[Cite as State v. Anthony, 2017-Ohio-2756.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104497
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES F. ANTHONY
DEFENDANT-APPELLANT
JUDGMENT:
SENTENCE VACATED; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-576392-A
BEFORE: Kilbane, J., Keough, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: May 11, 2017
APPELLANT
Charles F. Anthony, pro se
Inmate No. #A651-164
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Andrew J. Santoli
Amy Venesile
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and
Loc.App.R. 11.1.
{¶2} Defendant-appellant, Charles Anthony (“Anthony”), pro se, appeals from
his April 25, 2016 resentencing pursuant to our mandate in State v. Anthony,
2015-Ohio-2267, 37 N.E.3d 751 (8th Dist.), discretionary appeal not allowed, 143 Ohio
St.3d 1500, 2015-Ohio-4468, 39 N.E.3d 1271. For the reasons set forth below, we
vacate his sentence and remand for another resentencing hearing where the state shall
elect which allied offense it chooses to proceed with for purposes of sentencing.
{¶3} The procedural history and facts of this case were previously set forth by
this court in Anthony as follows:
[In July 2013,] Anthony and the victim [were hanging out in Anthony’s
apartment]. [The two friends] had been drinking and doing drugs on the
night of the incident. At some point, they started arguing. And then
Anthony stabbed the victim four times “on the victim’s backside” [resulting
in the victim’s death].
***
In August 2013, Anthony was indicted on four counts: one count of
aggravated murder and murder and two counts of felonious assault. All
counts carried notice of prior conviction and repeat violent offender
specifications. Anthony pleaded not guilty to all charges at his
arraignment.
In November 2013, Anthony withdrew his former plea of not guilty and
entered a plea of guilty to an amended indictment of involuntary
manslaughter with both specifications and one count of felonious assault
with the specifications. The remaining counts were nolled.
The trial court sentenced Anthony to a total of 13 years in prison, 11 years
for involuntary manslaughter and two years for felonious assault, to be
served consecutive to one another. The trial court further notified Anthony
that he would be subject to five years of mandatory postrelease control upon
his release from prison.
Id. at ¶ 48, 3-5.
{¶4} Anthony appealed, arguing the trial court failed to follow Crim.R. 11 when
taking his guilty plea, the trial court erred when it failed to merge his convictions for
sentencing purposes, and trial counsel was ineffective. We found merit to his merger
argument, vacated his sentence, and remanded for resentencing where the state was to
elect which offense to proceed with for purposes of sentencing. Id. at ¶ 2.
{¶5} Following our remand, the trial court held a resentencing hearing on the
matter. At the hearing, the trial court stated:
[W]e are here for the purpose of re-sentencing pursuant to the mandate of
the Eighth District.
***
With regard to the original sentence it was for 11 years and I ran 2 years
consecutive. And the problem was with the consecutive nature of it, so the
Court is going to impose the — re-impose the sentence to Count 2 of 11
years with Count 3 being concurrent with Count 2; and of course there will
be 5 years of Post-Release Control. Any violation of the terms and
conditions of PRC will get you additional prison time under this case.
{¶6} Anthony now appeals from this resentencing, raising the following five
assignments of error for review, which shall be discussed together where appropriate.
Assignment of Error One
The sentencing court erred to the prejudice of [Anthony] and abused its
discretion when it failed at sentencing to consider R.C. 2901.05 and
2901.09 in mitigation as to the affirmative defense of self-defense under the
Castle Doctrine and the Foster Crown Law where [Anthony] was justified
in the use of force.
Assignment of Error Two
The sentencing court erred to the prejudice of [Anthony] and imposed a
sentence contrary to law in violation of R.C. 2953.08, where a minimum
sentence was imposed on the predicated offense of felonious assault, yet
imposing the maximum sentence on the involuntary manslaughter count.
