[Cite as State v. Mays,

.]

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

STATE OF OHIO : : Appellate Case No. 24168 Plaintiff-Appellee : : Trial Court Case No. 2009-CR-1322 v. : : CHAMARE H. MAYS : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 2nd day of March, 2012.

...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post Office Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

STEPHEN P. HARDWICK, Atty. Reg. #0062932, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400,Columbus, Ohio 43215 Attorney for Defendant-Appellant

J. DAVID TURNER, Atty. Reg. #0017456, Post Office Box 291771, Kettering, Ohio 45429-1771 Attorney for Defendant-Appellant

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

HALL, J.

{¶ 1} Chamare Mays appeals his conviction and sentence, assigning four errors to 2

the trial court. First, Mays alleges that the trial court erred by convicting him of felony murder

based on felonious assault, contending that the independent-felony or merger limitation, which

he asserts exists under Ohio common law, precludes felonious assault from serving as the

underlying offense for felony murder. Second, Mays alleges that the trial court erred by

imposing court costs in the termination entry without mentioning them at the sentencing

hearing. Third, he alleges that the trial court erred by using the termination entry to disapprove

transitional control. Finally, Mays alleges that the trial court erred by imposing consecutive

prison terms. The second and third allegations have merit, so we affirm in part and reverse in

part.

A. Facts and Procedural History

{¶ 2} In April 2009, Mays and two others entered Dayton’s College Hill Park with

guns in hand and began shooting at a group of men playing basketball. One man was hit in the

face and died at the scene. Another took off running and Mays gave chase. Mays continued

shooting and succeeded in hitting the second man’s leg. While Mays denies being the one who

fired the fatal shot, he admits the rest.

{¶ 3} Mays was indicted on two counts of felonious assault with a deadly weapon,

one count of felonious assault causing serious physical harm, two counts of felony murder

(proximately resulting from felonious assault with a deadly weapon and proximately resulting

from felonious assault causing serious physical harm), one count of tampering with evidence,

one count of having weapons while under a disability, and one count of inducing panic. With

the exception of the last, attached to each count was a firearm specification. At Mays’ first

trial, he was found guilty of one count of felonious assault with a deadly weapon, tampering 3

with evidence, inducing panic, and having weapons while under disability. On the remaining

counts, the jury failed to reach a verdict and a mistrial was declared. At the second trial, a jury

found Mays guilty of the remaining counts.

{¶ 4} The trial court sentenced Mays to an aggregate 40 years to life in prison. For

the non-fatal felonious assault with a deadly weapon, tampering with evidence, having a

weapon while under disability, and inducing panic, the court imposed consecutive prison

terms, totaling 19 years. The court merged the firearm specifications into two groups and

imposed consecutive 3-year terms, totaling 6 years. Finally, the court merged the fatal

felonious-assault-with-a-deadly-weapon count, the

felonious-assault-causing-serious-physical-harm count, and the count charging felony murder

proximately resulting from felonious-assault causing serious physical harm into the count

charging felony murder proximately resulting from felonious assault with a deadly weapon,1

and, for the murder, sentenced Mays to prison for 15 years to life.2

B. The Felony-Murder Conviction

{¶ 5} Mays alleges, in the first assignment of error, that the trial court erred by

convicting him of felony murder. He contends that felonious assault may not serve as the

underlying offense. Mays claims that because his felonious assault directly resulted in the

1 Allied offenses merge for sentencing. R.C. 2941.25(A). Allied offenses are those “committed by the same conduct.” State v. Johnson,

,

,

, ¶ 48-50. Here, the simultaneous commission of the two varieties of felonious assault and the resulting felony murders were the result of the same conduct. Compare id. at ¶ 53-57 (holding that felony murder under R.C. 2903.02(B) based on the simultaneous commission of the predicate offense of child endangering (serious harm) were allied offenses for this reason). 2 “It is the state that chooses which of the allied offenses to pursue at sentencing.” (Citation omitted.) State v. Whitfield,

,

,

, ¶ 20. 4

victim’s death the felony-murder rule’s independent-felony or merger limitation precludes it

from serving this role. We conclude that this limitation does not exist under Ohio law.

{¶ 6} “The classic felony-murder rule held that a death caused during the

commission of any felony constitutes murder.” Tomkovicz, The Endurance of the

Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law,

, 1465 (1994); see Dressler, Cases and Materials on Criminal Law, Chapter 7,

Section (D)(1)(a), at 309-310 (4th Ed. 2007) (“In its classic form, the operation of the rule

follows a compellingly simply, almost mathematical, logic: a felony + a killing = a murder.”).

