         [Cite as State v. Johnson, 2017-Ohio-1148.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                     :    APPEAL NO. C-160242
                                                        TRIAL NO. B-9708745
        Plaintiff-Appellee,                       :

  vs.                                             :
                                                           O P I N I O N.
RAYSHAWN JOHNSON,                                 :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: March 29, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Chief Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

       {¶1}     Following remand from the Ohio Supreme Court, the trial court

imposed a life-without-parole prison sentence on defendant-appellant Rayshawn

Johnson for the aggravated murder of Shanon Marks. Johnson now challenges that

sentence.     The sentence imposed on the aggravated-murder offense itself is not

subject to review by this court. But that portion of the sentence that ordered the life

term to be served consecutively to the other felony prison terms was contrary to law

where the trial court failed to make the findings mandated by R.C. 2929.14(C)(4).

Therefore, we vacate only that portion of Johnson’s sentence and remand the cause

for resentencing.

                          I. The Murder of Shanon Marks
       {¶2}     In 1997, Johnson attempted to rob Nicole Sroufe.         Johnson was

apprehended but later released on bond.        Two months later, Johnson forcibly

entered Shannon Marks’ home through a back door to look for money. He was

wearing gloves and was armed with a baseball bat. He took $50 from Marks. In

statements to police, Johnson admitted striking Marks twice in the back of the head

with the bat, and hitting her again after she fell to the floor. He stated that he had

heard her cry for help as he left the scene. An autopsy revealed that Marks had

suffered defensive wounds, a broken left forearm, and massive head injuries that

caused her death. See State v. Johnson, 88 Ohio St.3d 95, 99-118, 723 N.E.2d 1054

(2000).

       {¶3}     The offenses committed against Sroufe and Marks were charged in a

single indictment and were tried together. In June 1998, following a jury verdict of

guilty on all charges and specifications, the trial court imposed the death penalty on

Johnson for the aggravated murder of Marks. It also imposed prison terms for the

aggravated robbery and aggravated burglary of Marks and for the kidnapping and



                                          2
                      OHIO FIRST DISTRICT COURT OF APPEALS



robbery of Sroufe. Though the trial court’s journal entry did not reflect that it had

made any of the statutory findings required to impose consecutive sentences, the

court ordered each prison term, and the death sentence, to be served consecutively.

The aggregate prison term was 33 years.

       {¶4}     In 2000, the judgment of conviction, including the sentence of death,

and the prison terms for the other felony offenses, was affirmed on direct appeal to

the Ohio Supreme Court. Johnson at 123.

           II. Resentencing on the Aggravated-Murder Conviction
       {¶5}     Johnson sought habeas corpus relief in federal court. He was granted

relief there on the grounds that he had received ineffective assistance of trial counsel

during the mitigation phase of his trial. See State v. Johnson, 144 Ohio St.3d 518,

2015-Ohio-4903, 45 N.E.3d 208, ¶ 1. On remand, the state trial court conducted a

new mitigation hearing. A new jury again recommended death, and the trial court

again imposed that sentence. Id. at ¶ 2. Nonetheless, on appeal, the Ohio Supreme

Court held that the death sentence was not appropriate. It vacated the sentence of

death and remanded the cause to the trial court for resentencing under R.C. 2929.06.

Id. at ¶ 141.    Life without parole eligibility was the most severe sanction that

remained to be imposed at resentencing. See R.C. 2929.06(A).

       {¶6}     A new judge presided over the resentencing hearing. The trial court

scheduled a report for December 4, 2015. Johnson appeared with his appointed

counsel, and stated his desire to proceed directly to sentencing. Johnson addressed

the court and stated that he had had 18 years to reflect on his actions. He apologized

for “ruining” Marks’ life, her family’s lives, and his own.

       {¶7}     Johnson urged the court to impose a sentence of life imprisonment

without parole. He declared, “I just ask the Court, like I told my attorney that

represented me right here, that, you know, I believe that there is no other option but

life in prison without the possibility of parole. Because I have 33 other – 33 more



                                            3
                     OHIO FIRST DISTRICT COURT OF APPEALS



years facing me, so it wouldn’t make a difference. I just ask that you pass sentence

on me right now, today.” The state indicated that it had spoken with the Marks

family and that “obviously, [life without parole is] what we’re asking for.”

