State v. UlrichState v. Ulrich
Rendered on the 4th day of September, 2009.
Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Atty. Reg. No.0069829, Asst. Pros. Attorney, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee
Kristopher A. Haines, Atty. Reg. No. 0080558, Office of Ohio Public Defender, 8 East Long Streеt, 11th Flr., Columbus, OH 43215 Attorney for Defendant-Appellant
GRADY, J.:
{¶ 1} Defendant, Steven Ulrich, was convicted of four counts of felоnious assault arising from his having inflicted a single stab wound to each of two victims. As to each victim, Thomas Morris and Robert Limehouse, Defendant was convicted
{¶ 2} The trial court sеntenced Defendant to concurrent six year prison terms for each of the two counts of feloniоus assault pertaining to the attack on Morris, and to concurrent four years on each of the two counts of felonious assault pertaining to the attack on Limehouse. Those four year prison terms were imposed consecutive to the six year sentences imposed for the attack on Morris, for an аggregate sentence totaling ten years.
{¶ 3} We affirmed Defendant’s convictions and sentences on direct appeal. State v. Ulrich, Montgomery App. No. 22129, 2008-Ohio-3608. On December 2, 2008, we granted Defendant’s
ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO MERGE THE OFFENSES OF FELONIOUS ASSAULT UNDER
R.C. 2903.11(A)(1) ANDR.C. 2903.11(A)(2) , FOR EACH ALLEGED VICTIM; ENTERED CONVICTIONS ON BOTH COUNTS FOR EACH ALLEGED VICTIM; AND SENTENCED MR. ULRICH TO MULTIPLE SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT. THOSE ERRORS VIOLATED MR. ULRICH’S RIGHTS UNDERR.C. 2941.25 ; THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶ 5} The State concedes in its brief that the trial court should have merged the two felonious assault counts as to each victim because felonious assault in violation of
{¶ 6} “2. Felonious assault defined in
{¶ 7} Each of the two felonious assault counts arose from a single stab wound that Defendant inflicted on each of the two victims. On the authority of Cotton and Harris, the two counts of felonious assault for each victim should have been merged. The State argues, however, that the trial court “constructively” did that and merged the two offenses for each victim when it ordered the multiple sentencеs for each victim to run concurrently. We disagree.
{¶ 8} When two offenses constitute allied offenses of similar import, Defendant may be convicted of only one.
{¶ 9} “We have previously applied a plain-error analysis in cases concerning alleged allied offenses of similar import and found that a defendant’s substantial rights are violated by conviction for two felonies rather than one when the offenses are аllied offenses of similar import and committed with a single animus.”
{¶ 10} The Supreme Court of Ohio affirmed our holding in Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, at ¶25, and held:
{¶ 12} “{¶ 23}
{¶ 13} “{¶ 28} The State asserts that, even if this Court finds that the sentences are erroneous, the error does not amount to plain error and we should uphold the convictions. We disagree. We have held that the failure to merge allied offenses of similar import constitutes plain error, even when the defendant received concurrent sentences. State v. Coffey, Miami App. No.2006 CA 6, 2007-Ohio-2; State v. Winn, 173 Ohio App.3d 202, 2007-Ohio-4327, 877 N.E.2d 1020, at ¶ 26.”
{¶ 14} Finally, in State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶42, the Ohio Supreme Court indicated that the proper disposition of matters involving allied offenses of similar import committed with a single animus is to merge the crimes into а single conviction.
{¶ 15} The charges of felonious assault in violation of
{¶ 16} Defendant’s assignment of error is sustained. Defendant’s convictions and sentencеs will be reversed and the matter remanded to the trial court to merge the multiple convictions as to each victim into a single conviction, and to resentence Defendant accordingly. The guilty verdicts on whiсh the merged convictions are based remain undisturbed by our mandate.
BROGAN, J. And DINKELACKER, J. concur.
(Hon. Patrick T. Dinkelacker, First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Michele D. Phipps, Esq.
Kristopher A. Haines, Esq.
Hon. A.J. Wagner