[Cite as State v. Latham, 2012-Ohio-4576.]
COURT OF APPEALS
GUERNSEY 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. 12CA00004
MAURICE LATHAM
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: HB 86
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 27, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN MAURICE D. LATHAM
Guernsey County Prosecuting Attorney D.R.C. No. 567-385
139 West 8th Street Southeastern Correctional Inst.
P.O. Box 640 5900 B.I.S. Road
Cambridge, Ohio 43725-0640 Lancaster, Ohio 43130
Guernsey County, Case No. 12CA00004 2
Hoffman, P.J.
{¶1} Appellant, Maurice Latham, appeals the trial court’s denial of his motion
for resentencing based upon H.B. 86.
{¶2} On November 6, 2007, Appellant entered pleas of guilty to a Bill of
Information containing one count of Possession of Powder Cocaine and one count of
Possession of Crack Cocaine. Further, Appellant pled guilty to the accompanying
specifications resulting in the forfeiture of $66,250.00 in cash. Appellant was sentenced
to a term of five years in prison on each count of Possession of Cocaine ordered served
consecutive to one another for a total term of ten years in prison.
{¶3} The sentencing reforms contained in H.B. No. 86 eliminated any
distinction between crack cocaine and powder cocaine, and lowered several cocaine
thresholds. The effective date of the reforms was September 30, 2011. Appellant was
sentenced on December 14, 2007, prior to the effective date of the reforms.
{¶4} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating the within appeal was wholly frivolous and setting forth one proposed
Assignments of Error. Appellant filed a pro se brief raising four proposed Assignments
of Error:
I.
{¶5} “APPELLANT MUST BE RESENTENCED BECAUSE HOUSE BILL 86
ELIMINATED THE DIFFERENTCE (SIC) IN SENTENCING FOR POSSESSIN (SIC)
OF COCAINE AND CRACK-BASED COCAINE.”
Guernsey County, Case No. 12CA00004 3
II.
{¶6} “TRIAL COURTS ERRED BY DENYING THE ABPELLANTS (SIC)
MOTION VIA DOUBLED (SIC) JEOPARDY UNDER THE CURRENT SENATE BILL 86
PROVISIONS, CONCERNING THE CRACK COCAIN SENTENCING.”
III.
{¶7} “TRIAL COURTS ABUSED THEIR DISCRETION WHEN NOT
REVIEWING THE CONSECUTIVE SENTENCING ON OFFENSES UNDER THE
SAME SUBSECTION AND OHIO REV. CODE 2925.11(C)(4).”
IV.
{¶8} “TRIAL COURTS FAILED TO PROPERLY CONSIDER THE GRANTING
OF OHIO REV. CODE 2929.51 (SENTENCE MODIFICATION) VIA SENATE BILL 86.”
V.
{¶9} “TRIAL COURTS LACKED SUFFICIENT EVIDENCE TO CONVICT THE
DEFENDANT OF A SECOND DEGREE POSSESSION OF CRACK COCAINE VIA
OHIO REV. CODE 2925.11(A) LOCKED TRUNK.”
{¶10} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he [or she] should so advise the court and request permission to withdraw. Id. at
744. Counsel must accompany his [or her] request with a brief identifying anything in
the record that could arguably support his [or her] client’s appeal. Id. Counsel also
must: (1) furnish his [or her] client with a copy of the brief and request to withdraw; and,
(2) allow his [or her] client sufficient time to raise any matters the client chooses. Id.
Once the defendant’s counsel satisfies these requirements, the appellate court must
Guernsey County, Case No. 12CA00004 4
fully examine the proceedings below to determine if any arguably meritorious issues
exist. If the appellate court also determines the appeal is wholly frivolous, it may grant
counsel’s request to withdraw and dismiss the appeal without violating constitutional
requirements, or may proceed to a decision on the merits if state law so requires. Id.
{¶11} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738. We find the appeal to be wholly frivolous and grant counsel’s
motion to withdraw. For the reasons which follow, we affirm the judgment of the trial
court.
I.,II.,III., and IV.
{¶12} In his first four assignments of error, Appellant raises the same issue
wherein he essentially argues he was entitled to have the provisions of H.B. 86 applied
to his sentence.
{¶13} This Court has previously held the provisions of H.B. 86 are not retroactive
and are not a basis for resentencing. “Contained within H.B. 86 at Section 4 is the
specific legislative intent not to make the changes retroactive:
{¶14} ‘The amendments* * *apply to a person who commits an offense specified
or penalized under those sections on or after the effective date of this section and to a
person to whom division (B) of section 1.58(B) of the Revised Code makes the
amendments applicable.’
{¶15} R.C. 1.58(B) provides: ‘If the penalty, forfeiture, or punishment for any
offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture,
or punishment, if not already imposed, shall be imposed according to the statute as
amended.’
Guernsey County, Case No. 12CA00004 5
{¶16} Based upon the statutory provisions, we find the trial court did not err in
denying Appellant's motion for sentence modification.” State v. Fields 2011 WL
5855008, 1 (Ohio App. 5 Dist.).
{¶17} Appellant is not entitled to resentencing under H.B. 86 because the statute
does not retroactively apply to those offenders who were sentenced prior to the
enactment of the statute. For this reason, Appellant’s first four assignments of error are
overruled.
V.
{¶18} In his fifth assignment of error, Appellant argues the trial court lacked
sufficient evidence to convict him of Possession of Crack Cocaine. Appellant is
appealing the denial of a motion for resentencing relative to H.B. 86. The issue raised
in the instant Assignment of Error relates to the initial conviction which is not currently
before this Court.
{¶19} Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant at the trial,
which resulted in that judgment of conviction, or on an appeal from that judgment. State
v. Szefcyk (1996), 77 Ohio St.3d 93, 95 (Emphasis added).
{¶20} We find Appellant’s argument is barred by the doctrine of res judicata
because Appellant could have raised the issue in a direct appeal of his initial conviction.
For this reason, Appellant’s fifth assignment of error is overruled.
Guernsey County, Case No. 12CA00004 6
{¶21} For these reasons, after independently reviewing the record, we agree
with counsel's conclusion no arguably meritorious claims exist upon which to base an
appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's
request to withdraw, and affirm the judgment of the Guernsey County Court of Common
Pleas.
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
Guernsey County, Case No. 12CA00004 7
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MAURICE LATHAM :
:
Defendant-Appellant : Case No. 12CA00004
For the reasons stated in our accompanying Opinion, we find this appeal to be
wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the
judgment of the Guernsey County Court of Common Pleas. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Julie A. Edwards ___________________
HON. JULIE A. EDWARDS