“At common law, murder was the unlawful killing of a human being with malice

aforethought: an intentional killing with expressed malice.” State v. Dixon, 2d Dist.

Montgomery No. 18582,

,

, *4, citing Katz and Gianelli,

Criminal Law, Section 95.2 (1996). New York’s highest court has explained the rule this way:

The very purpose of the felony murder doctrine is to utilize the underlying

felony as a substitute for the defendant’s murderous intent and thereby raise an

unintentional killing to the level of murder. As we said in People v Hernandez

(

[1993]), “The basic tenet of felony murder liability is that

the mens rea of the underlying felony is imputed to the participant responsible

for the killing. By operation of that legal fiction, the transferred intent allows

the law to characterize a homicide, though unintended and not in the common

design of the felons, as an intentional killing.”

The felony murder concept was derived from the common law, at

which no intent to kill was necessary. It was enough that the victim was killed 5

while the accused was engaged in the commission of a felony. Under the

common law, the felonious intent was imputed to the committed act, and, if it

were homicide, made it murder. (Citations omitted.) People v. Cahill,

,

(2003).

Thus “the intent to kill is conclusively presumed as long as the state proves the required intent

to commit the underlying felony.” (Citation omitted.) State v. Walters, 10th Dist. Franklin No.

06AP-693,

.

{¶ 7} Because it requires no proof of intent to kill, the felony-murder rule has

generated criticism. One commentator has said that “few legal doctrines have been as

maligned and yet have shown as great a resiliency as the felony-murder rule. * * * Despite the

widespread criticism, the felony-murder rule persists in the vast majority of states.” Roth &

Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads,

, 446 (1985). But the rule does not persist in its classic form. “In most places, the rule

is cabined in a number of ways.” Tomkovicz, 51 Wash. & Lee L. Rev. at 1467.

{¶ 8} One way that developed to cabin the rule is the independent-felony or merger

limitation. This limitation “precludes certain particularly dangerous felonies–the archetype is

assault with a deadly weapon–from qualifying [as the underlying felony].” Id. It requires that

“the underlying felony be independent of the killing.” Dixon,

, at *4, citing

Katz and Gianelli, at Section 95.2. As the California Supreme Court has explained, the

limitation “is premised upon the concern that it ‘would subvert the legislative intent for a court

to apply the felony-murder rule automatically to elevate all felonious assaults resulting in

death to second degree murder even where the felon does not act with malice.’” People v. 6

Robertson,

,

(2004), quoting People v. Hansen,

,

(1994). “‘In other words, if the felony-murder rule were applied to

felonious assaults, all such assaults ending in death would constitute murder, effectively

eliminating the requirement of malice.’”

quoting

. In those jurisdictions

which have applied the independent-felony or merger rule, a felonious assault that is an

integral element of the homicide cannot be the predicate felony to support the felony murder.3

{¶ 9} In 1998, the Ohio General Assembly added the felony-murder provision, R.C.

2903.02(B), to Ohio’s murder statute. The provision pertinently states: “No person shall cause

the death of another as a proximate result of the offender’s committing or attempting to

commit an offense of violence that is a felony of the first or second degree.” Before this

provision was added, murder in Ohio concerned only purposeful killings. State v. Franklin,

7th Dist. Mahoning No. 06-MA-79,

; see R.C. 2903.02(A) (defining

murder as “purposely” causing death). Killings that occurred as a proximate result of a felony

fell under the involuntary-manslaughter statute, R.C. 2903.04.

{¶ 10} While it may be that “most jurisdictions apparently follow some form of the

‘merger’ doctrine,” Tomkovicz, 51 Wash. & Lee L. Rev. at 1467, Ohio does not. Unlike in

some states, in Ohio all crimes are statutory. R.C. 2901.03. We agree with the Ninth District

Court of Appeals that “in adopting R.C. 2903.02(B) the General Assembly rejected the

independent felony/merger doctrine,” State v. Cherry, 9th Dist. Summ No. 20771,

, ¶ 27. We further agree that “R.C. 2903.02(B) evidences a clear legislative

3 See discussion at State v. Freeze, 2d Dist. Clark No. 2421,

, *3 (Dec. 21, 1990). However,in Freeze, before codification of felony murder in R.C. 2903.02(B), this court rejected a defendant’s argument that the merger rule barred the use of felonious assault as the predicate offense for involuntary manslaughter. 7

intent to subject those who commit the most serious felonies to liability for murder, where

commission of those felonies results in death.” Id. at ¶ 43. As the First District has observed,

“the General Assembly has * * * narrowly defined the scope of felony murder under R.C.

