[Cite as State v. Simmons, 2014-Ohio-582.]
                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )            CASE NO. 12 MA 138
V.                                              )
                                                )                  OPINION
WILLIE OSCAR SIMMONS,                           )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Mahoning County, Ohio
                                                Case No.05CR165

JUDGMENT:                                       Affirmed in part
                                                Reversed in part

APPEARANCES:
For Plaintiff-Appellee                          Paul Gains
                                                Prosecutor
                                                Ralph M. Rivera
                                                Assistant Prosecutor
                                                21 W. Boardman St., 6th Floor
                                                Youngstown, Ohio 44503

For Defendant-Appellant                         Attorney Edward A. Czopur
                                                DeGenova & Yarwood, Ltd.
                                                42 North Phelps St.
                                                Youngstown, Ohio 44503



JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                Dated: February 13, 2014
[Cite as State v. Simmons, 2014-Ohio-582.]
DONOFRIO, J.

        {¶1}    Defendant-appellant Willie Oscar Simmons appeals his sentence in the
Mahoning County Common Pleas Court for sexual battery and gross sexual
imposition. He argues that sexual battery and gross sexual imposition are allied
offenses of similar import requiring merger of sentences and that the trial court erred
in classifying him as a Tier III sex offender.
        {¶2}    On February 24, 2005, a Mahoning County Grand Jury indicted
Simmons on two counts. Count one was for rape, a first-degree felony. R.C.
2907.02(A)(2)(B). Count two was for gross sexual imposition, a fourth-degree felony.
R.C. 2907.05(A)(1)(B). Simmons pleaded not guilty, the trial court appointed counsel,
and the case proceeded to discovery and other pretrial matters.
        {¶3}    On July 21, 2009, the parties reached a plea agreement. Plaintiff-
appellee State of Ohio amended count one from rape to sexual battery, a third-
degree felony. R.C. 2907.03(A)(1). The state also proposed a sentencing
recommendation of three years in prison for amended count one (sexual battery) and
six months for count two as indicted (gross sexual imposition) to run consecutive to
one another and a stipulation that it would object to judicial release. In exchange for
the amendment to count one and the sentencing recommendation, Simmons pleaded
guilty to the amended count one (sexual battery) and count two as indicted (gross
sexual imposition). On July 29, 2009, the trial court imposed the sentence as
recommended by the parties. Simmons did not file an appeal from that judgment.
        {¶4}    Two years following his conviction and sentence, Simmons filed with
this court a pro se motion for leave to file a delayed appeal. Because Simmons stated
that he was without counsel following sentencing, was not informed of the 30-day
time requirement to file a direct appeal, and lacked knowledge of appellate procedure
and law, this court sustained his motion for delayed appeal and appointed him
counsel.
        {¶5}    Simmons raises two assignments of error. Simmons’s first assignment
of error states:
                                                                                -2-


              The offenses of Sexual Battery and Gross Sexual Imposition, as
       charged against Appellant, are allied offenses of similar import thereby
       requiring the State to elect under which offense it wished to proceed for
       sentencing and forcing error when Appellant was sentenced on both
       offenses.

       {¶6}   In addition to protecting against a second prosecution for the same
offense following an acquittal or a conviction, the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution protects against multiple punishments
for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d
187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969); see also Ohio Constitution, Article I, Section 10 (“No person shall be
twice put in jeopardy for the same offense.”)
       {¶7}   Ohio has codified that protection in R.C. 2941.25, the multiple count
statute:

              (A) Where the same conduct by 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.
              (B) Where the defendant’s conduct constitutes two or more
       offenses of dissimilar import, or where his conduct results in two or
       more offenses of the same or similar kind committed separately or with
       a separate animus as to each, the indictment or information may
       contain counts for all such offenses, and the defendant may be
       convicted of all of them.

