[Cite as State v. Ferrell,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2017-P-0069 - vs - :

WILLIAM T. FERRELL, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR 00845.

Judgment: Affirmed in part, reversed in part, and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

James W. Armstrong, Leipply & Armstrong, 2101 Front Street, Riverfront Centre, Suite 101, Cuyahoga Falls, OH 44221 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, William T. Ferrell, appeals from the August 15, 2017

Judgment Entry of the Portage County Court of Common Pleas, ordering him to serve

four consecutive terms in prison for Nonsupport of Dependents following a violation of

his community control sanctions. The issues to be determined by this court are whether

a claim that the trial court erred in failing to merge allied offenses can be raised in an

appeal from sentencing on a community control violation, whether trial counsel is

ineffective by failing to raise such issue at that sentencing hearing, and whether the trial court commits plain error in failing to state a consecutive sentencing finding under R.C.

2929.14(C)(4)(a)-(c) at the sentencing hearing and in the judgment entry. For the

following reasons, we affirm in part and reverse in part the judgment of the trial court

and remand for further proceedings consistent with this opinion.

{¶2} On December 19, 2013, Ferrell was indicted by the Portage County Grand

Jury for six counts of Nonsupport of Dependents, felonies of the fourth degree, in

violation of R.C. 2919.21(A)(2) or (B).

{¶3} On August 21, 2014, a plea hearing was held at which Ferrell pled guilty to

four counts of Nonsupport of Dependents. A Nolle Prosequi was entered by the State

on the remaining two counts of the indictment. The guilty plea was accepted by the trial

court and the finding of guilt was memorialized in an August 26, 2014 Judgment Entry.

The Written Plea of Guilty was filed on the same date.

{¶4} A sentencing hearing was held on January 20, 2015, at which the court

sentenced Ferrell to a term of 100 days in jail. Ferrell was also ordered to serve a term

of community control, with one year of intensive supervision probation and four

additional years of general probation. The court also required that Ferrell become

employed within nine months and abide by a payment plan to satisfy his child support

arrearages. The court advised Ferrell that he may serve prison terms of 18 months for

each offense if he violated the conditions of his community control.

{¶5} On two occasions in 2015 and 2016, the probation department moved to

terminate or revoke Ferrell’s probation due to violations, including his failure to report

and an indictment for Possession of Heroin. On January 19, 2016, the court ordered

that Ferrell be given a “more restrictive sanction,” and extended his period of intensive

2 probation. Following the second violation, on July 25, 2016, the court issued a

Judgment Entry again ordering a more restrictive sanction, including a term of 180 days

in jail, and recommended that he interview for placement in NEOCAP, a community-

based corrections facility. On December 2, 2016, the court issued a Judgment Entry

finding that Ferrell had been accepted into NEOCAP and ordering him to remain in the

program until completion, and serve a term of one year of intensive supervision and one

year of regular probation.

{¶6} Giving rise to the present appeal, on June 23, 2017, the probation

department filed a third Motion to Revoke/Modify Probation on the ground that Ferrell

had not reported as required or advised the department of his change of address.

Ferrell failed to appear at a hearing on the motion and a warrant was issued for his

arrest.

{¶7} A hearing was held on this motion on August 11, 2017, at which Ferrell

admitted to the allegations. Ferrell’s counsel emphasized his mental health and

housing issues, noting that he was attempting to find employment, was not using drugs,

and requested a mental health assessment. Ferrell also expressed that he had been

hindered by these concerns. The court ordered Ferrell to serve one year in prison for

each of the four counts for which he had been convicted, with the terms to be served

consecutively, noting that Ferrell “had been back here too many times.”

{¶8} On August 15, 2017, the trial court issued a Judgment Entry finding the

Motion to Modify well-taken and memorializing the foregoing sentence. The court found

that “the consecutive sentence is necessary to protect the public from future crime or to

punish the Defendant and consecutive sentences are not disproportionate to the

3 seriousness of the Defendant’s conduct and to the danger the defendant poses to the

public.”

