IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Case No. 2012-0828
Plaintiff-Appellee,
On Appeal from the Clark
County Court of Appeals
Second Appellate District
vs.
GARY WAYNE GILLIAM,
C.A. Case No. 09CA0075
Defendant-Appellant.
MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANT GARY WAYNE GILLIAM
CLARK COUNTY PROSECUTOR
OFFICE OF THE OHIO PUBLIC DEFENDER
ANDREW R. PICEK (0082121)
Assistant Prosecuting Attorney
(Counsel of Record)
SARAH G. LoPRESTI ( 0083928)
Assistant State Public Defender
(Counsel of Record)
P.O. Box 1608
250 E. Broad Street - Suite 1400
Columbus, Ohio 43215
Springfield, OH 45501
(937) 521-1770
(937) 328 2657 - FAX
(614) 466-5394
COUNSEL FOR PLAINTIFF-APPELLEE
COUNSEL FO R DEFENDAN T-APPELLANT
(614) 752-5167 - FAX
sarah.lopresti@ opd.ohio.gov
IF
LED
MAY ;12012
CLERK OF COURT
SUPREME CUURIOF OHIO
TABLE OF CONTENTS
Page Number
EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT
GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL
QUESTION .....................................................................:..............................................................1
STATEMENT OF THE CASE AND FACTS .............................................................................2
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ....................................................4
PROPOSITION OF LAW: A court of appeals may not modify a previous
judgment after issuing a limited App.R. 26(B) reopening of an appeal on
other grounds . ..................................................................................................................4
CONCLUSION ..............................................................................................................................5
CERTIFICATE OF SERVICE ....................................................................................................6
APPENDIX
State v. Gilliam, 2012-Ohio-0834, Journal Entry and Opinion, Clark County Court
of Appeals Case No. 09CA0075 (February 27, 2012) .................................................... A-1
State v. Gilliam, 2012-Ohio-0834, Journal Entry and Opinion, Clark County Court
of Appeals Case No. 09CA0075 (April 18, 2012) ........................................................ A-12
EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL
INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
Mr. Gilliam asks this Court to consider whether a court of appeals may modify a previous
judgment after issuing a limited App.R. 26(B) reopening of an appeal on other grounds.
Ohio courts of appeals have issued conflicting decisions. In State v. Moss, the Tenth
District Court of Appeals denied the defendant's request to review issues beyond the scope of its
limited reopening, reasoning that it did not have the authority to do so. State v: Moss, 10th Dist.
No. OOAP-574, 2005-Ohio-6806. Instead, it limited its review to the assignment of error on
which it had already granted reopening. In State v. Gilliam, the Second District Court of Appeals
granted the State's request to revisit its judgment in the original direct appeal, reasoning that it
did have the authority to do so. State v. Gilliam, 2nd Dist. No. 09CA0075, 2012-Ohio-0834.
The decision of the Second District Court of Appeals in State v. Gilliam illustrates the
need for this Court's guidance on the issue. Its ruling suggests an interpretation of App.R. 26(B)
at odds with the rule's intent to clearly define the scope of an application for reopening.
The decision will have a profound impact on the ability of a criminal defendant to
determine whether it is in his or her interest to file an application for reopening and the ability of
the State to appropriately respond. The Second District has held that a court may issue a limited
reopening but vacate a previous ruling that the reopening does not implicate. Unless this Court
provides fiirther guidance, the court's decision suggests that the issues raised in the previous
direct appeal are not subject to res judicata. It implies that a criminal defendant should reargue
any assignment of error not decided in his or her favor on direct appeal, and should refrain from
asserting a claim of ineffective assistance of appellate counsel if counsel was successful on any
issue raised on direct appeal.
I
In light of these and other considerations, this Court should accept this case to determine
whether a court of appeals may modify a previous judgment after issuing a limited App.R. 26(B)
reopening of an appeal on other grounds.
STATEMENT OF THE CASE AND FACTS
Defendant-Appellant Gary Wayne Gilliam was convicted of possession of cocaine in an
amount equal to or exceeding one thousand grams, in violation of R.C. 2925.11(A), a first degree
felony for which a maximum prison term is mandated. The trial court sentenced Mr. Gilliam to
a prison term of ten years and additional financial sanctions. State v. Gilliam, 192 Ohio App.3d
145, 201 1-Ohio-26 (Gilliam 1).
