State v. Johnson

[Cite as State v. Johnson, 2018-Ohio-2004.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. Nos. 28515
28822
Appellee

v.
APPEAL FROM JUDGMENT
EFREM R. JOHNSON ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF SUMMIT, OHIO
CASE No. CR 2015 02 0453

DECISION AND JOURNAL ENTRY

Dated: May 23, 2018

SCHAFER, Presiding Judge.

{¶1} Defendant-Appellant, Efrem Johnson, appeals his convictions for rape, felonious

assault, and kidnapping in the Summit County Court of Common Pleas. We dismiss the appeal

in part and affirm.

I.

{¶2} On August 26, 2000, K.M. was raped, beaten, and left naked and unconscious in a

wooded area. When K.M. regained consciousness, she was disoriented and could not locate her

clothing. She eventually made it to a house where she was covered with a blanket and EMS was

called. K.M. was taken to a hospital where a rape kit was performed and she spent several days

recovering in the trauma ward.

{¶3} The rape kit and other evidence were sent to the Ohio Bureau of Criminal

Investigation (BCI) for analysis in 2000. In 2010, BCI received a known DNA reference

standard for Johnson and subsequently developed Johnson’s DNA profile. Then, in 2015, a BCI
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report determined that Johnson’s DNA profile could not be excluded from the DNA collected as

a part of K.M.’s rape kit.

{¶4} The Summit County Grand Jury returned a secret indictment on February 18,

2015, charging Johnson with one count of rape, in violation of R.C. 2907.02(A)(2), a felony of

the first degree; one count of rape in violation of R.C. 2907.02(A)(1)(c), a felony of the first

degree; one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second

degree; and one count of kidnapping, in violation of R.C. 2905.01(A)(4), a felony of the first

degree. The court ordered that a capias be issued to the Sheriff of Summit County for Johnson’s

arrest that same day.

{¶5} On June 17, 2016, Johnson filed a motion to dismiss asserting that the State was

beyond the 270 days within which it was required to bring Johnson to trial pursuant to R.C.

2945.71. After a hearing, the trial court summarily denied Johnson’s motion.

{¶6} Prior to trial, the State dismissed the charge of rape in violation of R.C.

2907.02(A)(1)(c). The matter proceeded to a jury trial on October 6, 2016. Johnson was

ultimately found guilty of the three remaining charges.

{¶7} On December 2, 2016, the trial court filed a sentencing entry sentencing Johnson

as follows: (1) on the remaining charge of rape, a non-mandatory term of ten years

imprisonment, with a mandatory term of five years of post-release control; (2) on the charge of

felonious assault, a non-mandatory term of eight years imprisonment, with a mandatory term of

three years of post-release control; and (3) on the charge of kidnapping, a non-mandatory term of

ten years imprisonment, and a mandatory term of three years of post-release control. Although

the indictment identified the kidnapping charge as a felony of the first degree, the sentencing

entry identified the kidnapping charge as a felony of the second degree. The trial court then
 3

ordered the sentences to be served consecutively to each other, for a total of 28 years. The trial

court further ordered that the sentence in this case be served and with the sentence imposed in a

previous case, Summit County Common Pleas Case Number 2010-03-0866, for a total sentence

of 28 years to life in prison. The trial court then found by clear and convincing evidence that

Johnson engaged in acts which indicate he is a sexually-oriented offender and adjudicated him a

sexually-oriented offender. Johnson was also ordered to pay the costs of the prosecution.

{¶8} The trial court filed a journal entry nunc pro tunc on December 5, 2016,

correcting the felony level of the kidnapping charge from a felony of the second degree to a

felony of the first degree.

{¶9} Johnson thereafter filed a notice of appeal of the December 5, 2016 nunc pro tunc

entry. However, upon review of the initial filings, this Court concluded it was without

jurisdiction to consider the attempted appeal as it was untimely. State v. Johnson, 9th Dist.

Summit No. 28477 (Jan. 30, 2017). However, this Court stated that its journal entry did not

preclude Johnson from filing a new appeal along with a motion for delayed appeal of the

December 2, 2016 judgment of conviction.