        {¶8}   The trial court stated that it had reviewed the record and then imposed

the jointly recommended, life-without-parole sentence for the aggravated murder of

Marks, as alleged in Count One of the amended indictment. The trial court noted

only that the sentences for the remaining felony offenses “would remain untouched.”

It did not address whether it would order the life-without-parole sentence to be

served consecutively to the other felony sentences.

        {¶9}   One month later, the trial court journalized its resentencing judgment

entry and imposed the life-without-parole sentence. It also ordered that the life-

without-parole, aggravated-murder sentence was to be served consecutively to the

33-year aggregate prison term for the other felony offenses. The entry did not

contain any findings to support the consecutive imposition of the life term. Johnson

brought this timely appeal.

            III. No Findings to Support the Consecutive Life Term
        {¶10} In his first assignment of error, Johnson asserts that the trial court’s
imposition of sentence was contrary to law under R.C. 2953.08(A). He argues that

the trial court erred in imposing a life-without-parole sentence for aggravated

murder, and erred in ordering each of the sentences to be served consecutively

without making the statutory findings required by R.C. 2929.14(C)(4). We agree, in

part.

               a. The aggravated-murder sentence is not reviewable
        {¶11} Johnson first challenges the life-without-parole sentence itself.
Despite having asked the trial court to impose sentence on December 4, 2015, and

having addressed the court about his decision to seek a life-without-parole sentence,

Johnson now asserts that the court failed to hold a resentencing hearing, as required



                                           4
                     OHIO FIRST DISTRICT COURT OF APPEALS



by R.C. 2929.06(A). And despite the Ohio Supreme Court’s decision vacating his

death sentence having effectively dismissed the aggravating circumstance which

triggers the need for additional defense counsel, Johnson now contends that the trial

court erred when it appointed only one attorney to represent him in contravention of

Appt.Coun.R. 5.02(A)(1).

       {¶12} But we do not reach the merits of these arguments because Johnson’s
sentence for aggravated murder is not subject to review by this court. While there is

no constitutional right to the appellate review of a criminal sentence, R.C. 2953.08

confers statutory rights upon a defendant to appeal from some felony sentences. See

State v. Smith, 80 Ohio St.3d 89, 97, 684 N.E.2d 668 (1997). R.C. 2953.08(A)

authorizes a defendant to challenge a sentence that is “contrary to law.” But the

statute bars that appeal when the sentence to be reviewed, as here, was imposed for

the crime of aggravated murder. Specifically, R.C. 2953.08(D)(3) provides, “[a]

sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to

2929.06 of the Revised Code is not subject to review under [R.C. 2953.08].”

       {¶13} Notwithstanding this clear statutory language, Johnson asserts that we
may still review “procedural matters” used to reach the aggravated-murder sentence.

See State v. Hancock, 12th Dist. Warren Nos. CA2001-12-115, CA2001-12-116 and

CA2001-01-004, 2003-Ohio-1616, ¶ 11.           Johnson’s argument is based on an

understanding that R.C. 2953.08 does not provide the “exclusive basis for appealing

a sentence. * * * Thus, an appeal of a murder sentence may still be based on

traditional grounds for appeal independent of those set forth in R.C. 2953.08.” State

v. Steele, 10th Dist. Franklin No. 00AP-499, 2001 WL 721806, *7 (June 28, 2001);

see Hancock at ¶ 11 (citing Steele with approval).

       {¶14} But the Ohio Supreme Court has clearly rejected this rationale. In
State v. Marcum, it held that R.C. 2953.08 “specifically and comprehensively defines

the parameters” of felony-sentencing appellate review. State v. Marcum, 146 Ohio



                                           5
                     OHIO FIRST DISTRICT COURT OF APPEALS



St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 21 (2016). Here, Johnson has sought

review only under R.C. 2953.08(A)(4), and has not identified any other authority

governing our review.       Thus we apply the “unambiguous” language of R.C.

2953.08(D). State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d

690, ¶ 17.

