[Cite as State v. Jones, 2014-Ohio-1634.]

                       [Please see vacated opinion at 2014-Ohio-382.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99703


                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                            LISA JONES
                                                      DEFENDANT-APPELLANT



                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                     Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                            Case Nos. CR-12-568908 and CR-12-568910

        BEFORE: Stewart, J., Jones, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                     April 17, 2014
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Adrienne E. Linnick
          Daniel T. Van
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ON RECONSIDERATION1

MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Lisa Jones entered guilty pleas in two separate cases: in

CR-568908, she pleaded guilty to a second-degree felony count of aggravated arson and

four, fourth-degree felony counts of arson; in CR-568910, she pleaded guilty to one count

of menacing by stalking. The cases arose from Jones’s harassment of, and threats made

to, her ex-boyfriend and setting fire to his house that, in turn, burned four houses that

surrounded it. In this appeal, she complains that the court should have transferred her

cases to the mental health docket; that her guilty pleas were involuntary; that the court

should have merged the arson counts for sentencing; and that the court abused its

discretion by prohibiting her from participating in prison programs that might entitle her

to an early release.

                                               I

       {¶2} Jones first argues that her cases should have been transferred to the court’s

mental health docket in light of an assessment performed by the court psychiatric clinic

that declared that Jones “meets criteria for transfer to the Mental Health Court.”

                                              A


        The original announcement of decision, State v. Jones, 8th Dist. Cuyahoga No. 99703,
       1


2014-Ohio-382, released February 6, 2014, is hereby vacated. This opinion, issued upon
reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see also
S.Ct.Prac.R. 7.01.
       {¶3} Rule 30.1(A) of the Local Rules of the General Division of the Common

Pleas Court of Cuyahoga County establishes a mental health docket for cases “where the

defendant has a confirmed serious mental illness” — defined in the rule as “within the

previous six months prior to arraignment, there is a clinical diagnosis of a severe mental

illness with a psychotic feature.” In a case where the mental health of the defendant is

not determined until after arraignment, assignment to the mental health docket is

discretionary. See Loc.R. 30.1(C)(2); State v. Ellis, 8th Dist. Cuyahoga No. 98538,

2013-Ohio-1184, ¶ 30.

       {¶4} Jones’s mental health evaluations were performed after her arraignment. A

sanity evaluation concluded that Jones suffered from bipolar disorder at the time of her

offense, but that her mental disease “did not prevent her from knowing the wrongfulness

of the alleged behavior.” A competency evaluation conducted at the same time found

her competent to stand trial and found also that, although Jones was not at that time

presenting with symptoms of psychosis, she was a candidate for transfer to the mental

health docket. During sentencing, defense counsel told the court that Jones had been

placed on medication while in jail and that her condition had been stabilized, giving her

“a very sound grasp of her situation and the problems that she’s experienced.” Defense

counsel also told the court that while he believed Jones was a “prime candidate” for the

mental health docket, the court “has the discretion to do a lot of things.”

       {¶5} Jones never made a formal motion to have her case transferred to the mental

health docket.   And when she did raise that forum as an alternative to the regular
criminal docket, she did so only at the time of sentencing after having entered guilty pleas

as part of a plea bargain. By that point, transfer was admittedly discretionary with the

court.

         {¶6} Nothing in the record shows that the court abused its discretion by not

transferring the case to the mental health docket.           Although Jones’s evaluations

determined that she was a candidate for transfer to the mental health docket, the

evaluation determined also that she was competent to stand trial and her mental health

issues did not prevent her from knowing that her conduct was wrong. Additionally, the

court appeared unconvinced that Jones would benefit from having her case transferred to

the mental health docket, saying that it did not sympathize with “people who don’t take

the medication they’re given * * *.” The court noted that Jones made a “conscious

choice to not follow the doctor’s direction, to drink, to not take your medication.”

Reasonable people might disagree with the court’s decision after considering the mental

health evaluations, but that kind of disagreement does not amount to an abuse of

discretion.

                                               B

         {¶7} Jones next argues that if we find that counsel’s failure to file a formal motion

to have the case transferred to the mental health docket constitutes a waiver of that

request, we should find that counsel was ineffective.