{¶10} On January 10, 2017, the trial court then filed a journal entry nunc pro tunc to

replace the December 5, 2016, nunc pro tunc order. Then, on January 26, 2017, the trial court

filed another journal entry nunc pro tunc to correct the journal entry filed January 10, 2017, to

read that the sentence in this matter was to “be served CONSECUTIVELY TO the sentence

imposed in Case Number CR 2010 03 0866, for a sentence of 28 years to life in prison.”

{¶11} On February 3, 2017, Johnson filed a notice of appeal of the entries dated

December 2, 2016, December 5, 2016, January 10, 2017, and January 26, 2017. Johnson filed a
 4

motion for delayed appeal from the entry dated December 2, 2016, on February 8, 2017. This

Court granted Johnson’s delayed appeal.

{¶12} The trial court subsequently filed a fourth entry nunc pro tunc on February 28,

2017, to correct the journal entries filed January 10, 2017 and January 26, 2017, to state that the

sentence was to “be served CONSECUTIVELY TO the sentence imposed in Case Number CR

2010 03 0866, for a sentence of 55 years to life in prison.” Later, the trial court filed a fifth

journal entry nunc pro tunc on March 24, 2017, changing the above “55 years” to “54 years to

life in prison.”

{¶13} On October 26, 2017, Johnson filed a notice of appeal and a motion for delayed

appeal of the December 2, 2016 sentencing entry as well as the nunc pro tunc entries filed

December 5, 2017, January 10, 2017, January 26, 2017, February 28, 2017, and March 24, 2017.

{¶14} This Court consolidated Johnson’s appeals for the purposes of the record,

briefing, oral argument, and if applicable, the decision. Johnson raises three assignments of error

for our review.

II.

{¶15} As an initial matter, we must determine whether the trial court’s nunc pro tunc

entries are properly before this Court. “A court may issue a nunc pro tunc to correct a clerical

mistake in an entry so that the entry reflects what actually occurred in open court.” State v.

Stevens, 9th Dist. Summit No. 27366, 2015-Ohio-4009, ¶ 5, citing State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, ¶ 30. However, “a nunc pro tunc judgment entry issued for the sole

purpose of complying with Crim.R. 32(C) to correct a clerical omission in a final judgment entry

is not a new final order from which a new appeal may be taken.” State v. Lester, 130 Ohio St.3d,

2011-Ohio-5204, ¶ 20. Therefore, as a threshold matter, we must determine if the trial court’s
 5

nunc pro tunc orders are properly before this Court, as we only have jurisdiction to hear an

appeal from a final judgment. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. “In

the absence of a final, appealable order, this Court must dismiss the appeal for lack of subject

matter jurisdiction.” In re Estate of Thomas, 9th Dist. Summit No. 27177, 2014-Ohio-3481, ¶ 4.

R.C. 2505.02(B).

{¶16} A review of the transcript shows that the trial court imposed the following

sentence on Johnson at his sentencing hearing: (1) on the charge of rape, Johnson was to be

confined to the Ohio Department of Corrections for a period of ten years. The trial court further

advised Johnson that once he was released from prison he would be placed on a mandatory five

years of post-release control; (2) on the charge of felonious assault, Johnson was to be confined

for a period of eight years, with three years of mandatory post-release control; (3) on the charge

of kidnapping, Johnson was to be confined for a period of ten years, with five years of

mandatory post-release control. The trial court then stated that the penalties for each offense

were to be served consecutive to one another for a total of 28 years in prison.

{¶17} On December 2, 2016, the trial court filed a journal entry containing multiple

clerical errors that did not reflect what the court decided at the sentencing hearing. That order

states Johnson’s sentence as follows: (1) on the remaining charge of rape, a non-mandatory term

of ten years imprisonment, with a mandatory term of five years of post-release control; (2) on the

charge of felonious assault, a non-mandatory term of eight years imprisonment, with a

mandatory term of three years of post-release control; and (3) on the charge of kidnapping, a

non-mandatory term of ten years imprisonment, and a mandatory term of three years of post-

release control. Although the indictment identified the kidnapping charge as a felony of the first

degree, the sentencing entry identified the kidnapping charge as a felony of the second degree.
 6

The trial court then ordered the sentences to be served consecutively to each other, for a total of

28 years. The trial court further ordered that the sentence in this case be served with the sentence

imposed in a previous case, CR 2010 03 0866, for a total sentence of “28 years to life in prison.”

