4j;., '-. , ^ .. if . _....__ .. al•.^. IN THE SUPREME COURT OF OHIO On Appeal from the Sixth Appellate District Court for Erie County, Ohio Case No< E-13-029 "^j ^ry,: S;;I' ^ •< ^ ^.^i' ^ STATE OF OHIO, Plaintiff/Appellee, - vs - HERBERT L. HENSON, JR., Defendant/Appellant. Supreme Court No. MCIRAN1)UM IN SUPPORT OF JURISDICTION Appearances: FOR THE 1)EFENDANT/APPETLANT HERBERT L. HENSON, JR., #493-720 ('pro se') M.C.I. P.O. Box 57 Marion, Ohio EI04 301 FOR THE PLAINTIFF/APPELLEE k-BVIN BAXTER (# } Erie County Prosecutor 247 Columbus Avenue, Ste. 319 Sandusky, Ohio 44870 ^; ; i ^^,)J) NOv 2 2 20113 CLERK OF COURT REME COURT OF OH ; ^r^.:; 2% `; ^'^ ' f k L,.3! r's," 1'. f %S ;' v ^.'s,r 't 'w e^ :s%j F^. m +iPIRf I{tiE, O:/OWii
STATEMENT AS TO WHY THIS CASE IS OF GREAT PUBLIC INTEREST
[T]his case is of great public interest because it involves a substantive
departure from the prescribed modes and forms of law.
This case involves questions as to whether, and when a trial court
manifestly failure to strictly comply with statutory reGuirements, the result
judgment is void as a matter of law and must be corrected if justice is to
satisfy the appearance of justice.
This case sets upon the 'catch-all' employment of the doctine of res
judicata to justice a judgment of conviction which was/is inherently contrary
to law and accordingly, such deviation from established rules of law
implicates both public trust and piblic policy that no person be deprived
of life, liberty or property without due process of law.
Ultimately, ** this case is of great public interest because it is
indictitive of an ^unconstitutaonal and systemic practice employed by many
Ohio courts to 'elevate form over substance' in an unconstitutional attempt
to disavow relief (where a clear and compelling deviation from a complex
of well established legal principals have been ignored) under the guise of
both an inappropriate application for the doctrine of res judicata and the
*recharacterization of the proceedings as a petition for postconviction
relief.
We recognize that 'when the reason for the rule no longer exists, so
ought not the rule.'
This action respectfully follows.
STATEMENT OF CASE AND FACTS
[T]his case originated in the Erie County Common Pleas. Court as the
criminal matter entitled: State of Ohio v. Herbert L. Henson, Jr., Case No.
(1)
2004 CR 450, therein charging the offense(s) of: 'rape;' and 'gross sexual
imposition.'
Appellant was convicted on each of those offenses listed above (multiple
counts) on: 'November 9, 2005,' by a jury, and thereafter sentenced to life
imprisonment with (5) five additional 'consecutive years' of imprisonment
on the offense alleging 'gross sexual imposition.'
No 'allied offense determination' was ever conducted by the trial court,
and of even greater constitutional significance, the trial court (realizing
that the jury verdicts did not indicate the 'degree of offense' with respect
to the counts alleging rape') further failed to render judgment to the lowest
degree of the offense as defined in: State v. Pelfrey, 112 Ohio St. 3d 422;
and, O.R.C. § 2945.75(A)(2).
Appellant sought relief from that judgment in a('pro se') motion for
'sentencing' and for 'allied offense determination,.' Q.R.C. § 294I.25(A),
to which the trial court denied ['without hearing'] and as did the
intermediate state appellate court, tendered justification on the binary
propositions of: (1) res judicata; and, (2) the motion should by construed
as an untimely postconviction relief petition pursuant to: O.R.C. § 2953.21.
