[Cite as State v. Hurst,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA33 : vs. : : DECISION AND JUDGMENT MICHAEL HURST, : ENTRY : Defendant-Appellant. : Released: 09/11/13 _____________________________________________________________ APPEARANCES:

Timothy Young, Ohio Public Defender, and Francisco E. Lüttecke, Assistant State Public Defender, Columbus, Ohio, for Appellant.

James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Washington County Assistant Prosecutor, Marietta, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.

{¶1} This matter comes before us following our decision under

App.R. 26(B) to reopen Appellant, Michael Hurst’s, direct appeal. Here,

Appellant raises a single assignment of error, contends the trial court erred in

imposing separate sentences for offenses, which he claims arose from the

same conduct, were not committed separately or with a separate animus, and

should have been merged for sentencing purposes under R.C. 2941.25.

Because we conclude that the trial court did not apply the test for

determining allied offenses of similar import set forth in State v. Johnson, Washington App. No. 10CA33 2

,

,

, the portion of the

trial court's order sentencing Appellant to consecutive sentences for his

convictions on eleven counts in violation of R.C. 2907.323(A)(1)1 and

eleven counts in violation of R.C. 2907.323(A)(3)2 is hereby vacated and the

matter is remanded for further proceedings consistent with this opinion.

FACTS

{¶2} As noted in our decision granting Appellant’s application for

reopening, Appellant was convicted of eleven counts of illegal use of a

minor in nudity oriented material or performance, second degree felonies in

violation of R.C. 2907.323(A)(1), eleven counts of illegal use of a minor in

nudity oriented material or performance, fifth degree felonies in violation of

R.C. 2907.323(A)(3), as well as tampering with evidence, a third degree

felony in violation of R.C. 2921.12(A)(2). Appellant was sentenced on each

count, to a combined prison term of twenty six and a half years, as

evidenced in the trial court’s October 13, 2010.

{¶3} Appellant filed an initial appeal from his convictions and

sentences, which we affirmed in State v. Hurst, 4th Dist. No. 10CA33, 2012-

Ohio-2465. Appellant subsequently filed an application for reopening.

Over the objection of the State, this Court granted Appellant’s application

1 These convictions were for illegal use of a minor in nudity oriented material or performance, which involved the transfer of the material or performance. 2 These convictions were also for illegal use of a minor in nudity oriented material or performance, but simply involved possession of the material or performance. Washington App. No. 10CA33 3

for reopening regarding to whether appellate counsel was ineffective in

failing to raise an assignment of error based upon the trial court’s imposition

of separate, consecutive sentences for offenses which Appellant argues were

allied offenses of similar import under R.C. 2941.25. In granting

Appellant’s application, this Court concluded that Appellant had raised a

colorable claim of ineffective assistance of counsel based upon appellate

counsel’s failure to challenge the trial court’s imposition of separate,

consecutive sentences for offenses which possibly should have been merged

as allied offenses of similar import under the test set forth in State v.

Thus, the matter is now before us once again, via a

reopened direct appeal, wherein Appellant raises a single assignment of error

for our review.

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER R.C. 2941.25.”

{¶4} In his sole assignment of error, Appellant contends that the trial

court erred in imposing separate sentences for offenses, which he claims

arose from the same conduct, were not committed separately or with a

separate animus, and should have been merged for sentencing purposes

under R.C. 2941.25. More specifically, Appellant contends that the offenses Washington App. No. 10CA33 4

of which he was convicted, which involved both the “transfer” and

“possession” sections of the illegal use of a minor in nudity oriented material

or performance statute, were committed by the same conduct and are

therefore allied offenses of similar import under the reasoning of the

Supreme Court of Ohio in State v Johnson,

, 2010-Ohio-

6314,

.

R.C. 2941.25 provides:

“(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.”

{¶5} As the Supreme Court explained in State v. Johnson at ¶ 47,

under R.C. 2941.25, “the court must determine prior to sentencing whether

the offenses were committed by the same conduct.” The initial question is

whether it is possible to commit the two offenses with the same conduct. Washington App. No. 10CA33 5

Johnson at ¶ 48. If so, we must then look to the facts of the case and

determine whether the two offenses actually were committed by the same

conduct, “i.e., ‘a single act, committed with a single state of mind.’ ”

Johnson at ¶ 49; quoting State v. Brown,

, 2008-Ohio-

4569,

.

{¶6} “If the answer to both questions is yes, then the offenses are

allied offenses of similar import and will be merged.” Johnson 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 separate animus for each offense, then,

according to R .C. 2941.25(B), the offenses will not merge.” Johnson at ¶

51.

{¶7} As we noted in our decision granting Appellant’s application for

reopening, Appellant was sentenced just prior to the release of the Johnson

decision and the new allied offenses test contained therein; therefore, if any

test was employed by the trial court in imposing Appellant’s sentence, it

would have been the test set forth in State v. Rance..3 However, the Johnson

decision expressly overruled the Rance decision. Johnson at syllabus. Thus,

although Appellant was sentenced just prior to Johnson being released, the

3 A review of the sentencing transcript, however, reveals that the issue of allied offenses was never actually discussed by counsel or the trial court, but rather there was simply a request for concurrent sentences based upon the similarity of the offenses of possession and transfer. Washington App. No. 10CA33 6

reasoning of Johnson was nevertheless applicable as Appellant’s underlying

case was pending on direct appeal at the time of its release. State v. Literal,

4th Dist. No. No. 12CA3479,

, FN. 1.

{¶8} Again, as we have previously noted, we are mindful that the trial

court could not have applied the test set forth in Johnson at the time of

Appellant’s sentencing hearing as the decision had not yet been released.

However, as the matter was pending on direct appeal at the time the Johnson

decision was released, the issue of merger and the question of the

appropriate test to be applied in reaching that determination should have

been raised as part of Appellant’s direct appeal. The record before us

indicates that the question of allied offenses was minimally discussed, if it

was discussed at all, during sentencing.

{¶9} Faced with this procedural history, we find that the most

appropriate remedy at this juncture is to remand this matter to the trial court

for further review to determine whether Appellant’s conduct is allied under

State v.

State v. Grube , -- Ohio App.3d --, 2013-Ohio- 692,

, ¶ 52; citing, State v. Delawder, 4th Dist. No. 10CA3344,

. We find it to be inappropriate for this Court to make

such an initial determination when the trial court has yet to consider this

particular question, and failed to have the benefit of applying the new test.

{¶10} In light of the foregoing, the portion of the trial court's order Washington App. No. 10CA33 7

sentencing Appellant to consecutive sentences on the eleven “transfer”

convictions and the eleven “possession” convictions is hereby vacated and

this matter is remanded. Accordingly, the decision of the trial court is

reversed in part and this matter is remanded for further proceedings

consistent with this opinion.

JUDGMENT REVERSED IN PART AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Washington App. No. 10CA33 8

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED IN PART and that the CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and Appellee shall split the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court,

BY: _______________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.