The trial court then found by clear and convincing evidence that Johnson engaged in acts which

indicate he is a sexually-oriented offender and adjudicated him a sexually-oriented offender.

Johnson was also ordered to pay the costs of the prosecution.

{¶18} A review of the record shows that the December 5, 2016 order, the January 10,

2017 order, and the January 26, 2017 order were all nunc pro tunc entries. “Where a sentencing

hearing transcript makes clear what the trial court decided, the trial court has jurisdiction to

correct typographical errors in a sentencing entry via a nunc pro tunc entry.” State v. Ibn-Ford,

9th Dist. Summit No. 27380, 2015-Ohio-753, ¶ 8. First, the December 5, 2016 nunc pro tunc

corrected the felony level of the kidnapping charge from a felony of the second degree to a

felony of the first degree. Second, although the trial court’s second nunc pro tunc sentencing

entry stated that entry was intended to replace the December 5, 2016, nunc pro tunc order, a

review of the order shows there is no difference between the January 10, 2017 order and the

December 5, 2016 order. Third, the January 26, 2017 nunc pro tunc order corrected the journal

entry filed January 10, 2017, to read that the sentence in this matter was to “be served

CONSECUTIVELY TO the sentence imposed in Case Number CR 2010 03 0866, for a sentence

of 28 years to life in prison.” As the trial court acted within its authority in correcting the above

clerical errors, we conclude that the December 5, 2016, January 10, 2017, and January 26, 2017

nunc pro tunc orders are not final appealable orders and we are without jurisdiction to review

them. See R.C. 2505.02(B).
 7

{¶19} Therefore, Johnson’s appeal is dismissed as it relates to the December 5, 2016,

January 10, 2017, and January 26, 2017 nunc pro tunc orders.

{¶20} Upon review, we further determine that the February 28, 2017, and March 24,

2017 journal entries are not final and appealable orders because they do not affect Johnson’s

substantial rights. The General Assembly has set forth what orders are final and appealable in

R.C. 2505.02(B). That statute states, in relevant part:

An order is a final order that may be reviewed, affirmed, modified, or reversed,
with or without retrial, when it is one of the following:

(1) An order that affects a substantial right in an action that in effect determines
the action and prevents a judgment;

R.C. 2505.02(B)(1). A “substantial right” is “a right that the United States Constitution, the

Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce

or protect.” R.C. 2505.02(A)(1).

{¶21} The trial court’s fourth “nunc pro tunc” entry filed on February 28, 2017, was

intended to correct the journal entries filed January 10, 2017 and January 26, 2017, to state that

the sentence was to “be served CONSECUTIVELY TO the sentence imposed in Case Number

CR 2010 03 0866, for a sentence of 55 years to life in prison.” The trial court filed a fifth

journal entry “nunc pro tunc” on March 24, 2017, changing the above “55 years” to “54 years to

life in prison.” A review of the record shows that in Case Number CR 2010 03 0866, the trial

court sentenced Johnson to a term of life imprisonment with parole eligibility after twenty years

for aggravated murder, a term of three years imprisonment for having weapons while under

disability, and a term of three years imprisonment for possession of a firearm. The trial court in

that case ordered the sentences to be served consecutively for a total of 26 years to life

imprisonment.
 8

{¶22} As the trial court ordered Johnson’s aggregate sentence of 28 years in the present

matter to run consecutive to Johnson’s aggregate sentence of 26 years to life imprisonment in

Summit County Common Pleas Case Number CR 2010-03-0866, the trial court’s February 28,

2017 and March 24, 2017 nunc pro tunc entries do not affect any of Johnson’s substantial rights.

See R.C. 2505.02(A)(1). Accordingly, those orders are not final orders subject to review. See

R.C. 2505.02(B)(1).

{¶23} Therefore, Johnson’s appeal is also dismissed as it relates to the February 28,

2017, and March 24, 2017 journal entries.

{¶24} Accordingly, the only matter before this Court is Johnson’s delayed appeal of the

December 2, 2016 judgment entry.

Assignment of Error I

The trial court abused its discretion and committed reversible error by
denying the Batson Challenge submitted by [Johnson] in violation of the due
process clause and the equal protection clause of the 14th Amendment to the
U.S. Constitution and Article I, Section 2 of the Ohio Constitution.

