[Cite as State v. Figueroa, 2020-Ohio-1328.]



                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NO. 2019-P-0079
         - vs -                                  :

 JOHN L. FIGUEROA, II,                           :

                  Defendant-Appellant.           :


 Criminal Appeal from the Portage County Municipal Court, Ravenna Division.
 Case No. 2018 CRB 00849.

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


 Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
 Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

 Shubhra N. Agarwal, 3732 Fishcreek Road, Suite 288, Stow, OH 44224 (For Defendant-
 Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}      Appellant, John L. Figueroa II, appeals from the July 5, 2019 sentencing

entry of the Portage County Municipal Court, Ravenna Division. For the reasons that

follow, the entry of conviction is affirmed in part and reversed in part. The sentence

imposed is upheld, but the matter is remanded for the state of Ohio to elect which allied

offense survives merger.
      {¶2}   On March 27, 2018, a complaint was filed against appellant accusing him

of obstructing official business and making a false police report incriminating a Deputy

Sheriff of theft. Three misdemeanors were listed in the complaint—Falsification (M1) in

violation of R.C. 2921.13(A)(2); Falsification (M1) in violation of R.C. 2921.13(B); and

Obstructing Official Business (M2) in violation of R.C. 2921.31(A).

      {¶3}   A bench trial was held June 17-18, 2019. The charge of Obstructing Official

Business was dismissed upon the state of Ohio’s motion. In a June 19, 2019 judgment

entry, the trial court found appellant “guilty beyond a reasonable doubt of falsification

pursuant to Ohio Revised Code 2921.13(A)(2) and a second count of falsification

pursuant to Ohio Revised Code 2921.13(B).”

      {¶4}   Sentencing was held July 5, 2019.          After hearing from counsel and

addressing appellant, the court stated: “And we are just going to pure and simple go on

to sentencing. And my sentence is a $1,000 fine and court costs, 180 days in jail, credit

for 30 days served. I’m going to suspend $800 of the fine. You are to commit no violation

of law for two years and your sentence starts today.” The prosecutor inquired, “Judge, I

assume for purposes of the sentencing entry, the two charges merge for purposes of

sentencing?” The court affirmed, “I did merge those.”

      {¶5}   The trial court issued a form judgment entry of sentence, from which

appellant now appeals. Appellant raises five assignments of error for our review:

             [1.] Mr. Figueroa’s entry of conviction is not a final, appealable order.

             [2.] The trial court committed reversible error when it overruled Mr.
             Figueroa’s Crim.R. 29(A) motion for acquittal because the evidence
             was insufficient to support a conviction.




                                             2
               [3.] Mr. Figueroa’s conviction of falsification was against the manifest
               weight of the evidence.

               [4.] The trial court committed reversible and plain error when it
               sentenced Mr. Figueroa without having the State elect which count
               of falsification will be merged into the other for the purpose of
               sentencing.

               [5.] Mr. Figueroa was denied his constitutional right to effective
               assistance of counsel at trial when his trial counsel failed to argue
               that the prosecutor did not elect what count of falsification will be
               merged for purposes of sentencing.

       {¶6}    Appellee, the state of Ohio, responded to only the first assignment of error.

                                  Final, Appealable Order

       {¶7}    As his first assignment of error, appellant asserts the trial court’s entry of

conviction is not a final, appealable order because it fails to comply with Crim.R. 32(C).

The state agrees. We disagree, however, with both parties. The trial court’s entry of

conviction complies with Crim.R. 32(C) and is a final, appealable order.

       {¶8}    Pursuant to Crim.R. 32(C), “A judgment of conviction shall set forth the fact

of conviction and the sentence. * * * The judge shall sign the judgment and the clerk

shall enter it on the journal.”

       {¶9}    “Crim.R. 32(C) clearly specifies the substantive requirements that must be

included within a judgment entry of conviction to make it final for purposes of appeal[.]”

State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶11.                These substantive

requirements are “(1) the fact of the conviction, (2) the sentence, (3) the judge’s signature,

and (4) the time stamp indicating the entry upon the journal by the clerk.” Id. at ¶14,

modifying State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330.




