State v. Anderson

[Cite as State v. Anderson, 2012-Ohio-3347.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-110029
TRIAL NO. B-1001973-A
Plaintiff-Appellee, :

vs. : O P I N I O N.

RAYSHAWN ANDERSON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated, and Cause
Remanded

Date of Judgment Entry on Appeal: July 27, 2012

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bruce K. Hust, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar.
 OHIO FIRST DISTRICT COURT OF APPEALS

C UNNINGHAM , Judge.

{¶1} Defendant-appellant Rayshawn Anderson appeals the sentences

imposed by the trial court after Anderson had entered guilty pleas to aggravated

robbery, with an accompanying firearm specification, and kidnapping. Along with Alec

Cooper and Robert Jackson, Anderson had robbed the Fifth Third Bank on Erie Avenue

in Cincinnati. Cooper had wielded a gun while Anderson and Jackson jumped the bank

counters and collected cash. Ten persons were in the bank at the time of the robbery.

{¶2} Anderson has raised two assignments of error. First, he argues that the

trial court erred in imposing separate sentences for the aggravated robbery and

kidnapping offenses because they were allied offenses of similar import committed by

the same conduct and with the same animus. Next, he argues that the trial court failed

to properly notify him of his postrelease-control obligations. Finding merit in both

assignments of error, we vacate the sentences for the aggravated robbery and

kidnapping offenses and remand this case to the trial court for resentencing on only one

of those offenses. We sustained similar assignments of error in an earlier appeal by

Anderson’s gun-wielding co-defendant. See State v. Cooper, 1st Dist. Nos. C-110027 and

C-110028, 2012-Ohio-555, appeal not accepted, __ Ohio St.3d __, 2012-Ohio-__, __

N.E.2d __, (leave to appeal denied, and appeal dismissed “as not involving any

substantial constitutional question,” by Entry, Case No. 2012-0554 (June 20, 2012).

Anderson’s Guilty Pleas and Sentences

{¶3} The record reflects that Anderson was indicted for a single count of

aggravated robbery, a single count of robbery, ten counts of kidnapping, and a single

count of having a weapon while under the disability of a prior juvenile adjudication. All

the counts, except the robbery and the weapons offense, were accompanied by firearm

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specifications. None of the counts alleged that Anderson had taken any property

belonging to the bank’s employees or patrons.

{¶4} The state filed a bill of particulars for co-defendants Anderson and

Cooper that provided:

On or about February 17, 2010, at approximately 0944

hours, in the vicinity of Fifth Third Bank, at 2632 Erie Ave.,

Robert Jackson and Rayshawn Anderson and Alec Cooper

entered the bank. While the co-Defendants removed US

currency from the registers, the Defendant was holding the

victims; [sic] Artina Williams, Lillie Smith, Christie Miller,

David Recker, Frank Winster, Amanda Henry, David Fender,

Gina Hafner, Douglas Barnaclo, and Justin Bendi at gunpoint.

The Defendants fled the bank to a stolen vehicle. The

Defendant has a prior Domestic Violence conviction in the

Hamilton County, Ohio Juvenile Court, which precludes

defendant from possessing a firearm.

The indictment is hereby incorporated into this Bill of

Particulars.

{¶5} Following a plea hearing, Anderson withdrew his not guilty pleas and

pled guilty to aggravated robbery, an accompanying firearm specification, and one count

of kidnapping bank employee Douglas Barnaclo. In exchange for his guilty pleas, the

state dismissed the remaining charges and firearm specifications.

{¶6} At Anderson’s plea hearing, the assistant prosecuting attorney read the

following facts into the record:

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[T]his is the indictment to the codefendant to [Cooper’s]

case that pled last week. Basically, in addition to the

indictment, it took place at 2632 Erie Avenue, which is in the

City of Cincinnati, Hamilton County, Ohio. It’s a Fifth Third

Bank, around 9:45 in the morning. There were three robbers.

Mr. Anderson, Mr. Cooper and then a Mr. Jackson. Mr. Cooper

pled on, I believe, the 8th last week; and Jackson is assigned to

another courtroom. The three of them went in. One of them

had a gun. Two people went over the counter. Customers and

managers were terrorized.

One of the individuals was counting down the seconds.

It was a very well planned robbery. They got in a waiting car,

however, what happened as you remember, Judge, the dye

pack exploded, it released like a tear gas type of substance. Mr.

Anderson, I think in his confession, said that was choking him.

Everything had to be thrown out of the car. They tried to

escape on foot and [were] caught a short time later.

{¶7} At Anderson’s sentencing hearing, conducted before the effective date of

Am.Sub.H.B. 86, the trial court stated that it had read the victim-impact statements, the

arresting officer’s statement, and the presentence investigation report. The court

recounted the substantial emotional impact the bank robbery had on several of the

victims. The trial court did not mention Barnaclo’s victim-impact statement. After

listening to statements from Anderson’s relatives and receiving the arguments of the

state and of Anderson’s counsel, the court addressed Anderson directly.

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{¶8} The trial court once again explained to Anderson the maximum

sentences that could be imposed for the two offenses and the single firearm

specification. The trial court informed Anderson that the state had requested near-

maximum, consecutive sentences of incarceration totaling approximately 20 years.

Anderson’s trial counsel had asked the court to impose a sentence of less than 10 years.

{¶9} The trial court then explained to Anderson:

Here are the things that I give credit for in regards to the

plea. So number one, you pled to this and cooperated with the

police. So therefore, I’m not going to touch the maximum.

