State v. ChampionState v. Champion
HALL, J.
{¶ 1} Bruce R. Champion appeals pro se from the trial court‘s decision, entry, and
{¶ 2} Champion advances three assignments of error on appeal. First, he contends the trial court erred in refusing to address the merits of his allied-offense argument and an argument about plain error. Second, he claims the trial court erred in failing to apply the plain-error doctrine. Third, he asserts that the trial court erred in failing to recognize that aggravated robbery and kidnapping are allied offenses of similar import.
{¶ 3} The record reflects that Champion was convicted and sentenced in March 1998 on two counts of aggravated robbery, two counts of kidnapping, one count of aggravated burglary, and firearm specifications. This court affirmed on direct appeal, rejecting, among other things, an allied-offense argument. See State v. Champion, 2d Dist. Montgomery No. 17176, 1999 WL 114973 (March 5, 1999). Champion then unsuccessfully sought post-conviction relief. This court again affirmed. See State v. Champion, 2d Dist. Montgomery No. 18394, 2001 WL 62388 (Jan. 26, 2001).
{¶ 4} On May 27, 2011, Champion filed a motion for resentencing. He argued that his aggravated robbery and kidnapping offenses were allied offenses of similar import under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Therefore, he claimed they were subject to merger at sentencing. The trial court overruled the motion, holding that Johnson has prospective application and does not apply to convictions like Champion‘s that became final long ago. The trial court also denied reconsideration.
{¶ 5} Although Champion raises three assignments of error on appeal, he acknowledges that they are related. The essence of his appellate argument is that the failure to merge his aggravated robbery and kidnapping convictions as allied offenses of similar import
{¶ 6} First, the trial court correctly held that Johnson has only prospective application. In Johnson, the Ohio Supreme Court announced a new test for determining when offenses are allied offenses of similar import that must be merged pursuant to
{¶ 7} Second, Johnson would provide Champion no relief even if it did apply retroactively. “In determining whether offenses are allied offenses of similar import under
{¶ 8} “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ ” (Citation omitted.) Id. at ¶ 49. “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 a separate animus for each offense, then, according to
{¶ 10} Finally, we reject Champion‘s request to hold the present appeal in abeyance until the Ohio Supreme Court decides whether Johnson has retroactive application. Champion contends the United States District Court certified that state-law question to the Ohio Supreme Court in Gaines v. Warden, Mansfield Correctional Inst., No. S.D.Ohio 1:07cv347, 2011 WL 2884913 (July 18, 2011). We decline to hold the present appeal in abeyance for three reasons. First, it is not clear that the question certified by the federal district court would address retroactive application of Johnson.1 Second, the Ohio Supreme Court‘s on-line docket does
{¶ 11} Champion‘s assignments of error are overruled, and the judgment of the Montgomery County Common Pleas Court is affirmed.
FAIN and DONOVAN, JJ., concur.
Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
Bruce R. Champion
Hon. Michael Tucker
Notes
Gaines at *9.Whether in this case, which involved a single automobile accident resulting in the death of one victim, Ohio Rev.Code §2941.25 could be construed at the time of petitioner‘s conviction and direct appeal in 2005 as permitting a “strict textual comparison” of the elements and a finding, in accordance with the First District Court of Appeals’ later decision in State v. Hundley, No. C-060374, 2007 WL 2019804, at *2-3 (Ohio Ct.App. 1 Dist. July 13, 2007) (unpublished), appeal dismissed, 116 Ohio St.3d 1441, 877 N.E.2d 991 (Ohio 2007), that the two aggravated vehicular homicide charges brought against petitioner under Ohio Rev.Code §§2903.06(A)(1)(a) and 2903.06(A)(2) are dissimilar when compared in the abstract; or whether, conversely, at the time of petitioner‘s conviction and direct appeal in 2005, the proper construction of Ohio Rev.Code §2941.25 required a finding that the two offense[s] are of similar import in accordance with the subsequent clarification in Cabrales of the Rance “abstract elements comparison test,” as well as State v. Palmer, 120 Ohio St.3d 322, 898 N.E.2d 960 (Ohio 2008), and the First District Court of Appeals’ decision in State v. Moore, No. C-70421, 2008 WL 3544342 (Ohio Ct.App. 1 Dist. Aug. 15, 2008) (unpublished), appeal dismissed, 120 Ohio St.3d 1490, 900 N.E.2d 200 (Ohio 2009), overruling Hundley.