{¶9} On October 3, 2017, Ferrell filed a Motion for Leave to File a

Delayed Appeal, which this court granted. On appeal, he raises the following

assignments of error:

{¶10} “[1.] The trial court committed prejudicial error by sentencing Defendant to

four consecutive prison sentences despite Criminal Nonsupport of Dependents,

Criminal Nonsupport of Dependents, Criminal Nonsupport of Dependents, and Criminal

Nonsupport of Dependents involving the same Mother were [sic] allied offenses of

similar import and were required to be merged for sentencing purposes.

{¶11} “[2.] The trial court abused its discretion by sentencing Appellant, who the

Trial Court was aware had mental health issues, to four consecutive sentences of one

year, for a total of four years, for Criminal Nonsupport of Dependents involving two

children with the same Mother.

{¶12} “[3.] Appellant received ineffective assistance from his trial counsel who

failed to object when the Trial Court sentenced Appellant to four consecutive one year

sentences when the four counts of Criminal Nonsupport of Dependents were allied

offenses of similar import.”

{¶13} In his first assignment of error, Ferrell argues that the trial court erred by

failing to merge his four convictions for Nonsupport of Dependents since they were

allied offenses of similar import pursuant to R.C. 2941.25.

{¶14} While Ferrell asks this court to consider the merits of his merger

argument, it is necessary to first address the procedural question of whether this

4 assignment of error is barred by the doctrine of res judicata.

{¶15} “[A] convicted defendant is precluded under the doctrine of res judicata

from raising and litigating in any proceeding, except an appeal from that judgment, any

defense or any claimed lack of due process that was raised or could have been raised

by the defendant at the trial which resulted in that judgment of conviction or on appeal

from that judgment.” State v. Szefcyk,

,

(1996).

This court has repeatedly held that the doctrine of res judicata acts as a bar to a

defendant asserting a merger issue in post-judgment motions, since this issue must be

contested in a direct appeal from the trial court’s judgment entry of conviction. State v.

Franklin, 11th Dist. Lake Nos. 2017-L-015, et al.,

; State v. Wilson,

11th Dist. Lake No. 2015-L-067,

.

{¶16} Significantly, this principle has been applied specifically to cases where a

defendant appeals from an order finding a violation of community control and raises a

merger argument. Res judicata precludes consideration of this issue since it is viewed

as an attempt to “bootstrap an allied-offenses argument arising from the original

sentencing to the penalty imposed at the hearing on his subsequent community control

violation(s).” State v. Jones, 5th Dist. Richland No. 12CA22,

;

State v. Sosenko, 6th Dist. Wood Nos. WD-16-017 and WD-16-018,

(the defendant’s failure to raise merger at the time of sentencing for his convictions

rather than over two years later upon being sentenced for a community control violation

rendered his claim barred by the doctrine of res judicata); State v. Nava, 3d Dist.

Wyandot No. 16-15-07,

(“[i]t is well established that [the

defendant] was required to raise his allied offense argument by directly appealing” his

5 initial conviction and sentence). As such, the doctrine of res judicata applies here.

{¶17} Even if the doctrine of res judicata did not apply to bar Ferrell’s argument,

we find that it lacks merit.

{¶18} Ohio’s multiple counts or allied offenses of similar import statute 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.

R.C. 2941.25.

{¶19} “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,

, 2015-Ohio-

995,

, paragraph one of the syllabus. “[T]wo or more offenses may result

in multiple convictions if any of the following are true: ‘(1) the offenses are dissimilar in

import or significance – in other words, each offense caused separate, identifiable harm,

(2) the offenses were committed separately, and (3) the offenses were committed with

separate animus or motivation.’” State v. Jameson, 11th Dist. Ashtabula No. 2014-A-

6 0069,

, citing

.

{¶20} Typically, a de novo standard of review is applied to a merger

determination. State v. Williams,

,

,

. However, since Ferrell did not object to the trial court’s failure to merge the

counts in question, a plain error standard is more properly applied. Pursuant to Crim.R.

52(B) “[p]lain errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the court.” To show plain error, a defendant must

demonstrate that “(1) there was an error, (2) the error was ‘plain,’ i.e., obvious, and (3)

the error affected substantial rights.” State v. Tench, __ Ohio St.3d ___, 2018-Ohio-

5205, ¶ 217. Regardless, the Supreme Court of Ohio has held that the “imposition of

multiple sentences for allied offenses of similar import is plain error.” (Citation omitted.)

