State v. McClendonState v. McClendon
GRADY, P.J.:
{¶ 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
{¶ 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,
{¶ 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,
{¶ 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,
{¶ 9} Defendant argues that the trial court erred by denying his request to also merge the felony murder,
{¶ 10}
{¶ 11} “No person shall cause the death of another as a proximate result of the offender‘s committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.”
{¶ 12}
{¶ 13} “No person shall knowingly do either of the following:
{¶ 14} “* * *
{¶ 15} “Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.”
{¶ 16} Ohio‘s multiple counts statute,
{¶ 17} “(A) Where 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.
{¶ 18} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results
{¶ 19} State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme Court announced a new test for determining when offenses are allied offenses of similar import that must be merged pursuant to
{¶ 20} “Under
{¶ 21} “In determining whether offenses are allied offenses of similar import under
{¶ 22} “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.’ Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,dissenting).
{¶ 23} “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
{¶ 24} “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
{¶ 25} In our prior decision in this case, McClendon at ¶33, we noted:
{¶ 26} “[I]t is not possible to cause the death of another as a proximate result of causing physical harm with a deadly weapon in violation of
{¶ 27} Clearly, under the rule of Johnson, it is possible to commit a violation of both
{¶ 28} The State argues that because Defendant had to pull the trigger five separate times in order to shoot Driscoll five times,
{¶ 29} As we noted in our previous opinion in this case, McClendon at ¶33-34:
{¶ 30} “On this record, the two offenses involved the same conduct. Because they were not committed separately or with a separate animus for each, their merger for purposes of
{¶ 31} “In this case there was but one criminal act/incident in which Defendant fired five shots at the same victim, David Driscoll, all at the same time in rapid succession. Defendant‘s animus in firing each shot was the same: to cause serious physical harm to Driscoll. All five shots struck Driscoll and he died as a result of multiple gunshot wounds. The offenses of felonious assault,
{¶ 32} The offenses of felonious assault-deadly weapon,
{¶ 33} Defendant‘s second assignment of error is sustained. We will reverse and vacate Defendant‘s sentences for felony murder and felonious assault (deadly weapon), and the case will be remanded to the trial court to hold a new sentencing hearing for the offense that remains after the State selects which allied offense to pursue. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669. Otherwise, the judgment of the trial court is affirmed.
FAIN, J. And HALL, J., concur.
Copies mailed to:
Carley Ingram, Esq.
William O. Cass, Esq.
Hon. Dennis J. Langer