[Cite as State v. Singleton,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27916 : v. : Trial Court Case No. 1997-CR-1015/1 : BRYAN KEITH SINGLETON : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 19th day of April, 2019.

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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard, Springboro, Ohio 45066 Attorney for Defendant-Appellant

............. -2-

HALL, J.

{¶ 1} Bryan Keith Singleton appeals from the trial court’s judgment resentencing

him for correction of post-release control, but his appeal is unrelated to the post-release

control resentencing. Instead, Singleton challenges the enhanced sentence that the trial

court originally imposed for aggravated murder in 1997. He argues that the enhanced

sentence is void because the trial court failed to correctly find that he was a principal

offender in the aggravated murder, as alleged in two death-penalty aggravating

circumstance specifications. We conclude that his challenge to the specifications is

barred by res judicata and also that the record as a whole shows that the trial court

correctly found Singleton guilty of the aggravating circumstance specifications that he

was the principal offender in the aggravated murder. Consequently, we affirm.

I. Background

{¶ 2} In 1997, Singleton and a companion walked into a Sunoco service station

where Singleton twice shot the manager, killing her. He took some money from the store

and fled. A three-judge panel found Singleton guilty of aggravated murder, aggravated

robbery, aggravated burglary, having a weapon while under disability, and associated

firearm specifications. The aggravated-murder charge included three death-penalty

aggravating circumstance specifications. The panel found Singleton not guilty of one of

the specifications and guilty of the other two, but rejected the death penalty as the

sentence. Instead, the panel sentenced Singleton to four consecutive prison terms: thirty

years to life for aggravated murder, ten years for aggravated robbery, ten years for

aggravated burglary, one year for having a weapon under disability, and three years for

the firearm specification. On appeal, Singleton challenged only the denial of his motion to -3-

suppress a confession he made. We affirmed the convictions. State v. Singleton, 2d Dist.

Montgomery Nos. 17003, 17004,

, *1 (Mar. 31, 1999). Singleton did not

raise any issues about the adequacy of the verdicts or specifications or his sentence in

the direct appeal.

{¶ 3} In a subsequent federal court petition for habeas corpus, Singleton only

raised the suppression issue. The district court rejected the petition, and the Sixth Circuit

Court of Appeals affirmed that decision. Singleton v. Carter,

(6th

Cir. 2003).

{¶ 4} In June 2005, Singleton filed a petition for post-conviction relief dealing only

with the issue of whether the case of Missouri v. Seibert,

,

,

(2004) (rejection as unconstitutional of a policy of question-first, obtain

statements, then advise of Miranda and have the defendant repeat the statements)

applied to his confession. The petition was dismissed by the trial court as having been

untimely filed, and we affirmed. State v. Singleton, 2d Dist. Montgomery No. 21289, 2006-

Ohio-4522.

{¶ 5} In September 2013, Singleton filed a motion for resentencing in the trial court,

asking to be resentenced because his convictions were allied offenses and should have

been merged under R.C. 2941.25. The trial court construed the motion as a petition for

post-conviction relief and held it was untimely and was also barred by res judicata. We

affirmed. State v. Singleton, 2d Dist. Montgomery No. 25946,

.

{¶ 6} In May 2015, Singleton filed another motion for resentencing again asking

for merger of offenses for which he had been sentenced based upon plain error. The trial

court construed the motion as a petition for post-conviction relief and held it was untimely -4-

and was also barred by res judicata. We again affirmed. State v. Singleton, 2d Dist.

Montgomery No. 26763,

.

{¶ 7} In August 2016, Singleton filed a motion for resentencing on the basis that

his post-release control was not imposed as mandatory, as was required by statute. The

trial court overruled the motion on res judicata grounds. Singleton appealed. We noted

“[i]t has been repeatedly held that ‘up to’ language is insufficient when post-release

control is mandatory and such error causes the post-release control portion of the

sentence to be void.” State v. Singleton, 2d Dist. Montgomery No. 27329, 2017-Ohio-

7265, citing State v. Jones, 2d Dist. Montgomery No. 26228,

, ¶ 5. We

recognized that a void sentence can be challenged at any time and is not subject to res

judicata. We reversed and remanded “for resentencing limited to the proper imposition of

post-release control.” Id. at ¶ 8.

{¶ 8} Singleton was resentenced for the proper imposition of post-release control

in October 2017 and has appealed from the resentencing.

