State v. Shepherd
2013 Ohio 4912
Ohio Ct. App.2013Background
- Shepherd was convicted of two counts of felonious assault (with one- and three-year firearm specifications) and one count of having a weapon while under disability.
- At initial sentencing the court merged the assault counts, imposed 7 years for felonious assault, merged the firearm specs and imposed the mandatory 3-year firearm term, and imposed 3 years for the weapons-under-disability count; sentences were ordered consecutively for a 13-year aggregate term.
- This court affirmed convictions but vacated the consecutive sentences and postrelease control for failure to make R.C. 2929.14(C)(4) findings; case was remanded for resentencing on those portions.
- At resentencing the trial court made the required consecutive-sentence findings and again imposed the same 13-year aggregate term.
- Shepherd appealed the resentencing, raising three assignments: (1) the court erred by sua sponte selecting the three-year firearm specification to sentence on; (2) the weapons-under-disability conviction should merge with the firearm specification as an allied offense of similar import; and (3) trial counsel was ineffective for failing to object on those grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether the trial court erred by sua sponte electing the three-year firearm specification to impose | State: Court must impose the mandatory 3-year firearm term under R.C. 2929.14(B)(1)(a)(ii); no election by the prosecutor is required | Shepherd: State was required to elect which specification to proceed on; court lacked authority to choose sua sponte | Court: Affirmed — statute mandates the 3-year term which subsumes the 1-year spec; no prosecutor election required |
| 2. Whether having a weapon while under disability is an allied offense of similar import to a firearm specification | State: Weapon-under-disability is a separate offense and not an allied specification to the firearm penalty | Shepherd: The weapon-under-disability conviction should merge with the firearm specification as allied offenses | Court: Affirmed — rejected merger; weapon-under-disability is not an allied offense to the firearm specification |
| 3. Whether trial counsel was ineffective for failing to object to the court’s actions and request merger | State: Counsel’s performance need not be excused where underlying legal claims fail | Shepherd: Counsel was ineffective for not objecting to the court’s sua sponte election and for failing to seek merger | Court: Affirmed — ineffective-assistance claim fails because it is predicated on previously rejected legal claims |
Key Cases Cited
- State v. Blankenship, 102 Ohio App.3d 534 (1995) (discusses merger/allied-offense analysis)
- State v. Williams, 100 Ohio St.3d 1509 (2003) (court’s treatment of allied-offense and sentencing issues)