Mr. Gilliam appealed, and in a January, 2011 decision, the Second District Court of
Appeals overruled Mr. Gilliam's first and third assignments of error. It sustained his second
assignment of error, finding that the conviction was against the manifest weight of the evidence.
It vacated the conviction and sentence, and remanded the case to the trial court for a new trial.
The matter came before that court again on an App.R. 26(B) application for reopening.
State v. Gilliam, 2nd Dist. No. 09CA0075, 2012-Ohio-834 at ¶ 1 (Gilliam II). The court granted
the application to reopen the appeal and appointed counsel for Mr. Gilliam for the purpose of
arguing the sufficiency of the evidence claim raised in the application. Id at ¶ 3.
On February 27, 2012, the court issued a decision in Gilliam II, finding that the
conviction for possession of cocaine in an amount greater than or equal to one thousand grams
was not supported by sufficient evidence. The court entered judgment as follows:
R.C. 2053.07 states that "[u]pon the hearing of an appeal . . ., the
appellate court may affirm the judgment or reverse it, in whole or
in part, or modify it, and order the accused to be discharged or
grant a new trial." Crim.R.33(A)(4) authorizes a new trial upon a
fmding that a conviction is not supported by sufficient evidence,
2
but also that "[i]f the evidence shows that the defendant is guilty of
a degree of crime for which he was convicted, but guilty of a lesser
degree thereof, or of a lesser crime included therein, the court may
modify the verdict or finding accordingly, without granting or
ordering a new trial, and shall pass sentence on such verdict or
finding as modified." R.C. 2945.79(D) likewise so provides, and
further states that the power to modify the verdict "extends to any
court to which the cause may be taken on appeal."
[.... ]
Pursuant to the authority conferred on us by R.C. 2945.79(D) and
Crim.R. 33(A)(4), we modify the judgment of conviction from
which this appeal is taken to find Defendant guilty of an attempt to
possess cocaine in an amount equal to or exceeding one thousand
grams, in violation of R.C. 2925.11(A) and 2923.02(A). As
modified, the judgment is affirmed in part,. but reversed, in part,
with respect to the sentence the trial court imposed pursuant to
R.C. 2925.11(C)(4)(f). That sentence is reversed and vacated, and
the case is remanded to the trial court for the limited purpose of
imposing sentence for the modified conviction pursuant to R.C.
2923.02(E)(1).
So ordered.
Id. at ¶¶ 26-30.
3
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
PROPOSITION OF LAW
A court of appeals may not modify a previous judgment after issuing a
limited App.R. 26(B)reopening of an appeal on other grounds.
In Gilliam I, the Second District Court of Appeals ruled that Mr. Gilliam's conviction
was against the manifest weight of the evidence, and remanded for a new trial. In Gilliam II, the
court purported to modify that original remand. It relied on Crim.R. 33(A)(4) and R.C. 2953.07
for the authority to do so. But neither Crim.R. 33 nor R.C. 2953.07 gives the court the authority
to vacate the initial ruling after a reopening pursuant to App.R. 26(B). The June 22, 2011 ruling
pursuant to App.R. 26(B) granted reopening only for the purpose of arguing that the conviction
was not supported by sufficient evidence. The remainder of the original ruling continued in
effect.
According to R.C. 2945.79(D), if the evidence shows that a defendant is guilty of a lesser
degree of crime, the court may modify the verdict or finding accordingly, "and pass sentence on
such verdict or finding as modified, provided that this power extends to any court to which the
cause may be taken on appeal."
(Emphasis added.) A court may therefore impose a new
sentence on a modified verdict if it originally had the power to modify that sentence.
In this case, however, the court did not have the power to modify Mr. Gilliam's sentence.
It did not reopen Mr. Gilliam's entire appeal. Instead, it granted his App.R. 26(B) application for
reopening and appointed counsel "for the purpose of arguing the sufficiency of the evidence
claim raised in this application." State v. Gilliam, Case No. 09CA0075, Entry, June 22, 2011.
The court limited its review to the assignment of error not previously considered, in accordance
with its authority under App.R. 26(B)(7). Because the court only considered an additional
4
assignment of error and not the assignments of error previously raised and decided, the rulings
related to those previous assignments of error, including the remand, remained in effect.
