[Cite as State v. Campbell, 2012-Ohio-4231.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                 :      APPEAL NO. C-090875
                                                      TRIAL NO. B-0808031
          Plaintiff-Appellee,                  :

        vs.                                    :           O P I N I O N.

WILLIAM CAMPBELL,                              :

          Defendant-Appellant.                 :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Sentences Vacated in Part and Cause Remanded

Date of Judgment Entry on Appeal: September 19, 2012




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Carpenter Lipps & Leland LLP, Kort Gatterdam, and Erik P. Henry, for Defendant-
Appellant.




Please note: we have removed this case from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}    In this reopened appeal, defendant-appellant William Campbell

presents a single assignment of error, challenging the Hamilton County Common

Pleas Court’s imposition of consecutive prison terms for each of two counts of

aggravated vehicular homicide and a single count of operating a vehicle under the

influence of alcohol. Because the trial court violated R.C. 2941.25 when it sentenced

Campbell on both counts of aggravated vehicular homicide, we vacate those

sentences and remand to the trial court for resentencing.

       {¶2}    In 2009, Campbell was convicted of a single count of operating a

vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) (“OVI”)

and two counts of aggravated vehicular homicide: one count charged him under R.C.

2903.06(A)(1)(a) with causing another’s death as the proximate result of OVI in

violation of R.C. 4511.19;1 and the second count charged him under R.C.

2903.06(A)(2)(a) with recklessly causing another’s death while operating a motor

vehicle. The trial court imposed consecutive prison terms of 15 years for OVI-based

aggravated vehicular homicide, eight years for recklessness-based aggravated

vehicular homicide, and five years for OVI.

       {¶3}     Campbell unsuccessfully challenged his convictions in direct appeals

to this court and to the Ohio Supreme Court, see State v. Campbell, 1st Dist. No. C-

090875 (Mar. 4, 2011), appeal not accepted, 132 Ohio St.3d 1411, 2012-Ohio-2454,

968 N.E.2d 493, and in an R.C. 2953.21 petition for postconviction relief. See State


1The judgment of conviction incorrectly stated that Campbell had been found guilty, on count
one, of aggravated vehicular homicide in violation of “R.C. 2903.06A1B.”


                                             2
                      OHIO FIRST DISTRICT COURT OF APPEALS



v. Campbell, 1st Dist. No. C-100705, 2011-Ohio-3784; State v. Campbell, 1st Dist.

No. C-120016 (June 29, 2012).

       {¶4}   But in February 2012, we granted Campbell’s App.R. 26(B) application

to reopen his direct appeal, upon our determination that his appellate counsel had

been ineffective in failing to present on appeal an assignment of error challenging,

under R.C. 2941.25, the trial court’s imposition of a sentence on each of the three

counts. That assignment of error, advanced here in Campbell’s reopened appeal, is

well taken in part.

                      R.C. 2941.25: The Multiple-Counts Statute

       {¶5}   In 1972, the Ohio General Assembly enacted R.C. 2941.25, the

multiple-counts statute, with the stated purpose of “prevent[ing] shotgun

convictions, that is, multiple findings of guilt and corresponding punishments

heaped on a defendant for closely related offenses arising from the same conduct.”

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 43 and 15

(citing 1973 Legislative Service Commission comments to 1972 Am.Sub.H.B. No.

511). The 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
                                          3
                    OHIO FIRST DISTRICT COURT OF APPEALS



       contain counts for all such offenses, and the defendant may be

       convicted of all of them.

Thus, by the terms of the statute, a defendant may, in a single proceeding, be

sentenced for two or more offenses, having as their genesis the same criminal

conduct or transaction, only if the offenses (1) are not allied offenses of similar

import, (2) were committed separately, or (3) were committed with a separate

animus as to each offense. State v. Bickerstaff, 10 Ohio St.3d 62, 461 N.E.2d 892

(1984); see also State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, ¶ 51; State v. Anderson, 1st Dist. No. C-110029, 2012-Ohio-3347, ¶ 15.