And number two, of course, you made a full confession.

Number three, that my understanding is that you didn’t

handle [the gun]. Please correct me, Mr. Anderson. You’re the

individual * * * who jumped the counter and grabbed the

money, am I correct, or am I wrong?

{¶10} Anderson answered, “You’re right, ma’am.”

{¶11} The trial court then noted that Anderson had not participated in

Cooper’s earlier robbery of a Cincinnati credit union. See Cooper, 1st Dist. Nos. C-

110027 and C-110028, 2012-Ohio-555, at ¶ 3. After verifying that Anderson had already

been incarcerated for ten months, the trial court stated, “I’m giving you also credit for

your age and no prior adult record.” Anderson had turned 18 years old just before the

sentencing hearing.

{¶12} The trial court then sentenced Anderson to a non-maximum six-year

prison term for the aggravated-robbery offense. It imposed a three-year term for the

firearm specification which, by operation of law, was to be served consecutive to the six-

year term. The court then imposed another six-year prison term for the kidnapping of

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Barnaclo. But it ordered this term to be served concurrently with the term imposed for

aggravated robbery. Thus, the aggregate prison term was nine years.

Allied-Offenses Analysis

{¶13} In his first assignment of error, Anderson argues that his convictions

for aggravated robbery and kidnapping were allied offenses of similar import subject

to merger, committed neither separately nor with a separate animus as to each.

Therefore, he contends, the trial court violated the protections of R.C. 2941.25,

Ohio’s multiple-count statute, by convicting him of both offenses. We agree.

{¶14} We note that Anderson has waived all but plain error by failing to

raise any objection to the imposition of multiple punishments at the sentencing

hearing. See State v. Fields, 97 Ohio App.3d 337, 344, 646 N.E.2d 866 (1st

Dist.1994); see also State v. Drummond, 1st Dist. No. C-110011, 2011-Ohio-5915, ¶ 4.

But the Ohio Supreme Court held recently that a “sentence that contains an allied-

offenses error is contrary to law” under R.C. 2953.08(A)(4). State v. Wilson, 129

Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 14, citing State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26. Thus the imposition of

multiple punishments for allied offenses of similar import is reviewable under plain

error even if a defendant has entered into a plea bargain and even if the sentence was

an agreed sentence under R.C. 2953.08(D). See Underwood at ¶ 31-33; see also

State v. Warner, 1st Dist. No. C-110198, 2012-Ohio-716, ¶ 3; State v. Lewis, 12th

Dist. No. CA2008-10-045, 2012-Ohio-885, ¶ 15; State v. Flagg, 8th Dist. Nos. 93248

and 93279, 2010-Ohio-4247, ¶ 46. Thus Anderson’s plea to multiple counts does not

affect the General Assembly’s requirement that the trial court merge allied offenses

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at sentencing, and does not bar appellate review of the sentence. See R.C. 2941.25;

see also Underwood at ¶ 26.

{¶15} Under R.C. 2941.25, Ohio’s multiple-count statute, a trial court, in a

single proceeding, may convict a defendant for two or more offenses having as their

genesis the same criminal conduct or transaction, if the offenses (1) were not allied

offenses of similar import, (2) were committed separately, or (3) were committed

with a separate animus as to each offense. See State v. Bickerstaff, 10 Ohio St.3d 62,

65-66, 461 N.E.2d 892 (1984); see also State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061, ¶ 51. Unless committed separately or with a separate

animus, allied offenses must be merged for purposes of sentencing following the

state’s election of which offense should survive. See State v. Whitfield, 124 Ohio

St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph two of the syllabus.

{¶16} The Ohio Supreme Court has “consistently recognized that the purpose

of R.C. 2941.25 is to prevent shotgun convictions, that is, multiple * * * punishments

heaped on a defendant for closely related offenses arising from the same occurrence.

* * * When ‘in substance and effect but one offense has been committed,’ the

defendant may be convicted of only one offense.” Johnson at ¶ 43, citing Maumee v.

Geiger, 45 Ohio St.2d 238, 242, 344 N.E.2d 133 (1976), and quoting State v. Botta,

27 Ohio St.2d 196, 203, 271 N.E.2d 776 (1971); see also 1973 Legislative Service

Commission comments to 1972 Am.Sub.H.B. No. 511 (enacting, inter alia, R.C.

2941.25 and R.C. 2905.01, the kidnapping statute).

{¶17} In deciding whether to afford a defendant the protections of the

multiple-count statute, “the intent of the General Assembly is controlling.” Johnson at ¶

46. “The General Assembly has the power to define criminal offenses in any manner it

chooses, so long as it does not violate pertinent constitutional provisions.” State v.

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Logan, 60 Ohio St.2d 126, 134-135, 397 N.E.2d 1345 (1979); see Ohio v. Johnson, 467

U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (because the substantive power to

prescribe crimes and determine punishments is vested with the legislature, the question

under the Double Jeopardy Clause whether punishments are “multiple” under R.C.

2941.25 is essentially one of legislative intent); but see Dept. of Revenue of Montana v.

Kurth Ranch, 511 U.S. 767, 800, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (Scalia, J.,

dissenting) (any restriction on “multiple punishments * * * derives exclusively from

the due process requirement of legislative authorization”).