By contrast, the Tenth District Court of Appeals in State v. Moss noted that issues the
court of appeals has not agreed to hear on reopening are not properly before the court. "[A]
proceeding under App.R. 26(B) is a collateral post-conviction proceeding and is not part of the
original direct appeal. Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157,
syllabus. Therefore, when an App.R. 26(B) application is granted, the original direct appeal is
not resurrected. Rather, the only issues properly before an appellate court in the re-opened
appeal are those that were raised in the application which the appellate court agreed to hear."
Moss at¶25.
The decision in Gilliam II granted the State's request to sentence Mr. Gilliam, vacating
the new trial on his original charges ordered in Gilliam L It did so although it did not agree to
rehear the issue of manifest weight, the issue on which the court had previously granted Mr.
Gilliam a new trial.
State v. Moss demonstrates that App.R. 26(B) intends a court to clearly define the scope
of reopening. The decision of the Second District Court of Appeals to the contrary underscores
the need for this court's guidance.
CONCLUSION
For the reasons explained above, this case involves a substantial constitutional question,
and is of public and great general interest. This Court should grant jurisdiction.
Respectfully submitted,
OFFICE OF THE OHIO PUBLIC DEFENDER
SARAH'^. LoPRESTI (0083928)
Assistant State Public Defender
Counsel of Record
250 E. Broad Street - Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 752-5167 - FAX
[email protected]
COUNSEL FOR DEFENDANTAPPELLANT
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing MEMORANDUM IN SUPPORT OF
JURISDICTION OF APPELLANT GARY WAYNE GILLIAM was forwarded by regular U.S.
Mail to Andrew R. Picek, Assistant Prosecuting Attorney, P.O. Box 1608, Springfield, OH,
Clark County, 45501, this 31st day of May, 2012.
SAI^YAH-C"LOPRESTI ( 0083928)
Assistant State Public Defender
Counsel of Record
#368988
COUNSEL FOR DEFENDANTAPPELLANT
6
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Case No. 2012-0828
Plaintiff-Appellee,
On Appeal from the Clark
County Court of Appeals
Second Appellate District
vs.
GARY WAYNE GILLIAM,
C.A. Case No. 09CA0075
Defendant-Appellant.
APPENDIX TO
MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANT GARY WAYNE GILLIAM
IN THE COURT OF APP8A1'g OF CLARH COUNTY, OHIO
STATS OF OHIO
elle® C.A. CASE NO- 09CA0075
Plaintiff-App
T.C. CASE NO. 09CR0267
vs.
Criminal Appeal from
Gp,Ry yyAYNB GZLLIAM Common Pleas Court
Defendant-Appellant
D CI ION AND EN Y
day of February, 2012:
Rendered on the 27°1i
PER CVRIAM:
{$ 1) On March 19, 2009, Defandant
purchased a quantity of powdered cocaine from a police informant.
Defendant was immediately arrested by officers who had aet up the
controlled buy. Defendant was convicted following a jury trial,
cocaine in an amount eqnal to or exceedsng one
ossesaing
rf p
B.C. 2925.11(A) , a first degree felony for which
thousand gramme,
ndated. R.C. 2925.11dC3(4)(f)The
a maximum prison term is ma
trial court sentenced Defendant to the maximum ten year prison
term for a first degrea felony.
(y[ 2) On direct appeal, we reversed and vacated Defendant`s
eonviction on a claim that it is against the manifest weight of
the evidence because the ev9.dence p'resented by the State failed
to demonstrate that the weight of the cocaine inside the package
f(IF^. COF'R C (tl' API'lA1.S (1Y' (tlll(1
s I.(OVI) 41'I'CF t.All: 1)IC(Iti('l
A - 1
2
Defendant purchased, absent the package's wrappings which
included duct tape, was equal to or exceeded one thousand grams.
State v. Gilliam, 2nd Dist, Clark No. 09CA0075, 2011-Ohio-26 at
$ 18-27. The reason for that.finding is explained in our
opinion. We remanded the casa to the trial court for a new
trial. id., at 1 32.
