[Cite as State v. White, 2019-Ohio-3053.]

                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




STATE OF OHIO,                                    :

       Appellee,                                  :      CASE NO. CA2018-12-087

                                                  :            OPINION
    - vs -                                                      7/29/2019
                                                  :

TREMAYNE AMIR WHITE,                              :

       Appellant.                                 :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2018CR000161



D. Vincent Faris, Clermont County Prosecuting Attorney, Katherine Terpstra, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for appellant



        PIPER, J.

        {¶ 1} Appellant, Tremayne White, appeals his felonious assault convictions and the

accompanying firearm specifications, as well as his conviction for having weapons under

disability in the Clermont County Court of Common Pleas.

        {¶ 2} White agreed to meet the victim at a restaurant parking lot to perform a drug

transaction. Once the victim entered White's car, a backseat passenger held a gun against
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the victim's neck while White demanded the victim's money. The victim then fled White's car

and jumped into his girlfriend's car. The victim's girlfriend then sped away, and White

pursued the car. During the chase, the cars traveled through a residential neighborhood

during which time, White fired 8-10 shots at the car. None of the bullets struck the victim or

his girlfriend. At the time of the incident, White was under indictment in a different county for

burglary, aggravated robbery, carrying concealed weapons, and having weapons under

disability. White was also on community control for attempted aggravated assault, which also

involved a firearm.

       {¶ 3} White was indicted on two counts of attempted murder, two counts of felonious

assault, one count of aggravated robbery, one count of improperly handling a firearm in a

motor vehicle, and one count of having weapons under disability. The attempted murder,

felonious assaults, and aggravated robbery charges also carried firearm specifications.

       {¶ 4} White entered a guilty plea to two counts of felonious assault and their firearm

specifications, as well as having weapons under disability. The remaining charges and

specifications were dismissed. The trial court sentenced White to an aggregate sentence of

12 years.     White now appeals his convictions and sentence, raising the following

assignments of error.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT MERGING HAVING

WEAPONS WHILE UNDER DISABILITY WITH FELONIOUS ASSAULT.

       {¶ 7} White first argues that the trial court should have merged his conviction for

having weapons under disability with his felonious assault convictions.

       {¶ 8} As noted in White's assignment of error, he did not object at his sentencing

hearing or raise the issue of merger before the trial court. As such, White has waived all but

plain error in this regard. "Plain errors or defects affecting substantial rights may be noticed
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although they were not brought to the attention of the court." Crim.R. 52(B). Plain error does

not exist unless the error is obvious and but for the error, the outcome of the trial would have

been different. State v. Blacker, 12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, ¶

39. Notice of plain error is taken with the utmost caution and only under exceptional

circumstances to prevent a manifest miscarriage of justice. Id.

       {¶ 9} Pursuant to R.C. 2941.25, the imposition of multiple punishments for the same

criminal conduct is prohibited. State v. Rodriguez, 12th Dist. Butler No. CA2015-02-024,

2016-Ohio-452, ¶ 23. If any of the following occurs, the defendant may be convicted and

sentenced for multiple offenses: "(1) the offenses are dissimilar in import or significance — in

other words, each offense caused separate, identifiable harm, (2) the offenses were

committed separately, and (3) the offenses were committed with separate animus or

motivation." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 25. Two or more offenses

of dissimilar import exist "when the defendant's conduct constitutes offenses involving

separate victims or if the harm that results from each offense is separate and identifiable."

Id. at ¶ 26.

       {¶ 10} "At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant's conduct." Id. "The defendant bears the

burden of establishing his entitlement to the protection provided by R.C. 2941.25 against

multiple punishments for a single criminal act." State v. Lewis, 12th Dist. Clinton No.

CA2008-10-045, 2012-Ohio-885, ¶ 14.

       {¶ 11} In arguing that merger should have taken place, White asserts that he did not

bring the firearm to the drug transaction, but rather, wrestled it away from the victim when the

drug deal went awry. He thus claims that the only reason he possessed the weapon was to

immediately protect himself with it and that he had no other reason for possessing the gun.



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In support, White argues that an individual who would otherwise be under disability has the

right to possess a firearm when confronted with a physical threat or assault on his person by

another who has a deadly weapon. State v. Hardy, 60 Ohio App.2d 325 (8th Dist.1978).

However, this narrow exception is inapplicable to the case sub judice, as White did not

possess the gun with the sole and immediate purpose to defend himself.

