State v. DeGarmo , 2019 Ohio 4050 ( 2019 )

[Cite as State v. DeGarmo, 2019-Ohio-4050.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2018-0061
DANNY DeGARMO
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2018-0285
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: October 1, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JAMES A. ANZELMO
PROSECUTING ATTORNEY 446 Howland Drive
TAYLOR P. BENNINGTON Gahanna, Ohio 43230
ASSISTANT PROSECUTOR
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0061 2
Wise, John, P. J.
{¶1} Defendant-Appellant Danny DeGarmo appeals his conviction and sentence
entered by the Muskingum County Court of Common Pleas on two counts of gross sexual
imposition and one count of abduction following a guilty plea.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The facts and procedural history are as follows.
{¶4} On February 2, 2016, Mary R. reported that her then thirteen ( 13) year old
daughter, "J.M.C.S.", had reported that Danny DeGarmo, "Appellant," had touched her
with his penis in her private area when she was about six (6) years old and in
kindergarten; this would have been between August 15, 2008, and June 1, 2009. (Plea
T. at 11).
{¶5} J.M.C.S. stated the event occurred inside a garage next to Mary's mother's
house in Frazeysburg, Muskingum County, Ohio. Appellant is Mary R.'s brother. J.M.C.S.
stated she had not told anyone about this incident because she was afraid. (Plea T. at
12).
{¶6} J.M.C.S. was interviewed at CAC on June 21, 2016. J.M.C.S. stated that
when she was six (6) years old, Appellant was in the garage next to her grandmother's
house. J.M.C.S. went into the garage to tell Appellant she was going to a friend's house.
As she was leaving, Appellant grabbed her arm and pulled her back into the garage and
pulled her on top of him while he was sitting on a metal folding chair. The child was facing
him and she heard him unbutton and unzip his jeans. She stated that he moved the layer
of her shorts over and rubbed his penis on the skin of her vagina. She stated that his
Muskingum County, Case No. CT2018-0061 3
penis only touched the outside of her vagina. J.M.C.S. stated that it felt “nasty, gross and
weird”, and that she did not like it. (Plea T. at 12). J.M.C.S. stated that at that time her
grandmother then yelled for her, asking where she was, and that Appellant yelled back
and said the child had gone to a friend's house. Appellant then told the child that he would
hurt her if she told anyone. (Plea T. at 12-13).
{¶7} On May 17, 2018, Appellant was indicted on one count of Gross Sexual
Imposition, a felony of the third degree, in violation of R.C. §2907.05(A)(4), one count of
Gross Sexual Imposition, a felony of the third degree, in violation of R.C. §2907.05(A)(1),
and one count of Kidnapping, with a sexual motivation specification and a sexually violent
predator specification, a felony of the first degree, in violation of R.C. §2905.01(A)(4).
{¶8} On August 3, 2018, Appellant entered a plea of guilty to: Count One: Gross
Sexual Imposition, a felony of the third degree, in violation of R.C. §2907.05(A)(4), Count
Two: Gross Sexual Imposition, a felony of the third degree, in violation of R.C.
§2907.05(A)(1), and Count Three: Abduction, a felony of the third degree, in violation of
R.C. §2905.02(A)(1).
{¶9} On September 17, 2018, the trial court sentenced Appellant as follows:
Count One: a stated prison term of 60 months
Count Two: a stated prison term of 60 months
Count Three: a stated prison term of 36 months
{¶10} The periods of incarceration were ordered to be served consecutively to
each other and consecutively to a prison sentence he is currently serving on an unrelated
offense.
Muskingum County, Case No. CT2018-0061 4
{¶11} Appellant now appeals, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶12} “I. DANNY DEGARMO DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
{¶13} “II. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE
DEGARMO'S GROSS SEXUAL IMPOSITION OFFENSES, IN VIOLATION OF THE
DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
{¶14} “III. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE
DEGARMO'S GROSS SEXUAL IMPOSITION OFFENSES WITH THE ABDUCTION
OFFENSE, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
{¶15} “IV. DEGARMO RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
I.
{¶16} In his first assignment of error, Appellant argues that his guilty plea was not
made knowingly, intelligently or voluntarily.
{¶17} At the oral argument proceedings held on July 30, 2019, Appellant, through
counsel, withdrew this first assignment of error.
Muskingum County, Case No. CT2018-0061 5
{¶18} Accordingly, we need not address this assignment of error.
II.