($ 3} On June 22, 2011, Defendant filed an App.R. 26(B)
application to reopen the direct appeal. Defendant argued that
his appellate counsel performed deficiently by failing to raisa
on direct appeal the issue of sufficiency of the evidence
concerning the weight of the cocaine Defendant purchased. We
concluded that our previous finding on direct appeal likewise
implicates the legal sufficiency of that evidence to prove a
violation of R.C. 2925.11(A), (C)(4)(f), and that if successful
Defendant could not be retried for that same offense. We found
that Defendant's appellate counsel was deficient for failing to
raise on direct appeal the issue of sufficiency of the evidence,
and that Defendant was prejudiced as a result because there is a
reasonable probability of success had appellate counsel argued
the sufficiency of the evidence issue on appeal. we granted
Defendant's application to reopen his appeal and appointed new
counsel to brief the sufficiancy of the evidence issue. Decision
and Entry filed June 22, 2011.
($ 4} This matter is now before us on the merits of the
sufficiency of the evidence issue.
Illt l'UUk1 , M1 A('PIfm.s OP 01(No
SHlt7Nl) .4!'11F.LLAl3•. UISTRII"1'
I
{$ 5} ASSIGNMENT OF ERROR
6} "THE TRIAL COURT VIOLATED GARY WAYNE GILLIAM'S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF
SUFFICIENT EVIDENCE, MR. GILLIAM WAS FOUND GUILTY OF POSSESSION
OF COCAINE IN AN AMOUNT EQUAI. TO OR EXCEEDING ONE THOUSAND GRAMS.
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION."
i1 71 Defendant argues that the evidence presented by the
State is legally insufficiont to prova that he possessed cocaina
in an amount equal to or exceeding one thousand grams for the
same reason this court concluded in Defendant's direct appeal
that his conviction for that same offense was against the
manifest weight of the evidence; the State failed to present
evidence that established, beyond a reasonable doubt,
that the
weight of the cocaine itself inside the package Defendant
purchased, absent the package's wrappings, was equal to or
exceeded one thousand grams. We agree.
{$ 8} A sufficiency of the evidence argument challenges
whether the State has presented adequate evidence on each element
of the offanse to allow the case to go to the jury or sustain the
verdict as a matter of law. State v.
380, 678 N.E.2d 541
Thompkins,
78 Ohio St.3d
( 1997). The proper test to apply to such an
inquiry is the one set forth in paragraph two of the syllabus of
State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991):
{Q 9) "An appellate court's function when
reviewing the sufficiency of the evidence to support a
i'nlc'(JI'ItT I>I- .4P1'h:\1.5 uP u1110
til`.l'Oht1 AI'I'kLLATfI J)IS'I'RIC'T
I
criminal conviction is to examine the evidence admitted
at trial to determine whether such evidence, if
believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence
in a light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable
doubt."
($ 10) In Defendant's prior direct appeal, State v. 6313iam,
192 Ohio App-3d 145, 2011-Ohio-26, 948 N.E.2d 482, $ 21-25, (2d
Dist.) we observed:
(I 11) R.C. 2925.11(A) states: "No person shall
knowingly obtain, possess, or use a controlled
substance." The degrees of the offense for a violation
of R.C. 2925.11(A) when the controlled substance is
cocaine are set out in R.C. 2925.11(C)(4). They range
from a fifth-degree felony for the possession of
cocaine in any amount, R.C. 2 92 5. 11 (C) (4) (a) , to a
first-degree felony for possession of cocaine in an
amount equal to or exceeding 1,000 grams, R.C.
2925.11(C) (4) (f). That latter section requires the
court to impose the maximum term for a first-degree
felony of ten years. R.C. 2929.14(A)(1).
($ 12) The police informant offered defendant his
choice of two wrapped packages of a similar size
TIIE^. ('Uiaif U1AP1'tALS OI' 01l10
5ECUNU AI'PF.t.I.ATI' I)liIRI('T
5
containing cocaine. Defendant chose one of the two and
paid the asking price. The police lab technician who
verified that both packages contained powdered cocaine
testified that together, the two wrapped packages
weighed 2,375.20 grams. The technician did not testify
concerning the weight of the package defendant
purchased or the weight of the cocaine the package
contained absent its wrappings.
{q 13} Agent 8tiegelmeyer testified that he
obtained the two wrapped packages of powdered cocaine
from the Warren County Drug Task Force and that when he
obtained the packages, each was weighed, and each
package weighed in excess of 1,000 grams. From the
record, it appears that the state's witnesses were
reluotant to unwrap the package of drugs defendant
purchased in order to determine the weight of the
cocaine the package contained because it had been
borrowed from another law-enforcement agency for
purposes of the controlled buy.
