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State of Ohio v. Darrell H. Jones

September 28, 2011

STATE OF OHIO APPELLEE
v.
DARRELL H. JONES APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2006-07-2670 (A)

The opinion of the court was delivered by: Whitmore, Presiding Judge.

Cite as State v. Jones,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Appellant, Darrell Jones, appeals the order of the Summit County Court of Common Pleas that sentenced him to prison. This Court reverses.

I.

{¶2} In 2007, a jury found Jones guilty of possession of cocaine, trafficking in heroin, having weapons while under a disability, possession of criminal tools, and two counts of possession of heroin. One count of possession of heroin was a first-degree felony under R.C. 2925.11(C)(6)(e) and one was a second-degree felony under R.C. 2925.11(C)(6)(d). This is Jones' fourth appeal. In his first and second appeals, we vacated the trial court's sentencing entries without addressing his assignments of error because the trial court did not accurately inform him of his post-release control obligations. State v. Jones, 9th Dist. No. 24520, 2009- Ohio-3360 ("Jones I"); State v. Jones, 9th Dist. No. 23875, 2008-Ohio-5443 ("Jones II"). This Court addressed the merits of his third appeal, reversing the trial court's judgment in part and ordering a new sentencing hearing because he had received multiple sentences for allied offenses of similar import. State v. Jones, 9th Dist. No. 25032, 2010-Ohio-4455, at ¶15-18, 21 ("Jones III").

{¶3} On October 22, 2010, the trial court sentenced Jones again. This time, the trial court merged his convictions for possession of heroin and trafficking in heroin for purposes of sentencing and sentenced him to a four-year prison term. The trial court also sentenced him to prison terms of four years for possession of cocaine; twelve months for having weapons while under disability; six months for possessing criminal tools; and another three-year prison term for the second conviction of possession of heroin. Jones appealed, raising four assignments of error for our review.

II.

Assignment of Error Number One

"THE TRIAL COURT COMMITTED PLAIN ERROR IN SENTENCING APPELLANT BASED UPON OFFENSES WHICH WERE BARRED BY THE ALLIED OFFENSE STATUTE."

{¶4} Jones' first assignment of error is that the trial court committed plain error by sentencing him to separate prison terms for each possession of heroin conviction because the crimes did not arise from separate animus. He has argued that, although this Court reviewed the merits of his assignment of error in his last appeal and rejected a similar argument, this Court should reverse and remand this case on the authority of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.

{¶5} In Jones III, this Court determined that Jones' convictions for possession of heroin arose from separate animus based on our analysis of the offenses under State v. Blankenship (1988), 38 Ohio St.3d 116. Jones III at ¶17. We concluded that the two convictions were based on the possession of two separate amounts of heroin and overruled Jones' assignment of error with respect to these convictions. When we decided Jones' last appeal, and when the trial court resentenced him, precedent from the Ohio Supreme Court required trial courts to analyze the elements of charged offenses in the abstract. See State v. Rance (1999), 85 Ohio St.3d 632, paragraph one of the syllabus. The Supreme Court overruled Rance in December 2010, however, and 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. Since then, this Court has consistently remanded cases for further proceedings in the trial court to apply Johnson for the first time. See, e.g., State v. Vitt, 9th Dist. No. 10CA0016-M, 2011-Ohio-1448, at ¶8; State v. Brown, 9th Dist. No. 25287, 2011- Ohio-1041, at ¶50. Because imposing two sentences for allied offenses constitutes plain error, we have also recognized that it is appropriate to remand cases for consideration under Johnson when the appellant argues plain error. See State v. Reives-Bey, 9th Dist. No. 25138, 2011-Ohio- 1778, at ¶28-33, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, at ¶31.

{ΒΆ6} Jones' previous appeal does not foreclose consideration of his argument in light of Johnson. Under the doctrine of the law of the case, "the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels." Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3. Consequently, "the decision of an appellate court in a prior appeal will ordinarily be followed in a later appeal in the same case and court." Id. at 4. The doctrine is a rule of practice, however, and an exception to its application exists when there has been an intervening decision of the Supreme Court. ...


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