[Cite as State v. Turner , 2021-Ohio-2216.]

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

STATE OF OHIO Plaintiff-Appellee

v. TEVIUS S. TURNER Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-49

Trial Court Case Nos. 2016-CR-578 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of June, 2021.

. . . . . . . . . . . IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecutin g Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee ADDISON M. SPRIGGS, Atty. Reg. No. 0097713, Assistant Ohio Publ ic Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

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

WELBAUM, J.-2- {¶ 1} Defendant-appellant, Tevius S. Turner, appeals from the judgmen t of the Clark County Court of Common Pleas resentencing him following t his court’s reversal of his conviction for purposeful murder in State v. Turner , 2d Dist. Clark No. 2017-CA-78, 2019-Ohio-144. For the reasons outlined below, the judgment of the trial court will be

affirmed.

Facts and Course of Proceedings {¶ 2} On August 11, 2017, a jury found Turner guilty of purposeful mu rder with a firearm specification, felony murder with a firearm specificati on, felonious assault, tampering with evidence, and improperly handling a firearm in a motor vehicle. At sentencing, the trial court merged the purposeful murder, felon y murder, and felonious assault counts as allied offenses of similar import. The State then elected to have Turner sentenced for purposeful murder. Following the State’s electio n, the trial court imposed a prison term of 15 years to life for that offense plus a conse cutive, three-year prison term for the attendant firearm specification. The trial court also sentenced Turner to 30 months in prison for tampering with evidence and 18 months in p rison for improperly handling a firearm in a motor vehicle. The 30- and 18-month te rms were ordered to run concurrently with each other and concurrently with the 15-year- to-life term for purposeful murder. Turner therefore received an aggregate sentence of 18 years to life in prison. {¶ 3} Turner appealed from his conviction and argued, among other thi ngs, that the trial court had erred by refusing to instruct the jury on t he lesser included offense of reckless homicide. Upon review, we found that a reasonable jur y could have concluded that Turner acted recklessly rather than purposefully when he s hot and killed the victim.-3- Accordingly, we agreed that the trial court had erred by failin g to instruct the jury on the

lesser included offense of reckless homicide and reversed Turne r’s purposeful murder

conviction. All of Turner’s other convictions were affirmed an d the matter was remanded to the trial court “for further proceedings consistent with thi s [court’s] opinion.” Turner at ¶ 47. {¶ 4} Following our decision in Turner , no action was taken on Turner’s case for over a year. On March 12, 2020, Turner filed a motion to dismi ss the murder charges on grounds that the post-remand delay in retrying him violated his right to a speedy trial

under the Sixth Amendment to the United States Constitution. O n July 28, 2020, the State filed an opposing memorandum arguing that a retrial was u nnecessary and that Turner was not prejudiced by the post-remand delay. The State also requested the trial court to move forward with resentencing Turner for felony murde r. {¶ 5} On August 14, 2020, the trial court issued an entry that denied Turner’s motion to dismiss and assigned Turner’s case for resentencing. Turner filed a reply on August 17, 2020, in which he argued that a retrial was the only appropriate remedy given

that reckless homicide is also a lesser included offense of fel ony murder. In addition, Turner reiterated that the murder charges should be dismissed b ecause the delay in retrying him violated his constitutional right to a speedy tria l. The trial court, however, moved forward with resentencing Turner on August 31, 2020. {¶ 6} At the resentencing hearing, the trial court merged the felony murder and

felonious assault counts and the State elected to have Turner s entenced for felony murder. The trial court then sentenced Turner to 15 years to l ife in prison for felony murder plus a three-year prison term for the attendant firearm specification. The trial-4- court advised that the concurrent 30- and 18-month prison terms imposed for tampering with evidence and improperly handling a firearm in a motor vehi cle remained in effect since they were not overturned by this court. The trial court ordered the 15-year-to-life term to run concurrently with the other prison terms and consec utively with the three-year term for the firearm specification. Therefore, Turner once aga in received an aggregate sentence of 18 years to life in prison. {¶ 7} Turner now appeals from the trial court’s judgment that resente nced him, raising a single assignment of error for review.