       {¶8}   Ohio Supreme Court precedent had instructed that sentencing courts
employ a two-tiered analysis in order to determine whether two particular offenses
were allied offenses of similar import. The first step involved comparing the elements
                                                                             -3-


of the offenses in the abstract without regard to the facts of the case (i.e., without
considering the defendant’s      conduct) to    determine   whether the     elements
corresponded to such a degree that the commission of one offense would result in
the commission of the other offense. State v. Rance, 85 Ohio St.3d 632, 636, 710
N.E.2d 699 (1999). See also State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625,
¶ 14-15, 23-27 (but modifying Rance so that an exact alignment of the elements or a
strict textual comparison was not required). If they were of dissimilar import,
sentencing could proceed on both; if they were allied offenses of similar import, the
court proceeded to look at the defendant’s conduct to determine whether they were
committed separately or with separate animus. Cabrales, 118 Ohio St.3d 54, 886
N.E.2d 181, at ¶ 14, 31; State v. Jones, 78 Ohio St.3d 12, 14, 676 N.E.2d 80 (1997).
      {¶9}   In 2010, the Ohio Supreme Court overruled Rance. The Court was
unable to reach a majority opinion and the decision instead contained two plurality
opinions and a minority opinion. However, a unanimous Court agreed with the
syllabus which held: “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. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,
syllabus. When combining opinions, a majority of the Court found that the Rance test
was contrary to the plain language of R.C. 2941.25, which specifically instructs the
court to view the defendant’s conduct. Id. at ¶ 41-42 (plurality) ¶ 78 (O’Donnell, J.,
concurring in syllabus and judgment and concurring separately). Because Johnson
did not contain a majority opinion, little else from the various opinions can be
considered precedent. See State v. Bickerstaff, 7th Dist. No. 09JE33, 2011-Ohio-
1345, ¶ 75. However, this Court has observed that “[o]ur only new guidance is to
consider the defendant’s conduct and thus the particular facts of each case to
determine whether the offenses are of similar import.” State v. Gardner, 7th Dist. No.
10-MA-52, 2011-Ohio-2644, ¶ 23.
      {¶10} Simmons argues that sexual battery and gross sexual imposition are
allied offenses of similar import which require that he only be sentenced for one, not
                                                                              -4-


both, of the offenses. Employing the old analysis under Rance, Simmons maintains
that, compared in the abstract, the offenses correspond to such a degree that the
commission of one crime would necessarily result in the commission of the other.
Simmons also argues that the offenses were not committed separately or with a
separate animus.
       {¶11} Resolution of this assignment of error is complicated by the limited
record upon which to evaluate Simmons’s claim, the procedural posture of this
appeal, and Simmons’s waiver of the issue below.
       {¶12} The task of reviewing Simmons’s conduct and the particular facts of the
case to determine whether the offenses are of similar import is difficult due to the
limited record before this court. There is no bill of particulars. Because Simmons
pleaded guilty, there is no trial transcript.
       {¶13} The only underlying facts that can be gleaned from the record are found
in the indictment and the sentencing hearing transcript. Both counts of the indictment
indicated that both offenses occurred on the same date and involved the same victim.
At the sentencing hearing, the victim’s mother indicated that the victim was sixteen
years old at the time of the offenses. She also indicated that the offenses occurred in
her home while she was there and that Simmons used such force on the victim that
she was unable to cry for help.
       {¶14} Additionally, given the somewhat unique procedural posture of this
case, we are compelled to address whether the law before or after the Ohio Supreme
Court’s Johnson decision should be applied to the facts of this case. This case
involves a delayed appeal. This court has observed that “[a] new judicial ruling may
be applied only to cases that are pending on the announcement date.” State v.
Kapsouris, 7th Dist. No. 08 MA 265, 2010-Ohio-754, ¶ 22, citing Ali v. State, 104
Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6. Since this case is a delayed
appeal, the question turns to whether this action was “pending” when Johnson was
announced.
                                                                             -5-


      {¶15} The Ohio Supreme Court took up this very issue in the context of its
Foster decision. As to whether an action is pending, the court observed:

             Black’s Law Dictionary defines “pending” as “[r]emaining
      undecided” or “awaiting decision.” Black’s Law Dictionary (8th Ed.2004)
      1169. Accordingly, for a criminal action to be “pending on direct review”
      for Foster purposes, it must have been filed in the court at the time we
      announced Foster and must have been awaiting an action or a decision
      at the time of our decision in that case. Foster, ¶ 104.