{¶19} In his second assignment of error, Appellant argues the trial court erred in
failing to merge the two gross sexual imposition offenses with each other. We agree.
{¶20} Appellant herein pled guilty to two offenses of gross sexual imposition, in
violation of R.C. §2907.05(A)(4) and (A)(1), which provides:
{¶21} R.C. § 2907.05 Gross Sexual Imposition
(A) No person shall have sexual contact with another, not the spouse
of the offender; cause another, not the spouse of the offender, to have
sexual contact with the offender; or cause two or more other persons to
have sexual contact when any of the following applies:
(1) The offender knows that the sexual contact is offensive to the
other person, or one of the other persons, or is reckless in that regard.
(2) The offender knows that the other person's, or one of the other
person's, ability to appraise the nature of or control the offender's or
touching person's conduct is substantially impaired.
(3) The offender knows that the other person, or one of the other
persons, submits because of being unaware of the sexual contact.
(4) The other person, or one of the other persons, is thirteen years
of age or older but less than sixteen years of age, whether or not the
offender knows the age of such person, and the offender is at least eighteen
years of age and four or more years older than such other person.
Muskingum County, Case No. CT2018-0061 6
{¶22} “Sexual contact” is defined as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing or gratifying either
person.” R.C. § 2907.01(B).
{¶23} Here, the trial court sentenced Appellant to sixty (60) months on each count
of Gross Sexual Imposition and ordered the sentences be served consecutively.
Appellant argues that the two charges should have merged for purposes of sentencing
because the charges were allied offenses of similar import.
{¶24} R.C. §2941.25, Ohio's allied offense statute, provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may
be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus to
each, the indictment or information may contain counts for all such offenses,
and the defendant may be convicted of all of them.
{¶25} In State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Supreme Court of Ohio explained that “the same conduct can be separately punished if
that conduct constitutes offenses of dissimilar import.” Id. at ¶ 20, citing R.C. §2941.25(B).
Offenses are dissimilar in import “when the defendant's conduct constitutes offenses
Muskingum County, Case No. CT2018-0061 7
involving separate victims or if the harm that results from each offense is separate and
identifiable.” Ruff at paragraph two of the syllabus.
{¶26} Intimate sexual contacts with a victim that constitute the offense of gross
sexual imposition may be treated as separate offenses for the purposes of R.C.
§2941.25(B) in at least two instances: (1) where the evidence demonstrates either the
passage of time or intervening conduct by the defendant between each incident; and (2)
where the evidence demonstrates the defendant's touching of two different areas of the
victim's body occurred in an interrupted sequence. State v. Tate (2000), Cuyahoga App.
No. 77462.
{¶27} At the sentencing hearing, the State explained the two charges as follows:
Prosecutor: … and Mr. DeGarmo, in a garage, grabbed her and
pulled her back, holding her onto his person and then utilizing his penis to
touch the outside of her vagina. So the causing of her to touch his penis is
one gross sexual imposition charge; the touching of her vagina is a second
gross sexual imposition charge.
They – the two charges, the two acts, occurred at the same time, but
they do encapsulate two different means by which gross sexual imposition
is committed. (Sent. T. at 3-4).
{¶28} Similarly, defense counsel, argued:
Counsel: So finally, the only question is, should those sentences run
concurrent or consecutive to each other. And I would ask the Court to
consider that. This was one incident. I know it was one incident that was
charged several ways. But it was one contact, one time with one victim.
Muskingum County, Case No. CT2018-0061 8
There was not separate criminal animus that he was both going to touch
her with is penis and also separately touch her vagina. It was one act.
I think that screams that the counts in this case should run concurrent
to each other. (Sent. T. at 7-8).
{¶29} Although Appellant’s counsel did argue for concurrent sentences for the
two counts of gross sexual imposition, he did not raise the issue of allied offenses.
