[Cite as State v. Anthony,

.]

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,

,

(8th Dist.), discretionary appeal not allowed,

,

,

. 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,

,

,

, ¶ 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,

,

(1954), paragraph three of the

syllabus.

{¶9} In State v. Damron,

,

,

,

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,

,

,

. 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.”

citing State v. Brown,

,

,

. {¶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,

, ¶ 95-97; State v. Fair, 2d Dist. Montgomery No. 24120,

. 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

.

{¶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,

,

(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