[Cite as State v. Cleland, 2012-Ohio-5016.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.       12CA0018-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
SHAUN M. CLELAND                                     COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   05-CR-0492

                                  DECISION AND JOURNAL ENTRY

Dated: October 29, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Shaun Cleland, appeals from the judgment of the Medina

County Court of Common Pleas. This Court affirms.

                                                 I

        {¶2}     On October 1, 2005, Cleland murdered his estranged wife, Christina

Eichelberger’s, live-in boyfriend and staged the murder scene to make it appear as if the victim,

David Heinricht, had committed suicide.          Specifically, he broke into Eichelberger and

Heinricht’s apartment, waited for Heinricht to arrive home, strangled him to death, placed a rope

around his neck, and left a pre-prepared suicide note in his hand. Eichelberger found Heinricht’s

body when she returned home from work about an hour later. The police arrested Cleland at

Cleveland-Hopkins Airport.

        {¶3}     Cleland originally pleaded guilty to aggravated murder with prior calculation and

design, aggravated burglary, and kidnapping, but later sought to withdraw his plea. This Court
                                                 2


vacated Cleland’s plea on appeal due to the fact that the trial court never informed him of his

mandatory post-release control obligations.      State v. Cleland (“Cleland I”), 9th Dist. No.

06CA0073-M, 2008-Ohio-1319, ¶ 16. On remand, the matter went to trial and a jury convicted

Cleland of (1) aggravated murder with prior calculation and design, (2) aggravated murder with

aggravated burglary as the predicate offense (felony murder), (3) aggravated murder with

kidnapping as the predicate offense (felony murder), (4) two counts of murder, (5) aggravated

burglary, and (6) kidnapping. The trial court determined that all of Cleland’s aggravated murder

and murder counts were allied offenses of similar import. The State elected to have Cleland

sentenced on the count of aggravated murder with prior calculation and design. All of his other

aggravated murder and murder counts were merged into that offense. The court then sentenced

Cleland on the counts of aggravated murder with prior calculation and design, aggravated

burglary, and kidnapping. Once again, Cleland appealed.

        {¶4}    After Cleland filed his appeal, but before this Court issued its decision, the Ohio

Supreme Court decided State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Although we

ultimately upheld Cleland’s guilty verdicts, we declined to reach the merits of his argument that

all of his offenses were allied offenses of similar import. State v. Cleland (“Cleland II”), 9th

Dist. No. 09CA0070-M, 2011-Ohio-6786. Given that Johnson represented a dramatic shift in

the law of allied offenses, we remanded the case to the trial court for it to apply Johnson in the

first instance. Id. at ¶37-38.

        {¶5}    On remand, the trial court held a hearing at which it heard arguments on the allied

offense issue. The court specifically found that Cleland’s offenses for aggravated murder with

prior calculation and design and aggravated burglary “were separately committed,” such that

Cleland could be sentenced on both of those counts. The court sentenced Cleland to life
                                                  3


imprisonment with the possibility of parole after thirty years on the aggravated murder count and

five years on the aggravated burglary count. The court also ordered that the two sentences run

consecutively.

       {¶6}      Cleland now appeals from his convictions and raises one assignment of error for

our review.

                                                  II

                                         Assignment of Error

       THE SENTENCING COURT, ON REMAND FROM THE APPELLATE
       COURT TO RE-SENTENCE THE DEFENDANT PURSUANT TO R.C.
       2914.25 AND STATE V. JOHNSON, ERRED BY FAILING TO APPLY THE
       DOCTRINE OF MERGER OF ALLIED OFFENSES OF SIMILAR IMPORT
       TO THE CONDUCT OF THE DEFENDANT AS IT RELATED TO THE
       COUNTS OF AGGRAVATED BURGLARY AND AGGRAVATED MURDER
       AND RE-SENTENCED THE DEFENDANT TO A FIVE YEAR TERM OF
       INCARCERATION CONSECUTIVE TO THE THIRTY YEAR SENTENCE
       FOR THE COUNT OF AGGRAVATED MURDER.

       {¶7}      In his sole assignment of error, Cleland argues that the trial court erred by

convicting him of allied offenses of similar import. Specifically, he argues that his aggravated

murder and aggravated burglary convictions should have merged for purposes of sentencing. We

disagree.

