[Cite as State v. Williamson, 2016-Ohio-690.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102555


                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                              MAURICE WILLIAMSON

                                                            DEFENDANT-APPELLANT



                                    JUDGMENT:
                              AFFIRMED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-578649-A

        BEFORE:          Jones, A.J., Stewart, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: February 25, 2016
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ATTORNEY FOR APPELLANT

Paul A. Daher
Paul A. Daher & Associates
700 W. St. Clair Avenue, Suite 218
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Shannon M. Musson
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
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LARRY A. JONES, SR., A.J.:

       {¶1} Defendant-appellant, Maurice Williamson, appeals his convictions after

entering a guilty plea.   We affirm Williamson’s convictions but remand the case for a

nunc pro tunc sentencing entry.

       {¶2} In 2013, Williamson was charged with attempted murder, two counts of

felonious assault, domestic violence, improperly discharging a firearm at or into a

habitation, having weapons while under disability, and criminal damaging. The felony

charges carried one- and three-year firearm and repeat violent offender specifications and

notices of prior conviction.

       {¶3} Williamson entered into a plea deal with the state, in which he agreed to

plead guilty to felonious assault with three-year firearm and repeat violent offender

specifications and notice of prior conviction, domestic violence, improperly discharging a

firearm at or into a habitation with a repeat violent offender specification and notice of

prior conviction, and having weapons while under disability.

       {¶4} In January 2014, the trial court sentenced Williamson to eight years for

felonious assault plus three years for the firearm specification, consecutive to eight years

for the improperly discharging a firearm at or into a habitation conviction.     The court

also sentenced him concurrently to six months for domestic violence and 36 months for

having weapons while under disability, for a total sentence of 19 years in prison.

       {¶5} This court granted Williamson a delayed appeal and Williamson raises two
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assignments of error for our review:

       I. The trial court erred when it did not merge his felonious assault
       conviction with his improper discharge of a firearm conviction.

       II.   The trial court erred when it sentenced him to consecutive terms

       because the trial court did not make the required findings in the sentencing

       entry.

       {¶6} In the first assignment of error, Williamson argues that the trial court

committed plain error when it failed to merge his felonious assault and improper

discharge convictions.

       {¶7} Under Ohio law, “[w]here the same conduct by a 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, where the defendant’s conduct constitutes two or

more offenses of dissimilar import, or where his or her “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).

       {¶8} In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶

21, the Ohio Supreme Court found that an appellant forfeits his or her allied offenses

claim for appellate review by failing to seek the merger of his or her convictions as allied

offenses of similar import in the trial court.    An accused’s failure to raise the issue of
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allied offenses of similar import in the trial court forfeits all but plain error, which is not

reversible error unless it affected the outcome of the proceeding and reversal is necessary

to correct a manifest miscarriage of justice. Id. at the syllabus. Moreover, unless an

accused shows a reasonable probability that his or her convictions are allied offenses of

similar import committed with the same conduct and without a separate animus, he or she

cannot demonstrate that the trial court’s failure to inquire whether the convictions merge

for purposes of sentencing was plain error.    Id.

       {¶9} In   State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Ohio Supreme Court recently clarified the test a trial court and a reviewing court must

employ in determining whether offenses are allied offenses that merge into a single

conviction, concluding that “two or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) 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 ¶ 23. Thus,

       [i]f any of the following is true, the offenses cannot merge and 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.
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Id. at ¶ 25.    The court also concluded that “a defendant’s conduct that constitutes two or

more offenses against a single victim can support multiple convictions if the harm that

results from each offense is separate and identifiable from the harm of the other offense.”

 Id. at ¶ 26.

       {¶10} This court has previously held it is possible to commit felonious assault by

means of a deadly weapon and discharge of a firearm on or near prohibited premises by

the same conduct. State v. Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, ¶

113; State v. Melton, 2013-Ohio-257, 984 N.E.2d 1112, ¶ 54 (8th Dist.).             But, in

Robinson and Melton, decided before Ruff, this court only considered the conduct and the

animus of the defendant. Pursuant to Ruff, a trial court and a reviewing court must ask:

(1) Were the offenses dissimilar in import or significance? (2) Were they committed

separately? or (3) Were they committed with separate animus or motivation? Id. at ¶ 31.

