[Cite as State v. Allbaugh, 2013-Ohio-2031.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       ATHENS COUNTY

STATE OF OHIO,                                         :

        Plaintiff-Appellee,                            :
                                                                     Case No. 12CA23
        v.                                             :
                                                                     DECISION AND
GEORGE ALLBAUGH,                                       :             JUDGMENT ENTRY

        Defendant-Appellant.                           :             RELEASED 05/13/2013


                                               APPEARANCES:

Timothy Young, Ohio State Public Defender, and Stephen A. Goldmeier, Assistant Ohio State
Public Defender, Columbus, Ohio, for Defendant-Appellant.

Keller J. Blackburn, Prosecuting Attorney, and Merry M. Saunders, Assistant Prosecuting
Attorney, Athens, Ohio, for Plaintiff-Appellee.



Hoover, J.


{¶ 1} This is an appeal from an Athens County Common Pleas Court sentence for violation of

appellant’s community control. Appellant George Allbaugh was indicted on May 29, 2007, on

one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree;

one count of child endangering in violation of R.C. 2919.22 (B)(1) a felony of the second degree;

and one count of child endangering in violation of R.C.2919.22 (A), a felony of the third degree.

At his arraignment, appellant entered a plea of not guilty to the charges.


{¶ 2} Appellant and the state eventually reached a plea agreement wherein he pled guilty to the

lesser offenses of attempted felonious assault (count 1) and two counts of attempted child
Athens App. No. 12CA23                                                                               2


endangering (counts 2 and 3). As part of the agreement, the state conceded that counts 2 and 3,

the attempted child endangering counts, should merge for sentencing purposes.


{¶ 3} At the sentencing hearing, the State of Ohio noted that “[t]he State would also contend to

the Court that endangering children, one being an elevated offense because of the serious

physical harm, that they are allied offenses, being they are the same exact offense for the same

exact instances, so counts two and three would merge for sentencing.” Both parties agree that at

the sentencing hearing, appellant’s trial counsel failed to discuss allied offenses, and failed to

object to the trial court’s imposition of separate sentences for the attempted felonious assault

count and the merged attempted child endangering counts.


{¶ 4} The trial court sentenced defendant to five years of community control on count 1, and

two years of community control on the merged child endangering charges (hereinafter the

“original sentence”). The sentences were ordered to run concurrently.1


{¶ 5} Nearly two years later, on July 26, 2011, the state filed a notice of violation of community

control. A short time thereafter, the state filed supplemental notices of violations on February

23, 2012, May 17, 2012, and May 30, 2012.


{¶ 6} After two hearings, the court found probable cause that appellant had in fact violated his

community control, and scheduled a second stage disposition hearing to determine proper

sentencing. At the second stage disposition hearing (hereinafter the “sentencing hearing on

violation of community control”), the trial court sentenced appellant to three years incarceration


1
  Note that the journal entry states that all counts are to run “consecutive,” for a total of five
years of community control. Thus, while the trial court uses the word “consecutive,” it appears
that the sentences were actually intended to run concurrently. At the sentencing hearing, the trial
court indicated that the sentences were to run concurrently. [Transcript of Sentencing Hearing at
p. 5.]
Athens App. No. 12CA23                                                                              3


on count 1, three years incarceration on count 2, and one year incarceration on count 3. Despite

announcing separate sentences on counts 2 and 3, the attempted child endangering charges, the

trial court did indicate that those counts merged for sentencing purposes and ran the two counts

concurrent to one another. The decision of the trial court was journalized. In order to correct a

mistaken date, a nunc pro tunc judgment entry was journalized on a later date. Both judgment

entries, the original and corrected entry, ordered the sentences for counts 2 and 3 to run

concurrently to each other, but consecutively with the attempted felonious assault count, for a

total sentence of incarceration of six years.


{¶ 7} Following the sentencing hearing on violation of community control, but before the

court’s decision was journalized, counsel for appellant filed a “Supplemental Sentencing

Argument” with the trial court, arguing for the first time that all three counts were allied offenses

and should merge for sentencing purposes under State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061. The trial court denied appellant’s “Supplemental Sentencing

Argument.”