{¶25} In his first assignment of error, Johnson contends that the trial court erred by

denying his objection to the State’s use of a preemptory challenge on a potential African

American juror. We disagree.

{¶26} The Equal Protection Clause of the United States Constitution prohibits deliberate

discrimination based on race by a prosecutor in the exercise of peremptory challenges. Batson v.

Kentucky, 476 U.S. 79 (1986) paragraph one of the syllabus. “A court adjudicates a Batson

claim in three steps.” State v. Murphy, 91 Ohio St.3d 516, 528 (2001). “First, the opponent of

the peremptory challenge must make a prima facie case of racial discrimination. Second, if the

trial court finds this requirement fulfilled, the proponent of the challenge must provide a racially

neutral explanation for the challenge.” State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶
 9

106, citing Batson at 96-98. “Finally, the trial court must decide based on all the circumstances,

whether the opponent has proved purposeful racial discrimination.” Id. “The judge must ‘assess

the plausibility’ of the prosecutor’s reason for striking the juror ‘in light of all evidence with a

bearing on it.’” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 63, quoting Miller-El

v. Dretke, 545 U.S. 231, 252 (2005). A trial court’s findings of no discriminatory intent will not

be reversed on appeal unless such findings are clearly erroneous. State v. Hernandez, 63 Ohio

St.3d 577, 583 (1992), citing Hernandez v. New York, 500 U.S. 352 (1991).

{¶27} In this case, the State excused three jurors for cause without objection from

Johnson. One of those jurors was African American. Then, with its third preemptory challenge,

the State sought to exclude Juror Number 11, the only remaining African American in the venire.

Johnson objected on the basis of Batson and the trial court asked the State to respond. The

prosecutor then stated the following explanation:

[H]e has a history of felony criminal convictions. He expressed that he’s got
issues with attention, paying attention. And he also described prior experience
with the situation, where he knew someone who claimed to be a victim of a sex
offense and he later doubted her * * * because of subsequent conduct toward the
offender.

In response, Johnson argued that Juror No. 11’s “crime * * * was from 2001. He has been

paying attention the whole time. He did come back late from break, but he has paid it back. I

would object to this challenge.” The trial court overruled Johnson’s objection.

{¶28} Johnson argues that in denying his Batson challenge, the trial court “denied

[Johnson] the right to be tried by a jury whose members are selected by nondiscriminatory

criteria.” However, upon review, we conclude that there is no clear error in the trial court’s

determination. “[A] peremptory challenge may be exercised for any racially-neutral reason.”

State v. Moss, 9th Dist. Summit No. 24511, 2009-Ohio-3866, ¶ 12. The prosecution specifically
 10

sought to exclude Juror No. 11 because he had a history of felony criminal convictions,

expressed issues with paying attention, and stated he doubted a woman’s claim to be a victim of

a sex offense because of her subsequent conduct toward the alleged offender. Additionally, there

is no indication from the record that the State possessed a discriminatory intent when it sought to

remove Juror No. 11 from the venire. Moreover, “this Court and others have recognized that

‘“[r]emoving a juror based on [his] past criminal history * * * is a valid, race-neutral reason for

raising a peremptory challenge.”’” State v. Lewis, 9th Dist. Summit No. 28064, 2017-Ohio-

2747, ¶ 11, quoting State v. Lacey, 7th Dist. Mahoning No. 10MA122, 2012-Ohio-1685, ¶ 127,

quoting State v. Santiago, 10th Dist. Franklin No. 02AP-1094, 2003-Ohio-2877, ¶ 10; see State

v. Smith, 9th Dist. Lorain No. 96CA006331, 1998 Ohio App. LEXIS 1139, 26 (Mar. 25, 1998).

{¶29} Therefore, we conclude that the State satisfied its obligation to provide a racially

neutral explanation for the challenge under the second step of the Batson analysis. Accordingly,

the trial court did not clearly err when it determined that the State had a credible neutral reason

for excluding Juror No. 11.

{¶30} Johnson’s first assignment of error is overruled.

Assignment of Error II

The trial court violated [Johnson]’s right to a speedy trial in violation of his
rights under the 6th and 14th Amendment to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution.