       {¶8}      Ohio’s allied offense statute provides as follows:

       (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. Thus, two or more offenses arising from the same conduct and similar import

only may result in one conviction. R.C. 2941.25(A). Two or more offenses may result in
                                                4


multiple convictions, however, if: (1) they are offenses of dissimilar import; (2) they are

separately committed; or (3) the defendant possesses a separate animus as to each.            R.C.

2941.25(B).

       {¶9}    “When determining whether two offenses are allied offenses of similar import

subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus. A plurality of the Ohio Supreme Court

set forth a two-part test to analyze whether two offenses are allied offenses of similar import.

First, one must determine whether the offenses at issue could be committed by the same conduct.

Id. at ¶ 47. One does so by asking “whether it is possible to commit one offense and commit the

other with the same conduct, not whether it is possible to commit one without committing the

other.” (Emphasis sic.) Id. at ¶ 48. See also id. at ¶ 66 (O’Connor, J., concurring.) (offenses are

allied “when their elements align to such a degree that commission of one offense would

probably result in the commission of the other offense”). Second, one must ask whether the

offenses actually were committed by the same conduct, “i.e., ‘a single act, committed with a

single state of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-

4569, ¶ 50 (Lanzinger, J., dissenting). If the answer to both inquiries is yes, the offenses will

merge. Johnson at ¶ 50.

       {¶10} To commit aggravated murder under R.C. 2903.01(A), one must “purposely, and

with prior calculation and design, cause the death of another * * *.” As applicable to this case,

the aggravated burglary statute provides:

       No person, by force, stealth, or deception, shall trespass in an occupied structure
       or in a separately secured or separately occupied portion of an occupied structure,
       when another person other than an accomplice of the offender is present, with
       purpose to commit in the structure * * * any criminal offense, if * * * [t]he
       offender inflicts, or attempts or threatens to inflict physical harm on another.
                                                5


R.C. 2911.11(A)(1). Aggravated murder and aggravated burglary “are not prerequisites, one for

the other.   To consummate either offense, the other need not by definition be committed.

Aggravated murder and aggravated burglary are never merely incidental to each other * * *.”

State v. Moss, 69 Ohio St.2d 515, 520 (1982). Accordingly, the Ohio Supreme Court has

repeatedly held that the two offenses do not merge. State v. Johnson, 88 Ohio St.3d 95, 115

(2000); State v. Reynolds, 80 Ohio St.3d 670, 681 (1998); Moss at 520-521.

       {¶11} Two offenses may result in multiple convictions if they are crimes of dissimilar

import. R.C. 2941.25(B).

       The key to legislative intent from use of the words “allied offenses of similar
       import” in R.C. 2941.25(A), and “offenses of dissimilar import,” in R.C.
       2941.25(B), arises in great part from the word “import,” which by dictionary
       definition would have reference to “allied offenses” of similar importance,
       consequence and signification intended from use of the word “import.”

State v. Baer, 67 Ohio St.2d 220, 226 (1981). See also R.C. 2941.25, Legislative Service

Commission Note (1973) (noting that an armed robber who robs a bank and purposely kills two

victims in the commission of the offense can be convicted of both aggravated robbery and

aggravated murder because they “are dissimilar offenses”). “[A]n individual may at the same

time and in the same transaction commit several separate and distinct crimes and [] separate

sentences may be imposed for each offense.” State v. Botta, 27 Ohio St.2d 196, 202-203 (1971).

       {¶12} The first prong of the allied offense test set forth in Johnson requires a reviewing

court to question “whether it is possible to commit one offense and commit the other with the

same conduct * * *.” (Emphasis omitted.) Johnson at ¶ 48. “If the offenses correspond to such

a degree that the conduct of the defendant constituting commission of one offense constitutes

commission of the other, then the offenses are of similar import.” Id. The conduct here fails to

satisfy the first prong of the Johnson test. It was not possible for the same conduct to result in
                                                 6


the commission of both Cleland’s aggravated burglary and aggravated murder offenses. His

conduct in breaking into Eichelberger and Heinricht’s apartment was distinctly different from his

conduct in calculating and purposely causing Heinricht’s death by strangulation. The offenses

were crimes of dissimilar import. R.C. 2941.25(B). See also Moss, 69 Ohio St.2d at 520. As

such, the trial court did not err by refusing to merge them. Cleland’s sole assignment of error is

overruled.

                                                III

       {¶13} Cleland’s sole assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                          7


      Costs taxed to Appellant.




                                              BETH WHITMORE
                                              FOR THE COURT




CARR, J.
CONCURS.

MOORE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

FRANK C. GASPER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.