                                              3
       {¶10} “In contrast, when the substantive provisions of Crim.R. 32(C) are contained

in the judgment of conviction, the trial court’s omission of how the defendant’s conviction

was effected, i.e., the ‘manner of conviction,’ does not prevent the judgment of conviction

from being an order that is final and subject to appeal.” Id. at ¶12 (emphasis added).

       {¶11} Here, the sentencing entry correctly sets forth the fact of conviction but

incorrectly designates the manner of conviction. Rather than indicating that the trial court

made a finding of guilty beyond a reasonable doubt, it indicates appellant pled guilty.

Appellant admits this mistake does not affect the finality of the order. See id. at ¶12.

       {¶12} Rather, appellant argues the finality of the order is affected by (1) the

omission of the particular section of the Revised Code and level of offense of which he

was convicted and (2) the failure to note which count of Falsification survived merger for

purposes of sentencing. Neither of these, however, are substantive requirements of a

final and appealable entry of conviction under Crim.R. 32(C).

       {¶13} First, this court has previously held that “there is no requirement that the

trial court indicate on a sentencing entry the exact section numbers of the revised code

the defendant has been found guilty of violating.” Mentor v. Molk, 11th Dist. Lake No.

2010-L-112, 2011-Ohio-3120, ¶18. Thus, as omitting this information is not error, the

failure to include it certainly does not affect the finality of the order. There is no argument

or any indication from the record that appellant was unaware of the charges against him,

the revised code sections and level of those offenses, and the charges of which he was

found guilty. This information was included, among other places, in the complaint filed

against appellant, as well as the judgment entered with the trial court’s finding of guilt.




                                              4
       {¶14} Second, the sentencing entry states the fact of conviction and sentence for

only one offense. The form entry indicates two counts of Falsification were merged:

“falsification x 2, merge.” And only one sentence was imposed, according to the form

entry: “$1,000 Fine, X Costs”; “180 days in jail. Credit for 30 days served”; “$800 of the

fine suspended upon conditions below”; “Defendant commits no violation of law for 2

years.” Accordingly, any error regarding merger in this case does not affect the finality of

the sentencing entry.

       {¶15} “[T]he purpose of Crim.R. 32(C) is to ensure that a defendant is on notice

concerning when a final judgment has been entered and the time for filing an appeal has

begun to run.” Lester, supra, at ¶10, citing State v. Tripodo, 50 Ohio St.2d 124, 127

(1977). There is no concern here that appellant did not receive notice of when the time

for filing his appeal began to run. He was served with the entry and received appointment

of counsel, who timely appealed and now raises alleged errors—but not jurisdictional

issues—with regard to the proceedings below.

       {¶16} Although it contains errors, the July 5, 2019 sentencing entry is a final,

appealable order.

       {¶17} Appellant’s first assignment of error is without merit.

                                  Motion for Acquittal

       {¶18} Under his second assignment of error, appellant argues the trial court erred

when it overruled his Crim.R. 29(A) motion for acquittal.

       {¶19} Pursuant to Crim.R. 29(A), “The court on motion of a defendant or on its

own motion, after the evidence on either side is closed, shall order the entry of a judgment




                                             5
of acquittal of one or more offenses charged in the indictment, information, or complaint,

if the evidence is insufficient to sustain a conviction of such offense or offenses.”

       {¶20} Crim.R. 29(A) requires the trial court to grant a motion for judgment of

acquittal if the evidence is insufficient to sustain a conviction on the charged offense(s).

“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the

sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull

Nos. 2003-T-0166 & 2003-T-0167, 2004-Ohio-6688, ¶18.

       {¶21} Count One of the complaint alleges a violation of R.C. 2921.13(A)(2), which

provides: “No person shall knowingly make a false statement, or knowingly swear or

affirm the truth of a false statement previously made, when * * * [t]he statement is made

with purpose to incriminate another.” The complaint accurately recites the statutory

language and specifically alleges that “John Figueroa II made a false police report

incriminating a Deputy Sheriff in the State of Ohio.”

       {¶22} Count Two of the complaint alleges a violation of R.C. 2921.13(B), which

provides: “No person, in connection with the purchase of a firearm * * * shall knowingly

furnish to the seller of the firearm a fictitious or altered driver’s or commercial driver’s

license or permit, a fictitious or altered identification card, or any other document that

contains false information about the purchaser’s identity.”

       {¶23} This is clearly a clerical error, as the statutory language recited in the

complaint is found in R.C. 2921.15(B): “No person shall knowingly file a complaint against

a peace officer that alleges that the peace officer engaged in misconduct in the

performance of the officer’s duties if the person knows that the allegation is false.”




                                              6
Specifically, the complaint alleges that “John Figueroa II made a false police report

incriminating a Deputy Sheriff in the State of Ohio of theft.”

       {¶24} On appeal, appellant argues the trial court should have granted his Crim.R.

29(A) motion because no evidence was presented to support a violation of R.C.

2921.13(B). We disagree with the premise of this argument.

       {¶25} First, the complaint sufficiently informed appellant of the nature of the

charges against him in order to prepare a defense. Although the code section was

incorrect by one number, the proper language of the offense was plainly stated in the

body of the complaint. Appellant was undoubtedly on notice that he was charged with

making a false allegation of peace officer misconduct. See State v. Mays, 104 Ohio

App.3d 241 (2d Dist.1995); State v. Holloway, 1st Dist. Hamilton No. C-970067, 1998 WL

57793, *1 (Feb. 13, 1998).

       {¶26} Second, the clerical error did not prejudice appellant in any way. He does

not contend that he lacked sufficient information to prepare a defense or that he prepared

a defense for the incorrect code section. He also does not contend that he was tried

under the incorrect code section. Prior to trial, the prosecutor informed the court on the

record that the plea offer made to appellant was that the state would dismiss the

remaining charges if appellant pled guilty to making a false allegation of peace officer

misconduct. Further, before the state’s case-in-chief, the trial court stated: “One last

thing. I just want to make sure that we are all of the understanding that we are going

forward today on Count 1, falsification, a misdemeanor of the first degree; obstructing

official business, a misdemeanor of the second degree; and making false allegations of

peace officer misconduct, a misdemeanor of the first degree.”



                                              7
       {¶27} Finally, appellant did not move for acquittal on the incorrect code section.

Defense counsel argued, “I would contend that the State has failed to show beyond a

reasonable doubt that Mr. Figueroa knowingly filed a statement or swore or affirmed the

truth of a statement that was false with the purpose to incriminate another, and I don’t

think the State has shown beyond a reasonable doubt that he made a complaint against

a peace officer knowingly that alleges the peace officer engaged in misconduct when he

knows the statement to be false.” Because the motion for acquittal was made with regard

to R.C. 2921.15(B)—which is clearly the code section upon which appellant was charged,

tried, and convicted—we cannot review his argument that there was insufficient evidence

to support a conviction under R.C. 2921.13(B).

       {¶28} Appellant’s argument is not well taken.

                   Sufficiency and Manifest Weight of the Evidence

       {¶29} Appellant further argues, under his second and third assignments of error,

that both of his convictions are not supported by sufficient evidence and are against the

manifest weight of the evidence.

       {¶30} “With respect to sufficiency of the evidence, ‘“sufficiency” is a term of art

meaning that legal standard which is applied to determine whether the case may go to

the jury or whether the evidence is legally sufficient to support the jury verdict as a matter

of law.’” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), quoting Black’s Law

Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of adequacy. Whether

the evidence is legally sufficient to sustain a verdict is a question of law. In addition, a

conviction based on legally insufficient evidence constitutes a denial of due process.” Id.




                                              8
at 386-387, citing State v. Robinson, 162 Ohio St. 486 (1955) and Tibbs v. Florida, 457

U.S. 31, 45 (1982).

       {¶31} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.’”

Thompkins, supra, at 387 (emphasis sic), quoting Black’s Law Dictionary 1594 (6th

Ed.1990).

              ‘The court, reviewing the entire record, weighs the evidence and all
              reasonable inferences, considers the credibility of witnesses and
              determines whether in resolving conflicts in the evidence, the jury
              clearly lost its way and created such a manifest miscarriage of justice
              that the conviction must be reversed and a new trial ordered. The
              discretionary power to grant a new trial should be exercised only in
              the exceptional case in which the evidence weighs heavily against
              the conviction.’

Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). “When a court of

appeals reverses a judgment of a trial court on the basis that the verdict is against the

weight of the evidence, the appellate court sits as a ‘“thirteenth juror”’ and disagrees with

the factfinder’s resolution of the conflicting testimony.” Id., quoting Tibbs, supra, at 42.

       {¶32} Deputy Robert Clouden Jr. of the Portage County Sheriff’s Office testified

that on July 28, 2017, he initiated a traffic stop of appellant for a registration violation.

Upon conducting a consensual search of appellant’s person, Deputy Clouden located a

black pouch approximately four inches thick and the length of a standard envelope. The

pouch contained a large amount of U.S. currency, mostly in five- and ten-dollar bills.

Appellant informed Deputy Clouden that he did not know how much money was in the

pouch. The money in the pouch was not counted at the scene. The pouch was placed




                                               9
on the hood of the cruiser during the stop. Appellant also had $100.00 in his pocket and

$60.00 in his wallet. A small amount of cocaine was found in the vehicle.

        {¶33} Appellant was arrested. The money was seized under suspicion of illegal

drug trafficking. The dash cam video of the traffic stop and arrest was introduced at trial.1

        {¶34} Deputy Clouden placed the black pouch in an evidence bag, set the bag on

the front passenger side floor of his cruiser, and transported it directly to the police station.

        {¶35} Detective Springer assisted Deputy Clouden with counting the money in the

black pouch, and Detective Centa assisted him with counting the money in the wallet.

Deputy Clouden testified that a total of $2,440.00 had been found on appellant—$160.00

in the wallet and pocket, and $2,280.00 in the black pouch. The verified currency sheets

and photos of the money were introduced at trial. Deputy Clouden placed the money

back in the black pouch, sealed the pouch in an evidence bag, and placed the bag in an

evidence locker. Deputy Clouden did not see the money again after that point. The only

other time he saw the black pouch was at appellant’s trial stemming from the traffic stop,

at which appellant was found “not guilty.”

        {¶36} Deputy Clouden was later informed that, at a forfeiture hearing, appellant

alleged there was more money in the pouch than had been seized. Deputy Clouden

testified that he reported the allegation to Lieutenant Gregory Johnson that same day.

        {¶37} Lieutenant Johnson testified that on March 1, 2018, appellant lodged a

formal written complaint against Deputy Clouden at the sheriff’s office, alleging there was

approximately $22,000.00 missing when the deputy logged appellant’s money into


1. Any reference to exhibits admitted at trial are taken from the transcript of proceedings. The exhibits were
not included with the record on appeal nor are they necessary to rule on the merits of appellant’s
assignments of error.



                                                     10
evidence. Lieutenant Johnson conducted a recorded interview of appellant, which was

introduced at trial. Lieutenant Johnson testified that appellant reported he had won

$20,000.00 in the lottery and had a total of $24,440.00 in cash on his person at the time

of his arrest. Appellant also claimed that the money Deputy Clouden submitted into

evidence was not any of the money seized. Appellant told the lieutenant that he had

purchased forty $1.00 tickets for the Pick 3 lottery from various locations on July 26, 2017,

all with the winning number “8-5-6.” Appellant said he had won $500.00 on each ticket

and cashed the tickets at more than one location in the Kent/Brimfield area on July 27

and July 28. He was unable to provide the specific locations of purchase or redemption

and said that no one accompanied him.

       {¶38} Lieutenant Johnson reviewed the photographs of the seized money, the

wallet, the pouch, and the verified currency sheets. He testified that nothing seemed out

of the ordinary with how it was collected and counted by Deputy Clouden and the

detectives.