2903.02(B), and related it to the legitimate purpose of punishing the taking of human life

while committing a separate offense of violence.” State v. Pickett, 1st Dist. Hamilton No.

C-000424,

,

, *3. The court pointed out that “only eleven

first- and second-degree offenses may serve as predicate offenses under this statute.”

The

court also said that “the statute does not arbitrarily relieve the state of proving criminal intent,

nor does it eliminate the role of the jury as the trier of fact.”

As the Eleventh District has

said, “the state [must still] prove[] the required intent to commit the underlying felony.” State

v. Hayden, 11th Dist. Lake No. 99-L-037,

, *4 (July 14, 2000). We add that

the General Assembly kept the felony-murder provision’s scope narrow also by using the

phrase “as a proximate result of.” We and other courts have concluded that this language

indicates that liability for felony murder is based on a theory of proximate cause. Dixon,

, at *5-6; Franklin. Under this theory,

generally, for a criminal defendant’s conduct to be the proximate cause of a

certain result, it must first be determined that the conduct was the cause in fact

of the result, meaning that the result would not have occurred “but for” the

conduct. Second, when the result varied from the harm intended or hazarded, it

must be determined that the result achieved was not so extraordinary or

surprising that it would be simply unfair to hold the defendant criminally

responsible for something so unforeseeable. Id. at *6, quoting State v. 8

Lovelace,

,

(1st Dist. 1999), citing

LaFave and Scott, Criminal Law, Section 35, at 246 (1972).

Thus, although the felony-murder provision contains no separate proof of a culpable mental

state, it limits criminal liability to only those deaths that occur “within the scope of a culpably

imposed risk,” Binder, Making the Best of Felony Murder,

, 484 (2011),

citing Wayne R. LaFave, Criminal Law 376-378 (5th Ed. 2010).

{¶ 11} Felonious assault and felony murder require proof of different facts, as the

Ohio Supreme Court has pointed out. In State v. Miller,

,

,

, the defendant was found guilty of felony murder predicated on felonious

assault. There, the evidence showed that the defendant fired a handgun at his wife at close

range and hit her in the head. She died from her injuries. The pertinent issue was “whether

felony murder as defined in R.C. 2903.02(B) is supported by evidence that establishes that the

defendant shot the victim knowingly when the underlying offense of violence charged is

felonious assault.” Id. at ¶ 20. The Court held that it was. Id. at ¶ 48. Succinctly explaining the

different proof requirements in that case, the Court said, “If defendant knowingly caused

physical harm to his wife by firing the gun at her through a holster at close range, he is guilty

of felonious assault. The fact that she died from her injuries makes him guilty of felony

murder, regardless of his purpose.” Id. at ¶ 33. We note too the Court’s dismissal of the

defendant’s concern that, “since felony murder has a lesser mens rea standard (knowingly)

than murder (purposely), and since the two crimes carry the same punishment, prosecutors

will now seek murder convictions under the felony murder statute based on felonious assault.”

Id. at ¶ 34. In addition to pointing out that “prosecutors can still charge in the alternative and 9

generally seek an indictment most aligned with the facts of the case,” id., the Court said that

this is a legislative concern: “the General Assembly has chosen to define felony murder in this

manner, and the General Assembly is presumed to know the consequences of its legislation.”

Id.

{¶ 12} Finally, the absence of the independent-felony or merger limitation is not

unconstitutional, as Ohio courts have consistently held. See Cherry,

, at ¶ 31

(finding “that neither R.C. 2903.02(B) nor Appellant’s conviction for felony murder where the

predicate offense was not independent of the conduct that killed [the victim] are in violation of

equal protection or due process guarantees”); State v. Smathers, 9th Dist. Summit No. 19945,

, *2-3 (Dec. 20, 2000) (holding that R.C. 2903.02(B) does not violate the

Fifth, Sixth, or Fourteenth amendments to the U.S. Constitution because the culpability

element of felony-murder is established by proving the intent of the underlying felony);

Pickett,

, at *3 (holding that “[the defendant]’s conviction under the

felony-murder rule of R.C. 2309.02(B), where the predicate offense was the felonious assault

of the murder victim, did not deprive him of due process”); Hayden,

, at *4

(rejecting defendant’s argument that R.C. 2903.02(B) is unconstitutional because it violates

the independent-felony or merger limitation, and holding that the statute does not violate due

process).