{¶ 8} Appellant raises the following assignments of error for review.


First Assignment of Error:


       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED

       SEPARATE SENTENCES FOR OFFENSES THAT AROSE FROM THE

       SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH A

       SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR

       SENTENCING PURPOSES UNDER R.C. 2941.25.


Second Assignment of Error:
Athens App. No. 12CA23                                                                          4


       MR. ALLBAUGH WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE

       OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO RAISE THE

       ISSUE OF ALLIED OFFENSES AT SENTENCING, IN VIOLATION OF MR.

       ALLBAUGH’S RIGHT TO DUE PROCESS AND TO EFFECTIVE

       ASSISTANCE OF COUNSEL. FIFTH, SIXTH, AND FOURTEENTH

       AMENDMENTS TO THE U.S. CONSTITUTION; SECTIONS 5 AND 16,

       ARTICLE I OF THE OHIO CONSTITUTION.


                                                 I


                               ALLIED OFFENSES & MERGER


{¶ 9} For his first assignment of error, appellant contends that the trial court erroneously

sentenced him for allied offenses of similar import.


                                                 A


    STANDARD FOR DETERMINING WHETHER OFFENSES CONSTITUTE ALLIED

                               OFFENSES OF SIMILAR IMPORT


{¶ 10} R.C. 2941.25 sets forth the statutory analysis for determining whether offenses constitute

allied offenses of similar import, and thus must be merged for purposes of sentencing:


       (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.
Athens App. No. 12CA23                                                                                   5


       (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.


{¶ 11} The statute 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 the imposition of multiple punishments for the same offense. State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶23. In other words, upon

finding one or more counts to constitute two or more allied offenses of similar import, R.C.

2941.25(A) requires that the convictions be merged for the purposes of sentencing and that the

defendant only be sentenced on one of the counts. State v. Whitfield, 124 Ohio St.3d 319, 2010-

Ohio-2, 922 N.E.2d 182, ¶ 5.


{¶ 12} The Ohio Supreme Court has interpreted R.C. 2941.25 to involve a two-step analysis for

determining allied offenses subject to merger. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314, 942 N.E.2d 1061. Under step one, it must be determined 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. Put another way, if the conduct

of the defendant constituting commission of offense one also constitutes commission of offense

two, then the offenses are of similar import and the court must proceed to the second step. Id.

Under step two of the analysis, it must be determined whether the offenses were committed as

part of a single act, with a single state of mind. Id. at ¶ 49. If both steps of the analysis are met,

then the offenses are allied offenses of similar import and will be merged. Id. at ¶ 50. On the
Athens App. No. 12CA23                                                                                6


other hand, if commission of one offense will never result in the commission of the other, or if

the offenses are committed separately, or with a separate animus for each offense, then under

R.C. 2941.25(B), the offenses will not merge. Id. at ¶ 51.


                                                     B


                                             PLAIN ERROR


{¶ 13} Plain error exists where the error is plain or obvious and when the error affects

substantial rights. State v. Creech, 188 Ohio App.3d 513, 2010-Ohio-2553, 936 N.E.2d 79, ¶ 17

(4th Dist.). The error affects substantial rights when, but for the error, the outcome of the trial

court proceeding clearly would have been different. Id. A reviewing court should take notice of

plain error with the utmost caution, under exceptional circumstances, and only to prevent a

miscarriage of justice. Id. In other words, a reviewing court should consider noticing plain error

only if the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. This court has previously recognized that plain error exists when a defendant is

convicted of multiple offenses that constitute allied offenses of similar import notwithstanding

the fact that the trial court imposed concurrent sentences for the two offenses. Id.; State v. Shaw,

4th Dist. No. 07CA3190, 2008-Ohio-5910, ¶ 16.


                                                     C


                                      RES JUDICATA ANALYSIS


{¶ 14} In his first assignment of error, appellant asserts that count 1, the attempted felonious

assault charge, and counts 2 and 3, the attempted child endangering charges, are actually allied

offenses under the Johnson test, and thus should have been merged for sentencing purposes.
Athens App. No. 12CA23                                                                              7


Before we consider the merits of appellant’s allied offense argument, we first must address the

appellee’s argument that appellant is barred under the doctrine of res judicata from challenging

merger on appeal from a community control violation, if merger was not challenged on direct

appeal from the original conviction.


{¶ 15} The Fifth District Court of Appeals recently decided a case, State v. Fields, 5th Dist. No.

2012-CA-0011, 2012-Ohio-4808, with facts similar to the case at hand. In Fields, defendant

pled guilty to burglary, possessing criminal tools, and tampering with coin machines. Fields at ¶

3. The trial court placed defendant on four years community control and ordered him to pay

restitution. Id. After multiple violations of his community control, defendant was sentenced to

five years in prison. Id. at ¶ 9. On appeal from his sentence on violation of community control,

defendant argued that the trial court erred in sentencing him by failing to merge the burglary and

tampering with coin machines counts under the theory that they were allied offenses of similar

import. Id. at ¶ 14. The appellate court held that defendant’s merger argument was barred by the

doctrine of res judicata because defendant failed to raise the issue of whether his offenses were

allied offenses of similar import in a timely direct appeal. Id. at ¶ 18.


{¶ 16} The Twelfth District Court of Appeals reached the same conclusion in State v. Dodson,

12th Dist. No. CA2011-02-034, 2011-Ohio-6347. There, the appellate court rejected defendant’s

argument that the trial court erred by failing to merge his trafficking in marijuana and possession

of marijuana convictions. Dodson at ¶ 7. Defendant had originally been sentenced to five years

of community control for both counts. Id. at ¶ 2. Having found that defendant had violated the

terms of his community control, the trial court revoked it and sentenced defendant to a three-year

prison term. Id. at ¶ 3. Noting that defendant never directly appealed his original judgment entry
Athens App. No. 12CA23                                                                             8


of conviction, the appellate court held that he could not now raise the issue on appeal from the

revocation of his community control. Id. at ¶ 8. The court stated:


       Under the doctrine of res judicata, a final judgment of conviction bars the

       convicted defendant from raising and litigating in any proceeding, except an

       appeal from that judgment, any defense or any claimed lack of due process that

       was raised or could have been raised by the defendant at the trial which resulted

       in that judgment of conviction or on an appeal from that judgment. In turn, the

       time to challenge a conviction based on allied offenses is through a direct appeal.

       Accordingly, because appellant did not raise the issue of whether trafficking in

       marijuana and possession of marijuana are allied offenses of similar import in a

       timely direct appeal, we now find his challenge barred by res judicata. (Citations

       omitted.) Id. at ¶ 9.


{¶ 17} Other Ohio appellate courts have reached similar decisions in analogous cases. See State

v. Greenberg, 10th Dist. No. 12AP-11, 2012-Ohio-3975, ¶ 12 (holding that res judicata barred

defendant’s argument under RC 2941.25, because he failed to raise it in a direct appeal); see also

State v. Townsend, 8th Dist. No. 97214, 2012-Ohio-496, ¶ 7-8 (concluding that the issue of

whether two offenses constitute allied offenses subject to merger must be raised on direct appeal

from a conviction, or res judicata will bar subsequent attempts to raise the issue). Moreover, the

plain error rule cannot be used to circumvent the doctrine of res judicata. State v. Evans, 9th

Dist. No. 89CA004587, 1990 WL 66937, *2 (May 16, 1990).
Athens App. No. 12CA23                                                                               9


{¶ 18} Appellant received, under the original sentence, separate sentences for the attempted

felonious assault charge and the merged attempted child endangering charges.2 At that time,

appellant could have filed a direct appeal challenging the trial court’s failure to merge the alleged

allied offenses. Since appellant failed to file a direct appeal on this issue, appellant is now barred

under the doctrine of res judicata from raising the issue on appeal of his community control

violation sentence.


{¶ 19} Accordingly, we overrule appellant’s first assignment of error as it relates to the trial

court’s failure to merge the attempted felonious assault count with the two attempted child

endangering counts.