       {¶6}   Rance. Under the multiple-counts analysis established in 1999 by the

Ohio Supreme Court in its now-overruled decision in State v. Rance, 85 Ohio St.3d

632, 710 N.E.2d 699 (1999), two offenses were deemed to constitute “allied offenses of

similar import” for purposes of R.C. 2941.25(A) if the elements of the offenses,

compared in the abstract, corresponded to such a degree that the commission of one

offense would result in the commission of the other offense. Id. at 638. In 2007, in

State v. Hundley, 1st Dist. No. C-060374, 2007-Ohio-3556, we applied Rance to hold

that, for the death of a single victim, Hundley could be sentenced for both OVI-based

aggravated vehicular homicide in violation of former R.C. 2903.06(A)(1) and

recklessness-based aggravated vehicular homicide in violation of former R.C.

2903.06(A)(2), because the offenses were not, for purposes of R.C. 2941.25(A), allied

offenses of similar import. See Hundley at ¶ 7-12. Similarly, in 2008, in State v. Finley,

1st Dist. No. C-061052, 2008-Ohio-4904, we applied Rance to hold that, for the death

of a single victim, Finley could be sentenced for both felony murder and the predicate



                                            4
                      OHIO FIRST DISTRICT COURT OF APPEALS



violent felony of serious-harm felonious assault, again because the offenses were not

allied offenses of similar import.

          {¶7}   Cabrales. In April 2008, the supreme court in State v. Cabrales, 118

Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, began to retreat from Rance. The

court acknowledged that “interpreting Rance to require a strict textual comparison [of

elements] under R.C. 2941.25(A) conflict[ed] with legislative intent and cause[d]

inconsistent and absurd results.” Cabrales at ¶ 27. The court thus sought to “clarify”

Rance, holding that offenses are allied offenses of similar import for purposes of R.C.

2941.25(A) “if, in comparing the elements of the offenses in the abstract, the offenses

are so similar that the commission of one offense will necessarily result in the

commission of the other * * * .” Cabrales at ¶ 26.

          {¶8}   In the wake of Cabrales, we overruled our Rance-based decisions in

Hundley and Findley. In State v. Moore, 1st Dist. No. C-070421, 2008-Ohio-4116, we

overruled Hundley. We held in Moore that OVI-based aggravated vehicular homicide

in violation of former R.C. 2903.06(A)(1) and recklessness-based aggravated vehicular

homicide in violation of former R.C. 2903.06(A)(2) were allied offenses of similar

import, and that “when a defendant commits one act and kills one person, [the]

defendant may be * * * sentenced for only one aggravated vehicular homicide.” Moore

at ¶ 9.

          {¶9}   In State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d

937, the supreme court followed Cabrales to hold that attempted felony murder and the

predicate offense of felonious assault were allied offenses. The court reasoned that,

because the predicate offense constituted an element of the greater offense, the

commission of attempted felony murder would necessarily result in the commission of
                                            5
                    OHIO FIRST DISTRICT COURT OF APPEALS



its predicate felonious assault. We followed Williams in State v. Jackson, 1st Dist. No.

C-090414, 2010-Ohio-4312, to overrule our Rance-based decision in Finley. Jackson

at ¶ 21-22. In turn, our decision in Jackson prompted us to reconsider our 2008

decision in Finley. State v. Finley, 1st Dist. No. C-061052, 2010-Ohio-5203, ¶ 53. And

the Williams rationale led a number of appellate districts to hold that OVI-based

aggravated vehicular assault and OVI were allied offenses of similar import. See State

v. Caston, 6th Dist. No. E-09-051, 2010-Ohio-6498 (citing Cabrales and Williams);

accord State v. Phelps, 12th Dist. No. CA2009-09-243, 2010-Ohio-3257, ¶ 31; State v.

West, 2d Dist. No. 23547, 2010-Ohio-1786, ¶ 43; State v. Duncan, 5th Dist. No.

