State v. PowersState v. Powers
Rendered on the 27th day of August, 2010.
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MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor‘s Office, Post Office Box 972, Dayton, OH 45422 Attorney for Plaintiff-Appellee
CHARLES SLICER, JR., Atty. Reg. #0059927, Slicer Law Office, 111 West First Street, Suite 205, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Sean Powers appeals from his conviction and sentence, following a no-contest plea, for Felonious Assault, Attempted Murder, Discharge of a Firearm Near a Prohibited Premises, Tampering with Evidence, and Having a Weapon Under a Disability. All but the last conviction included firearm specifications.
I
{¶ 3} Because Powers pled no contest before this case was tried, the facts are not well developed. Although there was a hearing on Powers‘s motion to suppress, the motion was to suppress statements Powers had made to the police, and facts concerning the alleged offenses were not brought out.
{¶ 4} At the plea hearing, the charges were recited in the words of the indictment. Powers was charged with one count of Felonious Assault by having knowingly caused serious physical harm to Deon Ramey, in violation of
{¶ 6} “The facts in the present case present a similar scenario [to that in State v. Hanson, Marion App. No. 9-04-44, 2005-Ohio-4185], in that the defendant fired three shots at Deon Ramey, each striking Deon in a separate part of his body. One gunshot struck Deon in the head and neck; another shot struck Deon in the right chest; another shot struck his right lower forearm. As a result of the multiple gunshots, Deon Ramey suffered paralysis from the neck down.
{¶ 7} “In the case at bar, the defendant fired his gun three separate times at Deon Ramey, an unarmed man. Each time he pointed the gun at Deon, knowing it was loaded, and pulled the trigger. The first time defendant pulled the trigger, which resulted in a bullet being expelled into Deon‘s body, the defendant had completed the act of committing felonious assault (deadly weapon). Each additional time that the defendant pulled the trigger thereafter, he was knowingly shooting Deon, causing serious physical harm via the multiple gunshot wounds, thereby committing the offense of felonious assault (serious physical harm.).”
{¶ 8} After Powers‘s motion to suppress was overruled, he pled no contest to all the counts and specifications. At the sentencing hearing, the trial court merged the two Felonious Assault convictions, noting that it had reviewed the State‘s sentencing memorandum, but had concluded that:
{¶ 9} “Based on the Court‘s understanding of what the facts are in this case, the Court believes that there is – was one animus here, one purpose or immediate motive.”
{¶ 10} Shortly thereafter, the trial court made the following finding:
{¶ 12} In its appellate brief, the State asserts:
{¶ 13} “The charges arose out of an incident in which Powers fired three shots at Deon Ramey as Ramey sat unarmed in a vehicle. One shot struck Ramey in the head and neck, one shot struck him in the chest, and one shot struck Ramey in the lower portion of his right forearm. * * * As a result of the gunshot wounds, Deon Ramey was left paralyzed from the neck down.”
{¶ 14} In its sentencing entry, the trial court merged the Felonious Assault in violation of
{¶ 15} From his conviction and sentence, Powers appeals.
{¶ 16} Powers‘s sole assignment of error is as follows:
{¶ 17} “THE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO MERGE COUNTS TWO [FELONIOUS ASSAULT] AND THREE [ATTEMPTED MURDER] OF THE INDICTMENT WHEREAS BOTH ARE ALLIED OFFENSES OF SIMILAR IMPORT, COMMITTED WITH A SINGLE ANIMUS.”
{¶ 18} The State concedes that Felonious Assault with a deadly weapon and Attempted, purposeful Murder are allied offenses of similar import, but argues that the offenses committed by Powers were committed separately or with a separate animus, citing State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, at ¶ 16, and
{¶ 19} “Here, the gunshots to Ramey‘s head, neck, and chest were obviously life-threatening and left Ramey paralyzed from the neck down. But the gunshot to Ramey‘s forearm did not amount to serious physical harm and therefore was not immediately life-threatening. * * * Since the gunshot to Ramey‘s forearm was not a life-threatening injury, it was committed separately or with a separate animus from the attempt to purposely murder Deon Ramey. Therefore, the trial court acted correctly in refusing to merge the felonious assault with a deadly weapon count with the attempted purposeful murder count.”
{¶ 20} We can imagine cases with different facts where the State‘s argument might have merit. A drug dealer attempting to collect moneys owed, for example, tells his victim, “give me the money or I‘ll shoot.” Then, when the victim does not pay, the dealer shoots him in the leg and says, “pay up, or the next bullet is going
{¶ 21} In the case before us, by contrast, the trial court found that all three shootings had the same animus, and that they occurred in one continuous transaction and sequence. In this case, the fact that each shot had a different effect was a function of luck and Powers‘s marksmanship, not by design.
{¶ 22} In State v. Williams, supra, the defendant fired two shots at his victim. One shot seriously wounded the victim; the other shot missed. The defendant was charged with one count of Felonious Assault, in violation of
{¶ 23} Furthermore, it is consistent with State v. Williams, supra, to merge
{¶ 24} In short, we agree with Powers that the trial court erred by failing to merge the Felonious Assault and Attempted Murder convictions. This error meets the strict standard for plain error, since the result would clearly have been different had the convictions been merged.
{¶ 25} Powers‘s sole assignment of error is sustained.
III
{¶ 26} Powers‘s sole assignment of error having been sustained, the judgment of the trial court is Reversed, and this cause is Remanded for the State to elect which of the two convictions, Felonious Assault and Attempted Murder, shall be merged into the other, for the trial court to merge the convictions accordingly, and for re-sentencing. . . . . . . . . . . . .
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BROGAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr.
R. Lynn Nothstine
Charles Slicer
Hon. Timothy N. O‘Connell