State v. Florence

[Cite as State v. Florence, 2021-Ohio-867.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28674
:
v. : Trial Court Case No. 2003-CR-810
:
LAMAR D. FLORENCE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 19th day of March, 2021.

...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

LAMAR D. FLORENCE, Inmate No. A467-506, Allen-Oakwood Correctional Institution,
P.O. Box 4501, Lima, Ohio 45802
Defendant-Appellant, Pro Se

.............

WELBAUM, J.
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{¶ 1} Defendant-Appellant, Lamar D. Florence, appeals pro se from the trial court’s

amended judgment entry of conviction, which was filed after a resentencing hearing.

Florence originally filed a pro se notice of appeal, and we then appointed counsel to

represent him. However, counsel later filed a motion to withdraw based on Florence’s

request to be allowed to proceed pro se. We granted counsel’s request to withdraw, and

Florence thereafter proceeded pro se. See Decision & Entry (Oct. 22, 2020).

{¶ 2} In support of his appeal, Florence has presented five assignments of error

relating to errors allegedly committed during his 2004 criminal trial. These errors include:

the trial court’s failure to evaluate Florence’s sanity at the time of the crime; a due process

violation based on the court’s failure to merge counts related to allied offenses; a due

process violation involving the court’s failure to merge the aggravated murder and murder

convictions; the lack of sufficient evidence supporting Florence’s convictions; and trial

counsel’s ineffective assistance in failing to request a mistrial based on introduction of

perjured testimony.

{¶ 3} We conclude that Florence’s claims are all barred by res judicata because

he could have raised them during his direct appeal from his 2004 convictions.

Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} This appeal is the latest in a string of appeals related to Florence’s

convictions for the March 6, 2003 murder of Steven Mayberry. Our most recent opinion,

filed in October 2019, outlined the factual background of the case and the appeals:

On March 20, 2004, a jury found Florence guilty of aggravated
 -3-

murder, kidnapping, murder, having weapons while under disability, and

four attendant firearm specifications. As a result of his convictions, the trial

court sentenced Florence to life in prison for aggravated murder, five years

in prison for kidnapping, and fifteen years to life in prison for murder, all to

be served concurrently. The trial court also imposed a three-year prison

term for having weapons while under disability and ordered that sentence

to be served consecutively to the sentences imposed for his other offenses.

The trial court further sentenced Florence to three years in prison for the

four firearm specifications, which the trial court merged into one

specification at sentencing. The trial court additionally ordered the three-

year sentence for the merged firearm specifications to run prior and

consecutive to all the other sentences imposed.

After he was sentenced, Florence filed a timely appeal from his

conviction, which we affirmed in State v. Florence, 2d Dist. Montgomery No.

20439, 2005-Ohio-4508 (“Florence I”). Approximately 11 years after we

affirmed Florence's conviction, Florence filed a pro se motion to vacate his

sentence. In support of that motion, Florence argued that the trial court

had failed to notify him of his post-release control obligation at sentencing.

The trial court overruled Florence's motion on the basis of res judicata.

Florence then appealed from that order.

On appeal, this court found, and the State conceded, that the trial

court had failed to notify Florence of his post-release control obligation at

sentencing. State v. Florence, 2d Dist. Montgomery No. 27478, 2018-
 -4-

Ohio-421, ¶ 7 (“Florence II”). The State also conceded, and we agreed,

that a defect in the imposition of post-release control may be raised at any

time, thus making the doctrine of res judicata inapplicable. Id. at ¶ 8.

Because the failure to impose post-release control as part of a defendant's

sentence renders that part of the sentence void, State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26, we remanded the matter

to the trial court for the limited purpose of resentencing Florence to the

appropriate term of post-release control. Florence II at ¶ 9-10, 14. Given

that Florence's kidnapping and having weapons while under disability

offenses were the only offenses that carried a post-release control

obligation, * * * and given that Florence had already completed his sentence

for kidnapping, * * * we ordered Florence to be resentenced to the

appropriate term of post-release control for having weapons while under

disability. Id. at ¶ 10.

On March 7, 2018, the trial court held a resentencing hearing

pursuant to our directive in Florence II. At this hearing, the trial court

advised Florence that, upon completing his prison sentence for having

weapons while under disability, he “may be placed on a period of three

years of post[-]release control supervision” for that offense. Resentencing

Hearing Trans. (Mar. 7, 2018), p. 3. The trial court also advised Florence

that all other aspects of his sentence previously imposed remained in full

force and effect.

On March 9, 2018, the trial court issued an amended sentencing
 -5-

entry to reflect Florence's resentencing. The amended sentencing entry

stated that Florence “MAY, if the Parole Board determines that a period of

Post[-]Release Control is necessary for the defendant, be supervised by the

Parole Board for a period of THREE (3) years Post-Release Control after

the defendant's release from imprisonment.”

Following his resentencing and the trial court's amendments to the

sentencing entry, Florence appealed from the trial court's resentencing

judgment. Florence's appellate counsel then filed an Anders brief

suggesting two potential assignments of error, one of which was that the

trial court may have erred when resentencing Florence to the discretionary-

three-year term of post-release control. Upon review, we found that this

potential assignment of error had arguable merit for appeal, rejected the

Anders brief, and appointed new appellate counsel to represent Florence.

Florence's new appellate counsel then filed a merit brief raising a single

assignment of error that framed the post-release control argument for this

court's review.

(Footnotes omitted.) State v. Florence, 2d Dist. Montgomery No. 28075, 2019-Ohio-

4365, ¶ 3-8 (Florence III).

{¶ 5} In Florence III, the State again conceded error, and we agreed that the trial

court erred in advising Florence “at the resentencing hearing and in the amended

sentencing entry that he was subject to a discretionary term of post-release control for ‘a

period of three years’ ” when the “court should have imposed a discretionary term of post-

release control for a period of ‘up to three years’ as required by R.C. 2967.28(C).” Id. at
 -6-

¶ 9. We therefore remanded the case for another resentencing hearing.

{¶ 6} On December 11, 2019, the trial court held the resentencing hearing and

informed Florence that, upon completing his sentence, he “may be placed on a period of

up to three years of post-release control supervision” for the conviction of having weapons

under disability. Resentencing Tr. (Dec. 11, 2019), p. 3. The court then filed an

amended termination entry on December 12, 2019, which contained the same language

with respect to post-release control. Termination Entry Amending Termination Entry –

7/03/18 Addressing PRC, p. 1. On January 9, 2020, Florence filed a timely pro se notice

of appeal to our court. As noted, after his appointed counsel was allowed to withdraw,

Florence filed a pro se brief asserting five assignments of error.

II. Alleged Failure to Evaluate Mental Competency

{¶ 7} Florence’s First Assignment of Error states that:

The Trial Court Abused Its Discretion and in So Doing Denied

Appellant Lamar D. Florence Due Process of Law, in Violation of the Due

Process Clauses of Both the Ohio and United States Constitutions, Where

Appellant Florence’s Due Process Rights Were Abridged by the Trial

Court’s Failure to Order the Examination of Appellant Florence Concerning

His Mental State at the Time of the Alleged Crime, Along With the Failure

to Conduct the Requisite Examination for Competency After Appellant

Florence Entered a Plea of Not Guilty by Reason of Insanity.

{¶ 8} Under this assignment of error, Florence acknowledges that the trial court

did order an evaluation to determine his competency to stand trial. However, the court
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did not consider Florence’s competency at the time of the crime, which Florence contends

was both material and constitutionally mandated.

{¶ 9} The trial took place in March 2004, and Florence’s convictions were affirmed

in Florence I on August 19, 2005. Florence I, 2d Dist. Montgomery No. 20439, 2005-

Ohio-4508, at ¶ 76. In addition, the Supreme Court of Ohio rejected Florence’s appeals

from our court’s decision in 2005 and 2006. See State v. Florence, 107 Ohio St.3d 1700,

2005-Ohio-6763, 840 N.E.2d 205, and State v. Florence, 109 Ohio St.3d 1427, 2006-

Ohio-1967, 846 N.E.2d 535 (both declining review). At that point, a final judgment

existed, and res judicata applied. Under res judicata principles, “[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, 653 N.E.2d 226 (1995), syllabus. See also

State ex rel. Peoples v. Johnson, 152 Ohio St.3d 418, 2017-Ohio-9140, 97 N.E.3d 426,

¶ 13.

{¶ 10} Florence contends, however, that he is not bound by res judicata because

his post-conviction resentencing created a “new” judgment, pursuant to which he was

permitted to assert error relating to his “undisturbed” conviction. Appellant’s Brief, p. 7.

