[Cite as State v. McDaniel, 2014-Ohio-183.]


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

STATE OF OHIO                                        C.A. No.       26997

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MARCEL D. MCDANIEL                                   COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2002 11 3315 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: January 22, 2014



        WHITMORE, Judge.

        {¶1}    Defendant-Appellant, Marcel McDaniel, appeals from the judgment of the

Summit County Court of Common Pleas. This Court affirms.

                                                 I

        {¶2}    In 2002, McDaniel was involved in a shooting at a car wash. The shooting

resulted in one man (Corey Harper) dying and another (John Ellis) being struck in the head with

a gun and shot at as he fled the scene. A grand jury indicted McDaniel for his involvement in the

shooting. McDaniel’s indictment contained the following counts: (1) felony murder with respect

to Harper; (2) attempted murder with respect to Ellis; (3) felonious assault with respect to Ellis;

(4) two counts of having weapons under disability; (5) improperly discharging a firearm at or

into a habitation or school; (6) carrying concealed weapons; and (7) multiple firearm

specifications. McDaniel went to trial along with his co-defendant, Keith Gilcreast, but the trial

resulted in a hung jury with respect to McDaniel.        Before another jury trial could occur,
                                                   2


McDaniel agreed to plead guilty in exchange for the State dismissing a variety of counts.

McDaniel ultimately pleaded guilty to attempted felony murder, the firearm specification

attached to that count, and felonious assault. The court sentenced McDaniel on both counts, as

well as the firearm specification, for a total of 19 years in prison.

          {¶3}   Subsequently, McDaniel sought to withdraw his plea, the court denied his motion,

and an appeal ensued. This Court dismissed the appeal and remanded the matter for a new

sentencing hearing, however, due to an error in the imposition of post-release control. See State

v. McDaniel, 9th Dist. Summit No. 24838 (Nov. 17, 2009). On remand, the trial court conducted

another sentencing hearing and once again sentenced McDaniel to 19 years in prison. On appeal

from that judgment, McDaniel argued that the court erred by not merging his convictions as

allied offenses of similar import. Due to the issuance of State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, this Court remanded the matter to the trial court for it to consider and apply

Johnson in the first instance. State v. McDaniel, 9th Dist. Summit No. 25492, 2011-Ohio-5001,

¶ 8-10.

          {¶4}   On remand, the parties entered into a stipulation, regarding the facts underlying

McDaniel’s convictions. Because McDaniel’s convictions were the result of a guilty plea, the

parties stipulated that the facts contained in the transcript of McDaniel’s original jury trial (which

had resulted in a hung jury) would represent the facts underlying his convictions. The parties

agreed that they would brief the allied offense issue based on those facts, and the trial court

would issue a ruling after considering their briefs in light of Johnson. Thereafter, both parties

filed their respective briefs.

          {¶5}   The trial court determined that McDaniel’s counts were not allied offenses. The

court issued an entry providing that, because it had determined that the counts were not allied,
                                                3


“there [was] no need to resentence [McDaniel].” McDaniel attempted to appeal from the court’s

entry, but this Court dismissed the appeal for lack of jurisdiction. See State v. McDaniel, 9th

Dist. Summit No. 26415 (Apr. 9, 2013). The trial court then issued another entry, confirming its

ruling that McDaniel’s convictions were not allied offenses and sentencing McDaniel to 19 years

in prison.

       {¶6}    McDaniel now appeals and raises a single assignment of error for our review.

                                                II

                                      Assignment of Error

       THE TRIAL COURT ERRED IN FINDING THAT THE OFFENSES OF
       ATTEMPTED MURDER AND FELONIOUS ASSAULT WERE NOT ALLIED
       OFFENSES OF SIMILAR IMPORT.

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

failing to merge his attempted felony murder and felonious assault convictions for purposes of

sentencing, as they are allied offenses of similar import. We disagree.

       {¶8}    “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,

which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, ¶ 23. That 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. “When [a] plea agreement is silent on the issue of allied offenses of similar

import, * * * the trial court is obligated under R.C. 2941.25 to determine whether the offenses
                                                4


are allied, and if they are, to convict the defendant of only one offense.” Underwood at ¶ 29. An

appellate court applies “a de novo standard of review in reviewing a trial court’s R.C. 2941.25

merger determination.” State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28.

       {¶9}    Two or more offenses may result in multiple convictions if: (1) they are offenses

of dissimilar import; (2) they are separately committed; or (3) the defendant possesses a separate

animus as to each. State v. Washington, Slip Opinion No. 2013-Ohio-4982, ¶ 12. The first step

of the analysis requires a court to consider the import of the offenses (i.e., whether they are of

similar or dissimilar import). Id. at ¶ 13. The import analysis entails more than an abstract

review of the elements of the offenses involved. Id. at ¶ 16, citing Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314. In undertaking the import analysis, “the conduct of the accused must be

considered.” Washington at ¶ 15, quoting Johnson at syllabus. See also Johnson at ¶ 48 (“[T]he

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

conduct * * *.”).