{¶ 13} Mays cites no authority showing that Ohio currently recognizes, or has ever

recognized, the independent-felony or merger limitation. Our independent research discloses

none either. And, we determine that the absence of such a limitation in the felony murder

statute raises no constitutional concerns. 10

{¶ 14} The first assignment of error is overruled.

C. Court Costs

{¶ 15} Mays alleges, in the second assignment of error, that the trial court erred by

imposing court costs in the termination entry without mentioning them at the sentencing

hearing. We agree.

{¶ 16} The Ohio Supreme Court has held “that a court errs in imposing court costs

without so informing a defendant in court.” State v. Joseph,

,

,

. It is true, as the state says, that if a defendant does not

move for waiver of payment at the time of sentencing, “the issue is waived and costs are res

judicata.” State v. Threatt,

,

,

, paragraph

two of the syllabus. But that assumes the defendant was given an opportunity to seek a waiver.

See

, citing Threatt at paragraph two of the syllabus. A defendant does not

have such an opportunity if the trial court fails to mention costs at the sentencing hearing. Id.

at ¶ 13. We have previously held that when court costs are not mentioned at the sentencing

hearing the defendant is denied the opportunity to seek a timely waiver of those costs. State v.

Lunsford

,

,

(2d Dist.).

{¶ 17} Here the trial court failed to tell Mays at the sentencing hearing that it was

imposing court costs on him. The remedy for this error, which we grant, is remand for the

limited purpose of the defendant to seek a waiver of court costs. See

{¶ 18} The second assignment of error is sustained.

D. Termination-Entry Disapproval of Transitional Control

{¶ 19} Mays alleges, in the third assignment of error, that the trial court erred by 11

using the termination entry to disapprove transitional control under R.C. 2967.26. This court

has held that this is error, as the state concedes, because “a trial court’s ability to approve or

disapprove of transitional control occurs only after a person has been incarcerated and the

adult parole authority sends a notice to the trial court indicating that it intends to grant

transitional control under R.C. 2967.26(A).” State v. Howard,

,

,

(2d Dist.).4 The remedy, which the state urges and

which we grant, is remand to amend the termination entry by deleting the statement of

disapproval. State v. Porcher, 2d Dist. Montgomery No. 24058,

.

{¶ 20} The third assignment of error is sustained.

E. Consecutive Sentences

{¶ 21} Finally, Mays alleges, in the fourth assignment of error, that the trial court

erred by imposing consecutive prison terms. He contends that the trial court based its

consecutive-terms decision on findings prohibited by the Ohio Supreme Court in State v.

Foster,

,

,

. Mays also contends that the trial

court’s rationale for consecutive terms shows that the court abused its discretion.

{¶ 22} When Foster was decided, R.C. 2929.14(E)(4) provided that consecutive

sentences could not be imposed unless the trial judge found additional facts. The judge had to

find that “‘the consecutive service is necessary to protect the public from future crime or to

punish the offender and that consecutive sentences are not disproportionate to the seriousness

4 We note that the termination-entry disapproves of transitional control rather than stating that the defendant is not eligible for transitional control. If the latter statement is accurately made, there is no error. See State v. Jones, 2d Dist. Montgomery No. 24075,

(distinguishing Howard on this basis). Under the current rules, Mays is not eligible for transitional control while serving his mandatory time (R.C. 2967.26(A)(1)(b)) and because he is serving a life sentence (

-12-01(F)(4)) 12

of the offender’s conduct and to the danger the offender poses to the public.’” Id. at ¶ 65,

quoting Former R.C. 2929.14(E)(4). “In addition, at least one of three more findings of fact

must be found: that the offender was already under control of the court due to an earlier

conviction, that at least two of the offenses were committed as part of a course of conduct and

the harm was so great or unusual that no single prison term adequately reflects the seriousness

of the conduct, or that ‘[t]he offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public.’” Id., quoting Former R.C.

2929.14(E)(4)(c). But in Foster the Court severed R.C. 2929.14(E)(4), saying that, after

severance, trial courts “have full discretion to impose a prison sentence within the statutory

range and are no longer required to make findings or give their reasons for imposing * * *

consecutive * * * sentences.” Id. at ¶ 100.

{¶ 23} Contrary to Mays’s assertion, Foster does not prohibit courts from considering

these factors. This is apparent from the Court’s later discussion of Foster’s effect on appellate

review of sentencing in State v. Kalish,

,

,

.

