State v. Mobley , 2012 Ohio 969 ( 2012 )

[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.'"
I
{¶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.
_s/ Sheila G. Farmer______________
_s/ W. Scott Gwin_________________
_s/ John W. Wise_________________
JUDGES