       {¶39} Justin Morris, an investigator with the State of Ohio Lottery Commission,

was contacted by the Portage County Sheriff’s Office in March 2018. Morris testified that

the winning numbers of the evening Pick 3 drawing on July 26, 2017, were “8-5-6”; there

were 84 total winners, only 35 of which were for a $1.00 straight bet. The total prize

amount for all 35 straight bet tickets would have been $17,500.00. On July 27 and July

28, 2017, 13 winning tickets were cashed, only two of which were cashed in Portage

County at an Acme location in Kent. Neither of those two tickets were for $1.00 straight

bets. Morris testified that he was unable to substantiate the claim that a person had won

$20,000.00 on July 26, 2017, by playing the Pick 3 with straight $1.00 bets. He also did



                                             11
not have information as to how many winning tickets were cashed in surrounding Stark

or Summit Counties, or how many of the 35 tickets had played the winning bet more than

one time. The reports Morris relied on for his testimony were introduced at trial.

       {¶40} Detective Eric Centa testified that he took over the investigation from

Lieutenant Johnson. He obtained a search warrant for appellant’s cell phone records and

GPS data for July 26-July 28, 2017. Detective Centa generated a map, which was

introduced at trial. Appellant’s phone records indicated that he had used his phone at

four locations in Portage County on July 27 and July 28, but none of these four locations

was an Acme store in Kent. Detective Centa determined that appellant’s allegations

against Deputy Clouden were false, and appellant was arrested.

       {¶41} Appellant argues his convictions cannot stand because once it was

determined that his claim of where the money came from could not be authenticated,

appellant was not questioned as to whether the money had come from another source

and Deputy Clouden was not investigated to determine whether the allegation against

him was, in fact, false.

       {¶42} Again, appellant was convicted of violating the following criminal statutes:

              R.C. 2921.13(A)(2): “No person shall knowingly make a false
              statement, or knowingly swear or affirm the truth of a false statement
              previously made, when * * * [t]he statement is made with purpose to
              incriminate another.”

              R.C. 2921.15(B): “No person shall knowingly file a complaint against
              a peace officer that alleges that the peace officer engaged in
              misconduct in the performance of the officer’s duties if the person
              knows that the allegation is false.”

       {¶43} The weight of the evidence supports the conclusion that, at the very least,

appellant’s statement that the alleged missing money was lottery winnings from July 26,



                                            12
2017, was false. There is no question that this false statement was made with the

purpose to incriminate Deputy Clouden of theft. Therefore, the court, sitting as the trier

of fact, did not clearly lose its way or create a manifest miscarriage of justice in finding

appellant guilty of Falsification, pursuant to R.C. 2921.13(A)(2).

       {¶44} Appellant’s conviction for Making False Allegations of Peace Officer

Misconduct, pursuant to R.C. 2921.15(B), presents a more difficult question. It was

proven that appellant’s statement regarding the source of the alleged missing money was

false. The issue here, however, is whether it was proven that the allegation that Deputy

Clouden stole that money was false—regardless of how appellant came into possession

of the alleged missing money.

       {¶45} The basis of appellant’s argument is that Deputy Clouden admitted the

following: there were times he was not in the frame of the dash cam video for minutes at

a time; the internal recording system in the cruiser does not show the front passenger

seat or the floorboard where the money was placed; he had control of the camera in his

cruiser; there were times when he was alone with the money; and at no point was he

searched to see if there was any more money in the cruiser or on his person. However,

Deputy Clouden also testified to the following: he never found more than $2,280.00 in the

black pouch; he did not seize more than $2,440.00 from appellant; he never found

$20,000.00 in the pouch or anywhere else during the stop; he never found $24,440 in the

pouch; and from his observation, that amount of money could not have fit in the pouch.

       {¶46} Additionally, appellant notes Detective Centa admitted that once he

determined appellant’s claim as to where the money came from was false, he did not

investigate Deputy Clouden: “It never got to that point of having to investigate that Deputy



                                            13
Clouden took it or not.” Detective Centa did not subpoena Deputy Clouden’s bank

records; he did not interrogate or interview him; and he did not check if the deputy had

purchased any vehicles or vacations recently, because, as the detective testified, “I’m

friends with him and I know he hadn’t.” Detective Centa also never questioned appellant

as to the possibility that the money came from another source.