       {¶10} The second step of the analysis requires a court to consider whether the offenses

at issue “were committed separately or with a separate animus.” Washington at ¶ 13. See also

Johnson at ¶ 49 (“If the multiple offenses can be committed by the same conduct, then the court

must determine whether the offenses were committed by the same conduct * * *.”). In applying

the second step of the analysis, “a court must review the entire record, including arguments and

information presented at the sentencing hearing.” Washington at ¶ 24. “If the offenses were

committed by the same conduct and with a single animus, the offenses merge.” Id. at ¶ 13.

       {¶11} “[W]here one criminal act has been committed which results in harm to multiple

victims, the Ohio Supreme Court has found such offenses to constitute crimes of dissimilar

import.” State v. Jackson, 9th Dist. Summit No. 26757, 2013-Ohio-5557, ¶ 29, citing State v.
                                                  5


Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 48, and State v. Jones, 18 Ohio St.3d 116, 118

(1985).     Accord R.C. 2941.25, Legislative Service Commission Note (1973) (“[A]n armed

robber who holds up a bank and purposely kills two of the victims can be charged with and

convicted of one count of aggravated robbery and of two counts of aggravated murder. Robbery

and murder are dissimilar offenses, and each murder is necessarily committed with a separate

animus * * *.”).       In Jackson, this Court applied Washington and specifically held that a

defendant’s convictions for murder and felonious assault should not have merged because they

“involve[d] different victims.” Id. Here, as in Johnson, McDaniel’s murder and felonious

assault counts involved different victims.

          {¶12} At the original trial, Ellis testified that he, Harper, and another friend, Michael

Marshall, took Harper’s car to a car wash to vacuum it. Both Ellis and Harper were standing at

different spots outside the car searching for change to operate the vacuum when Ellis dropped his

change and bent down to pick it up. Ellis testified that, when he stood back up, a man was

standing next to him with a gun. Ellis’ arm batted at the gun, which struck his head and

discharged. Ellis then ran through one of the bays of the car wash to the fence behind the car

wash and hid behind a dumpster. As he ran, Ellis heard multiple gunshots and saw sparks

coming off the wall of the car wash bay as a bullet ricocheted off the wall. There was testimony

at trial that the fence Ellis ran to appeared to have several bullet holes in it. Additionally, there

was testimony that a bullet shattered the window of a house, which was in a direct line with the

direction Ellis was running. The bullet recovered from the house was a .380 caliber bullet. The

police also found numerous .380 shell casings on the ground in the vicinity of Harper’s car.

          {¶13} In addition to the .380 shell casings, the police also found several .45 caliber

casings near the back of Harper’s car. Harper’s body was discovered lying on the ground behind
                                                 6


his car. There was testimony from the Summit County Medical Examiner’s Office that Harper

died as a result of a single gunshot wound to his chest. Dr. Sterbenz testified that the wound was

a contact-range wound, meaning that the muzzle of the firearm that killed Harper was pressed

against his chest when it was fired. Marshall, the other man in Harper’s car, testified that he saw

two men near Harper’s car before the shooting commenced. He specified that he saw one man

near Ellis with a gun, but that the other had walked around the other side of the car.

       {¶14} In Count One of his indictment, McDaniel was indicted for felony murder. The

felony murder count averred that McDaniel “cause[d] the death of Corey Harper, as a proximate

result of * * * committing or attempting to commit Felonious Assault.” In Count Two of his

indictment, McDaniel was indicted for felonious assault. The felonious assault count averred

that McDaniel “knowingly caus[ed] or attempt[ed] to cause physical harm to John R. Ellis, by

means of a deadly weapon or dangerous ordnance.” McDaniel ultimately pleaded guilty to both

counts after Count One was amended. In its original sentencing entry, the trial court wrote:

       Upon Motion of the Prosecuting Attorney on behalf of the State of Ohio, the
       Court hereby amends Count 1 of the Indictment to the lesser and included offense
       of ATTEMPTED MURDER, a felony of the first (1st) degree.

       Thereupon, [McDaniel] retracts his plea of Not Guilty heretofore entered, and for
       plea to said indictment, says he is GUILTY of ATTEMPTED MURDER, as
       contained in the amended Count 1 of the Indictment, GUILTY of the [FIREARM]
       SPECIFICATION ONE TO COUNT ONE * * *, and GUILTY of FELONIOUS
       ASSAULT, as contained in Count 2 of the Indictment, which offenses all
       occurred after July 1, 1996, which pleas, voluntarily made and with a full
       understanding of the consequences, were accepted by the Court.