                                                    D


                      THE ATTEMPTED CHILD ENDANGERING CHARGES


{¶ 20} As part of his first assignment of error, appellant also contends that the trial court

committed plain error when it failed to merge the two attempted child endangering convictions at

the sentencing hearing on violation of community control.


{¶ 21} Appellant asserts that while the trial court declared that the sentences for counts 2 and 3

should merge, it failed to actually merge the convictions when it imposed separate sentences for

each count.


{¶ 22} At the sentencing hearing on violation of community control, the sentencing judge stated

that “[o]n counts two and three, which have been merged for sentencing purposes, the Court


2
  As noted above, appellant was sentenced to five years community control on the attempted
felonious assault count, and two years of community control on the merged attempted child
endangering counts.
Athens App. No. 12CA23                                                                              10


sentences him to three years on the F3, one year on the F4, to be concurrent with one another * *

* .” [Transcript of Second Stage Disposition Hearing at p. 20.] Appellant is correct, in that, it

appears the trial court intended that the convictions on counts 2 and 3 merge; however, it failed

to actually merge the offenses when it administered separate sentences on each count. The fact

that the trial court ordered the sentences to run concurrent to one another does not correct the

error. The trial court also had an opportunity to correct its mistake with its subsequent journal

entries, but it failed to do so.


{¶ 23} Moreover, both counts were merged under the original sentence; and the state

represented at the original sentencing hearing that the attempted child endangering offenses

were, in fact, allied offenses.


{¶ 24} Because the original sentence merged the attempted child endangering offenses, the

doctrine of res judicata does not now bar the appellant from raising the issue in this appeal.

Appellant was not obligated to argue on direct appeal that the offenses should merge, because the

trial court had in fact merged the convictions as part of its original sentence. It was not until the

sentencing hearing on violation of community control and resulting judgment entries that the

offenses became, for lack of a better word, “unmerged.” The failure to merge the attempted

child endangering convictions in the community control violation sentence is a new error that

could only have been addressed in this direct appeal.


{¶ 25} Accordingly, we sustain appellant’s first assignment of error as it relates to the trial

court’s failure to merge the attempted child endangering convictions.


                                                    E


                                       MANIFEST INJUSTICE
Athens App. No. 12CA23                                                                              11


{¶ 26} Finally, appellant asserts that the trial court’s failure to merge the charges was

“fundamentally unfair,” and resulted in manifest injustice. Appellant contends that federal and

Ohio case law recognizes an exception to res judicata preclusion when its application results in

manifest injustice.


{¶ 27} In support of his contention, appellant relies on three cases, all three of which can be

distinguished from the case at hand.


{¶ 28} The first case upon which appellant relies was Tipler v. E.I. duPont deNemours & Co.,

443 F.2d 125, 128 (6th Cir. 1971). This case dealt with whether the doctrines of res judicata or

collateral estoppel precluded an employee from proceeding with a civil rights claim against

employer, when the issue as to whether the employee’s discharge was racially motivated had

been previously litigated before the National Labor Relations Board. The court in that case

concluded that res judicata did not apply because theoretically, certain discriminatory practices

that would be permitted under the National Labor Relations Act may be invalid under the Civil

Rights Act. Id. at 129. Thus, the court concluded that “it would be anomalous if a finding under

one should preclude a determination under the other, absent special considerations.” Id.


{¶ 29} The instant case, unlike Tipler, does not involve the comparison of two statutory

schemes, or the effect of proceeding under one scheme in prior litigation versus a separate and

distinct scheme in subsequent litigation. Rather, the doctrine of merger is clearly set forth in

R.C. 2941.25. Appellant could have made his merger argument at the original sentencing

hearing or on direct appeal from the original sentence.


{¶ 30} The second case cited by appellant does not expressly recognize the manifest injustice

exception to res judicata preclusion. See State v. Richardson, 74 Ohio St.3d 235, 236, 658
Athens App. No. 12CA23                                                                               12


N.E.2d 273 (1996). Appellant’s reliance on the case is misplaced; and it sheds no light on

whether the exception should apply in the instant case.