{¶31} Johnson asserts in his second assignment of error that his right to a speedy trial

was violated. Although Johnson’s assignment of error states his Constitutional speedy trial

rights were violated, his merit brief argues instead that his statutory speedy trial rights were

violated and we will limit our analysis accordingly. See App.R. 16(A)(7); see also State v.
 11

Powell, 9th Dist. Summit No. 28170, 2017-Ohio-5629, ¶ 22 (“Where an appellant fails to

develop an argument in support of [his] assignment of error, we will not create one for [him].”).

{¶32} In this case, Johnson filed a motion to dismiss asserting that the State was beyond

the 270 days within which it was required to bring Johnson to trial pursuant to R.C. 2945.71. In

response, the State argued that the 270 days had not lapsed due to a multitude of tolling events

attributable to Johnson. The State also argued, in the alternative, that R.C. 2941.401 is

controlling in this case and since Johnson had not complied with the notice requirements of R.C.

2941.401, time was tolled against him. The trial court summarily denied Johnson’s motion

following a hearing.

{¶33} A trial court’s determination of speedy trial issues presents a mixed question of

law and fact. State v. Fields, 9th Dist. Wayne No. 12CA0045, 2013-Ohio-4970, ¶ 8. “‘When

reviewing an appellant’s claim that he was denied his right to a speedy trial, this Court applies

the de novo standard of review to questions of law and the clearly erroneous standard of review

to questions of fact.’” Id., quoting State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-

5952, ¶ 36.

{¶34} “The right of an accused to a speedy trial is recognized by the Constitutions of

both the United States and the state of Ohio.” State v. Pachay, 64 Ohio St.2d 218, 219 (1980).

The United States Supreme Court has “identified four factors to be assessed in determining

whether an accused had been constitutionally denied a speedy trial: (1) the length of the delay,

(2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the

prejudice to the defendant.” State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, ¶ 22, citing

Barker v. Wingo, 407 U.S. 514, 530 (1972). “To that end, the General Assembly has enacted a

variety of statutes that codify time limitations for bringing defendants to trial based on the nature
 12

of the crime charged and the circumstances of the defendant.” State v. Tauwab, 9th Dist.

Summit No. 27736, 2015-Ohio-3751, ¶ 11, citing State v. Broughton, 62 Ohio St.3d 253, 256

(1991).

{¶35} R.C. 2945.71(C)(2) provides that a person charged with a felony must be brought

to trial within 270 days of arrest. Nonetheless, R.C. 2945.71(F) states that R.C. 2945.71 shall not

be construed to modify R.C. 2941.401 in any way. “R.C. 2941.401 is the statute in Ohio that

governs what actions an individual incarcerated in a state prison must take to dispose of other

charges pending from other courts in Ohio and how to invoke that person’s speedy trial rights on

those pending charges.” State v. Siniard, 6th Dist. Huron No. H-03-008, 2004-Ohio-1043, ¶ 9.

R.C. 2941.401 provides, in pertinent part, as follows:

When a person has entered upon a term of imprisonment in a correctional
institution of this state, and when during the continuance of the term of
imprisonment there is pending in this state any untried indictment, information, or
complaint against the prisoner, he shall be brought to trial within one hundred
eighty days after he causes to be delivered to the prosecuting attorney and the
appropriate court in which the matter is pending, written notice of the place of his
imprisonment and a request for a final disposition to be made of the matter,
(Emphasis added.) * * * .

***

The warden or superintendent having custody of the prisoner shall promptly
inform him in writing of the source and contents of any untried indictment,
information, or complaint against him, concerning which the warden or
superintendent has knowledge, and of his right to make a request for final
disposition thereof.

***

If the action is not brought to trial within the time provided, subject to
continuance allowed pursuant to this section, no court any longer has jurisdiction
thereof, the indictment, information, or complaint is void, and the court shall enter
an order dismissing the action with prejudice.
 13

“In its plainest language, R.C. 2941.401 grants an incarcerated defendant a chance to have all

pending charges resolved in a timely manner, thereby preventing the [S]tate from delaying

prosecution until after the defendant has been released from his prison term.” State v. Hairston,

101 Ohio St.3d 308, 2004-Ohio-969, ¶ 25. Nonetheless, the statute does not require the state to

exercise reasonable diligence to locate an incarcerated defendant and the warden or prison

superintendent only has a duty to inform the incarcerated defendant of charges when the warden

or superintendent has knowledge of such charges. Id. at ¶ 20. Rather, the statute

“unambiguously impose[s] the initial duty upon the defendant to trigger action on the part of the

state.” Id. at ¶ 24.