The authority that Florence cites for this is In re Stansell, 828 F.3d 412 (6th Cir.2019),

which, according to Florence, is “controlling” authority. Id.

{¶ 11} As a preliminary point, we note that Stansell is not controlling on any issue.

Long ago, the Supreme Court of Ohio held that Ohio courts “are not bound by rulings on

federal statutory or constitutional law made by a federal court other than the United States

Supreme Court.” State v. Burnett, 93 Ohio St.3d 419, 424, 755 N.E.2d 857 (2001).
 -8-

Consequently, we are not bound by the decision in Stansell. We are free, however, to

consider whether Stansell “is persuasive and whether it is on point in this case.” State

v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 33.

{¶ 12} Stansell involved the Antiterrorism and Effective Death Penalty Act, which

“limits the authority of the federal courts to grant relief to individuals who previously filed

a habeas petition.” Stansell at 414, citing 28 U.S.C. 2244(b) and Felker v. Turpin, 518

U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). “The Act requires petitioners

challenging state court judgments to seek authorization in a federal appeals court before

filing a ‘second or successive application’ in district court.” Id. In addition, the Act

requires dismissal of “a claim presented in a second or successive habeas corpus

application * * * that was presented in a prior application.” Id. at 414-415, quoting 28

U.S.C. 2244(b)(1).1

{¶ 13} Although the defendant in Stansell had previously filed a habeas petition,

he again sought federal habeas relief, based on a “new judgment” – a resentencing in an

Ohio state court occasioned by the court’s initial failure to impost post-release control.

Id. at 414. In considering whether to grant permission, the Sixth Circuit Court of Appeals

discussed Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010),

and its own decision in King v. Morgan, 807 F.3d 154 (6th Cir.2015).

{¶ 14} The Sixth Circuit first observed that habeas application requirements refer

to a party being held in custody pursuant to a “judgment.” Given this fact, the United

1 Like the defendant in Stansell, Florence previously filed for habeas relief in federal court.
However, Florence’s petition was rejected. See Florence v. Voorhies, S.D.Ohio No.
3:07cv152, 2010 WL 1882312 (Mar. 29, 2010 magistrate’s report, and May 11, 2010
judgment overruling objections to magistrate’s report and dismissing habeas petition and
amended habeas petition, with prejudice).
 -9-

States Supreme Court had previously concluded that “ ‘the phrase “second or successive”

must be interpreted with respect to the judgment challenged.’ ” Stansell at 415, quoting

Magwood at 332-33. Thus, “[i]f an individual's petition is the first to challenge a particular

state judgment – even if the applicant has previously filed other petitions challenging other

judgments – the petition is not ‘second or successive.’ ” Id., citing Magwood at 331-333.

In Magwood, this meant the defendant did not have to overcome the hurdle of a second

or successive bar because he had been resentenced (to the death penalty again) after

filing his first habeas petition.

{¶ 15} In King, the Sixth Circuit extended Magwood to a “conviction.” (Emphasis

sic.) Stansell at 416. Thus, in King, a habeas petitioner was allowed to bypass the

second or successive barrier where his second petition “raised challenges to his sentence

and his conviction, even though he had received only a new sentence (rather than a new

trial) in the interim.” Id., citing King at 157. This was due to “Magwood’s ‘judgment-

based’ approach,” which prohibited courts from slicing habeas applications into “distinct

‘claims’ and thus from assessing whether each one challenged” a petitioner’s conviction

or the sentence. Id.

{¶ 16} The petitioner in Stansell then asked the Sixth Circuit to extend Magwood

and King “one step further,” because his “sentence was only partially vacated (to the

extent it did not include a term of post-release control), and he was only partially

resentenced (to impose that term).” Id. The Sixth Circuit agreed, concluding that the

partial resentencing created “an intervening judgment that permits [the petitioner] to raise

challenges to his (undisturbed) conviction, his (undisturbed) term of incarceration, and his

(new) term of post-release control.” Id.
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{¶ 17} In doing so, the court focused on the fact that “[t]he sentence that matters

in a habeas case, Magwood tells us, is the one ‘pursuant to’ which an individual is held

‘in custody.’ ” Id., quoting Magwood at 332. The court went on to note that “an individual

is ‘in custody’ for habeas purposes when he is ‘in actual, physical custody in prison or jail’

or when he is subject to ‘significant’ post-release ‘restraints on [his] liberty’ that are ‘not

shared by the public generally.’ ” Id., quoting Jones v. Cunningham, 371 U.S. 236, 238,

240, 242, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). (Other citation omitted.) As a result,

individuals who are “subject to post-release control, like individuals subject to supervised

release in the federal system, satisfy the ‘in custody’ requirement.” Id.