The conduct, animus, and import must all be considered and an affirmative answer to any

of the above inquiries will permit separate convictions.   Id.

       {¶11} Thus, by failing to seek the merger of his convictions as allied offenses of

similar import in the trial court, Williamson has forfeited his allied offenses claim for

appellate review.     Rogers at ¶ 21.     In order to show plain error, Williamson must

demonstrate a reasonable probability that he has been convicted of allied offenses of

similar import committed with the same conduct and with the same animus and the error

resulted in prejudice, i.e., affected the outcome of the proceeding.    To do so, this court
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must determine whether there is sufficient information in the record before us to decide

whether (1) the offenses were dissimilar in import or significance (2) the offenses were

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

motivation.   We find the record on review insufficient to conduct a plain error analysis.

      {¶12} The only record of facts underlying Williamson’s convictions is the

presentence investigation report.   During the plea and sentencing hearing, there was no

discussion of the facts other than defense counsel’s statement that Williamson was

intoxicated during the event, the prosecutor’s description of the victim’s injuries, and

Williamson’s statements of remorse.

      {¶13} The presentence investigation report states, in part:

      The defendant is the father of [the victim’s] child.           The defendant

      proceeded to walk behind a vacant house next door to 11616 Durant.          A

      short time later, the defendant walked back in front of the house with a gun

      in his hand. He pointed the gun at [the victim] and shot her one time in the

      back of the upper right thigh. The defendant fled on foot and was taken

      into custody a short time later.

      {¶14} The improper discharge offense is listed, but not discussed in the report.

Therefore, this court is left with little to no knowledge of the facts surrounding the

conviction.

      {¶15} Pursuant to Rogers, it is Williamson’s burden to demonstrate a reasonable
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probability that the convictions were for allied offenses of similar import committed with

the same conduct and without a separate animus.           On this record, we find that

Williamson has failed to demonstrate any probability that he was convicted of allied

offenses of similar import committed with the same conduct and with the same animus.

       {¶16} Thus, in light of the above, we cannot say that the trial court committed

plain error when it failed to merge the two offenses.

       {¶17} Within this assignment of error, Williamson also contends that he received

ineffective assistance of counsel because his attorney did not ask for an allied offenses

review.

       {¶18} To support a claim for ineffective assistance of counsel, Williamson must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, he must show counsel’s performance fell

below an objective standard of reasonableness, and a reasonable probability exists that the

result of the proceedings would have been different, but for counsel’s error. Id. at

687-688, 694.

       {¶19} Based on our analysis of the first assignment of error, we find Williamson

has failed to meet his burden to demonstrate he received ineffective assistance of counsel.

 We cannot say that trial counsel’s performance fell below an objective standard of

reasonableness in failing to move the trial court to merge his sentences.             And

Williamson cannot show there is a reasonable probability that, but for his trial counsel’s
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errors, the result of the proceedings would have been different.

       {¶20} In light of the above, the first assignment of error is overruled.

       {¶21} In the second assignment of error, Williamson claims that the trial court

erred when it failed to incorporate its findings for imposing consecutive sentences into its

sentencing entry. Williamson is correct; the trial court did not incorporate its findings

into the sentence judgment entry, as required under State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. Thus, under Bonnell, we remand the case to the

trial court so that it can issue a nunc pro tunc entry incorporating its findings into its

sentencing judgment entry.    Id.

       {¶22} The second assignment of error is sustained.

       {¶23} Judgment affirmed; case remanded for the trial court to put forth a nunc pro

tunc sentencing entry with its consecutive sentence findings.

       It is ordered that appellee recover of appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.



       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
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the Rules of Appellate Procedure.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

MELODY J. STEWART, J., and
PATRICIA ANN BLACKMON, J., CONCUR