{¶36} Thus, “[w]hen the defendant is imprisoned on a previous conviction, R.C.

2945.71 ceases to govern and the two hundred and seventy day speedy trial deadline is tolled.”

State v. Stewart, 2d Dist. Montgomery No. 21462, 2006-Ohio-4164, ¶ 21, citing Cleveland v.

Adkins, 156 Ohio App. 3d 482, 2004-Ohio-1118, ¶ 6 (8th Dist.) and State v. Hill, 4th Dist. Meigs

No. 96 CA 4, 1996 Ohio App. LEXIS 6097, 17; see also State v. Skorvanek, 9th Dist. Lorain No.

08CA009400, 2010-Ohio-1079, ¶ 19 (“In fact, R.C. 2941.401 supplants the provisions of R.C.

2945.71.”). In such circumstances, “[t]he provisions of R.C. 2941.401 control, and the one

hundred and eighty day speedy trial deadline under R.C. 2941.401 does not begin to run until the

defendant sends written notice of the place of his imprisonment and a request for a final

disposition of the matter to the prosecuting attorney and appropriate court.” Id.

{¶37} In this case, a secret indictment and arrest warrant were issued on February 18,

2015, while Johnson was serving a life sentence imposed in Summit County Court of Common

Pleas Case Number CR 2010-03-0866. On July 21, 2015, the trial court ordered the Summit

County Sheriff’s Office to convey Johnson from the Mansfield Correctional Facility to the
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Summit County Jail, so that Johnson could be arraigned on the charges pending in this case.

However, Johnson did not contend in his motion to dismiss that he complied with the mandate of

R.C. 2941.401 nor does he make such a contention on appeal. Consequently, Johnson failed to

trigger the speedy trial deadline of R.C. 2941.401. See Hairston at ¶ 20; State v. Ondrusek, 9th

Dist. Nos. 09CA009626, 09CA009673, 2010-Ohio-2811, ¶ 12.

{¶38} Therefore, we conclude that Johnson’s argument lacks merit. See Hairston at ¶

24; see also Siniard at ¶ 12 (“Unless the notice and request are served on the proper prosecutor

and court, R.C. 2941.401 does not impose a duty on the prosecuting official to bring the accused

to trial within the time period provided.”) Accordingly, the trial court did not err by denying

Johnson’s motion to dismiss alleging a statutory speedy trial violation.

{¶39} Johnson’s second assignment of error is overruled.

Assignment of Error III

[Johnson] was denied his right to effective assistance of counsel guaranteed
under the 6th Amendment to the U.S. Constitution and Article I, Sections 1,
10[, and] 16 of the Ohio Constitution. The trial court erred as a matter of
law in imposing consecutive sentences upon Johnson in violation of the
double jeopardy clause of the 5th Amendment to the U.S. Constitution and
Article I, [Section] 10 of the Ohio Constitution.

{¶40} In his third assignment of error, Johnson contends that his trial counsel was

ineffective for failing to argue that the rape and kidnapping charges were allied offenses.

{¶41} In order to prevail on a claim of ineffective assistance of counsel, Johnson “must

establish (1) that his counsel’s performance was deficient to the extent that ‘counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment’ and (2) that but

for his counsel’s deficient performance the result of the trial would have been different.” State v.

Velez, 9th Dist. Lorain No.13CA010518, 2015-Ohio-642, ¶ 18, quoting Strickland v.

Washington, 466 U.S. 668, 687 (1984). This court need not address both prongs of the
 15

Strickland test if it should find Johnson failed to prove either prong. State v. Ray, 9th Dist. No.

22459, 2005-Ohio-4941, ¶ 10. A trial counsel’s performance will not be deemed ineffective

unless it falls below an objective standard of reasonable representation. State v. Bradley, 42

Ohio St.3d 136 (1989), paragraph two of the syllabus.