II. Analysis

{¶ 9} Singleton presents three assignments of error:

THE TRIAL COURT’S SENTENCE OF THIRTY YEARS TO LIFE

FOR AGGRAVATED MURDER IS VOID AS THE DEFENDANT WAS NOT

PROPERLY CONVICTED OF ANY AGGRAVATING CIRCUMSTANCES

SPECIFICATIONS ATTACHED TO THE AGGRAVATED MURDER

CHARGE.

THE TRIAL COURT’S ENTIRE SENTENCE SHOULD BE

VACATED AND REMANDED FOR RESENTENCING BASED ON THE -5-

SENTENCING ERROR ON THE AGGRAVATED MURDER CHARGE.

DEFENDANT WAS DENIED HIS CONSTITUTIONALLY

GUARANTEED RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

WHEN TRIAL AND APPELLATE COUNSEL FAILED TO RAISE THE

ISSUE OF DEFENDANT’S VOID SENTENCE.

{¶ 10} Initially, we note that this appeal is the first time Singleton has challenged

the efficacy of the trial court’s finding him guilty of the two death-penalty specifications

that he was a principal offender in the aggravated murder by purposely causing the death

of another while committing aggravated robbery and while committing aggravated

burglary. As such, res judicata ordinarily would prevent him from now raising this claim.

Singleton cites State v. Fischer,

,

,

,

and he argues his enhanced sentence of 30-years-to-life was contrary to law and void in

that he was not properly found guilty of the two death-penalty specifications. Although we

do not deny that a sentence contrary to law has been held to be void, to be clear, Fischer

held “when a judge fails to impose statutorily mandated post[-]release control as part of

a defendant's sentence, that part of the sentence is void and must be set aside.”

(Emphasis in original; footnote omitted.) Id. at ¶ 26. Fischer also specified, “although 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.” (Emphasis added.) Id. at ¶ 40.

{¶ 11} “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 -6-

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,

,

, syllabus. Here, the critical question is whether

Singleton is challenging as void an illegal sentence, because it was contrary to law, or

whether he is challenging an ambiguity in the verdict upon which the sentence was based.

We believe it is the verdict that he is challenging, because if the finding of guilt of the

specifications is intact, the sentence of 30 years to life was not illegal. The necessary

predicate for his argument is that the verdicts were valid only for aggravated murder,

without any specifications, for which the statutory sentence is life with the possibility of

parole after 20 years. We conclude it is the verdicts in regard to the specifications that he

is challenging, and therefore res judicata applies, which prevents him from raising this

new argument almost 20 years after we affirmed his convictions, including the

specifications. For that reason alone, we reaffirm his conviction, including his sentences.

{¶ 12} Furthermore, even if res judicata did not apply, the record indicates

Singleton was found guilty of the two death-penalty specifications under R.C.

2929.04(A)(7), which provides that a defendant who committed aggravated murder is

eligible for the death penalty if he committed the murder while committing one of several

enumerated felonies—including aggravated robbery and aggravated burglary—and that

“the offender was the principal offender in the commission of the aggravated murder.” If

a death-penalty specification is found but the death penalty is not imposed, the

specification enhances the defendant’s potential prison term. The penalty for aggravated

murder without a specification is life imprisonment with the possibility of parole after 20

years. R.C. 2929.03(C)(1)(a). But with a specification the penalty is life imprisonment with -7-

the possibility of parole after either 25 or 30 years. R.C. 2929.03(C)(2)(a)(i). Singleton got

30 years to life.

{¶ 13} Singleton’s contention is that his aggravated-murder sentence is contrary

to law because the trial court did not find that he was the principal offender in the

commission of the murder, like the R.C. 2929.04(A)(7) specification requires. As proof,

he points to the trial court’s December 4, 1997 verdict entry, which pertinently states:

The Court, having carefully considered all the testimony, evidence

and the arguments of counsel, unanimously finds beyond a reasonable

doubt that the Defendant, Bryan Keith Singleton, is guilty of the following

crimes and specifications in the indictment:

Aggravated murder (Count One),

Aggravated robbery (Count Two),

Aggravated burglary (Count Three),

Having a weapon under disability (Count Four), and

The firearm specification to aggravated murder, aggravated robbery

and aggravated burglary, and

The specification that Defendant was the principal offender in the

aggravated robbery, and

The specification that Defendant was the principal offender in the

aggravated burglary.

Singleton asserts that the verdict entry shows that the trial court found that he was the

principal offender in the underlying felonies rather than the murder.