Assignment of Error {¶ 8} Under his sole assignment of error, Turner claims that the tria l court erred by resentencing him for the merged felony murder and felonious ass ault counts as opposed to ordering a retrial. In support of this claim, Turner argues that our opinion in Turner mandated a retrial rather than a resentencing. Turner claims t hat a retrial was necessary because he was never convicted of felony murder and felonious a ssault. Turner also claims that a retrial was necessary because it was the only way to remedy the trial court’s failure to provide a reckless homicide jury instruction given t hat reckless homicide is also a lesser included offense of felony murder. Turner further con tends that the post-remand delay violated his constitutional right to a speedy trial under the Sixth Amendment to the United States Constitution. Upon review, we find that all of T urner’s claims lack merit. {¶ 9} With regard to Turner’s claim that our opinion in Turner mandated a retrial, we note that there was nothing in Turner indicating a new trial was required. In support of his claim otherwise, Turner points to footnote seven of Turner, in which we stated that:-5- “The Double Jeopardy Clause would not preclude the State from r etrying Turner for purposeful murder and/or the merged offenses of felony murder a nd felonious assault, because the evidence admitted at trial was sufficient to suppor t his conviction.” Turner , 2d Dist. Clark No. 2017-CA-78, 2019-Ohio-144, at fn. 7. The fo regoing comment, however, did not mandate a retrial. Rather, the comment indica ted that the State had

the option to retry Turner for those offenses since they had been support ed by sufficient evidence and were not barred by double jeopardy. Simply put, a retrial on purposeful murder, felony murder, and felonious assault was never mandated by this court, and

Turner’s claim otherwise lacks merit. {¶ 10} We next address Turner’s claim that a retrial was necessary bec ause he was never convicted of felony murder and felonious assault. As we noted in Turner , “ ‘[a] conviction does not exist where there has been a guilty verdict * * * but no sentence.’ ”

Id . at ¶ 22, quoting State v. Croom , 7th Dist. Mahoning No. 12 MA 54, 2013-Ohio-5682, ¶ 59, citing State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12. Indeed, “a conviction must be the combined occurrence of a verd ict and a sentence[.]” (Citations omitted) State v. Rose , 2d Dist. Montgomery No. 14502, 1995 WL 386866, *4 (June 30, 1995). Because Turner’s purposeful murder, felony mu rder, and felonious assault counts merged for purposes of sentencing, and because t he State elected to have Turner sentenced for purposeful murder, it follows that Turner was only convicted for purposeful murder, not for felony murder and felonious assault. {¶ 11} Despite the lack of a conviction for felony murder and feloniou s assault, the fact remains that the jury returned guilty verdicts for both of those offenses. The Supreme Court of Ohio has explained that “the determination of the defendant’s guilt for-6- committing allied offenses remains intact, both before and afte r the merger of allied offenses for sentencing.” (Footnote omitted.) Whitfield at ¶ 27. We have also explained that: “Where offenses are merged for sentencing and t he conviction for the offense upon which the defendant was sentenced is vacated, the trial court must resentence the defendant on the offense that was merged with th e vacated offense, again merging any offenses as appropriate.” State v. Baker , 2d Dist. Greene No. 2017-CA-55, 2018-Ohio-1865, ¶ 22. We therefore find that Turner’s guilty v erdicts for felony murder and felonious assault remained intact after they merged with pu rposeful murder and were available for resentencing once the purposeful murder convictio n was reversed. Because Turner has not challenged the validity of his guilty ve rdicts for felony murder and felonious assault, we fail to see any error in the trial court’ s resentencing him for those

offenses. {¶ 12} Turner also claims that a retrial was necessary because it was the only way to remedy the trial court’s failure to provide a reckless homic ide jury instruction given that reckless homicide is also a lesser included offense of felony m urder. The Supreme Court of Ohio, however, has explicitly held that “reckless homi cide is not a lesser included offense of felony murder.” State v. Owens , 162 Ohio St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 1. {¶ 13} Turner nevertheless claims that the Supreme Court’s holding in Owens does not apply to this case because Owens was issued after he was resentenced. It is, however, well established that the “ ‘application of a new rule of law to a pending appeal is not retrospective,’ and * * * the new rule applie[s] to the cases pending on the

announcement date.” State v. Evans , 32 Ohio St.2d 185, 186, 291 N.E.2d 466 (1972),-7- quoting State v. Lynn , 5 Ohio St.2d 106, 108, 214 N.E.2d 226 (1966). In other words , the new judicial ruling may be applied to a conviction that has not become final, i.e., where the accused has not exhausted all of his appellate remedies. Ali v. State , 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6; State v. Eads , 197 Ohio App.3d 493, 2011- Ohio-6307, 968 N.E.2d 118, ¶ 15 (2d Dist.). In this case, Turn er’s resentencing appeal was pending when the Supreme Court of Ohio released Owens on September 30, 2020. Because Turner’s appeal was s till pending, the holding in Owens applies herein, and

