[Cite as State v. Shepherd, 2013-Ohio-4912.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99503
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ELIJAH SHEPHERD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-550339
BEFORE: Keough, J., S. Gallagher, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 7, 2013
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Public Defender
By: Jeffrey M. Gamso
Asst. Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James M. Price
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Elijah Shepherd, appeals from the trial court’s
resentencing. Finding no merit to the appeal, we affirm.
{¶2} In 2011, Shepherd was charged with two counts of felonious assault, both
containing one- and three-year firearm specifications, and one count of having a weapon
while under disability. The matter proceeded to trial, where Shepherd was found guilty
of all counts, including the firearm specifications. At sentencing, the trial court merged
the felonious assault counts and sentenced Shepherd to seven years for felonious assault.
The court also found that the one- and three-year firearm specifications merged; and thus
sentenced him to the mandatory three years. Finally, the court sentenced Shepherd to
three years for having a weapon while under disability. The trial court ordered all
sentences to be served consecutively for a total aggregate prison term of 13 years.
{¶3} Shepherd appealed his convictions and sentence to this court in State v.
Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415. This court affirmed his
convictions, but concluded that the trial court failed to make the necessary findings
pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive sentences. Id. at ¶ 87 and
89. Accordingly, this court vacated the consecutive sentences and postrelease control
portions of Shepherd’s sentence and remanded the case for a new sentencing hearing on
those vacated portions. Id. at ¶ 89.
{¶4} At resentencing and after making the appropriate findings, the trial court
imposed the same aggregate sentence of 13 years — seven years for felonious assault,
three years for the firearm specification, and three years for having a weapon while under
disability. Shepherd again appeals his sentence.
{¶5} In his first assignment of error, Shepherd contends that the trial court erred
when it sua sponte elected to proceed to sentence him on the three-year firearm
specification. Shepherd argues that the state was required to elect which specification
the court should sentence on; the trial court was not authorized to unilaterally choose.
{¶6} Shepherd was found guilty of felonious assault with firearm specifications
that carry both one- and three-year mandatory prison sentences. Accordingly, the trial
court was required pursuant to R.C. 2929.14(B)(1)(a)(ii) to impose the mandatory penalty
of three years. There was no discretion, and the state was not even in a position to elect
which specification to proceed with sentencing on. The mandatory three-year sentence
necessarily subsumes the mandatory one-year sentence. See R.C. 2929.14(B)(1)(b).
{¶7} Accordingly, we find no merit to Shepherd’s first assignment of error.
{¶8} In his second assignment of error, Shepherd contends that having a weapon
while under disability is an allied offense of similar import to a firearm specification.
This argument has been considered and consistently rejected by this court. See State v.
Whittsette, 8th Dist. Cuyahoga No. 70091, 1997 Ohio App. LEXIS 500, *6 (Feb. 13,
1997), citing State v. Blankenship, 102 Ohio App.3d 534, 547, 657 N.E.2d 559 (12th
Dist.1995); State v. Williams, 8th Dist. Cuyahoga No. 81949, 2003-Ohio-3950, ¶ 19-21,
appeal not allowed, State v. Williams, 100 Ohio St.3d 1509, 2003-Ohio-6161, 799 N.E.2d
187; State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192.
{¶9} Accordingly, Shepherd’s second assignment of error is overruled.
{¶10} In his third assignment of error, Shepherd argues that counsel was
ineffective for failing to object to the trial court’s sua sponte election of which firearm
specification he should be sentenced on and for failing to request that the firearm
specification and weapon under disability charge should merge. Shepherd’s claim for
ineffective assistance of counsel, which is premised on his previously rejected
assignments of error, must equally fail. The third assignment of error is overruled.
{¶11} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR