[Cite as State v. Johnson,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108311 v. :

RANAU JOHNSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED IN PART AND REMANDED RELEASED AND JOURNALIZED: February 20, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-613109-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney, for appellee.

William B. Norman, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Ranau Johnson, appeals from the trial court’s

resentencing after remand from this court. After reviewing the record, we vacate the

sentence on Count 2, and remand for resentencing on Count 2 only. In its

resentencing entry, the trial court should indicate that Count 1 is dismissed. Further, upon remand, the trial court should issue a nunc pro tunc entry regarding

the resentencing hearing held on December 11, 2018, to reflect that no restitution is

imposed.

Johnson was charged in a four-count indictment. Count 1 charged

attempted felony murder in violation of R.C. 2923.02 and 2903.02(B). Counts 2 and

3 charged aggravated arson in violation of R.C. 2909.02(A)(1), with each count

pertaining to a separate victim. Count 4 charged aggravated arson in violation of

R.C. 2909.02(A)(2). The charges arose out of an incident where Johnson poured

gasoline into the basement bedroom window of a home occupied by two individuals

and then set the gasoline on fire.

Johnson pleaded not guilty, and the case proceeded to a bench trial.

The trial court found Johnson guilty of the four counts as charged. Following merger

of Counts 1 and 2, the court sentenced Johnson to a prison term of 10 years for Count

1, 10 years for Count 3, and 7 years for Count 4, and ordered all terms to run

consecutively, for a total aggregate prison term of 27 years. The court also ordered

Johnson to pay restitution in the amount of $5,000.

Johnson appealed from his convictions and sentence. State v.

Johnson, 8th Dist. Cuyahoga No. 106450,

(“Johnson I”). He

challenged the sufficiency and manifest weight of the evidence, the expert testimony

admitted at trial, and the imposition of consecutive sentences and restitution. This

court vacated Johnson’s conviction for attempted felony murder on Count 1 because

attempted felony murder is not a cognizable crime under Ohio law. Id. at ¶ 5. This court affirmed Johnson’s convictions on the other counts, finding that the

convictions were supported by sufficient evidence and were not against the manifest

weight of the evidence. Id. at ¶ 30, 38. This court also found that the trial court had

not abused its discretion by permitting expert testimony. Id. at ¶ 45. Finally, this

court found that the trial court had properly imposed consecutive sentences on

Counts 3 and 4, but had improperly ordered that Johnson pay $5,000 restitution

because the state had failed to present sufficient evidence to allow the trial court to

discern the appropriate amount of restitution to a reasonable degree of certainly. Id.

at ¶ 53, 57.

Accordingly, this court “vacate[d] the conviction and sentence on

Count 1 for attempted felony murder, reverse[d] the restitution award, and

remand[ed] the case to the trial court for a resentencing hearing on Count 2 only

and for an evidentiary hearing to determine the appropriate amount of restitution.”

Id. at ¶ 58.

At resentencing, the trial court stated that “Counts 1 and 2 merge for

purposes of sentencing. It is ordered by the Court of Appeals. And the court will

sentence the defendant on Counts 2, 3, and 4.” (Tr. 395.) The court then sentenced

Johnson to a prison term of 10 years on Count 2, 10 years on Count 3, and 7 years

on Count 4, and ordered the terms to be served consecutively, for an aggregate term

of 27 years. The state conceded at the sentencing hearing that it did not have a

witness to testify regarding restitution, and it did not have any documents regarding

restitution to submit to the court. (Tr. 394.) Accordingly, the state did not request that Johnson pay restitution, and the trial court did not order any restitution. (Tr.

395-397.) This appeal followed.

A. Count 1

The resentencing journal entry states in pertinent part:

On a former day of court the court found the defendant guilty of attempted murder 2923.02/2903.02 B F1 as charged in Count 1 of the indictment. * * * The court imposes a prison sentence at the Lorain Correctional Institution of 27 years. Sentences in Count 1 and 2 merge for the purposes of sentencing. Court will sentence defendant on Count 2, 3, and 4.

As an initial matter, we note that the trial court exceeded the scope of

remand upon resentencing. In Johnson I, this court ordered that on remand, the

trial court should resentence Johnson on Count 2 and hold an evidentiary hearing

regarding the imposition of restitution. Instead of limiting the resentencing hearing

to conform to the remand order, the trial court conducted a de novo sentencing on

all counts, including those sentences that were not part of the remand order.

Although a remand for a resentencing hearing anticipates a de novo

sentencing, the scope of the remand is narrowed by certain limitations. Specifically,

“only the sentences for the offenses that were affected by the appealed error are

reviewed de novo; the sentences for any offenses that were not affected by the

appealed error are not vacated and are not subject to review.” State v. Wilson,

,

,

, ¶ 15. Here, only Count 2 was

affected by this court’s remand order; Counts 3 and 4 were not affected by the appeal

and thus were not subject to resentencing upon remand. It is evident the trial court

exceeded the scope of the remand by also resentencing Johnson on Counts 3 and 4. Nevertheless, the trial court did not alter the valid and final sentences imposed on

those counts at the original sentencing and therefore, we consider the trial court’s

error at resentencing to be harmless.