         {¶8} An ineffective assistance of counsel claim will lie only when it has shown

that both (1) the performance of defense counsel was seriously flawed and deficient, and
(2) the result of the defendant’s trial or legal proceeding would have been different had

defense counsel provided proper representation. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶9} We have no basis for concluding that defense counsel’s failure to file a

motion to transfer the case to the mental health docket was the direct cause of the court’s

refusal to order the transfer. The psychiatric report was prepared after arraignment, so at

all events a transfer request based on the contents of that report would have been

discretionary with the court. The report showed that Jones’s mental health stabilized

considerably once she began taking her medication. Defense counsel noted the same

thing based on his own interaction with Jones. To the court, this appeared to mean that

Jones could have avoided criminal involvement had she been compliant with her

medication, but that Jones made a “conscious choice” to not take her medication and

instead consume alcohol. Given the court’s statements, we cannot say that it would have

been predisposed to order transfer to the mental health docket had a formal motion for

transfer been filed, so there is no showing that but for defense counsel’s failure to file a

motion, Jones’s case would have been transferred to the mental health docket.

                                             II

       {¶10} We next consider Jones’s argument that her guilty plea was involuntary

because she was not clearly advised of the elements of proof required for aggravated

arson, it being her belief that the structure she set fire to was not an occupied house but

more of a “tool shed.”
       {¶11} “Crim.R. 11(C)(2)(a) requires the court to determine whether a defendant

has an ‘understanding of the nature of the charges,’ but that requirement does not require

the court to inform the accused of the actual elements of the charged offense during the

plea colloquy.”    State v. Woodard, 8th Dist. Cuyahoga Nos. 94672 and 94673,

2011-Ohio-104, ¶ 4. Instead, the court must look to the circumstances of the case to

determine whether the defendant understands the charges to which she is pleading. See

State v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 3.

       {¶12} Jones pleaded guilty to a single count of aggravated arson in violation of

R.C. 2909.02(A)(2). That section charged that she, by means of fire, knowingly caused

physical harm to an occupied structure. Jones maintains that she did not set fire to an

occupied structure as evidenced in the sentencing transcript where she states that the

victim “had gutted the house * * *. The plumbing was gone, the kitchen was gone and

everything. There was nothing in that house. It was a tool shed.” Jones argues that

these statements show that she could not have understood that she was pleading guilty to

burning down an occupied structure. Jones apparently believes that the term “occupied

structure” means a habitation or where someone currently lives. Such is not necessarily

the case.

       {¶13} As applicable here, R.C. 2909.01(C) defines occupied structure in pertinent

part as any house, building, or other structure that is maintained as a permanent or

temporary dwelling, regardless of whether it is temporarily unoccupied or whether any

person is actually present. Other provisions in the statute reference habitation, overnight
accommodation, and the presence or likely presence of a person. But regardless of how

Jones characterizes the victim’s property, it is clear that the house satisfies the statutory

requirement for aggravated arson. Jones’s argument that she did not understand that she

was pleading guilty to setting an occupied structure on fire is without merit.

       {¶14} Jones also complains that the court misled her about the potential

consequences of her plea by advising her that she “could receive community control for

up to five years.” She maintains that this advisement was misleading because the court

refused to order a presentence investigation report, so community control sanctions were

unavailable as a sanction under authority of R.C. 2951.03(A)(1). (“No person who has

been convicted of or pleaded guilty to a felony shall be placed under a community control

sanction until a written presentence investigation report has been considered by the

court.”)

       {¶15} Crim.R. 11(C)(2)(a) requires the court to inform the defendant of the

“maximum penalty involved, and if applicable, that the defendant is not eligible for

probation or for the imposition of community control sanctions at the sentencing

hearing.” The court has no obligation to inform a defendant that community control is an

available sanction. Jones was apparently eligible for community control, and the court

took Crim.R. 11(C)(2)(a) a step further than it had to by telling Jones that she “could”

receive a community control sanction. Although Jones argues that the court’s statement

was false and misleading because the court had no intention of imposing a community

control sanction because it did not order a presentence investigation report, the
advisement did not amount to any kind of promise that community control would be

imposed. As with other sentencing decisions, community control is discretionary with

the court. The court’s decision to not order a presentence investigation report and, in

turn, not sentence Jones to a community control was a decision within the court’s

discretion and did not involve any of the advisements required under Crim.R. 11(C).

                                            III

       {¶16} Jones pleaded guilty to one count of aggravated arson in violation of R.C.

2909.02(A)(2) and four counts of arson in violation of R.C. 2909.03(A)(1). Jones argues

that these were allied offenses because the fire started with one single act — she set fire

to one house and the fire spread to four adjacent houses.

       {¶17} When a defendant’s conduct results in the commission of two or more

“allied” offenses of similar import, that conduct can be charged separately, but the

defendant can be convicted and sentenced for only one offense.          R.C. 2941.25(A).

Offenses are “allied” and must be merged for sentencing if the defendant’s conduct is

such that a single act could lead to the commission of separately defined offenses, but

those separate offenses were committed with a state of mind to commit only one act. See

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50.

Merger is a sentencing issue, so the defendant bears the burden of establishing her

entitlement to the protection of the Allied Offenses Statute, R.C. 2941.25. State v.

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18.
       {¶18} In support of her argument, Jones cites State v. Harrison, 8th Dist.

Cuyahoga No. 75294, 1999 Ohio App. LEXIS 5908 (Dec. 9, 1999). Harrison set fire to

two cars and those fires spread to adjacent houses. The state charged Harrison with 14

counts of aggravated arson relating to the inhabitants of those houses under R.C.

2909.02(A)(3).2 Employing the test set forth in State v. Blankenship, 38 Ohio St.3d 116,

117, 526 N.E.2d 816 (1988), for determining whether offenses are allied, we held that

Harrison acted with a single animus in creating a risk of serious harm to the occupants of

the houses. In reaching that decision, we relied on State v. Hedrick, 8th Dist. Cuyahoga

No. 57844, 1990 Ohio App. LEXIS 5647 (Dec. 20, 1990), in which we found that four

counts of aggravated arson relating to the burning of a single house with four inhabitants

must merge for sentencing. As Jones notes, other precedent from this court holds to the

same effect. See, e.g., State v. Fields, 8th Dist. Cuyahoga No. 88668, 2007-Ohio-3661

(the state conceded that four counts of aggravated arson relating to the burning of

furniture in one suite of an apartment building that spread to the other three suites in the

building must merge for sentencing); State v. Parnell, 8th Dist. Cuyahoga No. 38756,

1979 Ohio App. LEXIS 10104 (May 24, 1979) (“firebomb” that caused damage to both

units in a duplex constituted a single act requiring merger of two counts of aggravated

arson under R.C. 2909.02)

       {¶19} The cases cited by Jones are distinguishable in that at least half of them

analyze conduct relative to an occupied structure under the aggravated arson statute. But


       We note that the definition of R.C. 2909.02(A)(3), as stated in Harrison, is incorrect.
       2
even these cases are no longer viable precedent in favor of merging arson or aggravated

arson counts as they relate to individual persons affected by a defendant’s conduct. In

State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, the Ohio Supreme

Court refused to merge six aggravated arson counts under R.C. 2909.02(A)(1) that

stemmed from a single fire that created a risk of harm to a separate persons. Citing State

v. Jones, 18 Ohio St.3d 116, 117, 480 N.E.2d 408 (1985), for the proposition that “this

state’s aggravated vehicular homicide statute * * * allow[s] convictions for separate

violations ‘for each person killed as the result of a single instance of [the defendant’s]

reckless operation of his vehicle’” id. at ¶ 48, the court held “by analogy with Jones” that

Franklin’s conduct “caused six offenses of dissimilar import because six different people

were placed at risk. For this reason, appellant’s argument fails.” Id. This holding is

now understood to mean that “when an offense is defined in terms of conduct towards

another, then there is dissimilar import for each person affected by the conduct.” State v.

Piscura, 2013-Ohio-1793, 991 N.E.2d 709, ¶ 17 (8th Dist.). Thus, we have recently held

that a defendant setting one fire created a substantial risk of harm or injury to four

children, and could be separately punished for the harm. See State v. Collins, 8th Dist.

Cuyahoga No. 95415, 2011-Ohio-3241, ¶ 21.

       {¶20} Franklin’s “dissimilar import” analysis        controls the outcome of this

assignment of error.     Jones, in addition to pleading guilty to the single count of

aggravated arson under R.C. 2909.02(A)(2), also pleaded guilty to four counts of arson in

violation of R.C. 2909.03(A)(1). That section states that no person, by means of fire or
explosion, shall knowingly “[c]ause, or create a substantial risk of, physical harm to any

property of another without the other person’s consent[.]”             Jones’s guilty plea

acknowledged that her single act damaged not only the victim’s property (an occupied

structure), but four neighboring houses that are the property of others. Because there

were five separate houses damaged by Jones’s single act, there were five acts of harm that

could be separately charged and punished as aggravated arson under R.C. 2909.02(A)(2)

and arson under R.C. 2909.03(A)(1).