{Q 141 Defendant argues that the jury lost its way
when it relied on Agent Stiegelmeyer's testimony to
conclude that the weight of the cocaine defendant
purchased was equal to or in excess of 1,000 grams.
Defendant contends that even were the two packages of
equal weight, which would mean that each weighed
1,107.6 grams according to the lab technician's
Illf' C lll8I t)h AI'1'I:,V 5 ( 16 0111(1
SCa(IVI) 41'1'FLIATP: I)1STICIC'1'
I
testimony, the weight of the wrappings of the package
he purchased, which included duct tape, could permit
the actual net weight of the cocaine in the package to
be less than 1,000 grams.
(q 15) Defendant was convicted of a violation of
R.C. 2925.11(A), in that he possessed cocaine in an
amount equal to or exceeding 1,000 grants. R.C.
2925.11(C)(4)(f)- To find defendant guilty of that
degree of the offense beyond a reasonable doubt, the
jury was required to find from the evidence that the
aptount of cocaine defendant possessed satisfied those
weight requirements, not that the wrapped package
containing the cocaine that defendant possessed lll
satisfied those weight requirements.
{ 9[ 16) The State did not offer any evidence showing the
unwrapped weight of the cocaine Defendant purchased. Contrary to
the State's arguments, evidence that the plan was for undercover
police offi.cers to sell Defendant one kilogram of powdered
cocaine for $25,500 does nothing to demonstrate that the weight
of the cocaine Defendant purchased, as opposed to the weight of
the wrapped package containing cocaine, was one thousand grams or
more. That remains a matter of spaculation on this record.
{$ 17} As we stated in our previous decision on direct
appeal reversing Defendant's conviction as being against the
manifest weight of the evidence,
the jury necessarily speculated
to find that the weight of the cocaine inside the package
uL.kT uF ArPb.41S nP (1Vnt)
tiL(U\L1 AI'PI•.Ll.^t'll; I)LSTRICI
I
7
Defendant purchased equaled or exceeded one thousand grams.
GiZiiam, at $ 25. Even viewing the evidence in a light most
favorable to the State, as we must, we further conclude that a
rational trier of factscould not find beyond a reasonable doubt
that the weight of the cocaine Defendant purchased equaled or
exceeded ona thousand grams.
{q 18) App.R. 26(8)(9) states:
{$ 19) If the court finds that the performance of
appellate counsel was deficient and the applicant was
prejudiced by that deficiency, the court shall vacate
its prior judgment and enterthe appropriate judgment.
If the court does not so find, the court shall issue an
order
confirming
its
prior
judgment.
4I
(1 20) Defendant's appellate counsel was deficient for
failing to argue that the evidence was insufficient to convict
for a violation of R.C. 2925.11(A), and Pefendant was prejudiced
as a result. We therefore vacate our prior judgment finding that
Defendant's conviction is against the manifest weight of the
judgment finding that Defendant's
evidence, and we enter a new
conviction is both not supported by sufficient evidence and
against the manifest weight of he evidence, the latter error
being subsumed in the former.
{$ 21) R.C. 2923.02(A) defines an attempt to commit an
offense, and states:
($ 22) No person, purposely or knowingly, and when
purpose or knowledge is sufficient culpability for the
t Hr (•OtJKT 01; AI'i'Rnt.5 01; nti to
St`.Cll\ uA f'rf•.I t..1rh. 1)t5'tRtt^t
commission of an offense, shall angage in conduct that,
if successful, would constitute or result in the
offense.
{$ 23) R.C. 2923.02(1!)(1) states that "Iw3hoever violates
this section is guilty of an attempt to commit an offense," and
further provides that when the penalty for a drug abuse offense
is determined by the amount of the controlled substance involved,
the penalty for an attempt to commit the offense is that "within
the next lower range of controlled substance amounts that was ^
involved in the attempt."
{$ 24) A defendant may be found not guilty of an offense
charged but guilty of an attempt to commit it if such an attempt
is an offense at law. Crim.R. 31(C); R.C. 2945,74. An attempt
to commit a charged offense is a lesser included offense of the
charged offense for purposes of Crim.R. 31(C) and R.C. 2945.74.
State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988). "It is
not necessary for the prosecution or the trial court to formally
charge a defendant with an attempt to commit an offense because
an offense, properly charged, charges an attempt along with any
lesser included offenses by implication." State v.
