[Cite as State v. McDaniel, 2011-Ohio-5001.]


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

STATE OF OHIO                                           C.A. No.     25492

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
MARCEL D. MCDANIEL                                      COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   CR 02 11 3315 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2011



        BELFANCE, Presiding Judge.

        {¶1}       Defendant-Appellant Marcel McDaniel appeals from his resentencing in the

Summit County Court of Common Pleas. For the reasons stated below, we affirm in part and

reverse in part.

                                                   I.

        {¶2}       In November 2002, Mr. McDaniel and Keith Gilcreast were indicted on several

charges related to a shooting at a car wash. A supplemental indictment was filed in 2003. The

matter proceeded to trial. With respect to the charges against Mr. McDaniel, the jury was unable

to reach a verdict.

        {¶3}       Prior to a retrial, in May 2003, Mr. McDaniel pleaded guilty to attempted murder

with an accompanying firearm specification and felonious assault, as contained in amended

count one and count two of the indictment. The remaining charges against Mr. McDaniel were
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dismissed. The trial court sentenced Mr. McDaniel to a total of nineteen years in prison. Mr.

McDaniel did not file a direct appeal.

       {¶4}    In May 2009, Mr. McDaniel filed a pro se motion to withdraw his guilty plea,

asserting that he was incorrectly informed of his post-release control obligations. On June 2,

2009, the trial court denied his motion in part because Mr. McDaniel failed to submit a complete

transcript of the plea hearing. Mr. McDaniel filed a motion for leave to file an amended motion

to withdraw his guilty plea, along with an amended motion, which included a transcript of the

entire plea hearing.    The trial court denied the motion as it considered it a motion for

reconsideration. Mr. McDaniel then appealed the trial court’s June 2, 2009 entry. This Court

concluded that the entry was interlocutory and was not a final, appealable order as the 2003

sentencing entry contained erroneous post-release control notification, which we concluded

rendered the 2003 entry void. This Court, therefore, dismissed the appeal, vacated the 2003

sentencing entry, and remanded for a new sentencing hearing.

       {¶5}    Prior to resentencing, Mr. McDaniel filed a “[r]enewed” motion to withdraw his

guilty plea.   A resentencing hearing was held June 4, 2010, during which Mr. McDaniel

withdrew his motion to withdraw his guilty plea. Midway through the hearing, Mr. McDaniel

sought to “push forward” with his motion to withdraw, but the trial court instead proceeded to

sentencing.    Mr. McDaniel was resentenced to nineteen years in prison.         Mr. McDaniel

subsequently filed a motion to withdraw his plea. Thereafter, Mr. McDaniel appealed his

resentencing entry, raising three assignments of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ERRED IN FAILING TO CONDUCT A DE NOVO
       SENTENCING HEARING AS PREVIOUSLY REQUIRED BY THIS COURT.”
                                                  3


         {¶6}   Mr. McDaniel asserts in his first assignment of error that the trial court erred as it

failed to conduct a de novo sentencing hearing. We disagree.

         {¶7}   Mr. McDaniel’s basis for his argument that the trial court did not resentence him

de novo is that the trial court stated that “we’re here today for a resentencing on a technicality.”

While it is true that the trial court did make this comment, it is apparent from the record that the

trial court conducted a de novo sentencing hearing and that the hearing encompassed more than

just a mere imposition of post-release control. For example, the trial court heard extensive

discussion and argument concerning Mr. McDaniel’s sentence.               At the outset, the State

acknowledged that the trial court was free to resentence Mr. McDaniel as it saw fit. Mr.

McDaniel was represented by counsel and given the opportunity to speak at the hearing. Mr.

McDaniel has failed to articulate anything that the trial court failed to do or consider which

would render his resentencing hearing less than a de novo resentencing. See App.R. 16(A)(7).

Accordingly, based on Mr. McDaniel’s limited argument, we overrule his first assignment of

error.

                                  ASSIGNMENT OF ERROR II

         “THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
         CONSECUTIVE SENTENCES FOR THE OFFENSES OF ATTEMPTED
         MURDER AND FELONIOUS [ASSAULT] BECAUSE SAID OFFENSES ARE
         ALLIED OFFENSES OF SIMILAR IMPORT AND THEREFORE MUST BE
         MERGED.”

         {¶8}   Mr. McDaniel argues in his second assignment of error that the trial court erred in

failing to merge his convictions for attempted murder and felonious assault for purposes of

sentencing.

         {¶9}   In December 2010, the Supreme Court of Ohio reviewed its prior allied offense

case law in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. In Johnson, the Court
                                                4


overruled State v. Rance (1999), 85 Ohio St.3d 632, and 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. The main opinion stated that

“the question is whether it is possible to commit one offense and commit the other with the same

conduct, not whether it is possible to commit one without committing the other.” Id. at ¶48. “If

the multiple offenses can be committed by the same conduct, then 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.” (Internal quotations and citation omitted.) Id. at ¶49. “If the answer to

both questions is yes, then the offenses are allied offenses of similar import and will be merged.”

Id. at ¶50.

        {¶10} As Johnson was decided after the trial court resentenced Mr. McDaniel, the trial

court did not have the opportunity to consider Johnson in deciding whether the offenses at issue

were allied.   This Court has previously concluded that the trial court should make this

determination in the first instance. See, e.g., State v. Vitt, 9th Dist. No. 10CA0016–M, 2011-

Ohio-1448, at ¶8. Accordingly, we remand this issue to the trial court for further proceedings

consistent with this opinion. See, e.g., State v. Brown, 9th Dist. No. 25287, 2011-Ohio-1041, at

¶50; State v. Bobb, 5th Dist. No. CT2007-0076, 2011-Ohio-534, at ¶¶18-19.

                                 ASSIGNMENT OF ERROR III

        “THE TRIAL COURT ERRED IN REFUSING TO CONSIDER THE
        APPELLANT’S ORAL MOTION TO WITHDRAW HIS GUILTY PLEA
        WHICH WAS MADE PRIOR TO SENTENCING THEREFORE
        WARRANTING A HEARING ON THE MATTER. FURTHERMORE, THE
        APPELLANT MOVES THIS COURT TO CONSIDER THE MOTION TO
        WITHDRAW THE GUILTY PLEA IN AN INTERLOCUTORY MANNER
        BECAUSE HIS PLEA IS VOID DUE TO THE TRIAL COURT[’S] FAILURE
        TO INFORM THAT BY PLEADING, THE APPELLANT WOULD WAIVE
        HIS RIGHT TO A JURY TRIAL.”
                                                   5


       {¶11} Mr. McDaniel asserts in his third assignment of error that the trial court erred in

refusing to consider his oral motion made during the sentencing hearing to withdraw his guilty

plea. We disagree.

       {¶12} Prior to Mr. McDaniel’s resentencing hearing, he filed a motion to withdraw his

plea. However, the record reflects that sometime prior to the hearing, Mr. McDaniel’s counsel

phoned the trial court and stated that she was withdrawing the motion. In addition, at the

beginning of the resentencing hearing, Mr. McDaniel asked to withdraw his motion to withdraw

his guilty plea. The trial court agreed to let him withdraw his motion. Then, after discussion of

the substantive sentencing issues, counsel for Mr. McDaniel stated that Mr. McDaniel “wanted to

push forward with his motion to withdraw his guilty plea.” However, as Mr. McDaniel did not

have a pending motion to withdraw his plea, there was no motion “to push forward with[.]”

Thus, in light of the parties’ and the trial court’s understanding prior to the hearing that the

motion was withdrawn, an understanding which was confirmed at the beginning of the hearing,

and as there was technically no pending motion before the trial court when Mr. McDaniel sought

to have his motion ruled upon, we cannot say that the trial court abused its discretion in

proceeding to sentence Mr. McDaniel.          Accordingly, we overrule Mr. McDaniel’s third

assignment of error.

                                                  III.

       {¶13} In light of the foregoing, we overrule Mr. McDaniel’s first and third assignments

of error. With respect to the second assignment of error, the judgment of the Summit County

Court of Common Pleas is reversed, and the matter is remanded to the trial court for

consideration of the issue in light of Johnson.
                                                 6


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             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.

       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 equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



CARR, J.
DICKINSON, J.
CONCUR

APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