State v. Underwood,

,

,

, ¶ 31.

{¶21} Ferrell argues that none of the three factors outlined above were satisfied

here, where he was convicted of four offenses of Nonsupport of Dependents because

he had two children and the failure to pay was broken up over multiple two-year periods,

creating additional charges.

{¶22} Ferrell was convicted of the following counts of Nonsupport of

Dependents: one count for failure to pay support for E.F. from January 2007 to

December 2008, one count for failure to support A.F. during that same period, one

count for failure to pay support for E.F. from January 2009 to December 2010, and one

count for failure to support A.F. during that same period.

{¶23} Initially, we find that the convictions for each individual child should not

merge because they, at the least, cause a separate identifiable harm in that each child

7 is owed support and is impacted by Ferrell’s failure to pay. This is reinforced by case

law from appellate districts throughout this state. E.g., State v. Woullard, 2d Dist.

Montgomery No. 27216,

(“each child for whom [the defendant]

failed to pay said child support * * * constitute separate victims who suffered separate

harm by his conduct”); State v. Ladson, 8th Dist. Cuyahoga No. 83209, 2004-Ohio-

2973, ¶ 14.

{¶24} Regarding the fact that Ferrell was charged for two separate time periods

of nonsupport for each child, there is authority to support the conclusion that this does

not warrant a finding of merger. For example, in State v. Puckett, 5th Dist. Licking No.

2010 CA 0029,

, the Fifth District found that “three offenses of felony

nonsupport, which covered three separate one hundred four week (two year) periods,

were not allied offenses of similar import” since they were committed separately during

different time periods. Id. at ¶ 19; State v. Cook, 3d Dist. Union No. 14-04-36, 2005-

Ohio-4448, ¶ 15-16. The Nonsupport of Dependents statute provides for a conviction of

a felony of the fifth degree when a parent fails to provide support “for a total

accumulated period of twenty-six weeks out of one hundred four consecutive weeks”

and a conviction of a fourth-degree felony when there has been a prior violation of that

section. R.C 2919.21(G)(1). The statute anticipates multiple potential convictions due

to nonsupport, even enhancing the level of offense for repeat offenders. Under Ferrell’s

rationale, a defendant can either never be charged and sentenced for more than one

child support violation in a child’s lifetime (which does not appear to be the purpose of

the statute) or, alternatively, a parent can only be charged when there is a gap in time of

nonpayment, incentivizing a parent’s failure to pay no support for an extended period of

8 time to receive the benefit of merger. Either position is untenable.

{¶25} In support of his argument, Ferrell also cites State v. Smith, 6th Dist.

Ottawa No. OT-10-001,

, as a “similar matter” in which the appellate

court found that offenses for failure to provide support to twin daughters must be

merged. In Smith, however, the court found that the offenses were allied because the

defendant was convicted separately under two different code sections, R.C.

2919.21(A)(2) and 2919.21(B), for the same conduct. Id. at ¶ 36. Smith does not

address the merger of separate offenses for multiple children or of offenses that took

place during different time periods. Thus, Smith is entirely distinguishable from the

present matter. Moreover, Smith predates

which clarified the appropriate

factors for determining merger and, thus, Smith’s analysis is not applicable under the

present law of this state.

{¶26} Based on the foregoing, we disagree with Ferrell’s contentions and find

the offenses are separate and thus, are not allied offenses subject to merger.

{¶27} The first assignment of error is without merit.

{¶28} We will next address the third assignment of error since it is interrelated to

the first assigned error. Here, Ferrell argues that trial counsel was ineffective for failing

to object to the imposition of separate prison terms for allied offenses.

{¶29} To demonstrate ineffective assistance of counsel, a defendant must prove

“(1) that counsel’s performance fell below an objective standard of reasonableness, and

(2) that counsel’s deficient performance prejudiced the defendant resulting in an

unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87

, 388-389,

(2000), citing Strickland v. Washington,

,

,

(1984).

{¶30} It appears Ferrell is referencing trial counsel’s failure to object to the lack

of merger of the offenses at the sentencing following his community control violation,

although he recognizes that failure to raise this issue upon a direct appeal bars its

consideration, thus placing the claim of ineffectiveness on trial counsel during the initial

2015 sentencing hearing. Under either argument, Ferrell’s claims fail.

