[Cite as State v. Collins, 2013-Ohio-3726.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99111



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    DEVIN K. COLLINS
                                                     DEFENDANT-APPELLANT




                                 JUDGMENT:
                       REVERSED IN PART AND REMANDED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-562160

         BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.

         RELEASED AND JOURNALIZED:                   August 29, 2013
ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Hts., OH 44118


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Marc D. Bullard
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Devin Collins appeals from his sentencing in the Cuyahoga County Court of

Common Pleas. For the following reasons, we reverse in part and remand.

       {¶2} Collins pled guilty to felonious assault in violation of R.C. 2903.11(A)(1)

with a one-year firearm specification, aggravated robbery in violation of R.C.

2911.01(A)(1) with a one-year firearm specification, having weapons while under

disability and tampering with evidence.

       {¶3} The trial court sentenced Collins to prison terms of 10 years for felonious

assault and aggravated robbery with consecutive one-year sentences for the firearm

specifications, 36 months for having weapons while under disability and 36 months for

tampering with evidence. The trial court ordered the prison terms for felonious assault

and aggravated robbery to be served concurrently with each other but consecutively to the

prison term for having weapons while under disability and consecutively to the prison term

for tampering with evidence for a cumulative prison term of 17 years. This appeal

followed.

       {¶4} In his first assignment of error appellant argues that the trial court erred in

determining that his convictions for felonious assault in violation of R.C. 2903.11(A)(1)

and aggravated robbery in violation of R.C. 2911.01(A)(1) were not allied offenses of

similar import.

       {¶5} Our review of an allied offenses question is de novo. State v. Webb, 8th
Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

      {¶6} Under Ohio law, “[w]here 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.” R.C. 2941.25(A). However,

      [w]here 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(B).

      {¶7} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Ohio Supreme Court redefined the test for determining whether two offenses

are allied offenses of similar import subject to merger under R.C. 2941.25. The Johnson

court expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d

699, which required a “comparison of the statutory elements in the abstract” to determine

whether the statutory elements of the crimes correspond to such a degree that the

commission of one crime will result in the commission of the other.           Pursuant to

Johnson, the conduct of the accused must be considered in determining whether two

offenses should be merged as allied offenses of similar import under R.C. 2941.25. Id. at

syllabus. The determinative inquiry is two-fold: (1) “whether it is possible to commit

one offense and commit the other with the same conduct,” and (2) “whether the offenses
were committed by the same conduct, i.e., ‘a single act, committed with a single state of

mind.’” Id. at ¶ 48-49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569,

895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). “If the answer to both questions is yes,

then the offenses are allied offenses of similar import and will be merged.” Id. at ¶ 50.

       Conversely, if the court determines that the commission of one offense will
       never result in the commission of the other, or if the offenses are committed
       separately, or if the defendant has separate animus for each offense, then,
       according to R.C. 2941.25(B), the offenses will not merge.

Id. at ¶ 51.

       {¶8} The term “animus,” as defined by the Ohio Supreme Court in State v.

Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), means “purpose or, more

properly, immediate motive.”

       {¶9} The trial court found that appellant’s guilty pleas to felonious assault in

violation of R.C. 2903.11(A)(1) and aggravated robbery in violation of R.C.

2911.01(A)(1) were not allied offenses of similar import because the statutory language of

those sections demonstrated a separate animus. In other words, the trial court found that

the first prong of the Johnson test was not satisfied in that the commission of one offense

will never result in the commission of the other.

       {¶10}     Appellant plead guilty to felonious assault in violation of R.C.

2903.11(A)(1) which provides:

        (A) No person shall knowingly do either of the following:

       (1) Cause serious physical harm to another or to another’s unborn;
       R.C. 2911.01 defines aggravated robbery in relevant part as:
      (A) No person, in attempting or committing a theft offense, as defined in
      section 2913.01 of the Revised Code, or in fleeing immediately after the
      attempt or offense, shall do any of the following:

      (1) Have a deadly weapon on or about the offender’s person or under the
      offender’s control and either display the weapon, brandish it, indicate that
      the offender possesses it, or use it;

      ***

      (3) Inflict, or attempt to inflict, serious physical harm on another.

