         [Cite as State v. Evans, 2011-Ohio-2356.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-100028
                                                         TRIAL NO. B-0902659
        Plaintiff-Appellee,                          :
                                                         D E C I S I O N.
  vs.                                                :

MARK EVANS,                                          :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

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


Date of Judgment Entry on Appeal: May 18, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Scott Rubenstein, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




J. H OWARD S UNDERMANN , Judge.

       {¶1}     Defendant-appellant Mark Evans appeals his convictions on one count

of voluntary manslaughter and three counts of felonious assault, pursuant to an agreed

plea and sentence. In three assignments of error, he challenges (1) the trial court’s

imposition of multiple sentences for allied offenses of similar import; (2) the

voluntariness of his guilty pleas; and (3) the constitutional effectiveness of his trial

counsel. Finding merit only in his first assignment of error, we vacate the sentences for

the voluntary-manslaughter and felonious-assault offenses involving Kevin Gandy and

remand this case for resentencing on only one of those offenses. We otherwise affirm

the trial court’s judgment and sentences.

                               I.   Evans’s Plea Agreement

       {¶2}     Prior to trial, Evans agreed to plead guilty to one count of felonious

assault involving Deanthony Gandy, one count of felonious assault involving Jamar

Gandy, one count of voluntary manslaughter involving Kevin Gandy, and one count of

felonious assault involving Kevin Gandy.        In exchange for his guilty pleas, the state

dismissed a murder count involving Kevin Gandy and agreed to sentences that would

result in an aggregate term of 18 years’ incarceration. The state also dismissed two

aggravated-robbery and robbery counts arising from a separate incident.

       {¶3}     At a subsequent sentencing hearing, the trial court imposed the agreed

sentences: concurrent five-year terms of incarceration for the three counts of felonious

assault, a consecutive ten-year term for the single count of voluntary manslaughter, and

one consecutive three-year term for the firearm specifications included in all the counts,

for an aggregate prison term of 18 years.

                             II. Allied Offenses of Similar Import




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        {¶4}     In his first assignment of error, Evans argues that the trial court erred in

imposing separate sentences for the voluntary manslaughter and felonious assault

relating to Kevin Gandy because they were allied offenses of similar import under R.C.

2941.25. We agree.

        {¶5}     In State v. Underwood, the Ohio Supreme Court held that “when a

sentence is imposed for multiple convictions on offenses that are allied offenses of

similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate

review of the sentence even though it was jointly recommended by the parties and

imposed by the court.”1 The court further held that the imposition of multiple sentences

for allied offenses of similar import constitutes plain error even when the defendant has

received concurrent sentences.2

        {¶6}     Under R.C. 2941.25, a trial court, in a single proceeding, may convict

and sentence a defendant for two or more offenses “ ‘having as their genesis the same

criminal conduct or transaction,’ ” if the offenses (1) are not allied offenses of similar

import, (2) were committed separately or (3) were committed with a separate animus

as to each offense.3

        {¶7}     In State v. Johnson, the Ohio Supreme Court held that “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 (State v. Rance

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled).”4             While all seven justices

concurred in the syllabus overruling Rance, they could not reach a majority opinion with



1 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph one of the syllabus.
2 Id. at ¶30.
3 See State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892, quoting State v. Moss
(1982), 69 Ohio St.2d 515, 519, 433 N.E.2d 181; see, also, State v. Johnson, 128 Ohio St.3d 107,
2010-6314, __N.E.2d __, at ¶51.
4 State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6314, __N.E.2d __, at paragraph one of the
syllabus.


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regard to the analysis that courts should employ in determining whether two or more

offenses are allied offenses of similar import under R.C. 2941.25(A).5 The justices did,

however, uniformly agree that the conduct of the accused must be considered.6

Consequently, if the evidence adduced at trial reveals that the state relied upon the exact

same conduct to support the two offenses and that the offenses were committed neither

separately nor with a separate animus as to each, then the defendant is afforded the

protection of R.C. 2941.25, and the trial court errs in imposing separate sentences for the

offenses.7

         {¶8}     In this case, Evans was convicted of the voluntary manslaughter and

felonious assault of Kevin Gandy, pursuant to a plea agreement. The convictions

resulted from an altercation on April 11, 2009, between Evans and Jamar, Deanthony,

and Kevin Gandy. Evans had confronted Jamar, Deanthony, and Kevin, and had

accused Jamar of robbing one of his friends. An argument ensued. Evans told Kevin

that if he came off the porch of a house, he had something for him. When Kevin stepped

down from the porch, Evans pulled a silver “38 special” from his waistband and fired the

gun at Jamar, Deanthony, and Kevin as they ran back into the house. The bullets struck

Kevin multiple times in the back and arm, causing his death.