{¶18} While R.C. 2941.25 has never been amended, commentators, and the

supreme court itself, have acknowledged that the test used to determine whether two

allied offenses are subject to merger has expanded and contracted in “accordion-like”

fashion over the 38 years since enactment of the multiple-counts statute. Parson,

Punish Once, Punish Twice: Ohio’s Inconsistent Interpretation of Its Multiple Counts

Statute, 36 Cap.U.L.Rev. 809, 823 (2008); see also Johnson at ¶ 10-40. In late 2010,

the Ohio Supreme Court abandoned its prior abstract-elements-only test for

determining when two allied offenses are subject to merger. See Johnson, syllabus.

{¶19} Under Johnson, courts now determine the General Assembly’s intent

to provide or restrict multiple punishments for a single course of conduct “by

applying R.C. 2941.25, which expressly instructs courts to consider the offenses at

issue in light of the defendant’s conduct.” Id.; compare State v. Stall, 3d Dist. No. 3-

10-12, 2011 Ohio 5733, ¶ 15 (the determination of the General Assembly’s intent in

allied-offense cases is a question of law that is reviewed de novo), with State v.

Williams, 8th Dist. No. 94616, 2011-Ohio-925, discretionary appeal accepted, 129 Ohio

St.3d 1474, 2011-Ohio-4751, 953 N.E.2d 841 (oral argument heard in supreme court, on

March 21, 2012, on state’s appeal arguing that a trial court’s determination not to afford

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the protections of the multiple-count statute should be affirmed unless it exhibits an

abuse of discretion).

{¶20} In Johnson, the Ohio Supreme Court abandoned the prior abstract-

elements-only test and held that “when determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the

accused must be considered.” Johnson at syllabus. Although the justices could not

reach a majority opinion with regard to the analysis that courts should use in

determining whether two allied offenses are subject to merger under R.C.

2941.25(A), they uniformly agreed that the conduct of the accused must be

considered. See id.; see also id. at ¶ 47-52 (Brown, C.J.); id. at ¶ 59-71 (O’Connor,

J.); id. at ¶ 72-83 (O’Donnell, J.). Therefore, we look to the evidence adduced below,

and if that evidence reveals that the state relied upon the “same conduct” to prove

the two offenses, and that the offenses were committed neither separately nor with a

separate animus as to each, then the defendant is afforded the protections of R.C.

2941.25, and the trial court errs by imposing separate sentences for the offenses.

R.C. 2941.25(A); see also R.C. 2941.25(B); Johnson at ¶ 56.

{¶21} To consider Anderson’s conduct in its proper context, we must

identify the conduct proscribed by the statutory sections to which Anderson had pled

guilty. Anderson entered a plea to aggravated robbery under R.C. 2911.01(A)(1), which

provides that “[n]o person, in attempting or committing a theft offense * * * or in fleeing

immediately after the attempt or offense, shall * * * have a deadly weapon on or about

the offender’s person or under the offender’s control and either display the weapon,

brandish it, indicate that the offender possesses it, or use it.” He also pleaded guilty to

kidnapping, under R.C. 2905.01(A)(2), which provides that “[n]o person, by force,

threat, or deception * * * shall remove another from the place where the other person is

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found or restrain the liberty of the other person * * * to facilitate the commission of any

felony or flight thereafter.”

{¶22} In State v. Chaffer, an earlier bank-robbery, multiple-count case

resolved in the trial court by the entry of guilty pleas, we relied upon the facts as set forth

in the indictment, bill of particulars, and plea-hearing materials, including a recitation of

the facts surrounding the offenses, to determine the defendant’s conduct. See 1st Dist.

No. C-090602, 2010-Ohio-4471, ¶ 13; see also Cooper, 1st Dist. Nos. C-110027 and C-

110028, 2012-Ohio-555, at ¶ 15; compare State v. Wesseling, 1st Dist. No. C-110193,

2011-Ohio-5882, ¶ 6 (no plain error found where there was no recitation of the facts

beyond the reading of the indictment). We do the same here. Those facts demonstrate

that the aggravated-robbery and kidnapping offenses were based upon Anderson’s

actions in jumping over the counter and taking the bank’s money, while Cooper

brandished a handgun to move Barnaclo and the others to a common area in the bank.

Co-defendant Cooper’s conduct in moving and restraining Barnaclo with a handgun so

that all the defendants could take the bank’s money satisfies the elements of both the

aggravated-robbery and the kidnapping offenses. Because the state relied upon the

same conduct to demonstrate both offenses, the aggravated robbery and kidnapping

were allied offenses not committed separately. See Johnson at ¶ 49 and 51; see also

Bickerstaff, 10 Ohio St.3d at 65-66, 461 N.E.2d 892; Cooper at ¶ 15.

{¶23} Having determined that in this case aggravated robbery and kidnapping

were allied offenses of similar import, our analysis moves to a further review of

Anderson’s conduct to consider, pursuant to R.C. 2941.25(B), whether the offenses were

committed separately or with a single animus.

{¶24} These offenses were not committed separately. The record does not

reflect a temporal or spatial separateness in the offenses. See State v. Jackson, 1st Dist.

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No. C-090414, 2010-Ohio-4312, ¶ 26. The robbery lasted about 90 seconds, and Cooper

held the bank employees and patrons at gunpoint for approximately 45 seconds. The

perpetrators fled immediately after obtaining the bank’s property. The kidnapping and

the bank robbery clearly involved one sustained, continuous act under R.C. 2941.25(B).