{¶ 18} Consistent with this point, the court commented that:

Before his resentencing, the judgment that kept Stansell “in custody”

was a term of imprisonment ranging from twenty years to life. After his

resentencing, the judgment that kept Stansell “in custody” was a term of

imprisonment ranging from twenty years to life plus five years of post-

release control. See Jones, 371 U.S. at 238-43, 83 S.Ct. 373. Because

a new custodial sentence means a new judgment for purposes of § 2254,

Stansell's partial resentencing restarted the second or successive count.

Stansell, 828 F.3d at 416-417.

{¶ 19} In addressing some caveats to its opinion, the trial court made the remark

that Florence relies on in his brief, i.e., “a partial resentencing that results in the imposition

of post-release control is the type of change that creates a new judgment for purposes of

the second or successive bar.” (Emphasis sic.) Id. at 419. See Appellant’s Brief at p.

7. However, Florence’s brief fails to cite the reason that immediately followed this
 -11-

sentence. Specifically, the Sixth Circuit stated, “That is because this type of change

alters the sentence ‘pursuant to’ which the petitioner is ‘in custody.’ ” (Citations omitted.)

Id.

{¶ 20} However, the case before us does not involve habeas, nor does it involve a

second habeas petition to which certain requirements apply. As a result, Stansell does

not persuasively impact our analysis.

{¶ 21} Furthermore, while citations to Stansell among Ohio state-level cases are

rare (only four to date), our court has twice held that Stansell does not apply in cases like

the present. See State v. Henley, 2d Dist. Montgomery No. 27326, 2017-Ohio-5828,

¶ 20, and State v. Bolling, 2d Dist. Montgomery No. 27923, 2019-Ohio-227, ¶ 12. Both

cases involved an appeal from a resentencing imposing post-release control, and the

defendants in both cases attempted to raise issues that could have been raised during

direct appeal. Henley at ¶ 5 and 15; Bolling at ¶ 3, 5, and 14.

{¶ 22} In Henley, we noted that Stansell did not apply, and its “only relevance” was

that if the defendant wished “to file a second habeas petition in federal court, he would

not have to first file leave with the Sixth Circuit in order to do so.” Henley at ¶ 20. We

made the same comment in Bolling. Bolling at ¶ 12. We agree with these observations.

{¶ 23} In Henley, we also stressed that while “ ‘the doctrine of res judicata does

not preclude review of a void sentence, res judicata still applies to other aspects of the

merits of a conviction, including the determination of guilt and the lawful elements of the

ensuing sentence.’ ” * * * [Thus], a resentencing in order to properly impose post-release

control does not permit a defendant to raise new challenges to his underlying convictions

that could have been raised in his original appeal.” Henley at ¶ 20, quoting State v.
 -12-

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph three of the

syllabus. Since that time, however, the Supreme Court of Ohio has changed course

concerning the issue of void and voidable judgments, which was the basis of the above

holding in Fisher, i.e., that “a sentence that is not in accordance with statutorily mandated

terms is void.” Fisher at ¶ 8, citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-

1197, 884 N.E.2d 568, ¶ 14. (Other citations omitted.)

{¶ 24} For more than a century, the Supreme Court of Ohio followed the rule that

“ ‘a judgment of conviction is void if rendered by a court having either no jurisdiction over

the person of the defendant or no jurisdiction of the subject matter, i.e., jurisdiction to try

the defendant for the crime for which he was convicted.’ ” State v. Harper, 160 Ohio

St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 22, quoting State v. Perry, 10 Ohio St.2d

175, 178, 226 N.E.2d 104 (1967).2 “ ‘Conversely, where a judgment of conviction is

rendered by a court having jurisdiction over the person of the defendant and jurisdiction

of the subject matter, such judgment is not void, and the cause of action merged therein

becomes res judicata as between the state and the defendant.’ ” Id., quoting Perry at

178-179.

{¶ 25} However, in 1984, the Supreme Court of Ohio engaged in a “ ‘modern

expansion’ ” of the void-sentence doctrine, concluding that “the traditional view of void

judgments ‘does not adequately address the constitutional infirmities of a sentence

imposed without statutory authority.’ ” Harper at ¶ 27, quoting Fischer at ¶ 20. The

2 This would have been from 1857, when Ex parte Shaw, 7 Ohio St. 81 (1857), was
decided, until State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774 (1984), which the
Supreme Court of Ohio described in Harper as “largely an outlier until it gained new life
as we grappled with trial courts’ failures to adhere to the General Assembly's specific
statutory requirements for imposing postrelease control.” Harper at ¶ 21-26 and 28-29.
 -13-

remedy devised in 1984 for a failure to impose statutorily-required terms when imposing

sentence was that the attempted sentence would be rendered “ ‘a nullity or void.’ ” Id. at

¶ 28, quoting Beasley, 14 Ohio St.3d at 75, 471 N.E.2d 774. See also fn.1, above. This

remedy was then extended in State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817

N.E.2d 864, to a failure to notify defendants of post-release control requirements; in later

cases to other issues relating to failure to properly impose post-release control; and to

other sentencing errors like failure to include mandatory fines. Id. at ¶ 29-30 and 33.3

{¶ 26} In Harper, after considering the “endless litigation” that had ensued about

“which sentencing errors must be raised on direct appeal and which may be raised at any

time,” the Supreme Court of Ohio decided to “reevaluate the basic premise of our void-

sentence jurisprudence and the remedy for the failure to properly impose postrelease

control.” Id. at ¶ 34. Having evaluated these matters, the court concluded that it would

return to the traditional view of void and voidable judgments.

{¶ 27} One factor favoring return was the lack of a persuasive explanation in

Beasley and Jordan or their progeny about why sentencing errors should be treated

differently than other failures in applying statutory mandates, which merely make

judgments voidable. Id. at ¶ 35. A further factor was the court’s recognition that “[t]he

current state of our void-sentence jurisprudence also runs counter to the doctrine of res

judicata and disrupts the finality of judgments of conviction.” Id. at ¶ 37.

{¶ 28} Concerning this latter point, the court stressed that:

This public policy is reflected in the doctrine of res judicata, which “promotes

3Harper overruled Jordan “to the extent that it holds that the failure to properly impose
postrelease control in the sentence renders that portion of a defendant's sentence void.”
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, at ¶ 40.
 -14-

the principles of finality and judicial economy by preventing endless

relitigation of an issue on which a defendant has already received a full and

fair opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-

Ohio-1245, 846 N.E.2d 824, ¶ 18. But contrary to these time-honored

principles, our void-sentence jurisprudence has invited continued

relitigation of the validity of a sentence – sometimes more than a decade

after sentencing, e.g., State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144,

980 N.E.2d 960, ¶ 6.

Harper at ¶ 37.

{¶ 29} As a result, the court overruled its “precedent to the extent that it holds that

the failure to properly impose postrelease control in the sentence renders that portion of

a defendant's sentence void.” Id. at ¶ 40. In this regard, the court reasoned that

“noncompliance with requirements for imposing postrelease control is best remedied the

same way as other trial and sentencing errors – through timely objections at sentencing

and an appeal of the sentence.” Id. Finally, the court stated that:

A sentence is void when a sentencing court lacks jurisdiction over

the subject matter of the case or personal jurisdiction over the accused.

When the sentencing court has jurisdiction to act, sentencing errors in the

imposition of postrelease control render the sentence voidable, not void,

and the sentence may be set aside if successfully challenged on direct

appeal.

Id. at ¶ 42. Accord State v. Hudson, 161 Ohio St.3d 166, 2020-Ohio-3849, 161 N.E.3d

166, ¶ 14; State v. Miller, 2d Dist. Montgomery No. 28545, 2021-Ohio-232, ¶ 22.
 -15-

{¶ 30} The holding in Harper is fatal to Florence’s claim that the trial court erred by

failing to consider his competency at the time of the murder. As an initial point, the only

reason Florence’s appeal is before us now is due to the prior remand in Florence III for

correction of a sentencing error in imposing post-release control. If Harper had been in

effect when Florence III was decided, that sentencing claim would have been precluded

by res judicata. Specifically, Florence’s convictions for aggravated murder and

associated offenses occurred in 2004, and his direct appeals from those convictions

ended, at the latest, in 2006.

