Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-562160
ATTORNEY FOR APPELLANT Ruth Fischbein-Cohen.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Marc D. Bullard Assistant County Prosecutor
BEFORE: EA. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
EILEEN A. GALLAGHER, JUDGE.
(¶ 1} Devin Collins appeals from his sentencing in the Cuyahoga County Court of Common Pleas. For the following reasons, we reverse in part and remand.
(¶ 2} Collins pled guilty to felonious assault in violation of R.C. 2903.11(A)(1) with a one-year firearm specification, aggravated robbery in violation of R.C. 2911.01(A)(1) with a one-year firearm specification, having weapons while under disability and tampering with evidence.
(¶ 3} The trial court sentenced Collins to prison terms of 10 years for felonious assault and aggravated robbery with consecutive one-year sentences for the firearm specifications, 36 months for having weapons while under disability and 36 months for tampering with evidence. The trial court ordered the prison terms for felonious assault and aggravated robbery to be served concurrently with each other but consecutively to the prison term for having weapons while under disability and consecutively to the prison term for tampering with evidence for a cumulative prison term of 17 years. This appeal followed.
(¶ 4} In his first assignment of error appellant argues that the trial court erred in determining that his convictions for felonious assault in violation of R.C. 2903.11(A)(1) and aggravated robbery in violation of R.C. 2911.01(A)(1) were not allied offenses of similar import.
(¶ 5} Our review of an allied offenses question is de novo. State v. Webb, 8th Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
(¶ 6} Under Ohio law, "[w]here 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." R.C. 2941.25(A). However,
[w]here 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 as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
(¶ 7} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Ohio Supreme Court redefined the test for determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25. The Johnson court expressly overruled State v. Ranee, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699, which required a "comparison of the statutory elements in the abstract" to determine whether the statutory elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other. Pursuant to Johnson, the conduct of the accused must be considered in determining whether two offenses should be merged as allied offenses of similar import under R.C. 2941.25. Id. at syllabus. The determinative inquiry is two-fold: (1) "whether it is possible to commit one offense and commit the other with the same conduct, " and (2) "whether the offenses were committed by the same conduct, i.e., 'a single act, committed with a single state of mind.'" Id. at ¶ 48-49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). "If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged." Id. at ¶ 50.
Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.
Id. at ¶ 51.
(¶ 8} The term "animus, " as defined by the Ohio Supreme Court in State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), means "purpose or, more ...