{¶25} As the Ohio Supreme Court has noted, the commission of aggravated

robbery necessarily entails the restraint of the victim. See State v. Jenkins, 15 Ohio

St.3d 164, 198, 473 N.E.2d 264 (1984), fn. 29 (“kidnapping is implicit within every

aggravated robbery”); see also Logan, 60 Ohio St.2d at 130, 397 N.E.2d 1345. In

addition, the court has provided guidelines for determining whether the restraint or

movement of the victim is “penologically significant” apart from the aggravated

robbery. Logan at 135.

{¶26} Where “the restraint is prolonged, the confinement is secretive, or the

movement is so substantial as to demonstrate a significance independent of the

robbery, there exists a separate animus, a separate ‘immediate motive,’ to support

the kidnapping conviction.” Chaffer, 1st Dist. No. C-090602, 2010-Ohio-4471, at ¶ 11,

quoting Logan at syllabus. And “where the asportation or restraint exposes the

victims to a substantial increase in the risk of harm separate and apart from the

underlying crime of robbery, a separate animus [also] exists for kidnapping.” Id.

{¶27} For example, if, instead of pointing his gun at a person inside a bank, a

perpetrator purposely kills a victim, the trial court could impose multiple punishments.

The perpetrator’s conduct would demonstrate a separate immediate purpose to kill

while committing the aggravated robbery. See State v. Tibbs, 1st Dist. No. C-100378,

2011-Ohio-6716, ¶ 48-49 (shooting a victim in the face and head from close range

during an aggravated robbery demonstrated a specific intent to kill). Since the

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aggravated felony murder would have been committed with a separate animus from

that of the robbery, it could be separately punished under R.C. 2941.25(B). Id.

{¶28} State v. Chaffer provides another example. There, a bank robber

substantially increased the risk of harm to his victims, separate and apart from that

involved in the robbery, by moving them at gunpoint from the parking lot into the

bank building, forcing them to lie on the floor where passersby could not see them,

and then moving them to the bank vault. Consistent with the General Assembly’s

intent, multiple punishments were permitted. See Chaffer at ¶ 15-16.

{¶29} In Logan, the supreme court identified the critical consideration: Was

the restraint or movement of the victim merely incidental to a separate underlying

crime, or did it have a significance independent of the other offense? See Logan, 60

Ohio St.2d at 135, 397 N.E.2d 1345. If the kidnapping was merely incidental, then the

legislative intent is to require merger. This inquiry remains the central question

under the Johnson conduct-focused analysis. State v. Howard, 1st Dist. No. C-

100240, 2011-Ohio-2862, ¶ 57 (“In State v. Logan, the Ohio Supreme Court

established guidelines to determine whether the offense of kidnapping and a

separate offense were committed with the same animus.”); see also State v. Stall, 3d

Dist. No. 3-10-12, 2011-Ohio-5733, ¶ 21; State v. Helms, 7th Dist. No. 08MA 199,

2012-Ohio-1147; State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833, ¶ 13; State v.

Rivera, 10th Dist. No. 10AP-945, 2012-Ohio-1915; State v. Simmonds, 12th Dist. No.

CA2011-05-038, 2012-Ohio-1479.

{¶30} Here, the state argues in its brief that the kidnapping of Barnaclo was

committed with an animus separate from that of the aggravated robbery because

Anderson and his co-defendants terrorized Barnaclo and the others in the bank. We

note that the state did not indict Anderson for kidnapping under R.C. 2905.01(A)(3),

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which provides that “[n]o person by force, threat, or deception * * * shall remove

another from the place where the other person is found or restrain the liberty of the

other person to terrorize, or to inflict serious physical harm on the other victim or

another.” (Emphasis added.) As we held in Cooper, we agree that “while we do not

mean to minimize the devastating impact of the aggravated robbery upon Barnaclo or

the other Fifth Third Bank employees and customers,” the “psychological impact of an

offense upon a victim” is not dispositive of whether the perpetrator of that offense acted

with a separate animus. Cooper, 1st Dist. Nos. C-110027 and C-110028, 2012-Ohio-555,

at ¶ 17.

{¶31} In his victim-impact statement, Barnaclo did not mention being moved

from his office but recalled that “when the robbers entered the bank, he was in his office

and at one point, one of the suspects pointed the gun at him.” As we noted in Cooper,

Barnaclo was detained for only a brief period, he was moved only a short distance to

the common area of the bank, and he was released immediately following the

commission of the aggravated robbery. See id. at ¶ 22. Moreover, the record does

not reveal any substantial increase in the risk of harm to Barnaclo separate from that

involved in the commission of the aggravated robbery. See id. at ¶ 23. It is beyond

cavil that the bank robbery was the immediate motive for the kidnapping.

Kidnapping the bank employees was merely incidental to the robbery. As the

indictment stated, the kidnapping was committed "for the purpose of facilitating the

commission" of the aggravated robbery.

{¶32} After reviewing the record, we are persuaded that Anderson’s conduct

was “a single act, committed with a single state of mind.” Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 49, citing State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). His conduct, and

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that of his co-defendants, constituting the kidnapping was incidental to and in

furtherance of the aggravated robbery of the bank and did not subject Barnaclo to a

substantial increase in the risk of harm from that involved in the aggravated robbery.

{¶33} Therefore, we hold that Anderson did not commit the kidnapping with

an animus separate from his immediate purpose of robbing the bank. The trial court

should have afforded Anderson the protection of R.C. 2941.25. See Cooper, 1st Dist.

Nos. C-110027 and C-110028, 2012-Ohio-555, at ¶ 24.

A Bright-Line Rule for Multiple-Victim Cases?