{¶30} In State v. Rogers, 143 Ohio St. 3d 385, the Ohio Supreme Court held that
where a defendant fails to seek the merger of his convictions as allied offenses of similar
import in the trial court, he forfeits any allied offenses claim, except to the extent it
constitutes plain error. Rogers at ¶ 21–25, citing State v. Quarterman, 140 Ohio St. 3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15–16. “Crim.R. 52(B) affords appellate courts
discretion to correct ‘[p]lain errors or defects affecting substantial rights' notwithstanding
the accused's failure to meet his obligation to bring those errors to the attention of the trial
court.” Rogers at ¶ 22. The defendant “bears the burden of proof to demonstrate plain
error on the record.” Id., citing Quarterman at ¶ 16. To demonstrate plain error, the
defendant must show “ ‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an
“obvious” defect in the trial proceedings' ” and that the error affected a substantial right,
i.e., the defendant must demonstrate a “reasonable probability” that the error resulted in
prejudice, affecting the outcome of the trial. Rogers at ¶ 22, quoting State v. Barnes, 94
Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002). “We recognize plain error ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’ ” Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, 2015 WL
3899130, ¶ 32, quoting State v. Landrum, 53 Ohio St. 3d 107, 110, 559 N.E.2d 710 (1990).
Muskingum County, Case No. CT2018-0061 9
{¶31} Upon review of the indictment and the statements made by the prosecutor
at the sentencing hearing, and applying Ruff, supra, we find that the two counts of gross
sexual imposition should have merged for purposes of sentencing. The two counts were
of similar import, they were committed at the same time and were not committed with a
separate animus or motivation.
{¶32} Here, the trial court imposed a sixty (60) month sentence on each of the
gross sexual imposition counts and thirty-six (36) months on the abduction count. The
sentences for all counts were ordered to be served consecutively. The order of
consecutive service means that recognition of plain error would affect the length of
Appellant's sentence. We therefore find a manifest miscarriage of justice would occur if
the counts were not merged.
{¶33} Based on the above, we find Appellant’s second assignment of error well-
taken. Appellant’s second assignment of error is sustained.
III.
{¶34} In his third assignment of error, Appellant argues the trial court erred in
failing to merge the gross sexual imposition offenses with the abduction charge. We
disagree.
{¶35} In addition to the two counts of gross sexual imposition, Appellant also plead
guilty to one count of Abduction, in violation of R.C. §2905.02……, which provides:
{¶36} R.C. §2905.02 Abduction
(A) No person, without privilege to do so, shall knowingly do any of
the following:
Muskingum County, Case No. CT2018-0061 10
(1) By force or threat, remove another from the place where the other
person is found;
{¶37} Again, we note that the record reflects that Appellant has forfeited all but
plain error with regard to the allied offenses argument. See State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3, 21 (a defendant who fails to raise an
allied offense issue in the trial court forfeits all but plain error); State v. Clarke, 8th Dist.
Cuyahoga No. 105047, 2017-Ohio-8226, 2017 WL 4711959, ¶ 26–27. “A forfeited error
is not reversible error unless it affected the outcome of the proceedings and reversal is
necessary to correct a manifest miscarriage of justice.” State v. Amison, 8th Dist.
Cuyahoga No. 104728, 2017-Ohio-2856, 2017 WL 2241655, ¶ 4. If a defendant fails to
raise the issue of allied offenses at the trial court level, “the burden is solely on that
defendant, not on the state or the trial court, to ‘demonstrate a reasonable probability that
the convictions are for allied offenses of similar import committed with the same conduct
and without a separate animus.’ ” State v. Locke, 8th Dist. Cuyahoga No. 102371, 2015-
Ohio-3349, 2015 WL 4997202, ¶ 20, quoting Rogers at ¶ 3.
{¶38} In the instant matter, we cannot say that the trial court committed plain error
in failing to merge the gross sexual imposition and abduction counts for sentencing
purposes because the offenses caused separate, identifiable harm. The abduction
offense occurred separately from the gross sexual imposition when the victim was
forcefully pulled into the garage and was not allowed to leave. This emotional and physical
harm is dissimilar to that experienced by the victim when he touched her vagina with his
penis.
Muskingum County, Case No. CT2018-0061 11
{¶39} Based on the foregoing analysis, we find that the trial court did not err when
it did not merge the gross sexual imposition and abduction counts and imposed
consecutive sentences for the two offenses of dissimilar import. Accordingly, Appellant's
third assignment of error is overruled.
IV.
{¶40} In his fourth assignment of error, Appellant claims that he was denied the
effective assistance of counsel. We disagree.
{¶41} Specifically, Appellant argues that his counsel was ineffective for failing to
move the trial court to merge the gross sexual imposition offense with each other and with
the abduction offense. Appellant also argues that counsel should have requested the trial
court waive court costs.
{¶42} The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the effective assistance of counsel. Courts employ a two-step process
to determine whether the right to effective assistance of counsel has been violated.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
First, the defendant must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires showing
that counsel's errors were as serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Id.