In each instance however, ... appellant strongly avers that where, as
here, a trial court fails to strictly comply with statutory requirements,
the issue is not one of 'plain error,' rather, and as was defined in: State
v. Beasley. (1984), 14 Ohio St. 3d 74, *75, ... the judgment is a mere nullity
and void, and therefore, not subject to application of the doctrine of res
judicata.
So says basic fairness and due process of law.
"Any attempt by a court to disregard statutory requirements when imposing
a sentence renders the attempted sentence a nullity and void.14 id., at: State
v. Beasley, supra.
(2)
LAW AND ARGUMENT:
PROPOSITION OF LAW NO. 1
Where a jury verdict does not indicate the 'degree of offense,' State---- ---------- -- ------- - --------- ---------v. Pelfrey, 112 Ohio St. 3d 422, a trial court abuses its discretion thereby
violating due process when it fails to entertain a criminal defendant's
subsequent motion for 'sentencing' under Pelfrey to correct the resulting
fundamental miscarriage of justice.
[1]n raising this constitutional due process and fundamental fairness
proposition, appellant does so from the position that where the law places
a clear and unambiguous affirmative duty on a trial court, O.R.C. §
2945.75(A)(2), a trial court's failure to employ those mandatory provisions
renders the attempted sentence a nullity and void inrecognition, that:
"Any attempt by a court to disregard statutory requirements renders
the attempted judgment a nullity and void." see: State v. Beasley. (1984),
14 Ohio St. 3d 74, *75.
It follows that:
"Void judgments can be attacked at any time. Civ. R 60(B), 1970 staff
notes; State v. Simpkins, 117 Ohio St. 3d 420, at: ¶23; and, Gahanna v. Jones-
Williams (1997), 117 Ohio App. 3d 399, 404 ("A void judgment 'can be attacked
by motion, on appeal, or collaterallv without time limitation."'), see: State
ex rel. Post v. Speck, 2010 WL 173954 (Ohio App. 3 Dist.), at: ¶11.
In this context, *°`* the Supreme Court of Ohio expressly held, in: State
v. Simpkin,s, supra., that:
"Every judge has a duty to impose lawful sentences. "Confidence in
and respect for our criminal-justice system flow from a belief that courts
and officers of the **576 courts perform their duties pursuant to established
(3)
law. Cruzado, 111 Ohio St. 3d 353, 2006 Ohio 5795, 856 N.E. 2d 263, at: T124.
The interest that underlie res judicata, although critically important do
not override our duty to sentence defendants as required by law." id., at:
¶270
[a]nd that:
"A void judgment can be attacked in post-conviction relief *427
proceedings even if the matter could have been, but was not, raised on direct
appeal. If the appellants sentences are void, the doctrine of res judicata
is inapplicable." id., at: ¶30.
Moreover, *** and regardless of the *recharacterization of such a
proceeding, a void judgment can be attacked collaterally [without time
limitations and regardless of the doctrine of res judicataj.
So says basic fairness and due process of law. see: U.S.C.A. Const.
Amends. 6 and 14.
It has also been held, that:
"Further, a trial court, confronted with an untimely or successive
petition for postconviction relief that challanges a sentence that is void,
must ignore the procedural irregularities of the petition and, instead, vacate
the void sentence and resentence the defendant." see: State v. Whatley, 9th
Dist. No. 24231, 2008 Ohio 6128.
The same effect occurs here.
O.R.C. § 2945.75(A)(2) in turn provides, that:
"R.C. § 2945.75(A)(2) requires that a guilty verdict state either the
degree of the offense which the offender is found guilty or that the
additional elements that make an offense one of amore serious degree °fare] *
(4)
present. If n.either is included, R.C. § 2945.75(A)(2) directs that a guilty
verdict constitute a finding of guilty of the least degree of the offense
charged." id., at; Pelfrey, supra, at: HNl.
This statutory requirement is however 'self-executing' and accordingly,
where, as here, the jury verdict did not and does not include either of those
aggravating factors listed above, ... a trial court has no discretion to
impose the greater penalty as a matter of law and fact.