State v. Silsby, 119 Ohio St.3d 370, 2008-Ohio-3834, 894 N.E.2d 667, ¶ 18.
      {¶16} The record in this case reveals that the trial court sentenced Simmons
on July 29, 2009. Simmons did not file a direct appeal from that judgment, and the
time to do so expired on August 28, 2009. The Ohio Supreme Court issued its
Johnson decision on December 29, 2010, and prior to that date, Simmons had not
filed a request seeking a delayed appeal. Thus, Simmons had nothing “pending” as
of the date the Ohio Supreme Court released its Johnson decision. Johnson
therefore does not apply to Simmons’s delayed appeal, as it was not pending on the
date the Ohio Supreme Court released Johnson.
      {¶17} Lastly, we cannot ignore the fact that Simmons has waived any allied
offenses argument. Appellate review of a negotiated felony sentence is governed by
R.C. 2953.08(D), which states in part: “A sentence imposed upon a defendant is not
subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is
imposed by a sentencing judge.” Accordingly, this court has held that a defendant
who pleads guilty in exchange for an agreed sentence waives any allied offenses
argument. State v. Savage, 7th Dist. No. 08 MA 54, 2009-Ohio-7011. In this instance,
Simmons pleaded guilty and Simmons’s counsel plainly indicated at the sentencing
hearing that the proposed sentence was an agreed upon sentence. (Tr. 13.)
Therefore, Simmons has waived any allied offenses argument.
                                                                                -6-


      {¶18} Even if we were to address the merits of Simmons’s allied offenses
argument, we would nevertheless find it lacking merit. As indicated earlier, the first
step to determine whether the two crimes are allied offenses of similar import is by
comparing the elements in the abstract without regard to the facts of the case. State
v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181, 2008-Ohio-1625, ¶ 14.
      {¶19} In support of his allied offenses argument, Simmons relies primarily on
the Ohio Supreme Court’s decision in State v. Evans, 122 Ohio St.3d 381, 911
N.E.2d 889 (2009) where it found rape and gross sexual imposition to be allied
offenses. However, allied offenses analysis depends upon comparing the elements
of the offenses and Evans involved the offenses of rape and gross sexual imposition,
that decision is unhelpful in an analysis of whether the offenses involved in this case
– sexual battery and gross sexual imposition – are allied offenses.
      {¶20} The pertinent elements of sexual battery are (1) knowingly coercing
another, (2) by any means that would prevent resistance by a person of ordinary
resolution, (3) to engage in or submit to sexual conduct. R.C. 2907.03(A)(1).
      {¶21} The pertinent elements of gross sexual imposition are (1) purposely
compelling another, (2) by force or threat of force, (3) to engage in or submit to
sexual contact. R.C. 2907.05(A)(1).
      {¶22} In State v. Van Gregg, 2d Dist. No. 13395, 1992 WL 337644 (Nov. 20,
1992), the Second District Court of Appeals took up this very issue of whether sexual
battery and gross sexual imposition are allied offenses. We find persuasive their
reasoning that they are not:

             It is clear from an examination of the elements of sexual battery
      and gross sexual imposition that the commission of one offense will not
      necessarily result in commission of the other. Gross sexual imposition
      can be committed without committing sexual battery because gross
      sexual imposition does not require proof of sexual conduct. Sexual
      battery can be committed without committing gross sexual imposition
                                                                                -7-


      because sexual battery does not require proof of force or threat of
      force.

Id. at *3. See also State v. Mangrum, 86 Ohio App.3d 156, 160, 620 N.E.2d 196
(12th Dist.1993).
      {¶23} Thus, even if Simmons’s had not waived the issue, we conclude that
under the unique facts and circumstances of this case gross sexual imposition and
sexual battery are not allied offenses of similar import and separate sentencing on
each charge was appropriate.
      {¶24} Accordingly, Simmons’s first assignment of error is without merit.
      {¶25} Simmons’s second assignment of error states:

               The imposition of a Tier III sexual offender classification was
      violative of Appellant’s constitutional rights as it was a retroactive [sic]
      and therefore prohibited by Section 28, Article II of the Ohio
      Constitution.