{¶ 31} While the third case relied upon by appellant does recognize that the application of res

judicata may be unjust in certain circumstances, that case dealt primarily with setting forth a

process for defendants to raise a delayed claim for ineffective assistance of appellate counsel.

State v. Murnahan, 63 Ohio St.3d 60, 66, 584 N.E.2d 1204 (1992). Appellant in this case,

however, does not argue that res judicata should not apply to his ineffective assistance of counsel

allegation. Rather he argues that it would be improper to bar his merger argument under a res

judicata analysis.


{¶ 32} In fact, appellant has cited no cases where Ohio courts have held that the failure to merge

allied offenses constitutes manifest injustice, therefore barring the application of res judicata.

Under the circumstances of this particular case, this court will not find that the trial court’s

actions resulted in manifest injustice. Accordingly, appellant’s argument that res judicata should

not apply is without merit.


                                                    II


                              INEFFECTIVE ASSISTANCE OF COUNSEL


{¶ 33} In his second assignment of error, appellant asserts that trial counsel failed to provide

effective assistance of counsel. Appellant argues that trial counsel’s failure to raise and object to
Athens App. No. 12CA23                                                                             13


the imposition of multiple punishments for allied offenses of similar import at the original

sentencing hearing constituted ineffective assistance of counsel.3


                                                   A


                                     STANDARD OF REVIEW


{¶ 34} Criminal defendants have a right to counsel, including a right to the effective assistance

from counsel. See McMann v. Richardson, 397 U.S. 759, 771, fn. 14, 90 S.Ct. 1441, 25 L.Ed.2d

763 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-Ohio-1366, ¶21. To establish

constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel’s

performance was deficient and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); see also State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.

Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient performance,

the defendant must prove that counsel’s performance fell below an objective level of reasonable

representation. To show prejudice, the defendant must show a reasonable probability that, but

for counsel’s errors, the result of the proceeding would have been different.” (Citations omitted.)

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to

establish either element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116, 2008-

Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need not analyze both. See




3
  Appellant has been represented by at least three separate attorneys in this case. Originally, the
trial court appointed an attorney to represent him. The court appointed attorney was appellant’s
counsel through the original sentencing on the plea deal. Appellant was later represented by an
assistant state public defender in his defense of the alleged community control violations. On
appeal, appellant is represented by a different assistant state public defender.
Athens App. No. 12CA23                                                                             14


State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant’s

failure to satisfy one of the elements “negates a court’s need to consider the other.”).


{¶ 35} When considering whether trial counsel’s representation amounts to deficient

performance, “a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland at 689. Thus, “the defendant must

overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Id. “A properly licensed attorney is presumed to execute his

duties in an ethical and competent manner.” State v. Taylor, 4th Dist. No. 07CA11, 2008-Ohio-

482, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 17 OBR 219, 477 N.E.2d 1128 (1985).

Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that counsel’s

errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth

Amendment. See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62;

State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).


{¶ 36} To establish prejudice, a defendant must demonstrate that a reasonable probability exists

that but for counsel’s errors, the result of the trial would have been different. State v. White, 82

Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373,

paragraph three of the syllabus (1989). Furthermore, courts may not simply assume the

existence of prejudice, but must require that prejudice be affirmatively demonstrated. See State

v. Clark, 4th Dist. No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. No.

01CA2592, 2002 WL 507529, *3 (Apr. 2, 2002); State v. Kuntz, 4th Dist. No. 1691, 1992 WL

42774, *2 (Feb. 26, 1992).


                                                  B
Athens App. No. 12CA23                                                                               15


                                            ANALYSIS


{¶ 37} In the case at bar, we point out that the trial court did in fact merge counts 2 and 3 for

sentencing purposes at the original sentencing hearing. Thus, trial counsel did not need to raise

the issue of merger as to the attempted child endangering convictions, and counsel’s actions in

that regard were reasonable.