RusselZ,
2d
Dist. Montgomery Nos. 18155, 18194, 2000 WL 1547085, (Oct. 20,
2000), at p.5.
($ 25) The evidence presented at trial conclusively shows
that Gilliam engaged in a transaction with undercover officers in
an attempt to obtain possession of cocaine in an amount at least
equal to one thousand grams. (Tr. 96-98, 161-168). Gilliam
rlu• ( Utntt 01, nPPP.nI.X uP (lntu
Sll('OVD APPP.i.i.ATI> I>ISTRI('T
testified that the deal was that he would pay $25,500 for one
kilogram, or one thousand grams,
of cocaine. (Tr. 166). Gilliam
then paid the agreed sum of money and took possession of what the
jury could find, beyond
a reasonable
doubt, he reasonably
believed was cocaine in the agreed amount.
($ 261 R.C. 2953.07 states that "[ulpon the hearing of an
appeal . . .
, the appellate court may affirm the judgment or
reverae it, in whole or in part, or modify it, and order the
accused to be discharged or grant a new trial." Crim.R. 33(A)(4)
authorizes a new trial upon a finding that a conviction is not
supported by suffici.ent evidence, but also that "(i)f the
evidence shows that the defendant is not guilty of a degree of
crime for which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may
modify the verdict or finding accordingly, without granting or
ordering a new trial, and shall pass sentence on such verdict or
finding as modified." R.C. 2945.79(D) likewise so provides, and
further states that the power to modify the verdict "extends to
any court to which thp aause may be taken on appeal."
($ 27) The Supreme Court has held that the power "to modify
a verdict (applies] if the evidence shows the defendant is not
guilty of the degree of the crime for which he was convicted, but
is guilty of a lesser included offense." State v. ]9utSer, 11 Ohio
St.2d 23, 36, 227 N.E.2d 627 (1967). An offense is a lesser
where all the elem®nts of such
present with others in the offense
offense are
charged in the indietment.
I'tti^ tulRT cfP nPPI.ALS t)t' 01110
Sf'•.rt,N11 ,^rrtit.tATtt !)ttiiRttt.
_^.
State v.
5boe,
20 Ohio App.2d 344, 254 N.E.2d
382 (2d Dist. (I
1969).
28) Defendant was convicted of possessing powdered
cocaine in an anmount that equaled or exceeded one thousand grams
in violation of R.C. 2925.11(A), a first degrae falony for which
a maximum prison term of ten years is mandated. R.C.
controlled substance
2925.11(C)(4)(f)• The next lower range of
amounts that was involved in Defendant's attempt is five hundred
thous and
or more grams of powdered cocaine but less than one
which the
grams, which is a felony of the first degree for
penalty is one of the range of prison terms prescribed for a
felony of the first degree by R.C. 2929.14 (A) (1) , imposed as a
mandatory prison term.
R.C. 2925.11 (C) (4) (e) . An attempt to
of that
violate R.C. 2425.11(A) is a lesser included offense
section because the attempt carries a lesser penalty, the
possession offenses cannot, as statutorily defined, ever be
aa statutorily
committed without an attempt to commit it,
defined, also being committed, and completed possession is not
required to prove an attempt. State v. Deem.
(1 29) pursuant
to the authority
conferred on us by R.C.
2945.79(D) and Crim.R. 33(A)(4), we modify the judgment of
conviction from which this appeal is taken to find Defendant
equal to or
guilty of an attempt to possess cocaine in an amount
exceeding one thousand grams, in violation of R.C. 2925.11(A) and
2923.02(A). As modified, the judgment is affirmed in part, but
reversed, in part, with respect to the sentence the trial court
^fll.cvt;Rl 01: nrNiAt.S oRl1U"
tiF.('OXI) I11s1^1alc1
ll
imposed pursuant to
R.C. 2925.11(C)(4)(f). That
sentence is
and vacated, and the case is re^ctanded to the trial court
reversed
for the limited purpose of imposing sentence for the modified
conviction pnrsuant to R.C. 2923.02(E)(1).
(q 301 So Ordered.
Costs to be paid as stated in App-R- 24.
Pursuant to Ohio App.R• 30(A), it is ordered that the Clerk I
of the Clark County Court of Appeals shall immediately serve
notice of this judgment upon all parties and make note in the
docket of the mailing.