Assignment of Error Three
[Anthony] was deprived of due process and equal protection of the law as
guaranteed under the Fourteenth Amendment to the United States
Constitution and Article I, Section 16 of the Ohio Constitution due to
judicial and prosecutorial misconduct.
Assignment of Error Four
[Anthony] was deprived of due process and equal protection of the law as
guaranteed under the Fourteenth Amendment to the United States
Constitution and Article I, Section 16 of the Ohio Constitution by way of
sham legal process in violation of [R.C. 2921.52].
Assignment of Error Five
[Anthony] was deprived of due process and equal protection of the law as
guaranteed under the Fourteenth Amendment to the United States
Constitution and Article I, Section 16 of the Ohio Constitution where the
sentencing court failed to comply with R.C. 2941.25, where the state never
determined which offense of similar import they [would] pursue.
{¶7} In the second and fifth assignments of error, Anthony challenges his
sentence. He contends that his sentence is contrary to law because the trial court did not
follow this court’s remand instructions, requiring the state to elect which offense to
proceed with for purposes of sentencing. The state concedes that the trial court did not
follow our mandate in Anthony, but argues that the merger of involuntary manslaughter
and felonious assault “nullifies the General Assembly’s intent in enacting the involuntary
manslaughter statute in the first place — to punish the resulting death separately from the
assault.” We find Anthony’s argument more persuasive.
{¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence “only
if it determines by clear and convincing evidence that the record does not support the trial
court’s findings under relevant statutes or that the sentence is otherwise contrary to law.”
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Clear and
convincing evidence is that measure “‘which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.’” Id. at ¶ 22, quoting
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶9} In State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512,
the Ohio Supreme Court held that “[t]he imposition of concurrent sentences is not the
equivalent of merging allied offenses.” Id. at ¶ 17. The Damron court noted that
“[w]hen a defendant has been found guilty of offenses that are allied offenses, R.C.
2941.25 prohibits the imposition of multiple sentences.” Id., citing State v. Whitfield,
124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182. As a result, the “trial court must
merge the offenses into a single conviction and then impose an appropriate sentence for
the offense chosen for sentencing.” Id., citing State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149.
{¶10} In the instant case, the trial court thought that the remand was because of
“the consecutive nature of [the sentence].” Consequently, the court reimposed its
sentence, with the counts being served concurrently as opposed to consecutively.
However, “[t]he imposition of concurrent sentences is not the equivalent of merging
allied offenses.” Damron; State v. Vargas, 10th Dist. Franklin No. 10AP-952,
2012-Ohio-6368, ¶ 95-97; State v. Fair, 2d Dist. Montgomery No. 24120,
2011-Ohio-3330, ¶ 78-81. As the Ohio Supreme Court has explained, “for purposes of
R.C. 2941.25, a ‘conviction’ is the combination of a guilt determination and a sentence or
penalty.” Whitfield at ¶ 12. As the record currently stands in the case before us,
Anthony is still convicted of both involuntary manslaughter and felonious assault. Such
error must be corrected as we set forth in Anthony at ¶ 2, 59, 68.
{¶11} Therefore, Anthony’s second and fifth assignments of error are sustained.
{¶12} In the first, third, and fourth assignments of error, Anthony argues that he
acted in self-defense. However, Anthony previously filed a direct appeal, challenging
his guilty plea and convictions. In Anthony, we addressed his arguments and found them
unpersuasive. We remanded the matter solely for resentencing. As a result, Anthony’s
arguments are barred by res judicata. Under the doctrine of res judicata, a defendant is
barred “from raising and litigating in any proceeding except an appeal from [a final]
judgment, any defense or any claimed lack of due process that was raised or could have
been raised by the defendant at the trial * * * or on an appeal from that judgment.” State
v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
{¶13} Accordingly, the first, third, and fourth assignments of error are overruled.
{¶14} Anthony’s sentence is vacated and the matter is remanded for resentencing
where the state shall elect which allied offense to proceed on before the trial court
imposes the sentence.
It is ordered that appellant recover of appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR