[Cite as State v. Mowery, 2012-Ohio-4532.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 11 CA 61
BRANDON D. MOWERY

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No 09 CR 259


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        September 26, 2012



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

GREGG MARX                                    THOMAS R. ELWING
PROSECUTING ATTORNEY                          60 West Columbus Street
JOCELYN S. KELLY                              Pickerington, Ohio 43147
ASSISTANT PROSECUTOR
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 11 CA 61                                                     2

Wise, J.

      {¶1}   Appellant Brandon D. Mowery appeals from the decision of the Court of

Common Pleas, Fairfield County, which resentenced him pursuant to a remand order

from this Court in his prior appeal. The relevant facts leading to this appeal are as

follows.

      {¶2}   On March 23, 2010, appellant entered pleas of guilty, in the Fairfield

County Court of Common Pleas, to one count of complicity to commit arson (a fourth-

degree felony), one count of retaliation (a third-degree felony), and one count of

menacing (a fifth-degree felony). Additional counts in the indictment were dismissed.

      {¶3}   Via a judgment entry filed April 22, 2010, appellant was sentenced to

eighteen months on the arson count, five years on the retaliation count, and six months

on the count of aggravated menacing. The trial court ordered the sentences to run

consecutively to one another and to a previously-imposed sentence in another matter.

Appellant also was ordered to pay restitution to the victim, a public children services

agency caseworker.

      {¶4}   Appellant thereupon appealed to this Court, arguing that the trial court had

failed to make adequate or proper findings for imposing consecutive sentences and that

the trial court had erred in imposing consecutive sentences for the offenses of

aggravated menacing and retaliation on the theory that the two are allied offenses of

similar import. See State v. Mowery, Fairfield App.No. 10-CA-26, 2011-Ohio-1709, ¶7,

¶17 (“Mowery I”). Upon review, this Court denied appellant’s claim as to the imposition

of consecutive sentences, but we ordered the matter remanded for a new sentencing

hearing regarding the “allied offense” issue in light of State v. Johnson, 128 Ohio St.3d
Fairfield County, Case No. 11 CA 61                                                      3


153, 2010-Ohio-6314, which had been decided by the Ohio Supreme Court while

appellant’s direct appeal was pending. See Mowery I at ¶28.

      {¶5}    Following our remand, the trial court conducted a new sentencing hearing

on October 24, 2011. The trial court issued a judgment entry on October 27, 2011,

finding that the offenses at issue would not merge and that appellant’s original

consecutive prison terms would stand.

      {¶6}    On November 22, 2011, appellant filed a notice of appeal. He herein

raises the following two Assignments of Error:

      {¶7}    “I.    THE TRIAL COURT ERRED IN DETERMINING THAT THE

OFFENSES OF COMPLICITY TO ARSON, RETALIATION, AND AGGRAVATED

MENACING ARE NOT ALLIED OFFENSES OF SIMILAR IMPORT SUBJECT TO THE

MERGER STATUTE.

      {¶8}    “II.   THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM

CONTRARY TO          LAW    FOR THE        THIRD-DEGREE        FELONY OFFENSE          OF

RETALIATION.”

                                                 I.

      {¶9}    In his First Assignment of Error, appellant argues the trial court erred in

finding that his offenses are not allied offenses of similar import. We disagree.

      {¶10} As an initial matter, we are compelled to delineate the parameters of our

analysis of this assigned error. In Mowery I, at ¶ 28, we directed that “the matter will be

remanded for a new sentencing hearing to analyze appellant's conduct in the offenses

at issue pursuant to Johnson and, if necessary, to review potential merger of the

offenses for sentencing.” (Emphasis added.) In Mowery I, appellant’s “allied offense”
Fairfield County, Case No. 11 CA 61                                                     4

argument was limited to the offenses of aggravated menacing and retaliation. See id. at

¶ 17. We will therefore limit our discussion herein to these two offenses, and we will not

review appellant’s “allied offense” arguments regarding the arson count.

      {¶11} R.C. 2941.25 protects a criminal defendant's rights under the Double

Jeopardy Clauses of the United States and Ohio Constitutions. See State v. Jackson,

Montgomery App.No. 24430, 2012-Ohio-2335, ¶ 133, citing State v. Johnson, 128 Ohio

St.3d 153, 942 N.E.2d 1061, 2010–Ohio–6314, ¶ 45. The statute reads as follows:

      {¶12} “(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.

      {¶13} “(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 contain counts for all such offenses, and the defendant may be

convicted of all of them.”

      {¶14} For approximately the first decade of this century, law interpreting R.C.

2941.25 was based on State v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699, 1999–

Ohio–291, wherein the Ohio Supreme Court had held that offenses are of similar import

if the offenses “correspond to such a degree that the commission of one crime will result

in the commission of the other.” Id. The Rance court further held that courts should

compare the statutory elements in the abstract. Id.

      {¶15} However, the Ohio Supreme Court, in State v. Johnson, 128 Ohio St.3d

153, 942 N.E.2d 1061, 2010–Ohio–6314, specifically overruled the 1999 Rance
Fairfield County, Case No. 11 CA 61                                                         5


decision. The Court held: “When 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.” Id., at the syllabus. As recited in State v. Nickel, Ottawa App.No.

OT–10–004, 2011–Ohio–1550, ¶ 5, the new test in Johnson for determining whether

offenses are subject to merger under R.C. 2921.25 is two-fold: “First, the court must

determine whether the offenses are allied and of similar import. In so doing, the

pertinent question is ‘whether it is possible to commit one offense and commit the other

offense with the same conduct, not whether it is possible to commit one without

committing the other.’ (Emphasis sic.) Id. at ¶ 48. Second, ‘the court must determine

whether the offenses were committed by the same conduct, i.e., “a single act,

committed with a single state of mind.” ’ Id. at ¶ 49, quoting State v. Brown, 119 Ohio

St.3d 447, 2008–Ohio–4569, ¶ 50 (Lanzinger, J., concurring in judgment). If both

questions are answered in the affirmative, then the offenses are allied offenses of

similar import and will be merged. Johnson, at ¶ 50.”

      {¶16} The offense of retaliation as charged in the case sub judice is set forth in

R.C. 2921.05(A) as follows:

      {¶17} “No person, purposely and by force or by unlawful threat of harm to any

person or property, shall retaliate against a public servant, a party official, or an attorney

or witness who was involved in a civil or criminal action or proceeding because the

public servant, party official, attorney, or witness discharged the duties of the public

servant, party official, attorney, or witness.”

      {¶18} The offense of aggravated menacing, R.C. 2903.21(A) and (B), as

pertinent to the case sub judice, reads as follows:
Fairfield County, Case No. 11 CA 61                                                     6


      {¶19} “No person shall knowingly cause another to believe that the offender will

cause serious physical harm to the person or property of the other person, the other

person's unborn, or a member of the other person's immediate family. *** If the victim of

the offense is an officer or employee of a public children services agency or a private

child placing agency and the offense relates to the officer's or employee's performance

or anticipated performance of official responsibilities or duties, aggravated menacing is

a felony of the fifth degree ***.”

      {¶20} In the case sub judice, our review leads us to initially conclude that the

first question under Johnson, i.e., whether it is possible to commit retaliation against a

public children services agency caseworker and commit aggravated menacing against

said victim with the same conduct, would be answered in the affirmative under the

circumstances.

      {¶21} We thus proceed to an examination of the second question under

Johnson. The record indicates that appellant’s accomplice threw a brick through the

window of the victim’s Chevrolet Tahoe, which was parked beside her residence.

Appellant’s accomplice then tossed into the vehicle a firebomb device made with

gasoline and a milk jug. According to the investigating officer, the act of aggravated

menacing occurred at a later time, when appellant and a co-defendant returned to the

scene after fleeing the burning vehicle. See Tr., Resentencing Hearing, at 16-17.

      {¶22} Accordingly, we are persuaded that the act and animus of retaliation as

charged herein under R.C. 2921.05(A) were separate and distinct from the aggravated

menacing conduct targeting the victim under R.C. 2903.21.
Fairfield County, Case No. 11 CA 61                                                       7


      {¶23} We therefore find the trial court did not err in convicting and sentencing

appellant on both of the aforesaid counts.

      {¶24} Appellant’s First Assignment of Error is overruled.

                                                II.

      {¶25} In his Second Assignment of Error, appellant contends the trial court erred

in again sentencing him to a five-year prison term for his offense of retaliation, a third-

degree felony, upon his resentencing following our prior remand. We disagree.

      {¶26} Current R.C. 2929.14(A)(3)(b), following the revisions under 2011

Am.Sub.H.B. No. 86, effective September 30, 2011, reduced the maximum prison term

for many third-degree felonies from 5 years to 36 months. Retaliation under R.C.

2921.05 is implicitly one of the offenses subject to this new statutory 36-month

maximum. As indicated in our recitation of facts in this matter, appellant was originally

sentenced in April 2010, prior to the effective date of H.B. 86.

      {¶27} We note R.C. 1.58(B) states as follows: “If the penalty, forfeiture, or

punishment for any offense is reduced by a reenactment or amendment of a statute, the

penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to

the statute as amended.” In State v. Henderson, Ashland App.No. 11–COA–045, 2012-

Ohio-2709, we reviewed an appellant’s claim that the trial court had erred in not

applying the provisions of H.B. 86 at his resentencing, following an appellate remand.

Id. at ¶ 45. Applying R.C. 1.58(B), supra, we rejected that argument, determining that

Henderson’s “sentence had already been imposed prior to the enactment of H.B. 86;

therefore, the trial court did not err in not applying the amendments therein.” Id. at ¶ 51.

Although in Henderson our prior remand to the trial court for resentencing had been on
Fairfield County, Case No. 11 CA 61                                                     8


the limited issue of post-release control, we find that the same rationale applies where,

as here, the prior appellate remand for a new sentencing hearing was for the purpose of

reviewing the issue of allied offenses in light of the Ohio Supreme Court’s new guidance

in Johnson, supra. Cf., also, State v. Craycraft, Clermont App.Nos. CA2011-04-029 and

CA2011-04-030, 2012-Ohio-884, ¶ 16, (concluding that "nothing in the language of

2011 Am.Sub.H.B. No. 86, nor anything in its legislative history, suggests that the

General Assembly intended for those newly enacted statutory provisions to be applied

by [the appellate] court when reviewing a sentence imposed by the trial court prior to its

effective date.").

      {¶28} We therefore find no error in the trial court’s decision not to apply the H.B.

86 revisions to appellant’s sentence for retaliation in the case sub judice. Appellant’s

Second Assignment of Error is overruled.

      {¶29} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Fairfield County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Farmer, J., concur.


                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0911
Fairfield County, Case No. 11 CA 61                                             9


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
BRANDON D. MOWERY                          :
                                           :
       Defendant-Appellant                 :         Case No. 11 CA 61




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.

       Costs assessed to appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