There the Court said that “Foster does not require a trial court to provide any reasons in

imposing its sentence.” (Emphasis added.) Kalish at ¶ 12. “For example,” said the Court,

“when imposing consecutive sentences prior to Foster, the trial court had to find that the

sentence was necessary to protect the public and was not disproportionate to the seriousness of

the offense and the danger the defendant posed to the public. R.C. 2929.14(E)(4). After

Foster, a trial court can simply impose consecutive sentences, and no reason need be stated.”

Id. But, the Court continued, “although Foster eliminated mandatory judicial fact-finding * *

*, it left intact R.C. 2929.11 and 2929.12. The trial court must still consider these statutes.” Id. 13

at ¶ 13. “R.C. 2929.11 and 2929.12,” noted the Court, “are not fact-finding statutes like R.C.

2929.14.” Id. at ¶ 17. “Instead, they serve as an overarching guide for trial judges to consider

in fashioning an appropriate sentence.” Id. Section 2929.11 states that the twin purposes of

felony sentencing “are to protect the public from future crime by the offender and others and

to punish the offender.” R.C. 2929.11(A). It also states that a sentence must try to achieve

these purposes, “commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim.” R.C. 2929.11(B). Section 2929.12 instructs courts to

consider all factors relating to the seriousness of the offender’s conduct and relating to the

likelihood of recidivism, including the factors enumerated in the section. One of the

enumerated factors, indicating an increased likelihood of recidivism, is that “the offender has a

history of criminal convictions.” R.C. 2929.12(D)(2).

{¶ 24} Here, while the trial court did not need to explain its consecutive-sentence

decision, it did nevertheless. And its explanation reflects the two sentencing statutes:

Moving now to the consecutive, whether or not these will be

consecutive to the sentences handed down * * *, the Court finds that in light of

the facts of this case, consecutive sentences are necessary to protect the public

from future crimes for the following reasons.

The evidence supported the fact that there was random rampant gunfire

in the middle of the day in a park which by the evidence indicated was peopled

by children and others enjoying the park on a–what it was apparently a nice day

and random gunfire. It was fortunate that only one person was killed in this.

And for that reason, the Court believes that consecutive sentences are 14

necessary to punish the offender for the following–for that reason and also

because of the prior record of the Defendant.

The wanton and reckless actions using firearms, that our citizenry needs

to be safe in its use of its parks.

Consecutive sentences are not, the Court finds, disproportionate to the

seriousness of the offender’s conduct and to the [d]anger that the Defendant

poses to the public.

***

The Defendant has a history of criminal conduct which demonstrates

that consecutive sentences are necessary to protect the public from future crime

by the offender. He has had gun charges in the past and other criminal conduct

in his record, prior record, which require this. (Tr. 1256-1257).

{¶ 25} Appellate review of sentences involves two steps. First, the reviewing court

must determine “whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶

4. Here we conclude that the imposition of consecutive sentences is not unlawful. Second, the

reviewing court must determine whether the trial court abused its discretion. Id. at ¶ 19.

“Generally, abuse of discretion occurs when a decision is grossly unsound, unreasonable,

illegal, or unsupported by the evidence. * * * In felony sentencing, the sentencing court abuses

its discretion if it unreasonably or arbitrarily weighs the factors in R.C. 2929.11 and 2929.12.”

(Citation omitted.) State v. Nichols,

,

,

(2d Dist.); see generally State v. Beechler, Clark No. 09CA54,

,¶

60-70 (addressing “the familiar maxim that ‘the term “abuse of discretion” connotes more 15

than an error of law or judgment,’” and saying that “no court–not a trial court, not an appellate

court, nor even a supreme court–has the authority, within its discretion, to commit an error of

law”). Here we find that the trial court properly considered the relevant statutory provisions.

And after reviewing the record, we cannot say that the court’s decision to impose consecutive

prison terms was unreasonable, arbitrary, or unconscionable.

{¶ 26} The fourth assignment of error is overruled.

F. Disposition

{¶ 27} Because the first and fourth assignments of error are overruled and the second

and third assignments of error are sustained, the trial court’s judgment is affirmed in part and

reversed in part. Reversed are the imposition of court costs and the disapproval of transitional

control; the rest of the judgment is affirmed. This case is remanded for the limited purposes of

giving Mays the opportunity to move the trial court for a waiver of the payment of court costs

and for deleting from the termination entry the statement disapproving transitional control.

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

FAIN and DONOVAN, JJ., concur.

Copies mailed to:

Mathias H. Heck R. Lynn Nothstine Stephen P. Hardwick J. David Turner Hon. Gregory F. Singer