In his first assignment of error, Johnson contends that the trial court

should have dismissed Count 1 instead of ordering that Counts 1 and 2 merged for

resentencing. We agree. Despite this court’s decision vacating Johnson’s conviction

on Count 1, the journal entry of resentencing reflects that Johnson was found guilty

of attempted felony murder in Count 1 and that Count 1 merged with Count 2 for

sentencing. The journal entry should have reflected that Count 1 was dismissed and

that Johnson was resentenced on Count 2.

The state concedes the error but suggests that the error can be fixed

with a nunc pro tunc entry by the trial court. However, “[the] function of nunc pro

tunc is not to change, modify, or correct erroneous judgments, but merely to have

the record speak the truth.” State v. Fontanez, 8th Dist. Cuyahoga No. 106226,

; Scaglione v. Saridakes, 8th Dist. Cuyahoga No. 91490, 2009-

Ohio-4702, ¶ 9 (a nunc pro tunc order’s “proper use is limited to what the trial court

actually did decide”). The transcript of the sentencing hearing reflects that the trial

court merged Counts 1 and 2 for sentencing and then sentenced Johnson on Count

2. Thus, a nunc pro tunc entry cannot be used to change the trial court’s sentence

to reflect that the trial court resentenced Johnson on only Count 2, as the state

suggests. Accordingly, the first assignment of error is sustained. The sentence

on Count 2 is vacated, and the matter is remanded for the trial court to resentence

Johnson on Count 2 only. The trial court should also indicate in its resentencing

journal entry that Count 1 is dismissed.

B. Restitution

In his second assignment of error, Johnson contends that the trial

court erred at resentencing in ordering restitution without an evidentiary hearing.

The transcript of the resentencing hearing held on December 11, 2018, reflects that

the prosecutor informed the court that the victim was not available to testify, and

the state had no documentary evidence relevant to restitution. It further reflects

that the trial court did not order any restitution. However, the resentencing journal

entry orders Johnson to pay restitution in the amount of $5,000. Accordingly, the

second assignment of error is sustained, and the matter is remanded for the trial

court to issue a nunc pro tunc entry to reflect that no restitution was ordered at

Johnson’s resentencing on December 11, 2018.

C. Waiver of Jury Trial

In his third assignment of error, Johnson contends that his jury

waiver was constitutionally invalid. He argues that to be a knowing waiver, a

defendant must understand the nature of each charge against him, and that his

waiver was not knowing because he was not advised that Count 1, attempted felony

murder, was not a cognizable offense under Ohio law. He asserts that his jury waiver

was therefore not valid, and his convictions should be vacated. Under the doctrine of res judicata, a final judgment of conviction bars

a convicted defendant who was represented by counsel 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 that resulted in the judgment of conviction, or on an appeal from that judgment.

State v. Perry,

,

(1967), paragraph nine of the

syllabus. This doctrine “promotes the principles of finality and judicial economy by

preventing endless relitigation of an issue on which a defendant has already received

a full and fair opportunity to be heard.” State v. Saxon,

, 2006-

Ohio-1245,

, ¶ 18.

Johnson could have raised the jury-waiver argument on direct appeal

and therefore, it is now barred by res judicata. Moreover, the argument fails on the

merits.

To be valid, a jury waiver must meet five conditions. State v. Lomax,

,

,

. It must (1) be in writing, (2)

signed by the defendant, (3) filed, (4) made part of the record, and (5) made in open

court. Id. at ¶ 9. A written jury waiver is presumptively voluntary, knowing, and

intelligent. Id. There is no requirement that a court inform the defendant of the

implications of a waiver nor engage in a long colloquy with the defendant about the

waiver. Id. at ¶ 48. However, there must be some evidence in the record that the

defendant, while in court and in the presence of counsel, acknowledged to the trial

court that he wished to waive the right to a jury trial. Id. The record reflects that before the start of trial, Johnson signed the

jury waiver form. (Tr. 5.) He acknowledged his signature on the jury waiver form

to the trial court, and affirmatively responded when the trial judge asked if it was his

intent to go forward without a jury and have his case tried to the bench. Id. The trial

judge then signed the waiver, and the waiver was filed with the clerk’s office before

trial commenced. Id. Accordingly, Johnson’s argument that his jury waiver was

somehow defective is without merit, and the third assignment of error is overruled.

D. Multiple Victims; Multiple Offenses

Johnson was convicted of two counts of aggravated arson in violation

of R.C. 2909.02(A)(1). Count 2 applied to one victim; Count 3 applied to another

victim. In his fourth assignment of error, Johnson contends that he should have

been convicted of only one count of aggravated arson. He argues that he set a single

fire to a single home and, therefore, that he committed only one act of aggravated

arson.

Johnson could have but did not raise this argument in his direct

appeal and, therefore, it is barred by res judicata. And even considering the merits,

it fails.