{¶ 38} With respect to the trial counsel’s failure to raise the issue of merger of the attempted

felonious assault charge with the remaining attempted child endangering charges, appellant is

now barred from raising ineffective assistance of counsel under the doctrine of res judicata. The

proper time to raise the ineffective assistance of counsel argument would have been by direct

appeal of the original conviction and sentence. See State v. Cole, 2 Ohio St.3d 112,113-114, 443

N.E.2d 169 (1982); Evans, 1990 WL 66937 at *2; State v. Ledger, 17 Ohio App.3d 94, 477

N.E.2d 643, paragraph one of the syllabus (8th Dist. 1984). When a defendant enters a guilty

plea, as is the case here, he waives the right to claim that he was prejudiced by constitutionally

ineffective counsel except to the extent that such ineffective counsel made the plea less than

knowing and voluntary. State v. Crase, 4th Dist. No. 95CA603, 1996 WL 487934, *4 (Aug. 21,

1996).


{¶ 39} Even if res judicata were not to apply, this court has previously held that felonious

assault and child endangering are not allied offenses. State v. Journey, 4th Dist. No. 09CA3270,

2010-Ohio-2555, ¶ 25-28. While the Journey decision was decided prior to the Ohio Supreme

Court’s decision in Johnson, its analysis applies to the instant case. Appellant was originally

sentenced in 2009. Appellant’s ineffective assistance of counsel argument relates to the 2009

sentencing. Therefore, because Johnson was not decided until 2010, this court may not apply its
Athens App. No. 12CA23                                                                                16


reasoning in determining whether attempted felonious assault and attempted child endangering

are allied offenses. See State v. Boyce, 2nd Dist. No. 11CA0095, 2012-Ohio-3713, ¶ 12 (in

refusing to apply Johnson in a petition for post conviction relief, the court noted that “a new

judicial ruling applies only to cases that are pending on the announcement date of the new ruling,

and may not be applied retroactively to a conviction that has become final.”); see also Ali v.

State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6 (holding that a new judicial

ruling may only be applied to cases pending on the announcement date, and may not be applied

retroactively to a conviction that has become final). Appellant’s convictions and sentence

imposed became final upon the trial court’s decision in 2009. Further, appellant did not file a

direct appeal following the 2009 conviction and sentence. Thus, appellant cannot rely on

Johnson in support of his merger argument. Having found under pre-Johnson analysis that the

offenses are not allied, it cannot be said that trial counsel acted unreasonably in not raising the

issue prior to sentencing, or that appellant was prejudiced as a result of counsel’s failure to raise

the issue.


{¶ 40} Accordingly, based on the foregoing reasons, we overrule appellant’s second assignment

of error.


                                                   III


                                            CONCLUSION


{¶ 41} Plain error was committed in entering sentences for both attempted child endangering

charges. This court is not unilaterally permitted to correct the error by modifying the sentence.

See Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182 at ¶ 20-21; State v. Wilson, 129

Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 13. On remand, the state retains the right to
Athens App. No. 12CA23                                                                             17


elect which attempted child endangering charge it seeks to pursue on resentencing. Whitfield,

124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182 at ¶ 25. Once the state makes its selection,

we direct the trial court to hold a new sentencing hearing, merge the convictions for attempted

child endangering, and to impose a single sentence for the chosen offense. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381 at ¶ 1.


{¶42} The trial court did not commit plain error in failing to merge the attempted felonious

assault conviction with the attempted child endangering convictions. Appellant could have

raised that issue as a direct appeal of his original sentence; and he is barred under the doctrine of

res judicata from doing so now.


{¶43} Appellant’s second assignment of error, claiming ineffective assistance of counsel, is also

overruled for the reasons set forth above.


{¶44} Accordingly, we affirm in part, reverse in part and remand the case to the trial court for

further proceedings consistent with this opinion.


              JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Athens App. No. 12CA23                                                                            18




                                      JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED to the trial court for further proceedings consistent with this opinion.

Appellant and appellee shall split the 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 Athens County

Common Pleas Court to carry this judgment into execution.

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

Rules of Appellate Procedure.

       McFarland, P.J. & Harsha, J.: Concur in Judgment and Opinion.



                                                             For the Court

                                                             By:
                                                                    Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