Muskingum County, Case No. CT2018-0061 12
{¶43} In this matter, we have determined that the two Gross Sexual Imposition
convictions must be merged and that the gross sexual imposition offenses and abduction
offense are not allied offenses, so this aspect of the assigned error is moot.
{¶44} With regard to Appellant’s argument that his trial counsel failed to request
that the trial court waive court costs, this Court rejected such an argument in State v.
Davis, 5th Dist. Licking No. 17-CA-55, 2017-Ohio-9445. We have continued to follow our
Davis holding in this regard, most recently in State v. Ross, 5th Dist. Muskingum No.
CT2018-0047, 2019-Ohio-2472, ¶ 60. The present issue remains pending before the Ohio
Supreme Court on a certified conflict between Davis, supra, and State v. Springer, 8th
Dist. Cuyahoga No. 104649, 2017-Ohio-8861.
{¶45} In State v. Ramsey, 5th Dist. Licking No. 17-CA-76, 2018-Ohio-2365, we
held that unless an Ohio Supreme Court decision is rendered on this issue to the contrary
in the future, we would continue to abide by our decision in Davis. Ramsey at ¶ 46.
{¶46} Accordingly, we herein hold Appellant was not deprived of the effective
assistance of trial counsel in violation of his rights under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, § 10 of the Ohio Constitution.
{¶47} Accordingly, this assigned error is without merit
{¶48} Appellant’s fourth assignment of error is overruled.
Muskingum County, Case No. CT2018-0061 13
{¶49} Accordingly, the judgment of the Muskingum County Court of Common
Pleas, Muskingum, Ohio, is affirmed in part and reversed in part. The sentences imposed
for the two gross sexual imposition counts are reversed, and the matter is remanded for
resentencing on whichever of those two counts survives the state's election.
By: Wise, John, P. J.
Baldwin, J., concurs.
Wise, Earle, J., dissents.
JWW/d 0821
Muskingum County, Case No. CT2018-0061 14
Wise, E, J. concurring in part, dissenting in part.
{¶ 50} I concur fully in the resolution of the first two assignments of error.
{¶ 51} I respectfully dissent as to the third assignment of error.
{¶ 52} I concur in part and concur separately in part as to the fourth assignment of
error.
Assignment of Error III
Merger question: GSI and Abduction
{¶ 53} I agree that plain error is required for reversal. I agree with the standard and
procedure set forth by the majority for review of plain error at paragraphs 30 and 37 --
that appellant must show the convictions were the result of the same conduct without
separate animus.
{¶ 54} As stated at paragraph six of the majority opinion, the victim went into a
neighbor’s garage to speak briefly with the neighbor, the appellant. As she began to leave
the garage, appellant grabbed her arm and pulled her back into the garage. He lifted her
onto his lap and touched his penis to the outside of her vagina. The child’s grandmother
yelled for her, trying to determine her location. Appellant shouted back saying the child
has gone to a friend’s house. Appellant said to the child that he would hurt her if she told
anyone.
{¶ 55} At paragraph 38 the majority finds the act of pulling the child back into the
garage and restraining her on his lap is separate conduct from the act of touching her
sexually.
Muskingum County, Case No. CT2018-0061 15
{¶ 56} In State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Ohio Supreme Court set forth the test as to when multiple convictions should merge as
allied offenses of similar import.
As a practical matter, when determining whether offense are allied
offense of similar import within the meaning of R.C. 2941.25, courts
must ask three question when the defendant’s conduct supports
multiple offenses: (1) Were the offenses dissimilar in import or
significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation? An affirmative
answer to any of the above will permit separate convictions. The
conduct, the animus, and the import must all be considered.
Ruff at ¶31.
{¶ 57} The answers to these questions are not always clearly distinct. The
concepts tend to overlap and blend together depending on the facts. In the instant case
the important concepts are the restraint of the abduction charge and the sexual contact
of the gross sexual imposition. Do the facts support a finding that the convictions are the
result of the same conduct with the same animus?
{¶ 58} In State v. Powih, 2nd Dist. Brown No. CA2016-11-023, 2017-Ohio-7208
the Second District analyzed a similar issue under the plain error standard to determine
if a rape and an abduction conviction should merge. In that matter, the defendant entered
Muskingum County, Case No. CT2018-0061 16
a room where the victim was located. The defendant locked the door, grabbed the victim’s
arm spun her around and spanked her buttocks. He then pulled her pants and underwear
down, spanked her naked buttocks, and inserted his finger into her vagina. The appellate
court found the restraint was incidental to the rape and undifferentiated by time, place, or
circumstance. Id. at ¶43.
