[Cite as State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268.]




            THE STATE OF OHIO, APPELLANT, v. DAMRON, APPELLEE.
         [Cite as State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268.]
Criminal law — Allied offenses — Correction of sentencing errors.
    (No. 2010-0937 — Submitted March 22, 2011 — Decided May 18, 2011.)
     APPEAL from the Court of Appeals for Franklin County, No. 09AP-807,
                                    2010-Ohio-1821.
                                 __________________
        O’CONNOR, C.J.
        {¶ 1} Because the judgment entry of the sentencing court shows that the
court applied erroneous legal reasoning, we remand this case to the trial court for
resentencing, as required by State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,
922 N.E.2d 182, and application of our recent decision, State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.
                                 Factual Background
        {¶ 2} On June 27, 2008, a grand jury returned an indictment against
Jeremy Damron that charged one count of felonious assault, two counts of
domestic violence, and one count of rape.              The state alleged that Damron
committed the offenses on or about June 21, 2008, against the mother of two of
his children.
        {¶ 3} On May 5, 2009, Damron entered a guilty plea to felonious assault
and to one count of domestic violence. In exchange, the state requested that the
trial court enter a nolle prosequi to the remaining two counts. During the plea
hearing, Damron was informed of the applicable statutory maximum penalties:
eight years’ imprisonment for felonious assault and five years’ imprisonment for
domestic violence.
        {¶ 4} Before the sentencing hearing, each party submitted a sentencing
memorandum. In its sentencing memorandum, the state cited State v. Rance
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(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, which has since been overruled by
Johnson, and argued for the imposition of consecutive sentences. In so doing, the
state argued that the elements of the two offenses do not correspond to such a
degree that the commission of one offense would necessarily result in the
commission of the other offense. It further argued that Damron committed the
offenses with a separate animus. It argued that in one incident, Damron beat the
victim with his fists and dragged her around the room and, in another incident,
broke off the blades of the ceiling fan and beat the victim with the blades. The
state further argued that the beating with the fan blades also represented an
escalation in the violence that contributed to the serious physical harm suffered by
the victim.
       {¶ 5} In his sentencing memorandum, Damron cited State v. Harris, 122
Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, which relied on Rance, and
argued that the offenses must be merged as allied offenses. Damron conceded
that the elements of the offenses are not the same but argued that the offenses are
allied because he could not have committed felonious assault on this particular
victim (who was a family or household member) without also committing
domestic violence. He further argued, without elaborating, that the offenses were
committed with one animus against one victim.
       {¶ 6} On July 27, 2009, the trial court held a sentencing hearing. At the
hearing, the state addressed Damron’s sentencing memorandum and urged the
court to hold that as a matter of law, felonious assault and domestic violence are
not allied offenses. In so arguing, the state pointed out that felonious assault as
charged requires proof of serious physical harm but domestic violence does not,
that domestic violence requires that the victim be a household or family member
but felonious assault does not, and that domestic violence as charged requires
proof of two prior domestic-violence convictions but felonious assault does not.




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The state did not argue the animus issue at the hearing, as it did in its
memorandum.
       {¶ 7} At the hearing, Damron reiterated his position that under Harris,
the offenses must merge. Specifically, he argued that his commission of felonious
assault necessarily resulted in his commission of domestic violence. He further
argued that the attack involved “one date, one place,” as well as “one animus, one
victim.”
       {¶ 8} After informing Damron that this was the worst instance of
domestic violence and felonious assault he had ever seen, the sentencing judge
imposed the statutory maximum sentences of eight years’ imprisonment for
felonious assault and five years’ imprisonment for domestic violence. The judge
then explained that pursuant to Harris, the counts “need[ed]” to merge. He
further stated, “I feel I have no alternative but to run them concurrent. That’s
pursuant to the State v. Harris,” and “I would have found, if I did not think that
Harris dictated that, that those would run consecutive to each other.”
       {¶ 9} The judgment entry in this case reflected that Damron was found
guilty on both charges and sentenced to eight years and five years to be served
concurrently, “pursuant to State v. Harris.”
       {¶ 10} The state appealed to the Tenth District and asserted one
assignment of error: “The trial court erred by purporting to merge the defendant’s
convictions for felonious assault and domestic violence.” The Tenth District
refused to reach the issue because, although the trial court had concluded that it
was required to merge the convictions, it did not do so. 2010-Ohio-1821 at ¶ 10.
The court of appeals overruled the state’s assignment of error. It noted that rather
than merge the convictions, the trial court imposed separate sentences on each
count but ordered the sentences to be served concurrently. Id. The court of
appeals further noted, “Even if we were to conclude that the court’s decision to
impose concurrent sentences had been based on faulty reasoning, the fact remains