{¶34} We acknowledge the well-recognized rule, consistent with our

interpretation of R.C. 2941.25(B) and Logan, that “when two allied offenses are

committed * * * against different victims, the offender may be sentenced for two crimes.”

State v. Fields, 97 Ohio App.3d 337, 346, 646 N.E.2d 866 (1st Dist.1994). But this

analysis is ordinarily applied when there is more than one victim of the same crime. See,

e.g., State v. Skaggs, 2d Dist. No. 10-CA-26, 2010-Ohio-5390, ¶ 7 (five separate

convictions and sentences permitted because Skaggs’ driving killed three people and

seriously injured two others); see also State v. Murray, 156 Ohio App.3d 219, 2004-

Ohio-654, 805 N.E.2d 156, ¶ 24 (1st Dist.).

{¶35} In State v. Fields, for example, this court permitted multiple

punishments where the perpetrators not only committed aggravated robbery by seizing

the cash register receipts of a Burger King restaurant at gunpoint, but also robbed the

assistant manager of her purse and her prescription medication. Fields at 343 and 347.

{¶36} In State v. Sidibeh, the Tenth Appellate District permitted multiple

punishments on two aggravated-robbery convictions where the defendant had

committed separate theft offenses against two victims, Paris and Raheem. 192 Ohio

App.3d 256, 2011-Ohio-712, 948 N.E.2d 995, ¶ 61 (10th Dist.). But it did not permit

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multiple punishments for aggravated robbery and kidnapping where the kidnapping

of each victim had been incidental to the aggravated robbery of that victim. Id.

{¶37} To extend this analysis to every multiple-victim/multiple-crimes case

would be to adopt a bright-line rule that allied offenses affecting separate victims,

regardless of the defendant’s conduct, are not subject to merger and can always be

punished separately. This bright-line rule would run afoul of supreme court case law

and of the very text of R.C. 2941.25, which “itself instructs us to look at the defendant’s

conduct when evaluating whether his offenses are allied.” Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 42. In Johnson, the court cautioned against tests

that “instruct us to jump immediately” to conclusions based upon solely abstract or

formulaic assumptions. Id. It acknowledged that “this analysis may be sometimes

difficult to perform and may result in varying results for the same set of offenses in

different cases. But different results are permissible, given that the statute instructs

courts to examine a defendant’s conduct—an inherently subjective determination.”

Id. at ¶ 52. As one appellate court has noted, “Johnson ushered in a new era where

trial courts are always required to delve into the factual underpinnings of the case in

order to resolve [this] issue, akin to the factual inquiries required under State v. Logan *

* *.” State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833, ¶ 13. We do not believe the

General Assembly or the supreme court intended our conduct-based inquiry to begin

and end by counting the number of victims.

{¶38} In cases where a defendant is found guilty of kidnapping coupled with a

rape, aggravated robbery, or robbery offense, the bright-line rule would eviscerate the

merely-incidental-or-independent-significance inquiry established by Logan and

applied effectively by the courts of appeals both before and after Johnson. E.g., State

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v. Stall, 3d Dist. No. 3-10-12, 2011 Ohio 5733, ¶ 21; see also State v. Helms, 7th Dist.

No. 08MA 199, 2012-Ohio-1147, ¶ 44.

{¶39} Finally, neither the state nor Anderson has raised or has had the

opportunity to rebut the multiple-victim/multiple-crimes theory in this appeal. The

issue was not raised in Cooper’s appeal to this court. But the issue of whether to

adopt the bright-line rule was raised by the state in its memorandum seeking

supreme court review of our decision in State v. Cooper. The state argued in favor of

“a bright-line rule” that “separate convictions and sentences are permitted when a

defendant’s conduct results in multiple victims.” State v. Cooper, State’s

Memorandum in Support of Jurisdiction, Supreme Court Case No. 2012-0554 (Apr.

2, 2012), 4.

{¶40} The supreme court has recently declined to accept review of Cooper,

and has dismissed the state’s appeal “as not involving any substantial constitutional

question.” State v. Cooper, Entry, Supreme Court Case No. 2012-0554 (June 20, 2012).

We note that the refusal of the Ohio Supreme Court to accept any case for review is

not a statement of its opinion as to the merits of the law stated by the court below.

See State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 25. But

until our supreme court decides this issue on the merits and determines that the

Logan analysis is to be rejected, or that the narrow, formulaic construction of R.C.

2941.25 is to be adopted, we believe that the better course is to adhere to our

precedent.

Concurrent Sentences Not Harmless

{¶41} The record here reflects that Anderson stands convicted of both

aggravated robbery and kidnapping. See Crim.R. 32(C). Even when the sentences

imposed for allied offenses are ordered to be served concurrently, a defendant is

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prejudiced by having more convictions than are authorized by law. See State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. The trial

court’s “imposition of concurrent sentences is not the equivalent of merging allied

offenses” and is not harmless. State v. Damron, 129 Ohio St.3d, 2011-Ohio-2268,

950 N.E.2d 512, ¶ 17; see also State v. Gilmore, 1st Dist. Nos. C-070521 and C-

070522, 2008-Ohio-3475, ¶ 16-17.

{¶42} The trial court should have afforded Anderson the protection of the

multiple-count statute because, here, aggravated robbery and kidnapping were allied

offenses of similar import subject to merger, committed in a single course of conduct

with a single animus under R.C. 2941.25. Accordingly, the trial court committed plain

error in sentencing him for both offenses. We, therefore, sustain his first assignment of

error.