{¶ 31} There is no issue in this case about the trial court’s subject matter

jurisdiction, and there is also no question that the court had jurisdiction over Florence’s

person. Any error in sentencing, therefore, could have been brought on direct appeal

and is barred by res judicata. However, because Harper was not in effect when Florence

III was decided, we properly remanded the case to the trial court for correction of a minor

sentencing error.

{¶ 32} Although Florence has appealed from the latest amended judgment entry

of conviction, which resulted from his resentencing, he did not raise issues about any

error in the sentencing decision. Instead, he has asserted an issue concerning his

competency, which could have been raised during direct appeal and is barred by res

judicata.

{¶ 33} Accordingly, the First Assignment of Error is overruled.

III. Merger

{¶ 34} Florence’s Second and Third Assignments of Error both relate to merger
 -16-

and will be addressed together. These assignments of error, respectively, state that:

The Trial Court Abused Its Discretion, and in So Doing Denied

Appellant Lamar D. Florence Due Process of Law, in Violation of the Double

Jeopardy Clause of the United States Constitution, Where Appellant

Florence Remains Subjected to Double Jeopardy as a Result of the Trial

Court’s Failure to Merge Those Counts Relating to Allied Offenses.

The Trial Court Abused Its Discretion, and in So Doing Denied

Appellant Lamar D. Florence Due Process of Law, in Violation of the Double

Jeopardy Clause of the United States Constitution, Where Appellant

Florence Remains Subjected to Double Jeopardy as a Result of the Trial

Court's Failure to Merge the Count of Aggravated Murder With the Lesser

Included Offense of Murder.

{¶ 35} The trial court’s alleged failure to merge offenses could have been raised

during Florence’s direct appeal. For the reasons previously discussed, consideration of

these alleged errors is barred by res judicata. Accordingly, the Second and Third

Assignments of Error are overruled.

IV. Sufficiency of the Evidence

{¶ 36} Florence’s Fourth Assignment of Error states as follows:

Appellant Florence Was Denied Due Process of Law, in Violation of

the Due Process Clauses of Both the United States and Ohio Constitutions,

Where, as a Result of the Legally Insufficient Evidence, the Jury Failed to

Make a Determination of Guilt Based Upon All of the Essential Elements of
 -17-

the Crimes Charged.

{¶ 37} Again, based on our prior discussion, this assignment of error is without

merit. The sufficiency of the evidence is a matter that could have been raised during

Florence’s direct appeal, and any attempt to do so now is barred by res judicata. As a

result, the Fourth Assignment of Error is overruled.

V. Error Related to Introduction of Alleged Perjured Testimony

{¶ 38} Florence’s final assignment of error asserts that:

Appellant Florence Was Denied Due Process of Law, in Violation of

the Due Process Clause of Both the United States and Ohio Constitutions,

Where the Trial Court Failed to Grant a Directed Verdict of Mistrial Based

Upon the Introduction of Perjured Testimony on Behalf of the State’s

Material Witness, and Trial Counsel Was Ineffective for Failure to Object

and Motion for Mistrial Based Upon the Introduction of Perjured Testimony.

{¶ 39} This assignment of error relates to the testimony of Florence’s then-

girlfriend, who was present at the murder scene and witnessed material events. This

witness did not cooperate with the State, and her video deposition was taken at her

request after the State issued a material witness warrant. Florence I, 2d Dist.

Montgomery No. 20439, 2005-Ohio-4508, at ¶ 4. When the witness testified at trial, her

testimony differed from what she had said during the deposition and in statements made

to detectives and a 911 operator. As a result, the court allowed the State to play the

deposition for the jury. Id. at ¶ 4, and 11-12.

{¶ 40} Any alleged issue with the testimony could have been raised on direct
 -18-

appeal and, in fact, was raised. See id. at ¶ 61 (noting Florence’s allegation that “the

prosecutors engaged in misconduct by knowingly presenting false or perjured testimony

at trial”).

{¶ 41} Based on the preceding discussion, the Fifth Assignment of Error is barred

by res judicata and is overruled.

VI. Conclusion

{¶ 42} All of Florence’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

.............

DONOVAN, J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Lamar D. Florence
Hon. Dennis J. Adkins