{¶31} Ferrell cannot advance arguments regarding trial counsel’s performance in

2015 at this stage. “[R]es judicata precludes a defendant from raising an ineffective-

assistance-of-counsel claim that was or could have been raised at trial or on direct

appeal.” State v. Johnson, 11th Dist. Lake No. 2016-L-064,

.

{¶32} Regarding trial counsel’s performance at the sentencing hearing in 2017

following Ferrell’s community control violation, we do not find trial counsel erred by

failing to raise the issue of merger. As explained in the preceding assignment of error,

failure to merge offenses cannot be raised in post-judgment motions as it must be

addressed at the initial sentencing hearing and on direct appeal. Franklin, 2017-Ohio-

9330, at ¶ 9. Moreover, the offenses were not allied and should not have been merged.

As such, had trial counsel raised said argument, the lower court should have properly

found it barred by the doctrine of res judicata and/or rejected it on its merits.

{¶33} The third assignment of error is without merit.

{¶34} Finally, in his second assignment of error, Ferrell argues that the trial court

abused its discretion by ordering consecutive prison sentences. He contends that the

court erred in finding he posed a danger to the public, emphasizing his convictions were

10 for failure to pay child support and his youngest dependent was 20 years old.

{¶35} The State concedes error in the court’s consecutive sentencing order due

to its failure to make all of the required statutory findings.

{¶36} “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate

the sentence and remand the matter to the sentencing court for resentencing * * * if it

clearly and convincingly finds * * * [t]hat the record does not support the sentencing

court’s findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat

the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b). However,

since Ferrell failed to object to his sentence, “our review is limited to consideration of

whether the trial court committed plain error.” State v. Moore, 11th Dist. Trumbull No.

2015-T-0072,

. “When the record demonstrates that the trial court

failed to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive

sentences * * *, the appellant’s sentence is contrary to law and constitutes plain error.”

State v. Aikens,

,

, ¶ 53 (11th Dist.). We emphasize that

in sentencing a defendant following a community control violation, the trial court must

comply with the relevant sentencing requirements. State v. Fraley,

,

,

.

{¶37} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple

offenses may be ordered to be served consecutively if the court finds it is “necessary to

protect the public from future crime or to punish the offender and

11 that consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public,” and if the court also finds

any of the factors in R.C. 2929.14(C)(4)(a)-(c) are present. Those factors include the

following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶38} “[T]o impose consecutive terms of imprisonment, a trial court is required to

make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry.” State v. Bonnell,

,

,

.

{¶39} Here, the trial court did not make any specific consecutive sentencing

findings at the sentencing hearing, with the exception of a general statement that Ferrell

“had been here too many times.” In the sentencing entry, the court found: the

“consecutive sentence is necessary to protect the public from future crime or to punish

the Defendant and consecutive sentences are not disproportionate to the seriousness of

the Defendant’s conduct and to the danger the defendant poses to the public.” While

this is the exact language contained in R.C. 2929.14(C)(4), no additional finding was

12 made from R.C. 2929.14(C)(4)(a)-(c). The State concedes that the trial court made no

consecutive sentencing findings at the hearing and did not determine the presence of

an R.C. 2929.14(C)(4)(a)-(c) factor at any point. Under these circumstances, the court

did not satisfy the statutory sentencing requirements. State v. Snyder, 11th Dist.

Ashtabula Nos. 2017-A-0041, et al.,

(where the court does not

reference all required consecutive sentencing factors at the sentencing hearing and in

the judgment entry, the sentence is contrary to law).

{¶40} Since the record demonstrates, and the State concedes, that the requisite

findings were not made, Ferrell’s sentence is contrary to law and constitutes plain error.

We therefore vacate his sentence. On remand, the trial court is instructed to

resentence Ferrell and, if it re-imposes consecutive sentences, to make all necessary

statutory findings. Id. at ¶ 17.

{¶41} The second assignment of error is with merit.

{¶42} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed in part and reversed in part, and this matter is remanded for

further proceedings consistent with this opinion. Costs to be taxed against the parties

equally.

THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.

13