ESIDINd^JUDOE
MARY . DO!10VAN. JUD
Copies mailed to:
Andrew Picak
Asst. Pros. Attorney
50 E. Columbia St., 4th Flr.
P.O. Box 1608
Springfield, OH 45501
I
Sarah G. LoPresti
Asst. State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215
Hon. Douglas M. Rastatter
101 N. Limestone Street
Springfield, OR 45502
itili Cc)t Itr 01' AI'rLAL5 !tF uHltl
SPC nKU APrC.t.t..A'tIut$rRlc.I.
A - 11
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO
C.A. CASE NO. 09CA0075
Plaintiff-Appellee
C,__CASZ- NO : D9(`R02 611
iY
CI,.ARK 00LJ' 'l
^OIJRT
OF
APPEP.LS
GARY WAYNE GILLIAM
vs.
T.
V, j; 2^^^
Defendant-Appellant
DECISION AND E 7¢MONALD r,
Rendered on the
/g^ day of 2012.
PER CURIAM:
This matter comes before the court on Defendant Gary Wayne
Gilliam's App.R. 26(A) application for reconsideration of our
judgment rendered on February 27, 2012 in
State v. Gilliam,
2d
Dist. Clark No. 09CA0075, 2012-Ohio-834. In that iudgment,
having previously granted Defendant's application to reopen his
appeal on the issue of sufficiency of the evidence concerning the
weight of the cocaine he purchased in relation to his conviction
for possessing cocaine in an amount equal to or exceeding one
thousand grams, we concluded that Defendant's conviction was not
supported by legally sufficient evidence. We further held that
the evidence was sufficient to support a conviction for
attempting to possess cocaine in an amount equal to or exceeding
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one thousand grams. Accordingly, we modified Defendant's
judgment of conviction from possessing cocaine in an amount equal
to or exceeding one thousand grams, to attempting to possess
cocaine in an amount equal to or exceeding one thousand grams,
and we reversed and vacated Defendant's sentence and remanded the
matter to the trial court for the limited purpose of imposing
sentence on the conviction as modified.
When reviewing an application for reconsideration, the test
is whether the motion alerts the court to an obvious error in its
decision or raises an issue that was either not considered or not
fully considered by the court.
City of Columbus v. Hodge, 37
Ohio App.3d 68, 523 N.E.2d 515 (10th Dist. 1987).
As the reason why we should reconsider our judgment in State
v. Gilliam, 2012-Ohio-834, Defendant claims that this court does
not have the authority to modify his original judgment of
conviction and sentence because we previously vacated Defendant's
conviction and remanded the matter for a new trial in our January
7, 2011 judgment reversing Defendant's conviction on direct
appeal,
State v. Gilliam,
192 Ohio App. 3d 145, 2011-Ohio-26, 948
N.E.2d 482, and in granting Defendant's motion to reopen his
appeal this court did not modify, vacate or disturb our previous
January 7, 2011 judgment, and therefore Defendant's original
conviction remains vacated.
Defendant previously raised this same issue in his reply
brief that he filed on October 17, 2011, and we were unpersuaded
by the argument. Defendant fails to consider that, having found
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that appellate counsel's performance was deficient and that
deficient performance prejudiced Defendant pursuant to App.R.
26(B)(9), we vacated our previous judgment in State v.
Gilliam,
192 Ohio App.3d 145, 2011-Ohio-26, 948 N.E.2d 482. See:
State v.
Gilliam,
2d Dist. Clark No. 09CA0075, 2012-Ohio-834 at $ 18-20.
In our recent judgment,
Id., we explained in detail the basis for
our authority to modify Defendant's original conviction and
sentence, namely R.C. 2953.07, 2945.79(D), Crim.R. 33(A)(4); and
State v.
Butler,
11 Ohio St.2d 23, 36, 227 N.E. 2d 627 (1967).
Defendant has not called to our attention an obvious error
in our decision nor has he raised an issue that we failed to
consider. Therefore, Defendant's application for reconsideration
is denied.
Copies mailed to:
Andrew Picek
Asst. Pros. Attorney
50 E. Columbia St., 4th Flr.
P.O. Box 1608
Springfield, OH 45501
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Sarah G. LoPresti
Asst. State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215
Hon. Douglas M. Rastatter
101 N. Limestone Street
Springfield, OH 45502
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