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that the court’s order that the sentences be served concurrently resulted in a
sentence authorized by the statutes governing sentencing.” Id. at ¶ 11.
       {¶ 11} We granted discretionary review over the state’s appeal to address
two propositions of law: (1) “Even when the sentence falls within the permitted
statutory range, the sentence is contrary to law if the court fails to consider the
mandatory provisions in R.C. Chapter 2929, or if the court relies on an erroneous
legal determination that removes a sentencing option from its consideration”; and
(2) “When a court imposes concurrent prison terms under the mistaken belief that
it is merging two allied offenses of similar import, sentencing error occurs, and
that error can be corrected on appeal.” This court declined to review a third
proposition of law on the substantive issue of whether felonious assault and
domestic violence are allied offenses. State v. Damron, 126 Ohio St.3d 1544,
2010-Ohio-3855, 932 N.E.2d 338.
       {¶ 12} Because the sentencing entry itself reflects the court’s error in
reasoning, the sentences must be vacated and this case remanded to the trial court
for resentencing.
                                     Analysis
       {¶ 13} By imposing the sentences concurrently “pursuant to State v.
Harris,” the judgment entry reflected the sentencing judge’s misapprehension of
the law on allied offenses. “Where the same conduct by [the] 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).
       {¶ 14} In its judgment entry, the trial court relied on Harris, presuming
that the case necessarily required merger of the felonious-assault and domestic-
violence counts. In Harris, we addressed two issues: first, whether robbery under
R.C. 2911.02(A)(2) and aggravated robbery under R.C. 2911.01(A)(1) are allied
offenses of similar import; and, second, whether felonious assault under R.C.




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2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2) are allied offenses
of similar import. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882,
at paragraphs one and two of the syllabus. We held that robbery and aggravated
robbery are allied offenses and that felonious assault under (A)(1) and felonious
assault under (A)(2) are allied offenses when those offenses are committed with
the same animus against the same victim. Id.
       {¶ 15} In so holding, we surveyed the allied-offenses case law. Id. at ¶ 7-
14. We recognized that historically, we had interpreted Ohio’s multiple-count
statute, R.C. 2941.25, as involving a two-step analysis. Id. at ¶ 10, quoting State
v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816. “ ‘In the first
step, the elements of the two crimes are compared. * * * In the second step, the
defendant’s conduct is reviewed * * *.’ ” Id. We then acknowledged that in
Rance, we modified the test by holding that courts should examine the elements in
the abstract to determine whether the offenses are allied offenses. Id. at ¶ 11.
       {¶ 16} We next explained that at one time, our holding in Rance was
interpreted by some courts as requiring a strict textual comparison of the
elements. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, at ¶ 12.
We noted that that interpretation conflicted with legislative intent and caused
inconsistent and, at times, absurd results. Id. Accordingly, we had refined the
allied-offenses test in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886
N.E.2d 181, and held that “ ‘in determining whether offenses are allied offenses
of similar import under R.C. 2941.25(A), Rance requires courts to compare the
elements of offenses in the abstract, i.e., without considering the evidence in the
case, but does not require an exact alignment of elements.’ ” Harris at ¶ 12,
quoting Cabrales at ¶ 27.
       {¶ 17} In Damron’s case, the sentencing court relied on Harris, which
relied on Rance. Harris at ¶ 14. Even so, Harris never stood for the proposition
that the offenses of felonious assault and domestic violence must merge as a



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matter of law.    In addition, in the sentencing entry, the trial court failed to
properly merge the convictions. When a defendant has been found guilty of
offenses that are allied offenses, R.C. 2941.25 prohibits the imposition of multiple
sentences. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 12.
Therefore, a trial court must merge the crimes into a single conviction and impose
a sentence that is appropriate for the offense chosen for sentencing. State v.
Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 41-43. In this
case, the sentencing court found Damron guilty of both offenses and sentenced
him on both. The imposition of concurrent sentences is not the equivalent of
merging allied offenses. As we explained in Whitfield, for purposes of R.C.
2941.25, a “conviction” is the combination of a guilt determination and a sentence
or penalty. Whitfield at ¶ 12. As the record stands, Damron has been convicted of
both felonious assault and domestic violence.
                                     Conclusion
       {¶ 18} In this case, the trial court issued a sentencing entry that
erroneously relied upon Harris. Because of this and other significant procedural
defects unique to this case, we vacate the sentence and remand for proper
sentencing, including application of State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061, syllabus.
                                                                 Judgment vacated
                                                              and cause remanded.
       PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
                              __________________
       Ron O’Brien, Franklin County Prosecuting Attorney, and John H. Cousins
IV, Assistant Prosecuting Attorney, for appellant.
       Keith O’Korn, for appellee.
                           ______________________




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