{¶ 14} A similar argument was made by the defendant in State v. Keene, 2d Dist. -8-

Montgomery No. 14375,

(Sept. 20, 1996). The defendant in that case

argued that the trial court had found that he was the principal offender in the underlying

burglary and robbery felonies rather than the murder. As proof, the Keene defendant

pointed to the trial court’s sentencing opinion, specifically a paragraph in which the court

said, “The indictment also set forth seven specifications to counts three and four: firearm,

to escape detection, course of conduct involving the killing or attempting to kill two or

more persons, committing or fleeing after committing an aggravated burglary, committing

or fleeing after committing an aggravated robbery, and separate specifications that he

was not [sic] the principal offender in either the aggravated burglary or aggravated

robbery.” (Emphasis sic.) Keene at *24. This, the defendant argued, showed that the trial

court believed that R.C. 2929.04(A)(7) required that he be the “principal offender” in the

underlying felony rather than in the murder. We determined that the specification “requires

proof that a defendant acted as ‘the principal offender in the commission of the

aggravated murder or, if not the principal offender, committed the aggravated murder with

prior calculation and design.’ ” Id. at *25. “Consequently,” we said, “a defendant may not

be convicted of the felony-murder capital specification based upon proof that he acted as

the principal offender in the commission of the underlying felony.” Id. We recognized that

in its sentencing opinion the trial court had misstated R.C. 2929.04(A)(7). But we

concluded that “the record as a whole showed that the court did not labor under a

mistaken interpretation of R.C. 2929.04(A)(7),” pointing out that the indictment and the

trial court’s verdicts properly recited the requirements of R.C. 2929.04(A)(7). Id. “The trial

court’s misstated summation of the actual indictment,” we said, “does not erode our

confidence in the court’s judgment. Instead, we read the paragraph, in effect, as a -9-

shorthand reference to a lengthy and complex document.” Id.

{¶ 15} Here too we recognize that the trial court misstated the R.C. 2929.04(A)(7)

specifications in its verdict. But we do not believe that the language in the verdict entry

demonstrates that the trial court misunderstood R.C. 2929.04(A)(7) or failed to find that

Singleton was the principal offender in the murder. We note that in its verdict entry the

trial court said that it found Singleton “guilty of the following crimes and specifications in

the indictment.” The indictment properly states the R.C. 2929.04(A)(7) specifications.

Both the specification based on aggravated robbery and the one based on aggravated

burglary state that Singleton “was the principal offender in the commission of the

aforesaid Aggravated Murder.”1 Furthermore, the evidence in this case does not allow a

reasonable person to find that Singleton was anything other than the principal offender.

Compare State v. Sneed,

,

(1992) (concluding that

“the outcome of the trial would not have been otherwise had the jury made an explicit

finding that appellant was the principal offender” in part because “the evidence in this

case does not reasonably suggest that an individual juror could have found appellant not

to have been the principal offender”). Singleton confessed to police that he (and another

man) “went into the Sunoco store where Singleton shot and killed Margaret Chain, the

store manager, twice.” Singleton, 2d Dist. Montgomery Nos. 17003, 17004,

, at *1.

{¶ 16} We further note the language in the Decision and Entry filed by the trial

1 We were responsible for making a misstatement similar to the one the trial court made in our opinion on Singleton’s direct appeal, where we said “[t]he indictment contained * * * specifications that Mr. Singleton was the principal offender for both the aggravated robbery and the aggravated burglary.” Singleton, 2d Dist. Montgomery Nos. 17003, 17004,

, *1. -10-

judges on December 12, 1997 at 9:34 a.m., shortly before the sentencing hearing on that

date, discussing mitigation:

The slaying of Margaret Chain was a senseless, brutal and heartless

act. Nothing we say in this decision on mitigation excuses or justifies

Defendant Bryan K. Singleton for the commission of this terrible crime. * * *

The Defendant has been found guilty of Aggravated Murder, in that

on or about April 3, 1997, he did purposefully cause the death of Margaret

“Peggy” Chain with a firearm in the course of, and in addition to the

commission of Aggravated Robbery with a firearm, Aggravated Burglary

with a firearm, and Having a Weapon Under a Disability. The finding of

Guilty on the Specifications that the purposeful murder was in the course of

an aggravated robbery and an aggravated burglary, and that the Defendant

was the principal offender in said offenses are the aggravating

circumstances the Court is required to weigh against mitigating factors.

If there was any question whether the trial court found Singleton guilty of the specifications

as correctly worded in the indictment (“BRYAN KEITH SINGLETON was the principal

offender in the aforesaid Aggravated Murder and that said Aggravated Murder was

committed while * * * committing or attempting to commit Aggravated Robbery”), the

proper time to raise it was at the sentencing where any doubt could have been clarified.