McDaniel, therefore, pleaded guilty to attempted felony murder and felonious assault with regard

to two different victims (Harper and Ellis).

       {¶15} Consistent with his argument in the court below, McDaniel dedicates much of his

brief to a discussion about the evidence in support of his guilt. Specifically, he argues that there
                                                 7


was no evidence that he ever possessed a gun or shot at anyone. McDaniel’s guilty plea,

however, was “a complete admission of [his] guilt.” Crim.R. 11(B)(1). He cannot now assert

that he did not, in fact, commit the crimes to which he pleaded guilty.

       {¶16} McDaniel also argues that because his indictment was defective and his plea

amounted to “a definite legal fiction,” this Court cannot rely strictly upon the wording of his

indictment and his plea to the same in considering his allied offense argument. McDaniel claims

that his indictment was defective because, while he was indicted for the felony murder of Harper

(Count One), he was never indicted for that count’s stated predicate offense of felonious assault

with regard to Harper. McDaniel was only indicted for felonious assault with regard to Ellis. He

further argues that the amended Count One to which he pleaded “did not include victim Corrie

(sic) Harper.” According to McDaniel, “[a]t the time that he pled, the trial court did not address

McDaniel as to the nature of the charges of [amended Count One]. It was unclear to [McDaniel]

that he was pleading to a charged (sic) involving victim Harper.” McDaniel claims that he never

pleaded guilty to two offenses involving separate victims. In essence, McDaniel asks this Court

to infer that his plea to attempted felony murder and felonious assault both related to the same

victim (Ellis). He also argues that his plea to attempted felony murder was a legal fiction

because attempted felony murder “is not a cognizable offense in the state of Ohio.”

       {¶17} By pleading guilty, McDaniel “waive[d] any deficiency in the indictment.” State

v. Mose, 9th Dist. Medina No. 11CA0083-M, 2013-Ohio-635, ¶ 10. See also State v. Wheeler,

9th Dist. Summit No. 25183, 2011-Ohio-1521, ¶ 3-6. Accordingly, he cannot now challenge any

alleged defects in his indictment. Similarly, he cannot attack his plea at this late stage of the

litigation. In McDaniel’s most recent appeal, this Court remanded the matter strictly for the trial

court to consider and apply Johnson. See McDaniel, 2011-Ohio-5001, at ¶ 6-13. The time for
                                                8


any challenge to the validity of McDaniel’s plea has long since passed. See State v. Gorospe, 9th

Dist. Nos. 25551 & 25552, 2011-Ohio-3291, ¶ 10 (challenges to validity of plea barred by res

judicata); State v. O’Neal, 9th Dist. No. 2008-Ohio-1325, ¶ 11 (law of the case doctrine applied

when defendant sought to withdraw his plea after a remand for resentencing).

       {¶18} Although McDaniel pleaded guilty to an amended version of Count One of his

indictment, the record does not support McDaniel’s assertion that the amendment to Count One

included an amendment to the victim named therein. The court’s original sentencing entry only

indicates that the State amended Count One from felony murder to “the lesser and included

offense of ATTEMPTED [FELONY] MURDER.” The entry makes no reference to any other

amendment to Count One. Additionally, nothing in the transcript from McDaniel’s plea hearing

points to the State having amended the named victim in Count One. To the contrary, numerous

people at the hearing gave victim impact statements related to Harper in which they blamed

McDaniel for Harper’s murder. Had McDaniel’s amended murder count related to Ellis, that

testimony would have been misplaced. Moreover, had the State intended for McDaniel to plead

guilty to the attempted murder of Ellis, it could have dismissed Count One instead of Count

Seven. Count Seven of the indictment specifically charged McDaniel with the attempted murder

of Ellis, but that charge was dismissed when McDaniel pleaded guilty.

       {¶19} The record reflects that McDaniel pleaded guilty to the attempted felony murder

of one victim (Harper) and to the felonious assault of a second victim (Ellis). His crimes,

therefore, involved harm to two separate victims and were of dissimilar import. See Jackson,

2013-Ohio-5557, at ¶ 29. The trial court did not err by refusing to merge his convictions as

allied offenses of similar import. McDaniel’s sole assignment of error is overruled.
                                                 9


                                                III

       {¶20} McDaniel’s assignment of error is overruled.          The judgment of the Summit

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 Summit, 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.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT



HENSAL, J.
CONCUR.

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.
                                         10


APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, RICHARD S. KASAY, Assistant Prosecuting
Attorney, for Appellee.
