[Cite as State v. Carzelle, 2018-Ohio-92.]




                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 105425




                                        STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               DEANDRE T. CARZELLE
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-16-604414-A

        BEFORE:           Laster Mays, J., Kilbane, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                     January 11, 2018
                                  -i-



ATTORNEY FOR APPELLANT

Richard Agopian
600 Superior Avenue, Suite 2505
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Gregory J. Ochocki
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Deandre T. Carzelle (“Carzelle”) appeals his sentence

and asks this court to remand to the trial court for resentencing.   We affirm.

       {¶2} Carzelle pleaded guilty to three counts of discharging of a firearm on or near

prohibited premises, a third-degree felony, in violation of R.C. 2923.162(A)(3); felonious

assault (with a three-year firearm specification), a second-degree felony, in violation of

R.C. 2903.11(A)(1); and having weapons while under disability, a third-degree felony, in

violation of R.C. 2923.13(A)(2).      The trial court sentenced Carzelle to 14 years in

prison; three years on the firearm specification, eight years on the felonious assault

charge, and three years on the discharging of a firearm charge.

I.     Facts

       {¶3} On March 1, 2016, Carzelle, along with his cousin, traveled to the scene of

the crime to confront some people with whom he had a conflict.        Carzelle brought a gun

with him and shot twice across a roadway towards Dequantai Cross (“Cross”). Cross

was in a barbershop at the time of the shooting. One of the bullets hit Cross in the face.

Carzelle was subsequently arrested and charged with six felony counts.

       {¶4} Carzelle pleaded guilty to three of the six counts.      The remaining charges

were dismissed. At the time of Carzelle’s sentencing, Cross still had the bullet lodged in

his face. As a result of the shooting, Cross suffered hearing loss, has weekly therapy

sessions, and faced additional surgeries.
       {¶5} The trial court sentenced Carzelle to a total of 14 years in prison.    The trial

court ordered that the sentences be served consecutively.    Defense counsel did not object

or raise the issue at sentencing regarding the allied offenses.   As a result, Carzelle filed

this timely appeal arguing one assignment of error:

       I.     The trial court erred by imposing a consecutive sentence for an allied
              offense.

II.    Law and Analysis

       {¶6} In Carzelle’s sole assignment of error, he contends that the trial court erred by

failing to merge allied offenses of similiar import and imposing consecutive sentences for

Count 2, discharging a firearm and Count 3, felonious assault. Carzelle asks this court

to vacate his sentence and remand to the trial court to merge allied offenses.

       {¶7} An appellate court should apply a de novo standard of review in reviewing

whether two offenses are allied offenses of similar import. State v. Williams, 134 Ohio

St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28; State v. Anthony, 2015-Ohio-2267,

37 N.E.3d 751, ¶ 14 (8th Dist.). Double Jeopardy Clauses of the Fifth Amendment to

the United States Constitution, and the Ohio Constitution, Article I, Section 10, protect a

defendant against a second prosecution for the same offense after acquittal, a second

prosecution for the same offense after conviction, and multiple punishments for the same

offense. State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7;

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Id.

at ¶ 15. R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio
Constitution, prohibiting multiple punishments for the same offense. State v. McCarty,

2015-Ohio-4695, 47 N.E.3d 515, ¶ 13 (8th Dist.).

      {¶8} While,

      [u]nder R.C. 2941.25, Ohio’s multicount statute, where the defendant’s
      conduct constitutes two or more allied offenses of similar import, the
      defendant may be convicted of only one offense. R.C. 2941.25(A). A
      defendant charged with multiple offenses may be convicted of all the
      offenses, however, if (1) the defendant’s conduct constitutes offenses of
      dissimilar import, i.e., each offense caused separate identifiable harm; (2)
      the offenses were committed separately; or (3) the offenses were committed
      with separate animus or motivation. R.C. 2941.25(B); State v. Ruff, 143
      Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶13. Thus, to determine
      whether offenses are allied, courts must consider the defendant’s conduct,
      the animus, and the import. Id. at paragraph one of the syllabus.

State v. Clarke, 8th Dist. Cuyahoga No. 105047, 2017-Ohio-8226, ¶ 26.