       {¶15} The language of R.C. 2953.08(D)(3), precluding review of a sentence
imposed for aggravated murder, “clearly means what it says: such a sentence cannot

be reviewed.” Id. Accord State v. Terrell, 1st Dist. Hamilton No. C-020194, 2003-

Ohio-3044, ¶ 28; State v. Hawkins, 4th Dist. Gallia No. 13CA3, 2014-Ohio-1224, ¶

15; State v. Hollingsworth, 143 Ohio App.3d 562, 566, 758 N.E.2d 713 (8th

Dist.2001); State v. Burke, 2d Dist. Montgomery No. 26812, 2016-Ohio-8185, ¶ 28.

Thus this court is without statutory authority to review the sentence imposed for the

aggravated murder of Marks, and we decline to consider the merits of Johnson’s

arguments that it was imposed improperly.


               b. Nothing in R.C. 2953.08(D) precludes review of the
                     consecutive imposition of the life sentence
       {¶16} As Johnson next argues, this court does have statutory authority to
review whether the trial court erred in ordering the aggravated-murder sentence to

be served consecutively to the other felony sentences without making the statutorily

mandated findings. While an appellate court may not review the actual sentence

imposed for aggravated murder pursuant to R.C. 2953.08(D), nothing in R.C.

2953.08(D) precludes review of whether the trial court complied with the

requirements of R.C. 2929.14(C)(4) when ordering that sentence to be served

consecutively. Porterfield at ¶ 19; see Terrell at ¶ 36.

       {¶17} Thus the determination of whether to order nonmandatory
consecutive sentences is governed by the same statute, R.C. 2929.14(C)(4), both for

general felonies and for aggravated murder. See State v. Broe, 1st Dist. Hamilton


                                            6
                      OHIO FIRST DISTRICT COURT OF APPEALS



No. C-020521, 2003-Ohio-3054, ¶ 93. If the trial court exercises its discretion to

impose consecutive sentences, it must make the consecutive-sentences findings set

out in R.C. 2929.14(C)(4), and those findings must be made at the sentencing

hearing and incorporated into the sentencing entry. State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23; see State v. Sergent, 148 Ohio St.3d 94,

2016-Ohio-2696, 69 N.E.3d 627, ¶ 17.

       {¶18} We note that although Johnson and the state had jointly
recommended the life-without-parole aggravated-murder sentence, there is no

indication in the record that they made any recommendation that the life term be

imposed consecutively. Thus R.C. 2953.08(D)(1) does not bar our review. Compare

Sergent at ¶ 30 and 43 (holding that if a jointly recommended sentence includes

nonmandatory consecutive sentences and the trial judge fails to make the consecutive-

sentences findings set out in R.C. 2929.14(C)(4), the sentence is nevertheless authorized

by law, and therefore is not appealable).

       {¶19} Here, before imposing sentence, the trial court indicated that it had
reviewed the facts of the case. It commented on how Johnson had planned the

robbery, had bludgeoned Marks, and had disposed of the baseball bat used to kill

her. The court agreed with Johnson that these horrific acts, committed to obtain

only $50, had ruined many people’s lives, including Johnson’s. But the trial court

did not make any further comments before imposing sentence.

       {¶20} As the state concedes, the court failed to make the findings required
under R.C. 2929.14(C)(4).       See Bonnell at ¶ 32.    Because the record does not

demonstrate that the trial court engaged in the required analysis and made the

necessary    statutory findings before ordering        Johnson’s life-without-parole,

aggravated-murder sentence to be served consecutively to the 33-year aggregate

prison term imposed for the other felony offenses, and include them in its sentencing

entry, we “clearly and convincingly find” that that portion of the court’s judgment is



                                            7
                     OHIO FIRST DISTRICT COURT OF APPEALS



contrary to law and must be vacated. R.C. 2953.08(G)(2)(a); see Bonnell at ¶ 37;

State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, ¶ 121 (1st Dist.).

       {¶21} Johnson further argues that neither the trial court’s resentencing entry
nor its original 1998 sentencing entry included statutory findings to support the

consecutive imposition of the other felony sentences. But we will not vacate any

other portion of the trial court’s judgment. First, review of those sentences was not

included in the Ohio Supreme Court’s limited remand to the trial court.               See

Johnson, 144 Ohio St.3d 5128, 2015-Ohio-4903, 45 N.E.3d 208, at ¶ 141. Moreover,

the issue of whether the trial court properly imposed consecutive sentences for those

offenses could have been raised on direct appeal from the trial court’s initial 1998

judgment entry. Yet Johnson did not advance that argument in his direct appeal.