R.C. 2911.01.

      {¶11}     Because appellant pled guilty to a violation of R.C. 2911.01(A)(1) as

opposed to (A)(3) the trial court found that his conviction of felonious assault involving

serious physical harm necessarily possessed a separate animus. We disagree. While

ordinarily a violation of R.C. 2903.11(A)(1) would most likely match with a violation of

R.C. 2911.01(A)(3) if the offenses were allied offenses of similar import, considering the

broad language of R.C. 2911.01(A)(1) we cannot agree with the trial court’s conclusion

that the commission of one offense could never result in the commission of the other.

Therefore, the court must consider the conduct of the accused to determine whether the

offenses were committed by the same conduct. Our holding is consistent with how other

districts have treated these offenses. See, e.g., State v. Shields, 1st Dist. Hamilton No.

C-100362, 2011-Ohio-1912, ¶ 14-20; State v. Maple, 9th Dist. Summit No. 25313,

2011-Ohio-1216.

      {¶12} The record before us is insufficient to properly determine if the offenses
were committed by the same conduct. Although the appellant and the state both spoke

briefly prior to sentencing about the events underlying appellant’s convictions for

felonious assault and aggravated robbery neither account adequately detailed the felonious

assault such that the court could properly determine if it was committed with a separate

animus from the aggravated robbery. Specifically, the presentence investigation report

reflects that the victim in this case, a police officer, was shot by appellant’s codefendant

during an attempted theft offense and essentially is a mere recitation of the language of

the indictment. Although the state argued that the felonious assault occurred subsequent

to, and separate from, the aggravated robbery, the state’s recitation of facts failed to

explain precisely when during the course of events the victim was shot.

        {¶13}     We find that the trial court erred in holding that violations of R.C.

2903.11(A)(1) and R.C. 2911.01(A)(1) could not be allied offenses of similar import.

The trial court has a duty to inquire and determine whether multiple charges are allied

offenses of similar import. 1 State v. Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584,

98585, 98586, 98587, 98588, 98589, and 98590, 2013-Ohio-1027, ¶ 55. This includes

the duty to apply R.C. 2941.25 and the Johnson test to the multiple charges. Id. As the

record lacks sufficient factual detail to determine whether the offenses are allied offenses

       1
         Our analysis is not changed by the fact that the trial court ordered appellant’s prison terms
for aggravated robbery and felonious assault to be served concurrently. The imposition of
concurrent sentences is not the equivalent of merging allied offenses. State v. Damron, 129 Ohio
St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512. “Even when the sentences are to be served
concurrently, a defendant is prejudiced by havng more convictions than are authorized by law.”
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31.
of similar import, a remand is necessary to establish the underlying facts of appellant’s

conduct so that the trial court is able to properly determine whether the subject crimes

should merge for sentencing purposes. Appellant’s first assignment of error is sustained.

       {¶14} Appellant argues in his second assignment of error that the trial court

abused its discretion in neglecting to waive court costs and that his trial counsel was

ineffective in neglecting to request such a waiver.

       {¶15} R.C. 2947.23(A)(1) governs the imposition of costs and provides:

        In all criminal cases, including violations of ordinances, the judge or
       magistrate shall include in the sentence the costs of prosecution, including
       any costs under section 2947.231 of the Revised Code, and render a
       judgment against the defendant for such costs.

       {¶16} This statute has been held to apply even to indigent defendants. State v.

Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762, ¶ 78. A trial court may,

in its discretion, waive these costs. Id., citing State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. However, the defendant must first make a motion

for waiver at the time of sentencing. Id., citing State v. Clevenger, 114 Ohio St.3d 258,

2007-Ohio-4006, 871 N.E.2d 589, ¶ 5.