2009CA028, 2009-Ohio-5668, ¶ 62 (applying Cabrales).

        {¶10} Johnson. In December 2010, the retreat from Rance that began with

Cabrales was completed, when the supreme court decided State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.        In Johnson, the court abandoned

Rance’s “ethereal ‘in the abstract’ analysis,” Johnson at ¶ 28, and “return[ed] to the

mandate of R.C. 2941.25[A], which instructs courts to consider whether a defendant’s

conduct constituted two or more allied offenses of similar import.” Johnson at ¶ 8

(emphasis added). Under Johnson, the defendant is afforded the protection of R.C.

2941.25, and a sentence may be imposed for only one of multiple offenses, if the record

shows that the state relied upon the “same conduct” to prove the offenses, and that the

offenses were committed neither separately nor with a separate animus as to each.

Johnson at ¶ 49 and 51. Accord State v. Anderson, 1st Dist. No. C-110029, 2012-Ohio-

3347, ¶ 20; State v. Johnson, 195 Ohio App.3d 59, 2011-Ohio-3143, 958 N.E.2d 977, ¶

78 (1st Dist.).



                                           6
                       OHIO FIRST DISTRICT COURT OF APPEALS




                                Campbell’s Allied Offenses.

           {¶11} In 2009, upon evidence that his drunk driving had caused him to speed

through a stop sign, collide with the side of a building, and kill his passenger, Campbell

was found guilty of two counts of OVI-based aggravated vehicular homicide, two counts

of OVI, and one count of recklessness-based aggravated vehicular homicide. He was

acquitted on a sixth count, charging him with failing to comply with a signal of a police

officer.

           {¶12} Cabrales and Moore had been decided in 2008. Thus, in December

2009, when Campbell was sentenced, the supreme court in Cabrales had discredited

Rance, and we had in Moore overruled our Rance-based decision in Hundley. Then,

while Campbell’s appeal was pending before this court, and before the appeal was

submitted, we had in Jackson overruled our Rance-based decision in Findley, and the

supreme court had expressly overruled Rance in Johnson.

           {¶13} The state, in its sentencing memorandum and at the sentencing hearing,

conceded that, consistent with R.C. 2941.25, the trial court could sentence Campbell for

only one of the two OVIs and only one of the two OVI-based aggravated vehicular

homicides. But the state, citing Rance and Hundley, argued that OVI, OVI-based

aggravated vehicular homicide, and recklessness-based aggravated vehicular homicide

were not allied offenses of similar import.       The trial court sentenced Campbell

accordingly. And the matter was not assigned as error on appeal.

           {¶14} In Campbell’s reopened appeal, the state concedes, and we agree, that

the trial court erred in sentencing Campbell for both OVI-based aggravated vehicular

homicide and recklessness-based aggravated vehicular homicide. The offenses are
                                            7
                     OHIO FIRST DISTRICT COURT OF APPEALS



allied offenses of similar import because they were predicated upon the same conduct.

And because this conduct had caused the death of a single victim, the offenses cannot

be said to have been committed either separately or with a separate animus as to either.

       {¶15} But the state had also adduced at trial evidence of drunk driving

observed by a police officer before the fatal collision. Because the trial record permits a

conclusion that the OVI verdict was not predicated upon the same conduct as the

aggravated-vehicular-homicide verdicts, the OVI was not an allied offense of either

aggravated vehicular homicide. Thus, Campbell could, consistent with R.C. 2941.25, be

sentenced for OVI.

                                          Conclusion

       {¶16} We, therefore, vacate the sentences imposed for OVI-based aggravated

vehicular homicide and recklessness-based aggravated vehicular homicide and

remand the case for resentencing in accordance with the law and this opinion. In all

other respects, we affirm the judgment of the court below.

                                        Sentences vacated in part and cause remanded.

HENDON, P.J., DINKELACKER and FISCHER, JJ.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                             8