      {¶9} We find that Carzelle is incorrect in his presumption that felonious assault

and discharging a firearm on or near prohibited premises are allied offenses.   In Ruff, the

Ohio Supreme Court explained that “offenses are not allied offenses of similar import if

they are not alike in their significance and their resulting harm.” Id. at ¶ 21.   When a

“defendant’s conduct put more than one individual at risk, that conduct could support

multiple convictions because the offenses were of dissimilar import.” Id. at ¶ 23; State

v. Grayson, 8th Dist. Cuyahoga Nos. 105081 and 105082, 2017-Ohio-7175, ¶ 23.

      {¶10} Carzelle pleaded guilty to felonious assault under R.C. 2903.11(A)(1) that

states “[n]o person shall knowingly cause serious physical harm to another.” The resulting

harm of Carzelle’s felonious assault was the gunshot to Cross’s face. Carzelle also

pleaded guilty to discharge of a firearm on or near prohibited premises under
R.C.2923.162(A)(3) that states “[n]o person shall discharge a firearm upon or over a

public road or highway.”     Carzelle admitted that he “let off two shots.     I didn’t know

where they went.    I just know they went somewhere, and I drove off.”        (Tr. 45.)   The

resulting harm was to the public.    “Because the offense of discharging a firearm over a

public road or highway is a strict liability offense, the public was the victim for that

offense * * *.” State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 34 (8th Dist.).

        {¶11} “A person can discharge a firearm over or on a public road or highway

without causing or attempting to cause physical harm to another, and the converse is also

true.   The elements of these two offenses do not correspond to such a degree that

commission of one results in the commission of the other.” State v. Baldwin, 1st Dist.

Hamilton No. C-081237, 2009-Ohio-5348, ¶ 19.

        [T]he act of discharging a firearm on or near a prohibited premises was
        committed with a separate animus, or state of mind, from the felonious
        assault * * *. See State v. Whipple, 2012-Ohio-2938, 972 N.E.2d 1141
        (1st Dist.) (finding defendant’s conduct in discharging a firearm into a
        habitation and felonious assault involved a separate animus for each
        offense); see also State v. West, 8th Dist. Cuyahoga No. 98274,
        2013-Ohio-487 (finding separate animus as to             felonious assault,
        possession of a firearm in a liquor permit premises, and having a weapon
        while under a disability where the defendant possessed a gun, shot the
        victim in a bar, fled from the bar, and continued to fire shots from across
        the street).

State v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 131.

        {¶12} In addition, Carzelle did not raise the issue of allied offenses to the trial

court and has forfeited all but plain error. See Clarke, 8th Dist. Cuyahoga No. 105047,

2017-Ohio-8226, at ¶ 27.     “A forfeited error is not reversible error unless it affected the
outcome of the proceedings and reversal is necessary to correct a manifest miscarriage of

justice.” State v. Amison, 8th Dist. Cuyahoga No. 104728, 2017-Ohio-2856, ¶ 4.

       “Crim.R. 52(B) affords appellate courts discretion to correct ‘[p]lain errors
       or defects affecting substantial rights’ notwithstanding the accused’s failure
       to meet his obligation to bring those errors to the attention of the trial
       court.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
       860, at ¶ 22. The defendant “bears the burden of proof to demonstrate
       plain error on the record.” Id., citing State v. Quarterman, 140 Ohio St.3d
       464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 16. To demonstrate plain error,
       the defendant must show “an error, i.e., a deviation from a legal rule” that
       was “an ‘obvious’ defect in the trial proceedings,” and that the error
       “affected a substantial right,” i.e., the defendant must demonstrate a
       “reasonable probability” that the error resulted in prejudice, affecting the
       outcome of the trial. Rogers at ¶ 22; State v. Barnes, 94 Ohio St.3d 21, 27,
       2002-Ohio-68, 759 N.E.2d 1240.

State v. Hilliard, 8th Dist. Cuyahoga No. 102214, 2015-Ohio-3142, ¶ 17.

       {¶13} We find that the trial court did not err when it did not merge the felonious

assault and discharging of a firearm counts and correctly sentenced Carzelle to

consecutive sentences for the two offenses of dissimliar import.    We overrule Carzalle’s

sole assignment of error.

       {¶14} Judgment is affirmed.

       It is ordered that the appellee recover from appellant 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

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



______________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