       {¶17} The record reflects that appellant’s trial counsel did not make a motion for

waiver at sentencing but instead asserted that appellant was indigent and moved for court

costs to be imposed after he was released from prison. The trial court refused to find

appellant indigent at sentencing but stated that appellant could submit an affidavit of

indigency and the court would consider it.
          {¶18} To substantiate a claim of ineffective assistance of counsel, an appellant

must demonstrate that (1) the performance of defense counsel was seriously flawed and

deficient, and (2) the result of appellant’s trial or legal proceeding would have been

different had defense counsel provided proper representation. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

          {¶19} This court has found counsel ineffective for failing to file an affidavit of

indigency for a defendant when the “record shows there is a reasonable probability the

defendant would have been found indigent.” State v. Hubbard, 8th Dist. Cuyahoga No.

99093, 2013-Ohio-1999, ¶ 9.

          {¶20}   At the sentencing hearing, defense counsel stated that, although he was

retained, appellant had “no more money left.”        On the day after the sentencing hearing,

appellant’s trial counsel filed a motion for the appointment of appellate counsel and

attached an affidavit in which appellant averred that he was indigent, was unemployed

and had no assets or money. The trial court did appoint appellate counsel but failed to

consider the attached affidavit of indigency for purposes of the suspension of court costs

as it indicated it would do. We find that counsel was not ineffective but that the trial

court abused its discretion in failing to consider a waiver of court costs.

          {¶21}   Appellant’s second assignment of error is sustained, in part.

          {¶22}   In his third assignment of error appellant argues that the trial court erred in

failing to calculate the number of days for which he was entitled to receive jail-time

credit.    Appellant further argues that his attorney provided ineffective assistance of
counsel by failing to object to this omission.

       {¶23}        R.C. 2929.19(B)(2)(g)(i) provides that at the sentencing hearing, the trial

court shall:

       [d]etermine, notify the offender of, and include in the sentencing entry the
       number of days that the offender has been confined for any reason arising
       out of the offense for which the offender is being sentenced and by which
       the department of rehabilitation and correction must reduce the stated prison
       term * * *.

       {¶24}        The record reveals that the trial court failed to comply with R.C.

2929.19(B)(2)(g)(i) in that the court did not determine the proper jail-time credit, did not

notify the offender of the days at sentencing and did not include the calculated time in its

sentencing entry. The state concedes this assignment of error.

       {¶25}        Therefore, we sustain appellant’s third assignment of error and remand the

case for the trial court to properly calculate and apply jail-time credit. State v. Barker,

8th Dist. Cuyahoga No. 93574, 2010-Ohio-4480, ¶ 18.

       {¶26}        Finally, we sua sponte note that the trial court’s sentencing entry contains

a clerical error.     At sentencing, the trial court ordered appellant’s prison terms for having

weapons while under disability and tampering with evidence to be served consecutively to

one another and ordered both prison terms to be served consecutively to appellant’s prison

terms for felonious assault and aggravated robbery.               The trial court imposed a

cumulative prison term of 17 years in this manner. However, the trial court’s sentencing

entry, while imposing the same cumulative prison term, fails to clarify that the prison

terms for having weapons while under disability and tampering with evidence are to be
served consecutively to one another. Further, the journal entry of sentencing also fails to

indicate whether the sentences imposed for the firearm specifications merge.          The trial

court retains continuing jurisdiction to correct clerical errors in judgments by nunc pro

tunc entry to reflect what the court actually decided. State v. Mackey, 5th Dist. Licking

No. 10-CA-74, 2011-Ohio-2651, ¶ 11. The trial court’s ambiguous language in the

sentencing entry qualifies as a clerical error that the court may correct on remand. Id. at

 ¶ 14.

         {¶27}   The judgment of the trial court is reversed in part. We reverse appellant’s

sentences for aggravated robbery and felonious assault and remand for the trial court to

conduct an allied offenses hearing as to those offenses.      We further remand the cause for

the proper calculation of the jail-time credit, the correction of the clerical error in the

sentencing entry and to allow appellant to move for the waiver of court costs.

         It is ordered that appellant recover of said appellee 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

lower 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.




EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., DISSENTS
IN PART WITH SEPARATE OPINION


FRANK D. CELEBREZZE, JR., P.J., DISSENTING IN PART:

       {¶28} I respectfully dissent from the majority’s position that the record before us is

insufficient to properly conduct a de novo review of whether the trial court erred in

determining that appellant’s convictions for felonious assault in violation of R.C.