“The waiver rule requires that a party make a contemporaneous objection to alleged trial

error in order to preserve that error for appellate review. The rule is of long standing, and

it goes to the heart of an adversary system of justice. Even constitutional rights ‘may be

lost as finally as any others by a failure to assert them at the proper time.’ ” State v. -11-

Murphy,

,

, citing State v. Childs,

,

(1968).

{¶ 17} Other than the misstatements, there is no evidence that the trial court failed

to find that Singleton was the principal offender in the aggravated murder. Moreover,

Singleton has not supplied any of the transcripts of the trial or any other filings which

would indicate that the trial court actually misunderstood the language of the indictment

relating the principal-offender specifications to the aggravated murder, as opposed to the

underlying offenses. What we said in Keene applies here too: “the trial court’s misstated

summation of the actual indictment does not erode our confidence in the court’s

judgment.” Instead, we read the R.C. 2929.04(A)(7) specifications in the verdict entry as

the trial court’s attempt to distinguish the specifications in the indictment based on their

underlying offenses, which is the only distinguishing factor in the specifications.

{¶ 18} In addition, just because the verdict entry does not explicitly say that

Singleton was the principal offender in the aggravated murder does not mean that the

trial court did not find that he was. The entry also does not say that Singleton “caused the

death of another,” but this does not mean that Singleton cannot be convicted of

aggravated murder on the grounds that the trial court did not find that element of the

offense. The court made no specific findings in its verdict entry other than that Singleton

committed the listed offenses and specifications in the indictment, which is what the court

is supposed to do in a criminal case tried without a jury—make general findings of guilt

or innocence based on the evidence. See Crim.R. 23(C); State v. Crawford, 10th Dist.

Franklin No. 85AP-324,

, *7 (Feb. 6, 1986). The court was not required to

make findings of fact, and any findings it did make would be “mere surplusage.” Crawford -12-

at *7; State v. Ham, 3d Dist. Wyandot No. 16-09-01,

(quoting the

same).

III. Conclusion

{¶ 19} We conclude that res judicata prevents Singleton from challenging the trial

court’s findings with respect to the specifications at this time. Additionally, the key issue

in all three of the assignments of error is whether the trial court found that Singleton was

the principal offender in the murder. Because we conclude that the trial court did find that

Singleton was the principal offender in the aggravated murder, all of the assignments of

error must fail. The three assignments of error are overruled.

{¶ 20} The trial court’s judgment is affirmed.

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

TUCKER, J., concurs.

DONOVAN, J., dissents:

{¶ 21} I dissent. The penalty for aggravated murder without the fact-finder’s

determination that Singleton was the principal offender in the aggravated murder is life

imprisonment with the possibility of parole after 20 years. Singleton received 30 years to

life on the aggravated murder. Hence, the sentence was unlawful and is void, which can

be raised at any time. Fischer,

,

,

, at

¶ 30, cautions, “no court has the authority to impose a sentence that is contrary to law.”

{¶ 22} The majority cites to Keene, 2d Dist. Montgomery No. 14375,

, but Keene is distinguishable. In Keene, the trial court’s verdict properly recited

the requirements of R.C. 2929.04(A)(7). That is not true here. The verdict form signed by -13-

the three-judge panel on December 4, 1997 did not include any aggravating circumstance

finding on the aggravated murder (Count One). It is well established the fact-finder(s)

must separately determine specifications. That is, a guilty finding must have been made

on the aggravating circumstance. The majority appears to suggest that since the evidence

would have supported such a finding, that was sufficient. However, this ignores the

statutory scheme set forth in R.C. 2929.04(A). “Only the aggravating circumstances

related to a given count may be considered in assessing the penalty for that count.”

State v. Montgomery,

,

,

, quoting State

v. Cooey,

,

(1989), paragraph three of the syllabus.

{¶ 23} The majority also relies upon Crawford, 10th Dist. Franklin No. 85AP-324,

, and Ham, 3d Dist. Wyandot No. 16-09-01,

, to suggest

that general findings are sufficient when a case is tried without a jury. This is certainly true

as to the guilty finding of aggravated murder, the primary charge, but has never been true

of aggravating circumstances, which require a separate and distinct determination of guilt.

{¶ 24} I would find the 30-years-to-life sentence void and reverse and remand for

resentencing on the aggravated murder count only.

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Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Marshall G. Lachman Hon. Michael W. Krumholtz