State v. Ross , 2011 Ohio 3197 ( 2011 )

[Cite as State v. Ross, 2011-Ohio-3197.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25178
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN V. ROSS, II COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 08 07 2276
DECISION AND JOURNAL ENTRY
Dated: June 29, 2011
CARR, Judge.
{¶1} Appellant, John Ross II, appeals the judgment of the Summit County Court of
Common Pleas. This Court reverses and remands for application of State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314.
I.
{¶2} This matter arises from the death of infant John Ross, III, on July 7, 2008. John
Ross II (hereinafter referred to as “Ross”) was charged and convicted of causing the death of his
eleven-week old son.
{¶3} On July 17, 2008, the Summit County Grand Jury indicted Ross on one count of
aggravated murder in violation of R.C. 2903.01(C), a special felony; one count murder in
violation of R.C. 2903.02(B), a special felony; one count of felonious assault in violation of R.C.
2903.11(A)(1), a felony of the second degree; one count of endangering children in violation of
R.C. 2919.22(B)(1), a felony of the second degree; one count of endangering children in
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violation of 2919.22(A), a felony of the third degree; and five counts of endangering children in
violation of R.C. 2919.22(A), a misdemeanor of the first degree. The aggravated murder charge
contained a death penalty specification pursuant to R.C. 2929.04(A)(9).
{¶4} The matter proceeded to trial in February 2009. The trial court determined
reckless homicide to be a lesser included offense of aggravated murder and so instructed the jury.
The jury subsequently found Ross guilty of the lesser included offense of reckless homicide and
not guilty of the death penalty specification. The jury also found Ross guilty of murder,
felonious assault, and endangering children. The remaining counts in the indictment were
dismissed upon the motion of the State.
{¶5} Ross was sentenced to a five-year term of imprisonment for reckless homicide; an
eight-year term of imprisonment for felonious assault; an eight-year term of imprisonment for
endangering children; and a term of imprisonment of fifteen years to life for murder. The trial
court ordered the prison terms for murder, felonious assault, and endangering children to be
served consecutively to each other for a total of 31 years to life. The trial court ordered the
prison term for reckless homicide to be served concurrently with the other counts. Ross was also
notified that upon his release from prison, he would be subject to a five-year term of post-release
control. Ross filed a notice of appeal on March 30, 2009.
{¶6} On October 23, 2009, this Court issued a journal entry vacating the trial court’s
sentencing entry on the basis that Ross had been improperly notified of post-release control.
While Ross had been notified that he would be subject to a five-year term of post-release, he
was, in fact, subject to a mandatory three-year term of post-release control. The matter was
remanded back to the trial court for re-sentencing.
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{¶7} The trial court held a re-sentencing hearing on November 24, 2009, and issued a
new sentencing entry on December 9, 2009. Ross was sentenced to an identical prison term and
properly put on notice of post-release control. Ross filed a notice of appeal on January 7, 2010.
{¶8} On appeal, Ross raises one assignment of error.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT COMMITTED PLAIN ERROR AND ERRED AS A
MATTER OF LAW IN SENTENCING APPELLANT TO CONSECUTIVE
SENTENCES FOR MURDER, FELONIOUS ASSAULT, AND
ENDANGERING CHILDREN, WHEN THESE CRIMES WERE ALL ALLIED
OFFENSES OF SIMILAR IMPORT.”
{¶9} In his sole assignment of error, Ross argues that the trial court committed plain
error by failing to merge several of his offenses as allied offenses of similar import. Specifically,
he argues that the offenses had to be merged because they were not committed with a separate
animus.
{¶10} Ross raises a plain error challenge to his sentence. We note that the Supreme
Court of Ohio has held that a trial court commits plain error when it imposes multiple sentences
for allied offenses of similar import. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, at
¶31.
{¶11} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Supreme Court of
Ohio reevaluated its allied offense jurisprudence and overruled its prior decision in State v.
Rance (1999), 85 Ohio St.3d 632. The issue in Johnson arose from a direct conflict between the
First and Fifth Districts with respect to whether the crimes of felony murder and child
endangering must merge when child endangering also serves as the predicate offense for the
felony murder charge. Johnson at ¶4-5., citing State v. Johnson, 1st Dist. Nos. C-080156 & C-
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080158, 2009-Ohio-2568 (concluding offenses were not allied because the legislature intended
for the offenses to protect distinct societal interests) and State v. Mills, 5th Dist. No. 2007-AP-
07-0039, 2009-Ohio-1849 (comparing elements in the abstract and concluding offenses were
allied). In resolving the conflict, the Supreme Court acknowledged the inherent difficulty in
applying its allied offense law, abandoned its former approach, and set forth a new conduct-
based approach. The high court discarded Rance’s directive that courts examine the statutory
elements of offenses in the abstract before considering the conduct of a defendant and, instead,
embraced the plain language of R.C. 2941.25. Johnson at ¶44. The Court held that “[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.” Johnson at syllabus. In
interpreting Johnson, this Court has held that while none of the separate opinions in Johnson
gained a majority, a majority of the Supreme Court did agree that an allied offense determination
must depend upon a defendant’s conduct and the evidence and arguments introduced at trial with
regard to that conduct. State v. Brown, 9th Dist. No. 25287, 2011-Ohio-1041, at ¶49, citing
Johnson at ¶54-57; id. at ¶69-70 (O’Connor, J., concurring).
{¶12} In this case, Ross contends that his murder, felonious assault, and endangering
children convictions are allied offenses of similar import because they were “all clearly done
with the same animus.” In support of his position, Ross relies heavily on the Supreme Court of
Ohio’s decision in State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147. In Williams, the
Supreme Court relied on Rance, and several other Supreme Court cases, as controlling authority
for the proposition that the trial courts are required to compare the elements of offenses in the
abstract without considering the evidence in the case. Williams at ¶16. As discussed above, the
Supreme Court subsequently overhauled its allied offense jurisprudence in Johnson. Thus, the
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foremost question in this case is whether Ross committed the crimes of murder, felonious
assault, and endangering children separately or with a separate animus. See Johnson, supra.Unlike the circumstances the Supreme Court recently confronted in State v. Wilson, Slip Opinion
No. 2011-Ohio-2669, the parties in this case are not in agreement as to whether any of the
aforementioned offenses are allied. This Court expresses no position on that issue at this time.
Rather than decide this issue in the first instance, we must remand this matter to the trial court
for a determination as to whether Ross’ offenses are, in fact, allied offenses of similar import.
Brown at ¶50, citing Johnson at ¶49-50. Accord State v. Wenker, 9th Dist. No. 25185, 2011-
Ohio-786, at ¶21-22. Therefore, we reverse on this basis and remand to the trial court for the
application of Johnson in the first instance.
III.
{¶13} The sole assignment of error is sustained to the extent that the judgment must be
reversed for the application of Johnson, supra. The judgment of the Summit County Court of
Common Pleas is reversed and remanded for further proceedings consistent with this opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
MOORE, J.
DICKINSON, P. J.
CONCUR
APPEARANCES:
NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.