                                              IV

          {¶21} The two remaining assignments of error relate to sentencing issues.   A

          {¶22} The court sentenced Jones to an eight-year term for aggravated arson; 18

months on each of the four arson counts; and 18 months on the menacing by stalking

counts. All of the counts were run consecutively for a total of 15 and one-half years in

prison.

          {¶23} R.C. 2929.14(C)(4) requires a sentencing judge to make three distinct

findings before imposing consecutive sentences, in addition to whatever findings the

judge makes with respect to the purposes and goals of sentencing. First, the trial court

must find that “consecutive service is necessary to protect the public from future crime or

to punish the offender.” R.C. 2929.14(C)(4). Second, the trial court must find that

“consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public.” Finally, the trial court must

find that at least one of the following applies:
       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under postrelease control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term for any of the offenses committed as part of any of the courses
       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

       {¶24} Under R.C. 2953.08(A)(4), a defendant can challenge a sentence as being

“contrary to law” if the court failed to make the findings required by R.C. 2929.14(C)(4).

State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 12.          We do not require literal

compliance with R.C. 2929.14(C)(4), so the court need not state its findings

word-for-word with the statute, although that is the preferable way of doing so. But the

court must make separate and distinct findings to show compliance with the statute. Id.

at ¶ 17.

       {¶25} The sentencing transcript shows that the court did not make the third finding

under R.C. 2929.14(C)(4)(a)-(c). The court said nothing about whether Jones committed

her offenses while awaiting trial; that the harm caused by her multiple offenses was so

great or unusual that no single prison term could adequately reflect the seriousness of her

conduct; or that her history of criminal conduct showed that consecutive sentences were

necessary to protect the public from future crime by Jones. Although the court noted in

its first finding that consecutive sentences were necessary to protect the public and to
punish Jones, the “necessary to protect the public from future crime” finding under

section (C)(4)(c) must be made relative to the defendant’s criminal history. We therefore

find that the court failed to comply with R.C. 2929.14(C)(4) so the imposition of

consecutive sentences was contrary to law.

                                             B

       {¶26} After the court sentenced Jones, defense counsel asked the court whether

Jones would be “eligible for participating in programs and so on?” The court replied,

“I’m not gonna’ oppose her participation in any programs if she’d like to take them for

credit.” However, in the sentencing entries entered in both cases, the court stated its

opposition to Jones being placed in any form of early release or transitional control.

Jones complains that these sentencing entries conflict with statements the court made at

sentencing and in any event failed to comply with R.C. 2929.19(D) that requires the court

to state its reasons why it opposes placement.

       {¶27} R.C. 5120.032(A) authorizes the Department of Rehabilitation and

Correction to establish intensive programs that prisons focus on, among other things,

educational achievement, vocational training, substance abuse, and community service.

An eligible prisoner who successfully completes an intensive program may have a prison

sentence reduced by the department. R.C. 2929.19(A)(1)(b). The sentencing court may

disapprove of a prisoner’s participation in an intensive program, but must make “a finding

that gives its reasons for its recommendation or disapproval.” R.C. 2929.19(D).
       {¶28} The state argues that the court did not definitively state at sentencing that it

would not oppose Jones’s participation in any programs that would entitle her to prison

credit. A fair reading of the sentencing transcript tends to show that the court was not

ambivalent about Jones going into the programs, just that it was unsure whether she

qualified for the programs, stating: “I don’t oppose her taking them, but I can’t control

— I don’t know for certain * * * what’s eligible or not with an F-2.”

       {¶29} In any event, we do agree with the state that regardless of any ambiguity at

sentencing, the court did not state any reasons for opposing Jones’s participation in

intensive programs as required by R.C. 2929.19(D). There being no other indication that

Jones had been rendered ineligible under R.C. 5120.032(B)(2), we sustain this assignment

of error also and remand with instructions for the trial court to reconcile any ambiguity

between its statements and the journal entry, and for the court to make the required

finding that gives reasons for disapproving Jones’s participation in any early release or

transitional control programs if the court so opposes.

       {¶30} This cause is affirmed in part, reversed in part, and remanded to the trial

court for proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the 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 Cuyahoga

County Court of Common Pleas 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

the Rules of Appellate Procedure.




MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
