[Cite as State v. Ross, 2011-Ohio-3197.]


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

STATE OF OHIO                                         C.A. No.      25178

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOHN V. ROSS, II                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 08 07 2276

                                  DECISION AND JOURNAL ENTRY

Dated: June 29, 2011



        CARR, Judge.

        {¶1}     Appellant, John Ross II, appeals the judgment of the Summit County Court of

Common Pleas. This Court reverses and remands for application of State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314.

                                                 I.

        {¶2}     This matter arises from the death of infant John Ross, III, on July 7, 2008. John

Ross II (hereinafter referred to as “Ross”) was charged and convicted of causing the death of his

eleven-week old son.

        {¶3}     On July 17, 2008, the Summit County Grand Jury indicted Ross on one count of

aggravated murder in violation of R.C. 2903.01(C), a special felony; one count murder in

violation of R.C. 2903.02(B), a special felony; one count of felonious assault in violation of R.C.

2903.11(A)(1), a felony of the second degree; one count of endangering children in violation of

R.C. 2919.22(B)(1), a felony of the second degree; one count of endangering children in
                                                2


violation of 2919.22(A), a felony of the third degree; and five counts of endangering children in

violation of R.C. 2919.22(A), a misdemeanor of the first degree. The aggravated murder charge

contained a death penalty specification pursuant to R.C. 2929.04(A)(9).

       {¶4}    The matter proceeded to trial in February 2009.        The trial court determined

reckless homicide to be a lesser included offense of aggravated murder and so instructed the jury.

The jury subsequently found Ross guilty of the lesser included offense of reckless homicide and

not guilty of the death penalty specification. The jury also found Ross guilty of murder,

felonious assault, and endangering children.     The remaining counts in the indictment were

dismissed upon the motion of the State.

       {¶5}    Ross was sentenced to a five-year term of imprisonment for reckless homicide; an

eight-year term of imprisonment for felonious assault; an eight-year term of imprisonment for

endangering children; and a term of imprisonment of fifteen years to life for murder. The trial

court ordered the prison terms for murder, felonious assault, and endangering children to be

served consecutively to each other for a total of 31 years to life. The trial court ordered the

prison term for reckless homicide to be served concurrently with the other counts. Ross was also

notified that upon his release from prison, he would be subject to a five-year term of post-release

control. Ross filed a notice of appeal on March 30, 2009.

       {¶6}    On October 23, 2009, this Court issued a journal entry vacating the trial court’s

sentencing entry on the basis that Ross had been improperly notified of post-release control.

While Ross had been notified that he would be subject to a five-year term of post-release, he

was, in fact, subject to a mandatory three-year term of post-release control. The matter was

remanded back to the trial court for re-sentencing.
                                                 3


       {¶7}    The trial court held a re-sentencing hearing on November 24, 2009, and issued a

new sentencing entry on December 9, 2009. Ross was sentenced to an identical prison term and

properly put on notice of post-release control. Ross filed a notice of appeal on January 7, 2010.

       {¶8}    On appeal, Ross raises one assignment of error.

                                                 II.

                                  ASSIGNMENT OF ERROR

       “THE TRIAL COURT COMMITTED PLAIN ERROR                        AND ERRED AS A
       MATTER OF LAW IN SENTENCING APPELLANT                         TO CONSECUTIVE
       SENTENCES    FOR    MURDER,  FELONIOUS                        ASSAULT,   AND
       ENDANGERING CHILDREN, WHEN THESE CRIMES                       WERE ALL ALLIED
       OFFENSES OF SIMILAR IMPORT.”

       {¶9}    In his sole assignment of error, Ross argues that the trial court committed plain

error by failing to merge several of his offenses as allied offenses of similar import. Specifically,

he argues that the offenses had to be merged because they were not committed with a separate

animus.

       {¶10} Ross raises a plain error challenge to his sentence. We note that the Supreme

Court of Ohio has held that a trial court commits plain error when it imposes multiple sentences

for allied offenses of similar import. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, at

¶31.

       {¶11} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Supreme Court of

Ohio reevaluated its allied offense jurisprudence and overruled its prior decision in State v.

Rance (1999), 85 Ohio St.3d 632. The issue in Johnson arose from a direct conflict between the

First and Fifth Districts with respect to whether the crimes of felony murder and child

endangering must merge when child endangering also serves as the predicate offense for the

felony murder charge. Johnson at ¶4-5., citing State v. Johnson, 1st Dist. Nos. C-080156 & C-
                                                4


080158, 2009-Ohio-2568 (concluding offenses were not allied because the legislature intended

for the offenses to protect distinct societal interests) and State v. Mills, 5th Dist. No. 2007-AP-

07-0039, 2009-Ohio-1849 (comparing elements in the abstract and concluding offenses were

allied). In resolving the conflict, the Supreme Court acknowledged the inherent difficulty in

applying its allied offense law, abandoned its former approach, and set forth a new conduct-

based approach. The high court discarded Rance’s directive that courts examine the statutory

elements of offenses in the abstract before considering the conduct of a defendant and, instead,

embraced the plain language of R.C. 2941.25. Johnson at ¶44. The Court held that “[w]hen

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.”           Johnson at syllabus.    In

interpreting Johnson, this Court has held that while none of the separate opinions in Johnson

gained a majority, a majority of the Supreme Court did agree that an allied offense determination

must depend upon a defendant’s conduct and the evidence and arguments introduced at trial with

regard to that conduct. State v. Brown, 9th Dist. No. 25287, 2011-Ohio-1041, at ¶49, citing

Johnson at ¶54-57; id. at ¶69-70 (O’Connor, J., concurring).

       {¶12} In this case, Ross contends that his murder, felonious assault, and endangering

children convictions are allied offenses of similar import because they were “all clearly done

with the same animus.” In support of his position, Ross relies heavily on the Supreme Court of

Ohio’s decision in State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147. In Williams, the

Supreme Court relied on Rance, and several other Supreme Court cases, as controlling authority

for the proposition that the trial courts are required to compare the elements of offenses in the

abstract without considering the evidence in the case. Williams at ¶16. As discussed above, the

Supreme Court subsequently overhauled its allied offense jurisprudence in Johnson. Thus, the
                                                 5


foremost question in this case is whether Ross committed the crimes of murder, felonious

assault, and endangering children separately or with a separate animus. See Johnson, supra.

Unlike the circumstances the Supreme Court recently confronted in State v. Wilson, Slip Opinion

No. 2011-Ohio-2669, the parties in this case are not in agreement as to whether any of the

aforementioned offenses are allied. This Court expresses no position on that issue at this time.

Rather than decide this issue in the first instance, we must remand this matter to the trial court

for a determination as to whether Ross’ offenses are, in fact, allied offenses of similar import.

Brown at ¶50, citing Johnson at ¶49-50. Accord State v. Wenker, 9th Dist. No. 25185, 2011-

Ohio-786, at ¶21-22. Therefore, we reverse on this basis and remand to the trial court for the

application of Johnson in the first instance.

                                                III.

       {¶13} The sole assignment of error is sustained to the extent that the judgment must be

reversed for the application of Johnson, supra. The judgment of the Summit County Court of

Common Pleas is reversed and remanded for further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       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.
                                                6


       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(E). 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 Appellee.


                                                    DONNA J. CARR
                                                    FOR THE COURT

MOORE, J.
DICKINSON, P. J.
CONCUR


APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
