[Cite as State v. Powers, 2011-Ohio-5977.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24476
Plaintiff-Appellee :
: Trial Court Case No. 09-CR-1743
v. :
:
SEAN POWERS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 18th day of November, 2011.
...........
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LYNNE M. FLEMING, Atty. Reg. #0078520, Flanagan, Lieberman, Hoffman & Swaim, 15
West Fourth Street, Suite 100, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
KLINE, J. (sitting by assignment)
{¶ 1} Sean Powers appeals the judgment of the Montgomery County Court of
Common Pleas, which sentenced him to seventeen years in prison following our remand in
State v. Powers, Montgomery App. No. 23696, 2010-Ohio-4044 (hereinafter “Powers I”).
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Powers argues that the trial court unconstitutionally applied a firearm specification to his
conviction for unlawful discharge of a firearm. Powers also argues that the trial court erred in
failing to merge his tampering with evidence and attempted murder convictions. Because
both of Powers’ arguments are (1) beyond the scope of our remand in Powers I and (2) not
subject to review, we disagree. Accordingly, we affirm the judgment of the trial court.
I
{¶ 2} Powers brings this appeal as a result of his resentencing following our remand
in Powers I. As we noted in Powers I, Powers pled no contest prior to trial, and, therefore,
the facts in the record are not well developed. The record indicates that Powers shot an
unarmed man three times, hitting him in the head and neck, chest, and right forearm. Powers
I at ¶6. As a result of the gunshots, the victim suffered from paralysis from the neck down.
Id.
{¶ 3} Following Powers’ plea, the trial court found Powers guilty of six offenses.
Specifically, Powers was found guilty of felonious assault (two counts), attempted murder,
improper discharge of a firearm on or near prohibited premises, tampering with evidence, and
having weapons under disability. Except for the weapons under disability charge, each of the
offenses carried a firearm specification. The trial court merged the felonious assault offenses
as well as the firearm specifications. The trial court, however, did not merge the felonious
assault and attempted murder convictions. The trial court sentenced Powers to twenty-four
years in prison.
{¶ 4} Powers appealed, and, in Powers I, we sustained the sole assignment of error.
In Powers I, Powers argued that the trial court should have merged the felonious assault and
3
attempted murder offenses. We agreed and remanded the case to the trial court so that the
State could choose whether to pursue punishment for the felonious assault offense or the
attempted murder offense. The State chose to pursue punishment for attempted murder. The
trial court’s sentence following the resentencing hearing was essentially the same as the
original sentence absent the seven-year felonious assault sentence, which had merged with the
attempted murder offense. Thus, the trial court sentenced Powers to a seventeen-year prison
term.
{¶ 5} Powers appeals and asserts the following assignments of error: I. “The TRIAL
COURT ERRED IN FAILING TO DISMISS THE UNCONSTITUTIONAL FIREARM
SPECIFICATION IMPOSED ON THE DISCHARGE OF A FIREARM COUNT.” And, II.
“THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE PRISON TERM FOR
POWERS’ TAMPERING WITH EVIDENCE CONVICTION.”
II
{¶ 6} For ease of analysis, we will consider both of Powers’ assignments of error
together. In his first assignment of error, Powers argues that attaching a firearm specification
to a conviction for unlawful discharge of a firearm constitutes a Double Jeopardy violation.
In his second assignment of error, Powers argues that the trial court erred by imposing
consecutive sentences for his tampering with evidence and attempted murder convictions.
We conclude that both arguments exceed the scope of our remand in Powers I, and, therefore,
his claims are not subject to review.
{¶ 7} In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, the Supreme Court of
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Ohio analyzed the scope of (1) a trial court’s resentencing hearing following an allied-offenses
error and (2) an appeal from that resentencing decision. The Wilson court stated as follows:
“A remand for a new sentencing hearing generally anticipates a de novo sentencing hearing.
R.C. 2929.19(A). However, a number of discretionary and mandatory limitations may apply
to narrow the scope of a particular resentencing hearing. * * * In a remand based only on an
allied-offenses sentencing error, the guilty verdicts underlying a defendant’s sentences remain
the law of the case and are not subject to review. [State v.] Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2[,] at ¶26-27. Further, only the sentences for the offenses that were affected by
the appealed error are reviewed de novo; the sentences for any offenses that were not affected
by the appealed error are not vacated and are not subject to review. [State v.] Saxon[, 109
Ohio St.3d 176, 2006-Ohio-1245,] at paragraph three of the syllabus.” Wilson, at ¶15
(emphasis added).