2903.11(A)(1) and aggravated robbery in violation of R.C. 2911.01(A)(1) were not allied

offenses of similar import.

       {¶29} Initially, I note that in an effort to avoid remands like this in the future, I feel

obligated to reiterate a relevant statement made by this court over 30 years ago in State v.

Kent, 68 Ohio App.2d 151, 155, 428 N.E.2d 453 (8th Dist.1980), fn.1. In Kent, Judge

Alvin Krenzler stated:

              When there is a probability that the allied offense issue may arise in a
       case, the prosecutor and defense counsel would be well advised to squarely
       confront the issue in any plea bargaining that takes place. By resolving this
       question at the plea bargaining stage and incorporating the resolution of the
       allied offense issue in the plea bargain to be placed on the record, the
       prosecutor and defense counsel will act to avoid later problems in the
       validity of the plea bargain, in the entering of the plea, in the acceptance of
       the plea, in the judgment of conviction, and any appeal of the case.

       {¶30} Nevertheless, in the case at hand, I believe that the record contains sufficient

facts to conduct a de novo review. As this court recently stated in State v. Rogers, 8th

Dist. Cuyahoga Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, and 98590,

2013-Ohio-3235, “at any point in the process, prosecutors can put facts on the record that
would support a determination that certain offenses are not allied.” This does not have to

involve long or complicated hearings or witnesses. Historically, merger of offenses has

always been viewed as a part of the sentencing process. Thus, “the sentencing process is

less exacting than the process of establishing guilt.” State v. Bowser, 186 Ohio App.3d

162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.), citing Nichols v. United States, 511

U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). Therefore, this process can

easily be satisfied by a brief recitation of facts or circumstances by the prosecutor,

preferably prior to the plea, to aid the trial court in its determination. Nothing more

should be required.

       {¶31} In my view, the prosecutor’s brief recitation of the facts relevant to

appellant’s aggravated robbery and felonious assault convictions was enough to support

the trial court’s determination that the offenses were not allied.      At the sentencing

hearing, the prosecutor reminded the court that although codefendant Patrick Minifee was

in fact the shooter in this case, his conduct was attributable to appellant for the purposes

of conducting an allied offenses review. In arguing that the aggravated robbery and

felonious assault convictions were committed with separate animus, the prosecutor

presented the following statement:

              Your honor, I would say that the factual difference between the two
       offenses * * * that would make them non-allied would be initially
       [codefendant] gets out to rob Officer Borders. He approaches him with a
       gun, states language consistent with a robbery. And [Officer Borders is] a
       police officer and armed.

              Believing this makes himself even more at risk, [Officer Borders]
      produces the gun. I submit to you only then, when [codefendant] sees the
      gun or it’s fired, [codefendant] takes it in [his] hands to shoot at Officer
      Borders. I say that this was done by [codefendant] to injure Officer Borders
      and/or kill Officer Borders and then leave him to avoid detection. That
      would be a separate purpose. They have initially the purpose to commit the
      aggravated robbery and then when it doesn’t go well, [codefendant] takes it
      on himself to shoot it out with him. That would be the purpose.

      {¶32} Based on the foregoing, I am satisfied that appellant committed aggravated

robbery in violation of R.C. 2911.01(A)(1) and felonious assault in violation of R.C.

2903.11(A)(1) with a separate animus. As appellant approached Officer Borders, his

immediate motive was apparently to rob him. Thus, the ultimate physical attack on

Officer Borders was not “slavishly tied to that initial criminal goal,” but was made once

the robbery did not go according to plan. See State v. Shields, 1st Dist. Hamilton No.

C-100362, 2011-Ohio-1912, ¶ 18, citing State v. Williams, 8th Dist. Cuyahoga No. 94616,

2011-Ohio-925, at ¶ 75 (S. Gallagher, J., concurring).

      {¶33} Accordingly, I would hold, based on these facts, that the aggravated robbery

and the felonious assault were motivated by a separate animus, and therefore should not

have merged for the purposes of sentencing.

      {¶34} I concur with the remainder of the majority’s opinion.