See Johnson, 88 Ohio St.3d at 125-131, 723 N.E.2d 1054. The doctrine of res judicata

bars most sentencing challenges subsequent to the direct appeal including “whether

sentences must be served concurrently or consecutively.” State v. Holdcroft, 137

Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8.

       {¶22} Thus the first assignment of error is sustained but solely on the basis
that the trial court erred in ordering the life-without-parole term to be served

consecutively to the other felony prison terms without making the required findings.

                IV. Johnson’s Trial Counsel Was Not Ineffective
       {¶23} In his second assignment of error, Johnson argues that he was denied
the effective assistance of counsel for various claimed deficiencies, including (1) trial

counsel’s failure to request the appointment of a second trial counsel, (2) his

acquiescence in Johnson’s stated intention to be sentenced to a life-without-parole

sentence, (3) his failure to present evidence in mitigation, and (4) his failure to object

to the trial court’s imposition of consecutive sentences.

       {¶24} To prevail on his claim of ineffective assistance of trial counsel,
Johnson must demonstrate that his trial counsel’s performance was both deficient



                                            8
                       OHIO FIRST DISTRICT COURT OF APPEALS



and so prejudicial that he was denied a reliable and fundamentally fair proceeding.

See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); see

also Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two

and three of the syllabus. A reviewing court will not second-guess trial strategy and

must indulge a strong presumption that counsel’s conduct fell within the wide range

of reasonable professional assistance. See State v. Mason, 82 Ohio St.3d 144, 157-

158, 694 N.E.2d 932 (1998).

       {¶25} In light of the Supreme Court’s remand instructions to the trial court
removing the death penalty as a resentencing option, we cannot say that trial

counsel’s performance was deficient for failing to request a second trial attorney.

Moreover, there is nothing in this record to indicate that trial counsel’s acquiescence in

Johnson’s recommended sentence, and his failure to argue in mitigation, were so

prejudicial that Johnson was denied a reliable and fundamentally fair proceeding.

See State v. Keith, 79 Ohio St.3d 514, 537, 684 N.E.2d 47 (1997). The record reveals

Johnson’s genuine remorse for killing Marks and ruining the lives of her family and

his own. He told the court that he had had 18 years to reflect on his actions, and

sought a life-without-parole sentence. Johnson acknowledged that regardless of the

penalty imposed for killing Marks, he also faced the 33-year aggregate prison term for the

other felony convictions. In light of these statements, there is no reasonable probability

that the sentencing result would have been different had counsel argued in mitigation.

       {¶26} Finally, trial counsel was not deficient for failing “to argue the consecutive
findings issue” at the resentencing hearing. The trial court gave no indication at the

hearing that it was going to order the life-without-parole term to be served consecutively.

A specific act or omission by the trial court, constituting legal error, is that prerequisite

that gives rise to trial counsel’s duty to object and suggest that error to the court. See State

v. Morgan, 181 Ohio App.3d 747, 2009-Ohio-1370, 910 N.E.2d 1075, ¶ 14 (1st Dist.), citing



                                               9
                      OHIO FIRST DISTRICT COURT OF APPEALS



Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, (3d Cir.1982), fn. 1. Counsel must

be diligent but is not required to be clairvoyant. Since the court’s sentencing entry was the

first indication in this record that the court intended to impose the life term consecutively,

trial counsel was not deficient for failing to object at the sentencing hearing. The second

assignment of error is overruled.

                                       V. Conclusion
       {¶27} Accordingly, we sustain the first assignment of error solely on the basis
that, with respect to the life-without-parole, aggravated-murder sentence, the trial

court failed to make the requisite consecutive-sentencing findings and to incorporate

those findings into its resentencing entry. We vacate that portion of the trial court’s

judgment ordering consecutive imposition of the life term, and remand the cause to

the trial court for resentencing on that matter alone. See Simmons, 2014-Ohio-3695,

19 N.E.3d 517, at ¶ 123. In all other respects, we affirm the trial court’s judgment.

                                                                    Judgment accordingly.



MOCK, P.J., and ZAYAS, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                             10