{¶ 8} “The law of the case doctrine requires lower courts to follow the mandates of
reviewing courts when ‘confronted [on remand] with substantially the same facts and issues as
were involved in the prior appeal.’ Thus, litigants are not permitted to make new arguments
to the trial court on remand that were raised or could have been raised on the first appeal.
‘[A]ll questions which existed on the record, and could have been considered on the first
petition in error, must ever afterward be treated as settled by the first adjudication of the
reviewing court.’” State v. Hultz, Wayne App. No. 07CA43, 2008-Ohio-4153, at ¶5, quoting
Neiswinter v. Nationwide Mutual Insurance Co., Summit App. No. 23648, 2008-Ohio-37, at
¶10.
{¶ 9} “Absent extraordinary circumstances, such as an intervening decision by the
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Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court
in a prior appeal in the same case.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, syllabus,
approving and following State ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 29, 32.
{¶ 10} “The only issue before the trial court on remand was re-sentencing on the
[attempted murder offense or the felonious assault offense.] * * * The doctrine of the law of
the case prevented the trial court from considering arguments unrelated to that issue.” State
v. Kendrick, Montgomery App. No. 21790, 2007-Ohio-6136, at ¶9.
A. Unlawful Discharge of Firearm and Firearm Specification
{¶ 11} In his first assignment of error, Powers argues that attaching a firearm
specification to a conviction for unlawful discharge of a firearm constitutes a Double Jeopardy
violation. Essentially, Powers asserts that it is virtually impossible to unlawfully discharge a
firearm without using a firearm. Therefore, Powers claims that attaching a firearm
specification to the underlying conviction “will perpetually result in cumulative punishments
for this single action.” Appellant’s Brief at 8. According to Powers, this constitutes Double
Jeopardy, in violation of the United States and Ohio Constitutions.
{¶ 12} Powers’ offense for improper discharge of a firearm was not affected by the
appealed error in Powers I. Powers I affected only the sentences for attempted murder and
felonious assault. Thus, any claimed error related to his sentence for improper discharge of a
firearm, or the associated firearm specification, is “not subject to review.” Wilson, at ¶15.
That is, any error in attaching a firearm specification to a discharge of a firearm offense would
have been readily apparent when Powers filed his appeal in Powers I. Therefore, because
Powers could have raised the issue in Powers I, but chose not to, review of the issue is barred
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under the doctrine of the law of the case.
{¶ 13} Accordingly, we overrule Powers’ first assignment of error.
B. Tampering With Evidence Sentence
{¶ 14} In his second assignment of error, Powers argues that the trial court erred when
it ordered him to serve his sentence for tampering with evidence consecutively to his sentence
for attempted murder. According to Powers, “[b]ecause there was no evidence taken to show
that Powers’ act of tampering with evidence, whatever it may have been, was an act separate
from the murder attempt, and done with a separate animus than that representing his murder
attempt, it appears Powers’ sentence for his tampering conviction should have been imposed
concurrently with his conviction for attempted murder, rather than consecutively.”
Appellant’s Brief at 8-9. Powers then articulates a hypothetical scenario, based on the
available facts in the record, to show that Powers could have committed the attempted murder
and tampering with evidence offenses in a manner that would require merger under R.C.
2941.25. Thus, Powers argues that the offenses should have been merged as allied offenses
of similar import.
{¶ 15} Powers argument, regarding whether his tampering with evidence and
attempted murder offenses should have been merged, suffers from the same infirmity as the
argument in his first assignment of error. Specifically, Powers’ argument is not subject to
review. Powers’ tampering with evidence offense was not affected by the appealed error in
Powers I. And “only the sentences for the offenses that were affected by the appealed error
are reviewed de novo[.]” Wilson, at ¶15. Thus, any claimed error, based on the assertion
that the tampering with evidence and attempted murder offenses are allied offenses of similar
7
import, is “not subject to review.” Wilson, at ¶15. The error Powers raises in his second
assignment of error would have been readily apparent when Powers filed his appeal in Powers
I. Therefore, because Powers could have raised the issue in Powers I, but chose not to, the
issue is barred under the doctrine of the law of the case.
{¶ 16} Accordingly, we overrule Powers’ second assignment of error.
III.
{¶ 17} In conclusion, having overruled both of Powers’ assignments of error, we
affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
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GRADY, P.J., and FAIN, J., concur.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
R. Lynn Nothstine
Lynne M. Fleming
Hon. Timothy N. O’Connell
State v. Powers
Combined Opinion