      {¶26} Pursuant to the plea agreement, the trial court designated Simmons as
a Tier III sex offender pursuant to the current version of R.C. Chapter 2950, 2007
Am.Sub.S.B. No. 10 (S.B. 10) – Ohio’s version of the federal Adam Walsh Act.
      {¶27} Simmons cites to the Ohio Supreme Court’s decision in State v.
Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 344, 952 N.E.2d 1108, syllabus,
where it held that “2007 Am.Sub.S.B. No. 10, as applied to defendants who
committed sex offenses prior to its enactment, violates Section 28, 109 Article II of
the Ohio Constitution, which prohibits the General Assembly from passing retroactive
laws.” Here, each of Simmons’s offenses occurred prior to the enactment of S.B. 10.
Therefore, Simmons contends the trial court’s classification of him as a Tier III sex
offender should be reversed.
      {¶28} In response, plaintiff-appellee State of Ohio agrees that the trial court
erred in classifying Simmons as Tier III sex offender under the new sex offender
                                                                                  -8-


classification system and that such error amounts to plain error necessitating
reversal.
           {¶29} The Ohio Supreme Court was asked to decide whether S.B. 10 was
unconstitutionally retroactive when it was applied to an offender who committed a sex
crime about one month prior to the enactment date of S.B. 10. Williams, 129 Ohio
St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In response to that question, the Ohio
Supreme Court held that S.B. 10 is punitive in nature. Id. at ¶ 15, 952 N.E.2d 1108.
“The statutory scheme has changed dramatically since this court described the
registration process imposed on sex offenders as an inconvenience ‘comparable to
renewing a driver’s license.’ [State v. Cook (1998), 83 Ohio St.3d 404, 409, 418, 700
N.E.2d 570]. And it has changed markedly since this court concluded in [State v.
Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110] that R.C. Chapter
2950 was remedial.” Id. Senate Bill 10 has imposed new or additional burdens,
duties, obligations, or liabilities as to a past transaction. Id. at ¶ 21. Thus, the Court
held that applying S.B. 10 to any sex offender who committed an offense prior to its
enactment violates Section 28, Article II of the Ohio Constitution, the prohibition
against the enactment of retroactive laws. Id.
           {¶30} As for any notion that Simmons waived the issue of his sex offender
classification, the Ohio Supreme Court has held that “[f]ailure to raise at the trial court
level the issue of the constitutionality of a statute or its application, which issue is
apparent at the time of trial, constitutes a waiver of such issue.” State v. Awan, 22
Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However, the Ohio Supreme Court
has also held that the waiver doctrine announced in Awan is discretionary. In re M.D.,
38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. “Even where waiver is clear, [a
reviewing court may] consider constitutional challenges to the application of statutes
in specific cases of plain error or where the rights and interests involved may warrant
it.” Id.
           {¶31} As indicated, the Ohio Supreme Court found in Williams that S.B. 10
violated the Ohio constitution’s prohibition against retroactive laws as applied to
                                                                                -9-