In the instant case, appellant was charged with multiple counts alleging
rape of a child under the age of (14) fourteen which, according *to statute,
required the imposition of multiple life sentences, except and unless, the
jury verdicts were patently devoid of either the 'degree' of the offense
to which they had convicted appellant or that 'additional elements' were
articulated on the verdicts.
This however did not occur, and accordingly, as a matter of law, the
trial court was 'duty bound" to impose the least degree-sentence authorized
by law, to wit: (10) ten years.
The trial court however did disregard that statutory requirement when
imposing sentence thereby rendering the attempted sentence a nullity and
void. see: Beasley, supra.
Clearly, *** the trial court had exceeded its jurisdiction to which
again it must be remembered, that:
"There is no discretion to ignore jurisdiction." see:
Joyce v. United States, 474 F. 2d 215
[a]nd that:
"Jurisdiction can be challenged at any time." see: Basso v. Utah Power
& Light Co., 495 F. 2d 906, 910.
(5)
"A judgment is void if the court acts in a manner inconsistent with
due process." see: In re Marriage of Hampshire, 261 Kan., 854, at: 862.
Naturally, it follows that:
"All proceedings founded on a void judgment are themselves regarded
as a invalid, and the void judgment is regarded as a nullity and the situation
is the same as if there were no judgment and the parties litigant are left
in the same position they were in before the trial." see: Hill v. Buchanan,
6 Ohio Supp. 230 (1941 WL 3363), 21 0.0. 24.
Because then the mandatory provisions of: O.R.C. § 2945.75(A)(2 are
'self-executing,' the duty squarely placed on the trial court to sentence
defendant accordingly was not 'discretionary,' rather, it was 'mandatory,'
and the failure to do so deprived defendant of a fundamentally fair trial,
U.S.C.A. Const. Amend. 6; and, due process of law, U.S.C.A. Const. Amend.
14, to which the prejudice has systemcially attached.
The underlying sentences are therefore not only 'contrary to law,' but
constitute a substantive departure from an established legal principal
rendering the resulting attempted judgment a mere nullity and void.
It was constitutional error of the first magnitude for the trial court
to deny appellant's good faith motion for 'sentencing,' and that fundamental
error was only compounded by the appellate court's application of res judicata
and postconviction relief *recharacterization.
This action follows.
PROPOSITION OF LAW NO. 2
ta'hether a trial court's deviation from a legal rule, O.R.C. § 2941.25
(6)
in a multiple counts case, to 'inquire' and to 'determine' whether those
multiple counts constitute allied offenses of similar import, renders the
resulting judgment a mere nullity and void pursuant to State v. Beasley
(1984), 14 Ohio St. 3d 74, *75 and hence, rendering. the doctrine of res
judicata inapplicable,
[I]n raising this constitutional proposition, appellant does so from
the position that O.R.C. § 2941.25(A) places an affirmative mandatory due
process duty on a trial judge to inquire and determine whether multiple counts
can be reasonable constured to constitute two or allied offenses of similar
import.
We recognize, that:
The Fifth Amendment's Double Jeopardy Clause provides a criminal
defendant with three protections: it protects against a second prosecution
for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And, it protects against
multiple punishments for the same offense.
Those protections were codified in 1974 by the Ohio Legislature's
enactment of R.C. 2941.25, which prohibits multiple punishments for the same
offense.
If follows that a Fifth Amendment Double Jeopardy chal.lange is never
waived, nor is it subject to application of the doctrine of res judicata,
because, by its very nature, it lies upon the proposition that a criminal
trial had exceeded its lawful authority and jurisdiction in rendering multiple
punishments for the same offense or the same conduct.
O.R.C. § 2941.25(A) in turn provides, that:
"Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
(7)
may contain counts for all such offenses, but the defendant may be convicted
of only one." id.
