[Cite as State v. Anthony, 2017-Ohio-2756.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104497



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.


                               CHARLES F. ANTHONY
                                                    DEFENDANT-APPELLANT




                                JUDGMENT:
                        SENTENCE VACATED; REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-576392-A

        BEFORE: Kilbane, J., Keough, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                   May 11, 2017
APPELLANT

Charles F. Anthony, pro se
Inmate No. #A651-164
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44030



ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Andrew J. Santoli
Amy Venesile
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

       {¶2} Defendant-appellant, Charles Anthony (“Anthony”), pro se, appeals from

his April 25, 2016 resentencing pursuant to our mandate in State v. Anthony,

2015-Ohio-2267, 37 N.E.3d 751 (8th Dist.), discretionary appeal not allowed, 143 Ohio

St.3d 1500, 2015-Ohio-4468, 39 N.E.3d 1271. For the reasons set forth below, we

vacate his sentence and remand for another resentencing hearing where the state shall

elect which allied offense it chooses to proceed with for purposes of sentencing.

       {¶3} The procedural history and facts of this case were previously set forth by

this court in Anthony as follows:

       [In July 2013,] Anthony and the victim [were hanging out in Anthony’s
       apartment]. [The two friends] had been drinking and doing drugs on the
       night of the incident. At some point, they started arguing. And then
       Anthony stabbed the victim four times “on the victim’s backside” [resulting
       in the victim’s death].

       ***

       In August 2013, Anthony was indicted on four counts: one count of
       aggravated murder and murder and two counts of felonious assault. All
       counts carried notice of prior conviction and repeat violent offender
       specifications. Anthony pleaded not guilty to all charges at his
       arraignment.

       In November 2013, Anthony withdrew his former plea of not guilty and
       entered a plea of guilty to an amended indictment of involuntary
       manslaughter with both specifications and one count of felonious assault
       with the specifications. The remaining counts were nolled.
       The trial court sentenced Anthony to a total of 13 years in prison, 11 years
       for involuntary manslaughter and two years for felonious assault, to be
       served consecutive to one another. The trial court further notified Anthony
       that he would be subject to five years of mandatory postrelease control upon
       his release from prison.

Id. at ¶ 48, 3-5.

       {¶4} Anthony appealed, arguing the trial court failed to follow Crim.R. 11 when

taking his guilty plea, the trial court erred when it failed to merge his convictions for

sentencing purposes, and trial counsel was ineffective. We found merit to his merger

argument, vacated his sentence, and remanded for resentencing where the state was to

elect which offense to proceed with for purposes of sentencing. Id. at ¶ 2.

       {¶5} Following our remand, the trial court held a resentencing hearing on the

matter. At the hearing, the trial court stated:

       [W]e are here for the purpose of re-sentencing pursuant to the mandate of
       the Eighth District.

       ***

       With regard to the original sentence it was for 11 years and I ran 2 years
       consecutive. And the problem was with the consecutive nature of it, so the
       Court is going to impose the — re-impose the sentence to Count 2 of 11
       years with Count 3 being concurrent with Count 2; and of course there will
       be 5 years of Post-Release Control. Any violation of the terms and
       conditions of PRC will get you additional prison time under this case.

       {¶6} Anthony now appeals from this resentencing, raising the following five

assignments of error for review, which shall be discussed together where appropriate.

                                 Assignment of Error One

       The sentencing court erred to the prejudice of [Anthony] and abused its
       discretion when it failed at sentencing to consider R.C. 2901.05 and
      2901.09 in mitigation as to the affirmative defense of self-defense under the
      Castle Doctrine and the Foster Crown Law where [Anthony] was justified
      in the use of force.

                                Assignment of Error Two

      The sentencing court erred to the prejudice of [Anthony] and imposed a
      sentence contrary to law in violation of R.C. 2953.08, where a minimum
      sentence was imposed on the predicated offense of felonious assault, yet
      imposing the maximum sentence on the involuntary manslaughter count.

