[Cite as State v. Champion,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24782 Plaintiff-Appellee : : Trial Court Case No. 1997-CR-1509 v. : : BRUCE R. CHAMPION : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 8th day of June, 2012.

...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, 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

BRUCE R. CHAMPION, #354-713, London Correctional Institution, Post Office Box 69, London, Ohio 43140 Defendant-Appellant, pro se

.............

HALL, J.

{¶ 1} Bruce R. Champion appeals pro se from the trial court’s decision, entry, and 2

order overruling his motion for resentencing to merge allied offenses of similar import.

{¶ 2} Champion advances three assignments of error on appeal. First, he contends

the trial court erred in refusing to address the merits of his allied-offense argument and an

argument about plain error. Second, he claims the trial court erred in failing to apply the

plain-error doctrine. Third, he asserts that the trial court erred in failing to recognize that

aggravated robbery and kidnapping are allied offenses of similar import.

{¶ 3} The record reflects that Champion was convicted and sentenced in March

1998 on two counts of aggravated robbery, two counts of kidnapping, one count of aggravated

burglary, and firearm specifications. This court affirmed on direct appeal, rejecting, among

other things, an allied-offense argument. See State v. Champion, 2d Dist. Montgomery No.

17176,

(March 5, 1999). Champion then unsuccessfully sought

post-conviction relief. This court again affirmed. See State v. Champion, 2d Dist. Montgomery

No. 18394,

(Jan. 26, 2001).

{¶ 4} On May 27, 2011, Champion filed a motion for resentencing. He argued that

his aggravated robbery and kidnapping offenses were allied offenses of similar import under

State v. Johnson,

,

,

. Therefore, he

claimed they were subject to merger at sentencing. The trial court overruled the motion,

holding that Johnson has prospective application and does not apply to convictions like

Champion’s that became final long ago. The trial court also denied reconsideration.

{¶ 5} Although Champion raises three assignments of error on appeal, he

acknowledges that they are related. The essence of his appellate argument is that the failure to

merge his aggravated robbery and kidnapping convictions as allied offenses of similar import 3

under Johnson constituted plain error. We reject this argument for at least two reasons.

{¶ 6} First, the trial court correctly held that Johnson has only prospective

application. In Johnson, the Ohio Supreme Court announced a new test for determining when

offenses are allied offenses of similar import that must be merged pursuant to R.C. 2941.25. In

State v. Parson, 2d Dist. Montgomery No. 24641,

, this court rejected

retroactive application of Johnson to a conviction that became final long ago. On the authority

of Parson, we hold that the test set forth in Johnson has no applicability to Champion.

{¶ 7} Second, Johnson would provide Champion no relief even if it did apply

retroactively. “In determining whether offenses are allied offenses of similar import under

R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the

other with the same conduct, not whether it is possible to commit one without committing the

other.” (Citation omitted.) Johnson at ¶ 48. “If the offenses correspond to such a degree that

the conduct of the defendant constituting commission of one offense constitutes commission

of the other, then the offenses are of similar import.” Id.

{¶ 8} “If 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.’ ” (Citation omitted.) Id. at ¶ 49. “If the answer

to both questions is yes, then the offenses are allied offenses of similar import and will be

merged.” Id. at ¶ 50. “Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed separately, or

if the defendant has a separate animus for each offense, then, according to R.C. 2941.25(B),

the offenses will not merge.” (Emphasis added.) Id. at ¶ 51. 4

{¶ 9} When resolving Champion’s direct appeal in 1999, this court determined that

his aggravated robbery and kidnapping offenses were not allied offenses of similar import

because he exposed his victims “to a significantly greater risk of harm than was necessary for

the accomplishment of the aggravated robbery offense.”

. This fact established

the existence of a separate animus. Id. at *3-4; see also State v. Logan,

,

(1979), syllabus (“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.”); State v. Gilbert, 7th Dist. Mahoning No. 08 MA 206,

(“Separate animus also exists if the restraint or movement of the victim

substantially increases the risk of harm to the victim.”). Even under Johnson, the existence of

a separate animus for each offense allows the imposition of separate sentences. Johnson at

¶ 51. Therefore, the new test articulated in Johnson does not help Champion.

{¶ 10} Finally, we reject Champion’s request to hold the present appeal in abeyance

until the Ohio Supreme Court decides whether Johnson has retroactive application. Champion

contends the United States District Court certified that state-law question to the Ohio Supreme

Court in Gaines v. Warden, Mansfield Correctional Inst., No. S.D.Ohio 1:07cv347,

(July 18, 2011). We decline to hold the present appeal in abeyance for three reasons.

First, it is not clear that the question certified by the federal district court would address

retroactive application of Johnson.1 Second, the Ohio Supreme Court’s on-line docket does

1 In Gaines, the federal district court stated that it would certify the following state-law question to the Ohio Supreme Court:

Whether in this case, which involved a single automobile accident resulting in the death of one victim, Ohio 5

not indicate that the certified question has been accepted for review. Third, even if the Ohio

Supreme Court were to hold that Johnson has retroactive application, that holding would not

help Champion for the reason set forth above.

{¶ 11} Champion’s assignments of error are overruled, and the judgment of the

Montgomery County Common Pleas Court is affirmed.

.............

FAIN and DONOVAN, JJ., concur.

Copies mailed to:

Mathias H. Heck Kirsten A. Brandt Bruce R. Champion Hon. Michael Tucker

Rev.Code §2941.25 could be construed at the time of petitioner’s conviction and direct appeal in 2005 as permitting a “strict textual comparison” of the elements and a finding, in accordance with the First District Court of Appeals’ later decision in State v. Hundley, No. C-060374,

, at *2-3 (Ohio Ct.App. 1 Dist. July 13, 2007) (unpublished), appeal dismissed,

,

(Ohio 2007), that the two aggravated vehicular homicide charges brought against petitioner under Ohio Rev.Code §§2903.06(A)(1)(a) and 2903.06(A)(2) are dissimilar when compared in the abstract; or whether, conversely, at the time of petitioner’s conviction and direct appeal in 2005, the proper construction of Ohio Rev.Code §2941.25 required a finding that the two offense[s] are of similar import in accordance with the subsequent clarification in Cabrales of the Rance “abstract elements comparison test,” as well as State v. Palmer,

,

(Ohio 2008), and the First District Court of Appeals’ decision in State v. Moore, No. C-70421,

(Ohio Ct.App. 1 Dist. Aug. 15, 2008) (unpublished), appeal dismissed,

,

(Ohio 2009), overruling Hundley.

.