Failure to Notify of Postrelease Control

{¶43} In his second assignment of error, Anderson argues that his sentences

are contrary to law because the trial court failed to notify him of the imposition of

postrelease control at the sentencing hearing. We agree.

{¶44} Our review of the record reveals that the trial court failed to notify

Anderson at his sentencing hearing that he would be subject to a mandatory period of

postrelease supervision following his release from prison, and that the parole board

could impose additional prison time if he violated the conditions of that supervision.

See R.C. 2929.19(B)(2)(c) and 2967.28(B); see also State v. Williams, 1st Dist. No. C-

081148, 2010-Ohio-1879, ¶ 20. Because a trial court has a statutory duty to provide

postrelease-control notification at the sentencing hearing, that part of the sentence

imposed without it is contrary to law, even if notice was contained in the sentencing

entry. See State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23;

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see also State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26;

State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ___ N.E.2d ___, ¶ 21.

{¶45} Anderson was sentenced after July 11, 2006, the effective date of R.C.

2929.191. Thus we would ordinarily remedy this defect by ordering the trial court to

notify Anderson of his postrelease-control obligations in accordance with R.C. 2929.191.

See State v. Fuller, 124 Ohio St.3d 543, 2010-Ohio-726, 925 N.E.2d 123, ¶ 1; see also

State v. Brown, 1st Dist. Nos. C-100390 and C-100310, 2011-Ohio-1029, ¶ 8-9, citing

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. But our

resolution of the first assignment of error requires the trial court to conduct a new

sentencing proceeding before imposing a prison term on only one of the offenses. Thus

the remedy Anderson seeks for the postrelease-control error—to receive the statutorily

mandated warnings—is subsumed in the mandated allied-offenses resentencing. See

App.R. 12(A)(1)(c).

{¶46} Having found merit in the first assignment of error, we vacate the

sentences imposed for aggravated robbery and kidnapping. We remand this case to the

trial court for resentencing on only one of those offenses. See State v. Whitfield, 124

Ohio St.3d, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus.

We affirm the trial court’s judgment in all other respects.

Judgment accordingly.
SUNDERMANN, J., concurs.
D INKELACKER , P.J., concurs in part and dissents in part.

D INKELACKER , P.J., concurring in part and dissenting in part.

{¶47} Because I would not reverse on appellant’s first assignment of error, I

must dissent.

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No Plain Error on Limited Record

{¶48} Anderson knowingly and voluntarily bargained with the state to plead

guilty to two separate offenses. He waived his right to further recitation of facts that may

have supported an allied-offense argument. He did not raise this argument with the trial

court, and he did not object to the imposition of separate sentences. As a result, the

record before us is limited with respect to the facts supporting the offenses.

Nonetheless, the majority declares that the two charges were allied offenses of similar

import. By doing so, the majority has taken this record and declared that such a

determination was an obvious mistake and amounted to plain error.

{¶49} As the majority notes, the determination of whether two offenses are

allied such that Ohio law requires that a trial court merge them for sentencing is an

analysis driven by considering the conduct of the defendant. In State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44, the Ohio Supreme Court held

that “[w]hen determining whether two offenses are allied offenses of similar import

subject to merger under R.C. 2941.25, the conduct of the accused must be considered.”

The court went on to note that “[i]f 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.’ ” Id. at ¶ 49. This

is the “separate animus” aspect of the test.

{¶50} For some cases, the analysis is relatively straight forward. In the case of

a defendant who is found guilty of trafficking and possessing the same controlled

substance, for example, little is required of the record to establish that the two charges

involve the same substance. It can be established by the indictment alone, or in

conjunction with a bill of particulars.

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{¶51} Other situations require a more detailed factual record in order to

conduct the analysis. The classic example of such a situation is a defendant found guilty

of kidnapping and another offense like rape, felonious assault, or, as in this case,

aggravated robbery. In those cases, the court is called upon to review the details of the

event—a sometimes moment-by-moment analysis—in order to make a determination.

{¶52} The burden is on Anderson to show that he is entitled to merger

pursuant to the allied-offense statute. State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d

870 (1987). The majority holds that the trial court made an obvious mistake by failing to

merge the two counts for sentencing, even though Anderson made no showing that the

state relied on the same conduct to support both offenses. In fact, a finding that the

conduct did not arise from the same conduct is implicit in the trial court’s decision to

sentence the two counts separately. On this record, I cannot say that this was plain

error.

{¶53} In a recent case, this court had the luxury of a developed record to

establish the facts of a bank-robbery case. State v. Chaffer, 1st Dist. No. C-090602,

2010-Ohio-4471, citing State v. Chaffer, 1st Dist. No. C-980952, 1999 Ohio App. LEXIS

3376 (July 23, 1999). This court was able to review those facts and determine

that by their actions the perpetrators subjected [the victims] to

a substantial increase in the risk of harm apart from that

involved in the robbery. They moved [the victims], at gunpoint,

from the parking lot into the bank building, and they forced [a

victim] to lie on the floor where passersby could not see her.

And to aid their escape, they moved the two to the bank vault

and ordered them to remain there, significantly increasing the

risk of harm to the victims.

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{¶54} Id. at ¶ 15. This court concluded that there existed a separate animus for

each offense sufficient to support separate convictions for kidnapping and aggravated

robbery. Id. at ¶ 16.

