[Cite as State v. Shepherd, 2013-Ohio-4912.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99503




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   ELIJAH SHEPHERD
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-550339

        BEFORE: Keough, J., S. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: November 7, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Public Defender
By: Jeffrey M. Gamso
Asst. Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: James M. Price
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Elijah Shepherd, appeals from the trial court’s

resentencing. Finding no merit to the appeal, we affirm.

       {¶2} In 2011, Shepherd was charged with two counts of felonious assault, both

containing one- and three-year firearm specifications, and one count of having a weapon

while under disability. The matter proceeded to trial, where Shepherd was found guilty

of all counts, including the firearm specifications. At sentencing, the trial court merged

the felonious assault counts and sentenced Shepherd to seven years for felonious assault.

The court also found that the one- and three-year firearm specifications merged; and thus

sentenced him to the mandatory three years. Finally, the court sentenced Shepherd to

three years for having a weapon while under disability. The trial court ordered all

sentences to be served consecutively for a total aggregate prison term of 13 years.

       {¶3} Shepherd appealed his convictions and sentence to this court in State v.

Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415. This court affirmed his

convictions, but concluded that the trial court failed to make the necessary findings

pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive sentences. Id. at ¶ 87 and

89. Accordingly, this court vacated the consecutive sentences and postrelease control

portions of Shepherd’s sentence and remanded the case for a new sentencing hearing on

those vacated portions. Id. at ¶ 89.
       {¶4} At resentencing and after making the appropriate findings, the trial court

imposed the same aggregate sentence of 13 years — seven years for felonious assault,

three years for the firearm specification, and three years for having a weapon while under

disability. Shepherd again appeals his sentence.

       {¶5} In his first assignment of error, Shepherd contends that the trial court erred

when it sua sponte elected to proceed to sentence him on the three-year firearm

specification. Shepherd argues that the state was required to elect which specification

the court should sentence on; the trial court was not authorized to unilaterally choose.

       {¶6} Shepherd was found guilty of felonious assault with firearm specifications

that carry both one- and three-year mandatory prison sentences. Accordingly, the trial

court was required pursuant to R.C. 2929.14(B)(1)(a)(ii) to impose the mandatory penalty

of three years. There was no discretion, and the state was not even in a position to elect

which specification to proceed with sentencing on. The mandatory three-year sentence

necessarily subsumes the mandatory one-year sentence. See R.C. 2929.14(B)(1)(b).

       {¶7} Accordingly, we find no merit to Shepherd’s first assignment of error.

       {¶8} In his second assignment of error, Shepherd contends that having a weapon

while under disability is an allied offense of similar import to a firearm specification.

This argument has been considered and consistently rejected by this court. See State v.

Whittsette, 8th Dist. Cuyahoga No. 70091, 1997 Ohio App. LEXIS 500, *6 (Feb. 13,

1997), citing State v. Blankenship, 102 Ohio App.3d 534, 547, 657 N.E.2d 559 (12th

Dist.1995); State v. Williams, 8th Dist. Cuyahoga No. 81949, 2003-Ohio-3950, ¶ 19-21,
appeal not allowed, State v. Williams, 100 Ohio St.3d 1509, 2003-Ohio-6161, 799 N.E.2d

187; State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192.

      {¶9} Accordingly, Shepherd’s second assignment of error is overruled.

      {¶10} In his third assignment of error, Shepherd argues that counsel was

ineffective for failing to object to the trial court’s sua sponte election of which firearm

specification he should be sentenced on and for failing to request that the firearm

specification and weapon under disability charge should merge. Shepherd’s claim for

ineffective assistance of counsel, which is premised on his previously rejected

assignments of error, must equally fail. The third assignment of error is overruled.

      {¶11} Judgment affirmed.

      It is ordered that 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. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

SEAN C. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR
