 119 Ohio St.3d 204, 2008-Ohio-3749, the Ohio Supreme Court clarified its decision in Colon I, and stated:
{¶ 12} "Our holding in Colon I is only prospective in nature, in accordance with our general policy that newly declared constitutional rules in criminal cases are applied prospectively, not retrospectively. In State v. Evans (1972), 32 Ohio St.2d 185, 61 O.O.2d 422, 291 N.E.2d 466, we stated that "`application of a new rule of law to a pending appeal is not retrospective,' and * * * the new rule applie[s] to the cases pending on the announcement date." Id. at 186, 291 N.E.2d 466, quoting State v. Lynn (1966), 5 Ohio St.2d 106, 108, 34 O.O.2d 226, 214 N.E.2d 226.
{¶ 13} "We recently restated this principle in Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, at ¶ 6: `A new judicial ruling may be applied only to cases that are pending on the announcement date. 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.' (Citations omitted.)
{¶ 14} "Therefore, the rule announced in Colon I is prospective in nature and applies only to those cases pending on the date Colon I was announced." Id. at ¶ 3-4, 885 N.E.2d 917.
{¶ 15} In this case, appellant sought review in the Ohio Supreme court from this Court's affirmance of the trial court's re-sentencing after our remand pursuant to Foster. It is the Supreme Court's decision denying jurisdiction over the re-sentencing case that was issued on the date Colon I was decided. Accordingly, appellant's direct appeal of his conviction was not pending on that date; it was only his post- Foster sentencing appeal that, perhaps, remained pending.
{¶ 16} Assuming arguendo that appellant's case was pending on the date Colon I was announced, we would find that the indictment in this case was not insufficient.
{¶ 17} Appellant challenges the sufficiency of Count 1 and Count 3 of the indictment. (Appellant's Brief at 5). In each count, appellant was charged with aggravated robbery in violation of R.C. 2911.01(A) (1). This charge did not contain the physical harm element at issue in Colon, but instead charged that the petitioner "[had] a deadly weapon on or about his person or under his control to-wit: a loaded 40 caliber semi-automatic Smith and Wesson pistol . . ."
{¶ 18} Unlike the physical harm element, "[t]he deadly weapon element of R.C. 2911.02(A) (1), to wit, `[h]ave a deadly weapon on or about the offender's person or under the offender's control [,]' does not require the mens rea of recklessness." State v. Wharf (1999), 86 Ohio St.3d 375, 715 N.E.2d 172, paragraph one of the syllabus. More, recently the Ohio Supreme Court has held, "We are persuaded that the General Assembly, by not specifying a mens rea in R.C. 2911.01(A)(1), plainly indicated its purpose to impose strict liability as to the element of displaying, brandishing, indicating possession of, or using a deadly weapon. Cf. R.C. 2901.21(B). We hold that the state is not required to charge a mens rea for this element of the crime of aggravated robbery under R.C. 2911.01(A) (1)." State v. Lester, __ Ohio St.3d __, 2009-Ohio-4228. See also, State v. Thompson, Ashland App. No. 08 COA 018, 2008-Ohio-5332.
{¶ 19} Therefore, the indictment in this case was not insufficient.
{¶ 20} Appellant's sole assignment of error is overruled.
{¶ 21} The judgment of the Fairfield County Court of Common Pleas is affirmed.
Gwin, P.J., Wise, J., and Edwards, J., concur
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Fairfield County Court of Common Pleas is affirmed. Costs to appellant.