{¶55} That kind of record does not exist in this case. The majority properly

notes that Anderson failed to object or otherwise place the allied-offense issue squarely

before the trial court, thereby depriving the trial court of a chance to put its reasoning on

the record. The majority agrees that, in such an instance, we use a plain-error standard

of review. Under a plain-error analysis, this court looks at whether the trial court’s

decision to sentence two counts separately was so obviously a mistake that it did not

matter whether the defense counsel had complained below. The Ohio Supreme Court

has admonished us to take notice of plain error only with the utmost caution, only under

exceptional circumstances, and only to prevent a manifest miscarriage of justice. State

v. Adamson, 72 Ohio St.3d 431, 434, 650 N.E.2d 875 (1995), citing State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶56} Anderson has not established that the trial court made a mistake, let

alone an obvious one. When he entered his guilty pleas, Anderson waived further

reading of the facts supporting the convictions. By doing so, and in failing to object at

that time to the separate sentences, Anderson failed to create and preserve a record that

would have allowed him to meet his burden to establish that he was entitled to the

benefit of the allied-offense statute.

{¶57} This court recently declined to find plain error on a record similarly

underdeveloped. State v. Wesseling, 1st Dist. No. C-110193, 2011-Ohio-5882. In that

case, the defendant entered a guilty plea to felonious assault and aggravated burglary.

The record indicated that the defendant had entered the residence through the garage,

opened the door of the victim’s bedroom, and fired multiple shots at the victim while he

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was in the bed. This court concluded that “[b]ased on the limited evidence in the record,

however, we cannot conclude that the trial court committed plain error in sentencing

Wesseling on both aggravated-burglary and felonious-assault charges.” Id. at ¶ 16.

Having so concluded, we overruled the assignment of error and affirmed the separate

convictions.

{¶58} In effect, our ruling places the burden on the sentencing judge to actively

engage in a factual inquiry of the parties to determine whether two offenses are allied.

And it would seem that this would be the case any time a criminal defendant decides to

enter a guilty plea to two offenses—no matter how advantageous that plea agreement

may be to him at the time. Such an inquisitorial burden will have a chilling effect on

plea agreements, which are a necessary part of our justice system.

{¶59} But we need not reach that result here, and our recent jurisprudence

establishes this. As in Wesseling, the record in this case is underdeveloped due to the

fact that the convictions below were the result of pleas in which the issue of allied-

offenses was neither raised nor developed. Since Anderson has failed to establish, on

this record, that he was entitled to the benefits of the allied-offense statute, I would

overrule the first assignment of error.

Separate Victims

{¶60} Though the record in this case does not, in my view, contain enough

facts for the majority to undertake its analysis, I would further find that the two offenses

were not allied because the counts at issue pertain to two separate victims.

{¶61} Courts in Ohio, both before State v. Rance , 85 Ohio St.3d 632, 1999

Ohio 291, 710 N.E.2d 699 (1999), and after Johnson, have held that when the same

course of conduct results in multiple victims, there is a separate animus for each offense.

The Second Appellate District recently noted that “separate convictions and sentences

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are permitted when a defendant's conduct results in multiple victims.” State v. Young,

2d Dist. No. 23642, 2011-Ohio-747, ¶ 39 (citations omitted).

{¶62} The Sixth Appellate District has held that when a driver strikes two

cyclists at the same time, two separate crimes occur. State v. O’Neill, 6th Dist. No. WD-

10-029, 2011-Ohio-5688, ¶ 34. Likewise, the court found a separate animus in State v.

Hakim, 6th Dist. No. L-10-1153, 2011-Ohio-5525. In that case, three women in an

apartment were robbed at gunpoint. The defendant was convicted of three counts of

aggravated robbery and one count of aggravated burglary. The court concluded that the

robberies were committed against three separate victims and, thus, were three separate

criminal acts. Id. at ¶ 44, citing State v. Smith, 8th Dist. No. 95243, 2011-Ohio-3051,

¶ 79.

{¶63} The Eighth Appellate District has held that “felonious assault and

aggravated robbery convictions that name different victims do not merge because they

involved * * * distinct victims.” State v. Craig, 8th Dist. No. 94455, 2011-Ohio-206, ¶ 70

(citations omitted). In another case from the Eighth District, the court addressed a case

involving robbery during a poker game. State v. Smith, 8th Dist. No. 95243, 2011-Ohio-

3051. In that case, the defendant was convicted of multiple offenses relating to each

victim, including aggravated burglary, aggravated robbery, kidnapping, theft, having

weapons while under disability, and various specifications. The court held that, because

defendant's robbery convictions represented offenses that he had separately committed

against multiple victims, they were not allied offenses of similar import. Id. at ¶ 79.

{¶64} One of the more telling cases decided after Johnson was decided by the

Tenth Appellate District. State v. Sidibeh, 192 Ohio App.3d 256, 2011-Ohio-712, 948

N.E.2d 995 (10th Dist.). In that case, Sidibeh was indicted on one count of aggravated

burglary, four counts of aggravated robbery, four counts of kidnapping, and eight counts

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of robbery. The charges stemmed from Sidibeh’s participation in an invasion of a home

with two victims. The court reasoned that the convictions for kidnapping and

aggravated robbery should have been merged, but only as to each victim. Id. at ¶ 61.

The court reasoned that

the kidnapping against Raheem and Paris was merely

incidental to, and stemmed from the same conduct as, the

aggravated robbery. Consequently, the trial court committed

plain error by failing to merge (1) the kidnapping offense

pertaining to Paris with the aggravated robbery offense

pertaining to that victim and (2) the kidnapping offense

pertaining to Raheem with the aggravated robbery offense

pertaining to that victim.