         {¶9}     Evans pleaded guilty to voluntary manslaughter, under R.C. 2903.03, for

knowingly causing the death of Kevin Gandy while under the influence of sudden

passion or in a sudden fit of rage brought on by serious provocation that had been

occasioned by Gandy and that was reasonably sufficient to incite Evans to use deadly

force.   He further pleaded guilty to felonious assault, under R.C. 2903.11(A), for


5 Id. at ¶47-52 (Brown, C.J., Pfeifer, J., and Lundberg Stratton, J., concurring); Id. at ¶59-71
(O’Connor, J., Lanzinger, J., and Cupp, J., concurring in judgment only); Id. at ¶72-83
(O’Donnell, J., separately concurring).
6 See, id. at ¶44; see also ¶68 (O’Connor, J., concurring in judgment); see, also, ¶78 (O’Donnell, J.,
separately concurring); see, also, State v. Hopkins, 10th Dist. No. 10AP-11, 2011-Ohio-1591, at ¶5.
7 R.C. 2941.25(B); Johnson, supra, at ¶49 and 51.




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knowingly causing or attempting to cause physical harm to Gandy by means of a deadly

weapon.

          {¶10}     In comparing the elements of Evans’s offenses in the factual context in

which they arose, we conclude that Evans committed the voluntary manslaughter and

the felonious assault of Kevin Gandy with the same conduct. Here, the same shots

Evans fired at Gandy with the purpose to cause him physical harm also resulted in his

death. As a result, the two offenses were allied offenses of similar import. Having

determined that they were allied offenses of similar import, we must now consider,

pursuant to R.C. 2941.25(B), whether the offenses were committed with a single animus

or as part of a single course of conduct.

          {¶11}     Here, Evans pulled out a pistol and fired three shots in rapid succession

at Gandy. Evans’s motive was the same and was exhibited in a continuous sequence of

acts intended to inflict serious injury upon Gandy. This single course of conduct

embodied both offenses.8          Because the voluntary manslaughter and felonious assault

involving Gandy were allied offenses of similar import, committed in a single course of

conduct with a single animus, Evans was entitled to the protection of R.C. 2941.25.

Accordingly, the trial court erred in sentencing him for both offenses. As a result, we

sustain his first assignment of error.

                                   III. Voluntariness of the Guilty Plea

          {¶12}     In his second assignment of error, Evans contends that his guilty pleas

were not knowing, intelligent, or voluntary.

          {¶13}     In determining whether to accept a guilty plea, the trial court must

determine whether the defendant is knowingly, voluntarily, and intelligently entering




8   See State v. Lanier, 1st Dist. No. 08162, 2011-Ohio-898, at ¶20-21.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



the plea.9 For this reason, the trial court should engage in a dialogue with the defendant

as described in Crim.R. 11(C). While the court must strictly comply with Crim.R. 11 by

informing the defendant about the constitutional rights set forth in Crim.R. 11(C),10 the

court need only substantially comply with the rule with respect to the nonconstitutional

rights set forth in section (c).11 The term “substantial compliance” means that the

defendant subjectively understands the implications of his plea and the rights he is

waiving.12 When a defendant challenges the acceptance of his guilty plea on the basis

that it was not knowingly, intelligently, or voluntarily made, he must show a prejudicial

effect.13

        {¶14}   Evans has not provided this court with any specific reasons why his pleas

were invalid, and our review of the record reveals that the trial court afforded Evans all

the protections of Crim.R. 11.      During the plea hearing, the trial court personally

addressed Evans and appropriately determined that he understood the nature of the

charges against him, the maximum possible penalties, and that he was voluntarily

pleading guilty. The trial court further determined that Evans understood the effects of

the guilty pleas by informing him that he was admitting to the facts of the charges as

stated in the indictment and the bill of particulars. And the court informed Evans of the

constitutional rights he was waiving by pleading guilty to the charges.   Because Evans

has failed to demonstrate that his guilty pleas were made unknowingly, involuntarily, or

unintelligently, we overrule his second assignment of error.

                           IV. Ineffective Assistance of Trial Counsel




9 Crim.R. 11(C).
10 State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.
11 State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163.
12 State v. Nero (1999), 56 Ohio St.3d 106, 108, 564 N.E.2d 474.
13 Stewart, supra, at 93.




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                          OHIO FIRST DISTRICT COURT OF APPEALS



           {¶15}    In his third assignment of error, Evans contends that his trial counsel’s

failure to object to the trial court’s imposition of separate sentences for the voluntary

manslaughter and felonious assault involving Kevin Gandy on the basis that the offenses

were allied offenses of similar import deprived him of the right to the effective assistance

of counsel as guaranteed by the Sixth Amendment.

           {¶16}    But based upon our disposition of Evans’s first assignment of error, the

trial court’s error in imposing separate sentences for these offenses must be corrected on

remand. As a result, whether trial counsel was ineffective for not objecting to the error

is moot, and we need not address that issue in this appeal.14

                                                V. Conclusion

           {¶17}    In conclusion, having found merit in Evans’s first assignment of error,

we vacate the sentences for the voluntary manslaughter and felonious assault

involving Kevin Gandy and remand this cause for the imposition of a single sentence

for those two offenses. We affirm the trial court’s judgment and sentences in all other

respects.


                                                                           Judgment accordingly.

HILDEBRANDT, P.J., and FISCHER, J., concur.


Please Note:
           The court has recorded its own entry this date.




14   See App.R. 12(A)(1)(c); State v. Sidibeth, 10th Dist. No. 10AP-331, 2011-Ohio-712, at ¶65.


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