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State of Ohio v. Kyle Mcclendon

September 30, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KYLE MCCLENDON
DEFENDANT-APPELLANT



T.C. CASE NO. 09CR446 (Criminal Appeal from Common Pleas Court)

The opinion of the court was delivered by: Grady, P.J.:

Cite as State v. McClendon,

OPINION

{¶1} This matter is before the court on remand from the Ohio Supreme Court.

{¶2} In the early morning hours of February 7, 2009, Defendant shot David Driscoll five times at a Marathon gas station located at 4351 Riverside Drive in Dayton. Driscoll died at the scene from his multiple gunshot wounds. Following a jury trial, Defendant was found guilty of purposeful murder, R.C. 2903.02(A), felony murder, R.C. 2903.02(B), one count of felonious assault - deadly weapon in violation of R.C. 2903.11(A)(2), one count of felonious assault - serious physical harm in violation of R.C. 2903.11(A)(1), one count of improper handling of a firearm in a motor vehicle, R.C. 2923.16(B), and multiple firearm specifications, R.C. 2941.145.

{¶3} At sentencing, the trial court merged the two murder offenses, the two felonious assault offenses, and all five firearm specifications, and imposed prison terms totaling twenty-six years to life. The trial court refused to merge the felony murder, R.C. 2903.02(B), and the felonious assault - deadly weapon, R.C. 2903.11(A)(2), offenses.

{¶4} On direct appeal we affirmed in part and reversed in part the trial court's judgment. State v. McClendon, Montgomery App. No. 23558, 2010-Ohio-4757. In his second assignment of error, Defendant argued that the trial court erred by failing to merge the allied offenses of felony murder, R.C. 2903.02(B), and felonious assault - deadly weapon, R.C. 2903.11(A)(2), pursuant to R.C. 2941.25. We agreed and reversed and vacated Defendant's sentences for felony murder and felonious assault - deadly weapon, and remanded the matter to the trial court to merge the felonious assault - deadly weapon offense with the felony murder offense, and resentence Defendant accordingly.

{¶5} The State appealed to the Ohio Supreme Court. On March 29, 2011, the Ohio Supreme Court vacated our judgment with respect to the second assignment of error only, and remanded the matter to this court for application of the Supreme Court's decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.

{¶6} This matter is now before us for a merit decision on the allied offenses issue in the second assignment of error, applying State v. Johnson, supra.

SECOND ASSIGNMENT OF ERROR

{¶7} "THE FELONY MURDER COUNT AND THE FELONIOUS ASSAULT COUNT MERGE UNDER THE HOLDING OF STATE V. JOHNSON."

{¶8} At the sentencing hearing, the trial court merged as allied offenses of similar import the two counts of murder, R.C. 2903.02(A) and (B), and sentenced Defendant only on the felony murder count, R.C. 2903.02(B). Likewise, the court merged the two counts of felonious assault, R.C. 2903.11(A)(1) and (2), and sentenced Defendant only on the felonious assault-deadly weapon count, R.C. 2903.11(A)(2).

{ΒΆ9} Defendant argues that the trial court erred by denying his request to also merge the felony murder, R.C. 2903.02(B), and the felonious assault-deadly weapon, R.C. 2903.11(A)(2) convictions, because under the rule of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, those are allied offenses of similar import that must be ...


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