{¶42} A review of the transcript from Johnson’s sentencing shows that his trial counsel

did not raise the issue of whether the offenses of rape and kidnapping in this matter were allied

offenses. Although Johnson himself did raise the issue, the trial court did not address his

assertion except to state, “Well, sometimes they can be allied offenses, and --”, before Johnson

interrupted. Nonetheless, upon review of the record, we cannot say that but for counsel’s failure

to assert an argument that the kidnapping and rape offenses in this matter were allied the result of

his sentencing would have been different.

{¶43} In Ohio, “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution and [Article I, Section 10,] of the Ohio

Constitution, which prohibits multiple punishments for the same offense.” State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 states as follows:

(A) Where the same conduct by defendant can be construed to constitute two or
more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.

“In determining whether offenses are allied offenses of similar import within the meaning of

R.C. 2941.25, courts must evaluate three separate factors—the conduct, the animus, and the

import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. “The
 16

question of whether a victim’s restraint is merely incidental to some underlying charge, such as

rape, is one posed to determine animus for purposes of an allied offense analysis.” State v.

Aguirre, 9th Dist. Lorain No. 13CA010418, 2015-Ohio-922, ¶ 25, citing State v. Logan, 60 Ohio

St.2d 126, (1979), syllabus. “Animus” in the context of R.C. 2941.25(B) means “purpose or,

more properly, immediate motive.” Logan at 131. “At its heart, the allied-offense analysis is

dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct.”

Ruff at ¶ 26.

{¶44} “In [Logan], [The Supreme Court of Ohio] established guidelines to determine

whether kidnapping and rape are committed with a separate animus so as to permit separate

punishment under R.C. 2941.25(B).” State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5688, ¶

23, citing Logan at syllabus.

(a) Where the restraint or movement of the victim is merely incidental to a
separate underlying crime, there exists no separate animus sufficient to sustain
separate convictions; however, where the restraint is prolonged, the confinement
is secretive, or the movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as to each offense
sufficient to support separate convictions;

(b) Where the asportation or restraint of the victim subjects the victim to a
substantial increase in risk of harm separate and apart from that involved in the
underlying crime, there exists a separate animus as to each offense sufficient to
support separate convictions.

(Emphasis added.) Williams at ¶ 23.

{¶45} In this case, K.M. testified that prior to the rape she was standing in the area of

Thornton Street near Roush’s market. She stated that a man she had never met, later identified

as Johnson, waived to her and stated, “I got what you need.” K.M. understood this statement to

mean he had drugs. K.M. stated that she walked a couple of blocks with the man to a park. At

that point K.M. was standing in an open area and told the man she did not want to go any further.
 17

K.M. stated that the next thing she knew, the man had hit her and knocked her unconscious.

When K.M regained consciousness, the man was raping her. She stated he must have dragged

her somewhere because she was in a field when he knocked her unconscious, but in a wooded

area when she regained consciousness. She stated that she screamed, prayed, and tried to fight

him off, but that he hit her again and she again lost consciousness. K.M. stated that when she

regained consciousness again the man was gone and she was naked and bleeding. Although she

could not locate her clothing, she eventually made it to a home where bystanders helped her and

covered her with a blanket.

{¶46} Based on the above testimony, Johnson’s restraint of K.M. was prolonged and

secretive and his movement of her unconscious body was substantial. Additionally, his

movement of her unconscious body from an open field to a wooded area where he left her naked

and bleeding subjected her to a substantial increase of harm separate from the rape itself.

Accordingly, this was not such a case where the kidnapping was merely incidental to the rape.

See State v. Rogers, 17 Ohio St.3d 174, 182 (1985), vacated on other grounds, (concluding that a

case where kidnapping was merely incidental to the rape “would be found where the only

restraint involved was the holding of the victim in place while a defendant raped her.”).

{¶47} Therefore, we conclude that Johnson has not shown that he was prejudiced by his

trial counsel’s failure to raise the issue of whether or not his convictions for kidnapping and rape

were allied.

{¶48} Johnson’s third assignment of error is overruled.
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III.

{¶49} Johnson’s appeal is dismissed in part as it relates to the trial court’s nunc pro tunc

entries. Johnson’s assignments of error are overruled. Therefore, the judgment of the Summit

County Court of Common Pleas is affirmed.

Appeal dismissed in part,
judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JULIE A. SCHAFER
FOR THE COURT

HENSAL, J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:

PAUL GRANT, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.