Because this ['prohibition'] is against the ['conviction'] itself, a
'plain error' analysis is inappropriate where clearly, a substantive departure
from this legal rule, i.e. `statutory requirement' offend[.s] the
Beasley-standard rendering the attempted judgment a mere nullity and void.
"Even when the sentences are to be served concurrently, a defendant
is prejudiced by having more convictions than are authorized by law.T' see:
State v. Collins, 2013 Ohio 3726 (Ohio App. 8 Dist.), 2013 Ohio App. LEXIS
3869, at: HN6.
It a federal due process context, it must also be remembered, that:
"The duty to merge implies a duty to inquire and determine whether
multiple charges are allied offenses of similar import. Without the duty
to inquire and determime, the duty to merge would be empty. An essential
step in the merger process is applying the requirements of R.C. 2941.25 .
" see: State v. Rogers, 2013 Ohio 3235 (Ohio App. 8 Dist.), 2013 Ohio App.
LEXIS 3326, at: HN31.
see also: Brown v. Ohio, 432 U.S. 162, 165; North Carolina v. Pearce,
395 U.S. 771, 717; and, Ohio v. Johnson, 467 U.S. 493, 498.
In each instance, *** the trial court abused its discretion thereby
offending due process by denying appellant's motion for 'allied offense
determination,' and the court of appeal compounded that reversible error
by its unauthorized and inappropriate application of res judicata and the
^rrecharacterization of the proceedings as a petition for postconviction
relief. see: Whatley, supra.
[)(8)
This action respectfully follows.
CONCLUSION;
[W]herefore, ^`** and for each of those substantive reasons stated above
and made evident in the record, this Court should accept jurisdiction in
and over this matter where clearly the lower court judgment is 'clearly
e.rroneou` and `contary to law' therefore.
[R]elief is accordingly sought.
[ E] xecuted this ^ day of November, 20:13 .
Herbert L. Henson, Jr. #493-720
M.C.I.
P.O. Box 57
Marion, Ohio
43301
CERTIFICATE OF SERVICE:
This is to certify that the foregoi,ng was duly served by United States
Mail on the Office of the Sandusky County Prosecutor, at: 247 Columbus Avenue,
Sandusky, Ohio, 44870, on this tak day of November, 2013.
^ ^^^^Herbert L. Henson, Jr. #493-720
(9)
F`t^fl^' lP i
Jcl
2013P10Y flA;3 2: 4D
IN Tt1E. COU'RT Or APPEALS OF 01110SIxTfl APPELLATE DISTRICT
ERIE COUN`I'Y
State of Ohio
Appellee
V.
Herbert L. Henson, Jr.
Appellant
tlr J ^, ^.^I.•.^^
^^11i^J1 ,
Court of.Appeals No. E-13-029
Trial Court No. 2004-CR-450
DECISION AND JUDGMENT
Decided: NflV Q :1 2013
Kevin J. Baxter, Erie County Prosecuting Attorney, Mary .11nnBarylslc.i and Frank Romeo Zeleznikar, Assistant ProsecutingAttorneys, for appellee.
Hc;rbert L. Henson, Jr., pro se.
SINGEZ2, P.J.
* * * * a,
}j( 1} Appellant, Ilerb.ert L. IIenson, Jr. appeals from the July 7, 2011, jlidgment of
the Erie County Court of Common Pleas denying appellant's motion for sentencing
pursuant to State v. Pelfi^ey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735. On
consideration of appellant's assignments of error, we affirln.
^^^^ ^oLtqd
,^ ^^I^1G3
{^ 21 On November 9, 2005, appellant was convicted of three counts of rape with
force and five counts of gross sexual ilnposition anci was sentenced to life imprisonment.
This appellate cotirt affirmed the coziviction and sentence on July 13, 2007. Appellant did
not assert on appeal any issue related to the jury verdict. State v. Ilenson, 6th Dist. Erie
No. E-06-021, 2007-Ohio-3567.