Id. Of significance, the court did not merge all of the counts into one conviction,

allowing a conviction for each victim to stand—even though it was the same conduct that

resulted in the commission of both offenses.

{¶65} The line of cases runs just as strongly before Rance as it does after

Johnson. The Twelfth Appellate District held that when a defendant committed the

same offense against different victims during the same course of conduct, a separate

animus existed for each offense. State v. Gregory, 90 Ohio App.3d 124, 129, 628 N.E.2d

86 (12th Dist.1993).

{¶66} In an interesting case decided before Rance, the Fifth Appellate District

dealt with the issue of aggravated arson and involuntary manslaughter. State v. Willey,

5 Ohio App.3d 86, 449 N.E.2d 471 (5th Dist. 1981). In that case, the court held that

“[c]ausing physical harm to an occupied structure by means of a fire, aggravated arson,

and causing the deaths of victims located within the structure, involuntary

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manslaughter, are offenses of dissimilar import.” Id. In another case decided before

Rance, the Ohio Supreme Court considered a case in which a defendant robbed both a

store and the attendant. State v. Byrd, 32 Ohio St.3d 79, 512 N.E.2d 611 (1987). The

court concluded that “[t]he robbery of the [store] was a separate act from the robbery of

[the employee]. Each act required a separate animus. [The defendant] took cash from

the store's cash register. He also took [the employee’s] watch, ring and wallet. These

were separate crimes independent of each other.” Id. at 85.

{¶67} This court has also long held that the commission of offenses against

separate victims results in a separate animus. In State v. Wright, 1st Dist. No. C-

080467, 2009-Ohio-5474, the defendant beat his victim so severely that her unborn

child died as a result. He was convicted of murder, felonious assault, and kidnapping.

This court concluded that “[a]lthough the state proceeded against Wright for offenses

arising from a single course of conduct, each offense involved a separate victim—the

felonious assault of Anderson and the murder of her unborn child. Thus, the offenses

were of dissimilar import and separate sentences were permitted.” Id. at ¶ 62, citing

State v. Jones (1985), 18 Ohio St.3d 116, 480 N.E.2d 408 (1985); see also State v.

Baldwin, 1st Dist. No. C-081237, 2009-Ohio-5348; State v. Ellison, 1st Dist. No. C-

050553, 2006-Ohio-2620; State v. Madaris, 156 Ohio App.3d 211, 805 N.E.2d 150 (1st

Dist.2004).

{¶68} In this case, Anderson was convicted of the aggravated robbery of a

corporation, Fifth Third Bank, and the kidnapping of Barnaclo. Barnaclo was not

robbed, but was instead removed from his office, taken to a common area, and held at

gunpoint while the robbery of the bank occurred.

{¶69} This situation is very similar to the felonious assault of the mother and

the murder of the unborn child in Wright, to the separate robberies of the store and

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employee in Byrd, to the arson of the building and the killing of its occupants in Willey,

and the home invasion robberies in Sidibeh. Separate victims, harmed during the same

act or course of conduct.

{¶70} The majority opines that the offenses are of similar import because the

kidnapping was committed only to facilitate the robbery. But this justification is a

slippery slope. It would have made the robbery much easier if the victim had been

killed. And even Johnson notes, quoting the Legislative Service Commission comments

to R.C. 2941.25, that “Similarly, an armed robber who holds up a bank and purposely

kills two of the victims can be charged with and convicted of one count of aggravated

robbery and of two counts of aggravated murder. Robbery and murder are dissimilar

offenses, and each murder is necessarily committed with a separate animus, though

committed at the same time.” Johnson at fn. 2[c].

{¶71} Suppose a hypothetical in which two individuals are walking down the

street and a robber emerges from an alley, produces a weapon, and orders both into the

alley. While detaining both individuals, the robber only takes property from one of the

victims. The second victim was only held at gunpoint against his will in the alley. It

would be hard to suppose that the robber had not committed one count of aggravated

robbery and one, unique count of kidnapping. Even though the second victim was

moved into the alley for the purpose of facilitating the robbery, he was the victim of a

separate kidnapping. The only difference between this hypothetical and the facts in this

case is that the victim of the robbery was a corporation, not an individual. And that is a

distinction without legal consequence.

{¶72} The question, as I see it, is where to draw the line in our post-Johnson

jurisprudence. In my opinion, the one remaining bright-line rule is that, if the crimes

involve separate victims, there is a separate animus for each offense. This is unlike the

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cases cited by the majority where the kidnapping and robbery involved the same victim.

Holding that crimes involving separate victims cannot be allied offenses is in line with

common sense, and Ohio’s jurisprudence from before Rance to after Johnson.

{¶73} Courts in Ohio have been struggling with the application of R.C. 2941.25

for years. From the era before Rance, through the Rance period, then the Rance

“modification” era of State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d

181, and now the post-Rance period of Johnson, we have attempted to adjust our

analysis of the statute as its interpretation has evolved. As Johnson noted, the strict

application of Rance could lead to results unintended by the General Assembly, Johnson

at ¶ 30, and, the evolving jurisprudence had lead us far afield from the language of the

allied-offense statute. Johnson at ¶ 41. But, as I see it, this post-Johnson period has

seen cases that now appear to overcompensate for the sins of the past by finding allied

offenses where they do not exist.

{¶74} For the foregoing reasons, I dissent from the majority’s resolution of the

first assignment of error. I would affirm the judgment of the trial court in all respects.

Please note:
The court has recorded its own entry on the date of the release of this opinion.

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