defendants who committed sex offenses prior to its enactment. Given that the Court
found S.B. 10 unconstitutional on the basis of the constitution’s prohibition against
retroactive laws, this court has found that this and the interests of justice are
compelling reasons to exercise our discretion to allow an appellant’s constitutional
challenge despite their failure to raise it below. Although not explicitly citing to the
discretionary authority to apply the doctrine of waiver to constitutional challenges that
were not raised below, this court has previously exercised this discretionary authority
to allow relief under Williams. In State v. Weaver, 7th Dist. No. 11 BE 12, 2011-Ohio-
6402, ¶18, this court allowed relief to a defendant under the Williams decision despite
his having failed to appeal the trial court’s original sentencing decision.
       {¶32} Moreover, the Ohio Supreme Court’s own treatment of cases like this
one post-Williams further supports our decision here to reach Simmons’s
constitutional challenge despite his having failed to raise it below. There were many
cases the Court had accepted for review which involved a defendant who had lost
their constitutional challenge at the trial or appellate court level. The Ohio Supreme
Court stayed those cases pending its decision in Williams. Following the Court’s
decision in Williams, the Court reversed and remanded those cases for application of
its Williams decision. Among those cases were ones in which the defendant had
failed to raise their constitutional challenge below. See State v. Franklin, 182 Ohio
App.3d 410, 2009-Ohio-2664, 912 N.E.2d 1197 (10th Dist.).
       {¶33} Accordingly, Simmons’s second assignment of error has merit.
       {¶34} The judgment of the trial court is affirmed in part and reversed in part.
Based upon the resolution of Simmons’s second assignment of error, the trial court’s
classification of Simmons as a Tier III sex offender is reversed and the case
remanded to the trial court to classify Simmons pursuant to the law that existed at the
time he committed his offenses. Based upon the resolution of Simmons’s first
assignment of error, the trial court’s imposition of the recommended sentence is
                                                                               - 10 -


affirmed in all other respects.

Waite, J., concurs.

DeGenaro, P.J., concurs in part and dissents in part with attached concurring in part
and dissenting in part opinion.

       {¶35} While the majority has correctly resolved the sex offender classification
issue, I respectfully dissent from the balance of the opinion for two reasons. First,
Simmons has not waived the merger issue. Second, the procedural posture of the
case dictates a remand for the trial court to consider merger in the first instance,
pursuant
       {¶36} First, the Ohio Supreme Court in State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, 922 N.E.2d 923, held as follows: "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 that
sentence even though it was jointly recommended by the parties and imposed by the
court." Id. syllabus at 1. The majority has incorrectly concluded that Simmons has
waived raising merger on appeal, citing to State v. Savage, a 2009 case from this
district. Majority Opinion at ¶17. In light of Underwood, which was decided in 2010,
Savage is no longer controlling.
       {¶37} Second, the limited record on appeal is not fatal to addressing the
merger issue. Instead, the approach followed by this court in State v. Williams, 7th
Dist. No. 11 MA 131, 2012-Ohio-6277, should be applied here:

              Upon review, it appears that these offenses may be allied
       offenses as Williams contends, but the record is very limited, especially
       regarding evidence of animus, thereby inhibiting our ability to review for
       plain error as to whether or not any of these offenses do merge as a
       matter of law. The Second District held that when the record suggests
       that multiple offenses may be allied offenses but is inconclusive, the
                                                                             - 11 -


       trial court commits plain error when it does not conduct the necessary
       inquiry into whether these offenses should merge for sentencing, and
       remanded the case for the trial court to consider the issue of merger.
       State v. Cleveland, 2d Dist. No. 24379, 2011-Ohio-4868, 1120.
       Similarly, in State v. Williams, 7th Dist. No. 10 MA 136, 2012-Ohio-
       5344, where the trial court did not consider whether the defendant's
       convictions on multiple counts were allied offenses and should merge,
       this court concluded that the record lacked sufficient information to
       make this determination and remanded the case for a hearing on
       merger and for resentencing. Id. at ¶ 34-35. Accordingly we so hold
       here, and remand the case to the trial court to consider whether any of
       Williams' convictions are allied offenses and should merge for
       sentencing.

Id. ¶ 76.
       {¶38} The record here is totally devoid of any facts that were the basis of the
two charges for which Simmons was convicted. At sentencing, the victim's mother
described for the trial court the bruising her daughter sustained, that Simmons had
pulled her hair so hard and held her with so much force that she could not scream
"while he did what he did to her."    The majority is correct in its conclusion that
Simmons's merger claim must be reviewed pursuant to pre-Johnson caselaw.
However, in the present case there is an insufficient record upon which to conduct a
merger analysis.
       {¶39} Pursuant to Underwood, Simmons has not waived the merger issue,
and consistent with this court's holding in Williams, the case should be remanded to
the trial court to determine whether or not Simmons's convictions for sexual battery
and gross sexual imposition can be sentenced separately or must be merged.