{¶ 59} The court in Powih cited two additional cases; State v. Patel 2nd Dist.
Greene No 2010-CA-77, 2011-Ohio-6529 ¶88 (offender entered a bathroom, locked the
door and put his hand down victim’s pants); State v. Hernandez 12th Dist. Warren No.
CA2010-10-098, 2011-Ohio-3765 (offender grabbed the victim pushed her into a hotel
room, locked the door, forced her onto the bed, and then forcefully raped her several
times. The court found the acts constituting abduction were incidental to and for the
purpose of committing the rapes and had no separate significance.)
{¶ 60} The Supreme Court of Ohio, in State v. Logan, 60 Ohio St. 2d 126, 397
N.E.2d 1345 (1979) set forth the guideline for determining the presence of separate
animus. Logan involved a kidnapping and rape conviction. Appellant approached the
victim on the street and at knife point, forced her into an alley and down a set of stairs to
a secluded location where she was compelled to have sexual intercourse at knife point.
After the rape she was released. The court found no separate animus or substantial risk
of harm between the two offenses:
The primary issue, however, is whether the restraint or movement of
the victim is merely incidental to a separate underlying crime or,
instead, whether it has a significance independent of the other
Muskingum County, Case No. CT2018-0061 17
offense. In the instant case, the restraint and movement of the victim
had no significance * * * apart from facilitating the rape. The detention
was brief, the movement was slight, and the victim was released
immediately following the commission of the rape. In such
circumstances, we cannot say that appellant had a separate animus
to commit kidnapping.
***
Looking at the facts in this case, we cannot find that the asportation
of the victim down the alley to the place of rape presented a
substantial increase in the risk of harm separate from that involved
in the rape.
Logan at 135.
{¶ 61} Turning to the instant matter, first, were the offenses dissimilar in import or
significance in the instant case? My answer is no. The purpose of the restraint was for
the sexual contact. Appellant physically prevented the victim from walking away by
grabbing her by the arm, picking her up, setting her on his lap, and moving her clothes
aside. The import of the restraint was to facilitate the sexual contact. There was no
significance to the restraint other than to engage in gross sexual imposition.
Next, were they committed separately? Again, no. The victim was not transported to a
separate location or held for an extended period of time. This was one continuous act;
Muskingum County, Case No. CT2018-0061 18
the grabbing and holding of the victim was implicit in the gross sexual imposition and was
contemporaneous in time and location.
{¶ 62} Finally, were the acts committed with separate animus or motivation? No.
This question blends significantly into question number one. Appellant’s motivation was
clear. He picked her up for the purpose to make physical contact between his penis and
her vagina. He did this and then released her. Although he did make a threat to the victim
not to tell anyone, that does not change the purpose of the restraint.
{¶ 63} From these facts and the above cited case law I would find the grabbing
and holding of the child is the same conduct which facilitated the sexual contact. There is
no separate animus for the restraint. It was solely to facilitate the underlying offense of
gross sexual imposition. Therefore, I would find error that is correctable if it created a
manifest miscarriage of justice.
{¶ 64} I would find the same manifest miscarriage of justice as in the second
assignment of error. There we found that two 60 month sentences served consecutively
for the same conduct without a separate animus required reversal. Similarly, having found
the GSI and abduction convictions to be allied offenses; the imposition of 36 months
consecutive to 60 months also requires reversal.
Assignment of Error IV
Ineffective Assistance of Counsel
{¶ 65} (A): Failure to Move for Merger of Allied Offenses of Similar Import
This assignment had two subsections. The first was a claim of ineffective assistance of
counsel for the failure to move for the merger of the three offenses. The majority found
this moot and I agree, though not wholly for the same reasons.
Muskingum County, Case No. CT2018-0061 19
We all agree that the two counts of GSI merge in the second assignment of error
rendering this part of the assignment moot for the same reason.
{¶ 66} The majority found that there was no ineffective assistance in the third
assignment, because GSI and abduction are not allied offenses so there is no error to
support the claim. I, on the other hand, did find reversible error in the third assignments.
However, the result is the same. I would therefore find this issue moot.
{¶ 67} (B): Failure to Request the Waiver of Court Costs
I concur with the majority opinion on this section of the fourth assignment of error.