        {¶ 12} Self-defense requires that (1) the defendant was not at fault in creating the

situation giving rise to the affray, (2) the defendant had a bona fide belief he was in imminent

danger of death or great bodily harm and that his only means of escape from such danger

was the use of deadly force, and (3) the defendant did not violate any duty to retreat or avoid

the danger. State v. Delaffuente, 12th Dist. Butler Nos. CA2015-03-040 and CA2015-03-

042, 2015-Ohio-4917, ¶ 9.

        {¶ 13} Even if we were to accept White's suggestion that the weapon belonged to the

victim and that he did not bring a gun to the drug deal, the record shows that White did not

establish he possessed the gun only in self-defense.1 Instead, White chased the victim and

his girlfriend after the victim escaped White's car. White pursued the victim and shot at him

and his girlfriend between 8-10 times as the victim's girlfriend sped away from White.

        {¶ 14} White never denied that he made the decision to chase the victim while

shooting at him, nor does he dispute that he could have driven away from the victim at any

point after the victim exited his car. Moreover, White pled guilty to the charges without

making any reference to self-defense, and only raised the suggestion that he wrestled the

gun away from the victim during his interview for the presentence investigation report ("PSI").

Despite his efforts to lessen his culpability in the PSI, White chose to voluntarily enter a plea

of guilty – which plea is a complete admission of guilt knowing the potential for the maximum


1. We note information in the PSI, which directly contradicts White's suggestions.


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punishment. Crim.R. 11(B)(1).2

        {¶ 15} Regardless of who owned the gun, the record demonstrates that White's crimes

are not allied offenses. White controlled and used the weapon while under disability, which

was his conscious decision. The crime was complete upon White's decision to possess the

gun, regardless of whether he brought it with him originally or whether he wrestled it from the

victim. Separate from that act and animus, White then used the firearm to facilitate an attack

on the victim and his girlfriend by shooting at them. The felonious assault conduct was not

committed until the first time White pulled the trigger, and by that time, the having weapons

under disability crime had already been completed.

        {¶ 16} These crimes, completed at different times and with a separate animus, also

produced different harm. White having a weapon while under disability is a harm to society

as a whole due to the general danger such possession poses. The harm from the felonious

assault crimes, on the other hand, was specific to the victim and his girlfriend as the chase

unfolded.      This is simply not a case where the defendant possessed the weapon

simultaneously and only with a direct need to defend himself or herself from deadly harm.

After reviewing the record, White's crimes are not allied offenses, and his first assignment of

error is overruled.

        {¶ 17} Assignment of Error No. 2:

        {¶ 18} APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE

THE ISSUE OF MERGER.

        {¶ 19} White argues in his second assignment of error that his trial counsel was



2. White had waived any claim of self-defense by pleading guilty. State v. Montgomery, 11th Dist. Ashtabula No.
2009-A-0057, 2010-Ohio-4555 (waiving the claim of self-defense, yet bringing it up later at sentencing, can
merely be an effort by the offender to reduce the severity of his actions and look better in the eyes of the court).
Defendants have attempted to implicate self-defense after pleading guilty, which can be indicative that the
offender concluded he had nothing to gain by going to trial and much to gain by pleading. State v. Shorter, 2d
Dist. Montgomery No. 12292, 1991 Ohio App. LEXIS 4963 (Oct. 18, 1991).
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ineffective for not arguing merger.

       {¶ 20} To prevail on an ineffective assistance of counsel claim, an appellant must

show his or her trial counsel's performance was deficient, and that he or she was prejudiced

as a result. State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49;

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's

performance will not be deemed deficient unless it fell below an objective standard of

reasonableness. Strickland at 688. To show prejudice, appellant must establish that, but for

his trial counsel's errors, there is a reasonable probability that the result of his trial would

have been different. Id. at 694.

       {¶ 21} Given our conclusion in the first assignment of error, that White's convictions

were not allied offenses, his trial counsel's performance was not deficient and White cannot

demonstrate ineffective assistance. Moreover, a guilty plea waives the right to claim that one

was prejudiced by ineffective assistance of counsel, except to the extent that such ineffective

assistance made the plea less than knowing, intelligent, and voluntary. State v. McMahon,

12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-2055, ¶ 33. White makes no such claim.

Thus, White has waived this argument on appeal, and his second assignment of error is

overruled.

       {¶ 22} Judgment affirmed.


       RINGLAND, P.J., and S. POWELL, J., concur.




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