       {¶47} The state provided sufficient evidence, in the form of Deputy Clouden’s

testimony, to support appellant’s conviction of Making a False Allegation of Peace Officer

Misconduct. We further conclude that the conviction is not against the manifest weight of

the evidence. The issue to be decided here was one of credibility: was appellant’s

allegation reliable? was Detective Centa’s investigation biased? was Deputy Clouden’s

testimony truthful? These are questions properly suited for the trier of fact, and we do not

discern a manifest miscarriage of justice in the trier’s determination. It was shown that

appellant did lie about the source of the money, that Deputy Clouden followed protocol in

logging the money into evidence, and that the detectives found absolutely no basis upon

which to conduct a further investigation.

       {¶48} Appellant’s second and third assignments of error are without merit.



                           Merger and Election by the State

       {¶49} As his fourth assignment of error, appellant contends the trial court

committed plain error when it sentenced him without first having the state elect which

count was to survive merger for purposes of sentencing. Appellant further argues, under

his fifth assignment of error, that he was denied his constitutional right to effective




                                            14
assistance of counsel when trial counsel failed to object to the state’s failure to elect at

sentencing.

       {¶50} In Ohio, double jeopardy protections are codified in R.C. 2941.25. “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.” R.C. 2941.25(A).

       {¶51} “[W]hen a trial court concludes that an accused has in fact been found guilty

of allied offenses of similar import, it cannot impose a separate sentence for each offense.

Rather, the court has a mandatory duty to merge the allied offenses by imposing a single

sentence, and the imposition of separate sentences for those offenses—even if imposed

concurrently—is contrary to law because of the mandate of R.C. 2941.25(A).” State v.

Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶28.

       {¶52} The Supreme Court of Ohio has further stated that, although R.C. 2941.25

does not expressly provide that the state must elect which allied offense to pursue for

sentencing, “[t]he General Assembly has made clear that it is the state that chooses which

of the allied offenses to pursue at sentencing, and it may choose any of the allied

offenses.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶20 (emphasis added),

citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶16 & ¶43, citing Maumee v.

Geiger, 45 Ohio St.2d 238, 244 (1976); Legislative Service Commission Summary of

Am.Sub.H.B. No. 511, The New Ohio Criminal Code (June 1973) 69. We agree with the

Tenth Appellate District, which has stated that “[o]ur reading of Whitfield also convinces

us that the right to elect the charge to pursue for sentencing is a right belonging to the

state of Ohio, not the offender.” State v. Cruz-Altunar, 10th Dist. Franklin No. 18AP-951,



                                            15
2019-Ohio-2298, ¶26.

       {¶53} Here, the trial court did not violate the mandate of R.C. 2941.25(A). Nor did

it implicate double jeopardy concerns. The trial court very clearly merged the two offenses

by imposing a single sentence. The act of which appellant complains is the state’s failure

to identify which offense survived merger for purposes of imposing the single sentence.

       {¶54} We conclude that this matter must be remanded to the trial court in order

for the state to elect which allied offense it wishes to survive merger for purposes of the

imposed sentence.

       {¶55} However, appellant cannot demonstrate that his trial counsel was

ineffective for failing to object to the state’s failure to elect at sentencing. Appellant was

found guilty of two first-degree misdemeanors. For either offense, the trial court was only

permitted to impose a jail term of not more than 180 days, community control for a period

not to exceed five years, and a fine of not more than $1,000.00. See R.C. 2929.24(A)(1);

R.C. 2929.25(A)(1)(b); and R.C. 2929.28(A)(2)(a)(i). Because both findings of guilt have

been upheld and a single sentence was imposed within these guidelines, a remand to the

trial court will not change appellant’s sentence.      Therefore, appellant has not been

prejudiced by the failure to object. See Strickland v. Washington, 466 U.S. 668 (1984),

syllabus (“With regard to the required showing of prejudice, the proper standard requires

the defendant to show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”).

       {¶56} Appellant’s fourth assignment of error has merit.              Appellant’s fifth

assignment of error is not well taken.

       {¶57} The judgment of the Portage County Municipal Court, Ravenna Division, is



                                             16
affirmed in part and reversed in part. This matter is remanded for the state to elect which

allied offense it wishes to pursue for sentencing purposes so that the trial court may issue

a judgment entry accurately reflecting appellant’s conviction and sentence.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




                                            17