                               Assignment of Error Three

      [Anthony] was deprived of due process and equal protection of the law as
      guaranteed under the Fourteenth Amendment to the United States
      Constitution and Article I, Section 16 of the Ohio Constitution due to
      judicial and prosecutorial misconduct.

                                Assignment of Error Four

      [Anthony] was deprived of due process and equal protection of the law as
      guaranteed under the Fourteenth Amendment to the United States
      Constitution and Article I, Section 16 of the Ohio Constitution by way of
      sham legal process in violation of [R.C. 2921.52].

                                Assignment of Error Five

      [Anthony] was deprived of due process and equal protection of the law as
      guaranteed under the Fourteenth Amendment to the United States
      Constitution and Article I, Section 16 of the Ohio Constitution where the
      sentencing court failed to comply with R.C. 2941.25, where the state never
      determined which offense of similar import they [would] pursue.

      {¶7} In the second and fifth assignments of error, Anthony challenges his

sentence. He contends that his sentence is contrary to law because the trial court did not

follow this court’s remand instructions, requiring the state to elect which offense to

proceed with for purposes of sentencing. The state concedes that the trial court did not

follow our mandate in Anthony, but argues that the merger of involuntary manslaughter
and felonious assault “nullifies the General Assembly’s intent in enacting the involuntary

manslaughter statute in the first place — to punish the resulting death separately from the

assault.” We find Anthony’s argument more persuasive.

       {¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence “only

if it determines by clear and convincing evidence that the record does not support the trial

court’s findings under relevant statutes or that the sentence is otherwise contrary to law.”

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Clear and

convincing evidence is that measure “‘which will produce in the mind of the trier of facts

a firm belief or conviction as to the facts sought to be established.’” Id. at ¶ 22, quoting

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

       {¶9} In State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512,

the Ohio Supreme Court held that “[t]he imposition of concurrent sentences is not the

equivalent of merging allied offenses.” Id. at ¶ 17. The Damron court noted that

“[w]hen a defendant has been found guilty of offenses that are allied offenses, R.C.

2941.25 prohibits the imposition of multiple sentences.” Id., citing State v. Whitfield,

124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182. As a result, the “trial court must

merge the offenses into a single conviction and then impose an appropriate sentence for

the offense chosen for sentencing.” Id., citing State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149.
       {¶10} In the instant case, the trial court thought that the remand was because of

“the consecutive nature of [the sentence].”       Consequently, the court reimposed its

sentence, with the counts being served concurrently as opposed to consecutively.

However, “[t]he imposition of concurrent sentences is not the equivalent of merging

allied offenses.”    Damron; State v. Vargas, 10th Dist. Franklin No. 10AP-952,

2012-Ohio-6368, ¶ 95-97; State v. Fair, 2d Dist. Montgomery No. 24120,

2011-Ohio-3330, ¶ 78-81. As the Ohio Supreme Court has explained, “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 currently stands in the case before us,

Anthony is still convicted of both involuntary manslaughter and felonious assault. Such

error must be corrected as we set forth in Anthony at ¶ 2, 59, 68.

       {¶11} Therefore, Anthony’s second and fifth assignments of error are sustained.

       {¶12} In the first, third, and fourth assignments of error, Anthony argues that he

acted in self-defense. However, Anthony previously filed a direct appeal, challenging

his guilty plea and convictions. In Anthony, we addressed his arguments and found them

unpersuasive. We remanded the matter solely for resentencing. As a result, Anthony’s

arguments are barred by res judicata. Under the doctrine of res judicata, a defendant is

barred “from raising and litigating in any proceeding except an appeal from [a final]

judgment, any defense or any claimed lack of due process that was raised or could have

been raised by the defendant at the trial * * * or on an appeal from that judgment.” State

v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
       {¶13} Accordingly, the first, third, and fourth assignments of error are overruled.

       {¶14} Anthony’s sentence is vacated and the matter is remanded for resentencing

where the state shall elect which allied offense to proceed on before the trial court

imposes the sentence.

       It is ordered that appellant recover of appellee 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 common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