Turner’s claim otherwise lacks merit. {¶ 14} We now turn to Turner’s Sixth Amendment speedy-trial claim, whi ch is more accurately described as a speedy-resentencing claim, because a retrial was not required and because Turner is challenging the delay between this court’ s remand in Turner and his resentencing. We have recognized that “most courts have pr esumed the existence of an analogous constitutional right to a speedy resentencing.” State v. Simons , 2d Dist. Champaign No. 2003-CA-29, 2004-Ohio-6061, ¶ 41. Accord State v. Jones , 2d Dist. Clark No. 2018-CA-17, 2019-Ohio-238, ¶ 25 and State v. Buckney , 2d Dist. Clark No. 2019-CA-75, 2020-Ohio-4927, ¶ 8. We have also recognized that most courts apply the speedy-trial balancing test in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to claims involving resentencing delays. Id . The factors to be balanced are: “(1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) whether the delay prejudiced the defendant.” Id

. {¶ 15} Whether a delay prejudices the defendant “depends on the facts of the case.” (Citation omitted.) State v. Bolton , 8th Dist. Cuyahoga No. 103628, 2016-Ohio5706, ¶ 23. Regardless of the length of a resentencing delay, appellate courts have-8- generally held that no prejudice exists when a “ ‘defendant has been incarcerated during the length of the delay, and would not have been eligible for r elease during that time[.]’ ” Buckney at ¶ 9, quoting State v. Creech , 4th Dist. Scioto No. 16CA3730, 2017-Ohio-6951, ¶ 17. Accord Jones at ¶ 26. For example, in Buckney , we found a 13-year resentencing delay “was a ‘serious administrative lapse’ and inexcusable,” b ut not prejudicial since the defendant “remained lawfully incarcerated during the delay due to the length of his

sentence.” Id . at ¶ 10. See also Jones at ¶ 27 (finding that a four-year delay between the court’s remand and the defendant’s resentencing was not pre judicial since the defendant could not have been released during the delay). {¶ 16} In this case, Turner was subject to a 19-month resentencing del ay, as his case was remanded to the trial court on January 18, 2019, and T urner was not resentenced until August 31, 2020. The State concedes that Tur ner completed his concurrent sentences for tampering with evidence and improperly handling a firearm in a motor vehicle on May 24, 2019—meaning that Turner was not resen tenced until 15 months after those sentences were completed. Therefore, this c ase is unique in that Turner completed the sentence imposed by the trial court prior to his resentencing, but

still had to serve time for the merged felony murder and feloni ous assault counts on which

he needed to be resentenced. {¶ 17} Given that the State had previously elected to have Turner sent enced for purposeful murder, there was little doubt that the State was go ing to elect to have Turner resentenced for felony murder as opposed to the lesser-degree o ffense of felonious assault. The State indicated as much in its memorandum opposin g Turner’s motion to dismiss, as the State specifically requested that the trial cou rt resentence Turner for-9- felony murder. Like purposeful murder, felony murder carries a n indefinite term of 15 years to life in prison. R.C. 2929.02(B)(1). Both the purpose ful murder and felony murder counts in this case included a consecutive, three-year f irearm specification. Therefore, by electing felony murder, the State could ensure th at Turner would receive the same 18-year-to-life prison term that he had originally rec eived for purposeful murder. {¶ 18} Under these specific circumstances, the delay in resentencing T urner was not prejudicial because the State was going to elect to have Tu rner sentenced for felony murder and, upon doing so, the trial court had no choice but to sentence Turner to 18 years to life in prison. Therefore, because Turner was going t o be required to serve that amount of time for felony murder (and the firearm specification ), Turner was not prejudiced by the 15-month delay between the completion of his other sentences and his resentencing. {¶ 19} For the foregoing reasons, Turner’s sole assignment of error is overruled.

Conclusion {¶ 20} Having overruled Turner’s assignment of error, the judgment of the trial

court is affirmed.

. . . . . . . . . . . . . TUCKER, P.J. and HALL, J., concur.

Copies sent to:

Ian A. Richardson Addison M. Spriggs Hon. Richard J. O’Neill