{¶ 31 On February 19, 2010, appellant filed a Civ.R. 60(B) motion ta vacate the
jtidgnzent of conviction and sentencing on the ground that th.e 3 u.ry verdict did not specify
the degree of the felony or the necessary elements to support his conviction and sentence.
Turther, he argued that there was no jury finding of guilt as to the enhancements.
Therefore, he argued, the court eould not senterice him to more than the sentence possible
for the least degree of the offense. Appellant relied upon State v. Perey. The trial court
denied appellant's motion. on March 19, 2010. Appellant sought an appeal from that
decision on 11_pril 19, 2010, but the appeal was dismissed on July 19, 2010, for failu.re to
file a brief.
{¶ 4} On June 28, 2011, appellant filed another motion for resentencing on the
ground that the sentence ivas ri.ot supported by the jury verdict because the;ury verdict
forni did not include the degree of the offense. The trial cour-t denied the motion on July
7, 2011, and appellant sought an appeal froxn the judgment. On August 17, 2012, we
affirlned the decision of the trial court finding that any error in the jury verdict form would
not render the verdict void and that.the issue of whether the jury verdict complied with
R.C. 2945.75(A)(2) was barred by the doctrine of res judicata because the issue could
2.
have been raised on direct appeal. We further found that the issue was raised in the
FebrLgary 18, 20 10 motion, which was denied by the trial court, and the appeal from that
decision was dismissed. Furthermore, we found that appellant's motions relating to that
appeal constituted untimely petitions for postconviction relief. State v. Henson, 6th Dist.
Erie No. E-1 1-068, 2012-Ohio-3730, ^, 22.
{j 5} On March 16, 201.3, appellant filed yet two aclclitzonal: motions pursuant to,
C,rim.R...52(.B) mserting that the trial court co7nmitteci plaiii error and his conviction was
contrary to iaw pursuant to R.C. 2945.75(A)(2) and sought resentencing pursuant to R.C.
2941.25.
{^ 6} In two separate judgments, both journalized on April 29, 2013, the trial court
denied appellant's March 16, 2013 motions. Appellant sought an appeal from these
judgments and asserts the following assignments of ei'ror:
Assignment of Error No: 1 Trial Court erred by failing to grant
defenciant's Motion pursuant to R.C. 2945.75(A)(2) Conviction was contrary
pursuant to R.C. 2941.25 by sentencing defendan. t to multiple sentences for
the same coiiviction as provided by Ohio Law.
{^ 7} We find these two assignments of error are barred by the doctrine of res
juclicata. The isst7e of the defective verclict cotild have been raised in appellant's direct
appeal, bttt was iiot. .Fi.irtherniore, the issue was raised in a prior postconviction relief
3.
motion, whi:ch was denied by the trial court and the decision was affirmed on. appeal.
State v. .^-1"ey2.ran, 6th Dist, Erie No. E-11-068, 2012-Ohio-3730, 11I8-28. Therefore, the
issue has been reviewed by both the trial court and the appelIate court and found not weli-
tLiken.
f¶ 8} Appellant's first and second assignments of error are not well-talsen.
{Ij 9} Having found that the trial court did not commit error prejudicial to appellant,
the judgment of the Erie Cour-Ay Co.zrt of Coxnrno;'i Pleas is afnnned. Appellant is
ordered to pay the court costs of this appeal purstiant to App.R. 24.
Tudgment affirined.
I1!Iar1c L. Pietryko`vski, J.
Arlene Singer, P.J.
'I`homas J. Osowilc, J.CONCUR. ---------
This decision i.s sutiject to ftirther editing by the SLipreme Court ofOhio's Reporter of I.^ecisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supxexne Coiu-t.'s web site at:http://www,sconet.state.oh.us/rodlnewpdf/?source-6.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also6th Dist,Loc.App.R. 4.
4.
I HEREBY CERTIFY THIS TO BEATRUE COPY OFTHE ORIGlNALFILED IN THIS OFFICE.