In State v. Franklin,

,

,

, the Ohio Supreme Court considered the same argument. The Supreme Court

noted that under R.C. 2909.02(A)(1), regarding aggravated arson, no person shall

knowingly set a fire that creates a substantial risk of serious harm or injury to

another person. The defendant in Franklin set a fire that killed six people, but argued that the aggravated arson counts were allied offenses of similar import that

should merge into one count “because he set only one fire and thus committed only

one arson.” Id. at ¶ 48. The Ohio Supreme Court rejected this argument, finding

that even though the defendant set only one fire, each aggravated arson count

recognized that his conduct created a substantial risk of harm to a separate person.

Id.

In this case, Johnson’s conduct caused two aggravated arson offenses

because although he set a single fire, his conduct placed two individuals at

substantial risk of serious harm or injury. Accordingly, he was properly convicted

and sentenced on two counts of aggravated arson. The fourth assignment of error

is overruled.

E. Lesser Included Offense

Johnson was convicted in Counts 2 and 3 of aggravated arson in

violation of R.C. 2909.02(A)(1). He was convicted in Count 4 of aggravated arson

in violation of R.C. 2909.02(A)(2). In his fifth assignment of error, Johnson

contends that R.C. 2909.02(A)(2) is a lesser included offense of R.C. 2909.02(A)(1)

and, therefore, he should not have been convicted of both offenses.

This argument is barred by the doctrine of res judicata because it was

not raised on direct appeal. It also fails on the merits.

In determining whether one offense is a lesser included offense of

another, a court must consider whether: (1) “one offense carries a greater penalty

than the other,” (2) “some element of the greater offense is not required to prove commission of the lesser offense,” and (3) “the greater offense as statutorily defined

cannot be committed without the lesser included offense as statutorily defined also

being committed.” State v. Evans,

,

,

, paragraph two of the syllabus, clarifying State v. Deem,

,

(1988).

R.C. 2909.02(A)(1) provides that “[n]o person, by means of fire or

explosion, shall knowingly * * * create a substantial risk of serious physical harm to

any person other than the offender.” A violation of R.C. 2909.02(A)(1) is a first-

degree felony. R.C. 2909.02(A)(2) provides that “[n]o person, by means of fire or

explosion, shall knowingly * * * cause physical harm to any occupied structure.” A

violation of R.C. 2909.02(A)(2) is a second-degree felony.

Johnson’s argument fails the third prong of the test for lesser

included offenses because the greater offense under R.C. 2909.02(A)(1) (substantial

risk of serious physical harm to a person) can be committed without the lesser

included offense under R.C. 2909.02(A)(2) (physical harm to an occupied structure)

also being committed. Clearly, an offender can create a substantial risk of harm to

a person by means of a fire or explosion without also causing physical harm to an

occupied structure. Johnson’s argument is without merit, and the fifth assignment

of error is overruled.

F. Allied Offenses

In his sixth assignment of error, Johnson contends that his offenses

for aggravated arson under R.C. 2909.02(A)(1) (Counts 2 and 3, physical harm to any person) and R.C. 2909.02(A)(2) (Count 4, physical harm to an occupied

structure) are allied offenses that should have merged for sentencing. Johnson

contends that because he set only one fire, the offenses were committed with a single

animus and, therefore, should have merged for sentencing as allied offenses.

Johnson did not raise this argument on direct appeal, and it is

therefore barred by res judicata. It also fails on the merits.

This court considered the same argument in State v. Crawley, 8th

Dist. Cuyahoga No. 99636,

. Like Johnson, the defendant in Crawley

argued that his convictions for aggravated arson under R.C. 2909.02(A)(1) and (2)

should merge as allied offenses. This court rejected the argument, finding that

where a defendant commits the same offense against separate victims, a separate

animus exists for each victim such that the offenses are not allied. Id. at ¶ 47. This

court concluded that the victims of the offenses charged in R.C. 2909.02(A)(1) and

(2) are separate, such that “a separate animus exists for each separate victim,” and

accordingly, the offenses are not allied offenses of similar import. See also State v.

Legrant, 2d Dist. Miami No 2013-CA-44,

(defendant’s

convictions under R.C. 2909.02(A)(1) and (2) were not allied offenses for purposes

of sentencing). Thus, Johnson’s argument is without merit, and the sixth

assignment of error is overruled. G. Ineffective Assistance of Counsel

In his seventh assignment of error, Johnson asserts that his original

trial and appellate counsel were ineffective for not raising the errors he now raises

on appeal.

Johnson did not raise ineffective assistance of trial counsel in his

direct appeal, and accordingly, the argument is barred by res judicata. With respect

to appellate counsel, a direct appeal from a defendant’s resentencing is not the

correct method to argue for reopening an appeal based on a claim of ineffective

assistance of counsel. See App.R. 26(B). The seventh assignment of error is

overruled.

Accordingly, we vacate the sentence imposed on Count 2, and remand

for resentencing on Count 2 only. In its resentencing entry, the trial court should

indicate that Count 1 is dismissed. Further, upon remand, the trial court should

issue a nunc pro tunc entry regarding the resentencing hearing held on December 11,

2018, to reflect that no restitution is imposed.

Judgment vacated in part and remanded.

It is ordered that the parties share equally costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court

for resentencing and execution of nunc pro tunc entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and MICHELLE J. SHEEHAN, J., CONCUR