[Cite as State v. Kirby, 2016-Ohio-8138.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      27986

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ANTHONY KIRBY                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2012 10 2846

                                  DECISION AND JOURNAL ENTRY

Dated: December 14, 2016



        CARR, Presiding Judge.

        {¶1}     Appellant, Anthony Kirby, appeals his sentencing by the Summit County Court of

Common Pleas. This Court affirms in part, reverses in part, and remands.

                                                I.

        {¶2}     A jury found Kirby guilty of two counts of kidnapping, two counts of rape, and

one count of felonious assault, and the trial court found Kirby to be a repeat violent offender.

The trial court merged the two kidnapping convictions and sentenced him to prison terms

totaling 51 years. Kirby appealed. This Court affirmed his convictions, but reversed with

respect to whether some of his convictions were allied offenses of similar import. State v. Kirby,

9th Dist. Summit No. 27060, 2014-Ohio-5643.           Specifically, we concluded that Kirby’s

convictions for rape should have merged with his convictions for kidnapping and his convictions

for kidnapping should have merged with his conviction for felonious assault. Id. at ¶ 29, 32. On
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the other hand, we concluded that Kirby could be convicted and sentenced for rape and felonious

assault because those crimes constituted separate offenses. Id. at ¶ 22-23.

       {¶3}    This Court remanded the case to the trial court for proceedings consistent with our

opinion, and the trial court conducted another sentencing hearing with Kirby present by means of

video conference. The trial court merged his convictions for kidnapping with one of the rape

convictions, and the State elected that Kirby be sentenced for rape. The trial court sentenced him,

therefore, to prison terms of 11 years for each rape conviction, 3 years and 10 years, respectively,

for each of two repeat violent offender specifications that accompanied the rape convictions, 8

years for the felonious assault conviction, and 8 years for the repeat violent offender

specification that accompanied the felonious assault conviction. The trial court ordered each

prison term to be served consecutively for a total term of 51 years and informed Kirby of his

obligation to register as a Tier III sex offender. Kirby filed this appeal.

                                                  II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES
       UPON [KIRBY] IN VIOLATION OF THIS COURT’S MANDATE, THE
       DOUBLE JEOPARDY CLAUSE OF THE 5TH AMENDMENT TO THE U.S.
       CONSTITUTION AND ARTICLE 1, SECTIONS 1 AND 10 OF THE OHIO
       CONSTITUTION.

       {¶4}    Kirby’s first assignment of error is that the trial court committed plain error by

sentencing him for both rape and felonious assault. Specifically, Kirby’s argument is that

because this Court previously held that his convictions for kidnapping and rape and kidnapping

and felonious assault merged for purposes of sentencing, it was plain error for the trial court to

sentence him for both rape and felonious assault.
                                                 3


       {¶5}    Crim.R. 52(B) circumscribes this Court’s ability to recognize plain error in three

ways. “First, there must be an error, i.e., a deviation from a legal rule. Second, the error must be

plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect

in the trial proceedings. Third, the error must have affected * * * the outcome of the trial.”

(Internal citations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27 (2002). This Court notices

plain error only in exceptional circumstances to prevent a manifest miscarriage of justice. State

v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

       {¶6}    Under the doctrine of the law of the case, “the decision of a reviewing court in a

case remains the law of that case on the legal questions involved for all subsequent proceedings

in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).

Consequently, “the decision of an appellate court in a prior appeal will ordinarily be followed in

a later appeal in the same case and court.” Id. at 4. The doctrine is a rule of practice, however,

and an exception to its application exists when there has been an intervening decision of the

Supreme Court. In Kirby’s first appeal, this Court applied State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, and concluded that Kirby could be sentenced for both rape and felonious

assault. Kirby, 2014-Ohio-5643, at ¶ 23. Our decision is the law of the case with respect to

Kirby’s resentencing and to this appeal, but we must consider whether an intervening decision of

the Ohio Supreme Court requires departure from our prior decision.

       {¶7}    Four months after our decision in Kirby’s first appeal, but before the trial court

resentenced Kirby, the Supreme Court of Ohio reexamined its decision in Johnson. State v. Ruff,

143 Ohio St.3d 114, 2015-Ohio-995. In so doing, the Court clarified the analysis required to

determine whether a criminal defendant can be convicted and sentenced for multiple offenses

and concluded:
                                                 4


       Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses
       may be convicted of all the offenses if any one of the following is true: (1) the
       conduct constitutes offenses of dissimilar import, (2) the conduct shows that the
       offenses were committed separately, or (3) the conduct shows that the offenses
       were committed with separate animus.

Id. at paragraph three of the syllabus. The Court also explained that, within the meaning of R.C.

2941.25(B), “[t]wo or more offenses of dissimilar import exist * * * when the defendant’s

conduct constitutes offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.” Id. at paragraph two of the syllabus.

       In Kirby’s first appeal, we concluded that the harms that resulted from the rape and the

felonious assault were separate and identifiable. Kirby at ¶ 23. This determination is consistent

with Ruff. Accordingly, Ruff does not require us to revisit our prior decision, and both Kirby’s

resentencing and this appeal are governed by the law of the case. The trial court did not err in

sentencing Kirby for rape and felonious assault in reliance on our prior decision, and, because

“error * * * [is] the starting point for a plain-error inquiry,” we overrule Kirby’s first assignment

of error. See State v. Hill, 92 Ohio St.3d 191, 200 (2001).

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN CLASSIFYING [KIRBY] A TIER III SEX
       OFFENDER WITHOUT ADEQUATE NOTIFICATION, IN VIOLATION OF
       THE DUE PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS OF
       THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO
       CONSTITUTION.

       {¶8}    Kirby’s second assignment of error is that the trial court committed plain error by

failing to comply with the notification requirements of R.C. 2950.03(B) during his resentencing.

       {¶9}    In order for this Court to recognize plain error, an appellant must demonstrate

deviation from a legal rule by the trial court that constituted an obvious defect in the trial

proceedings and affected the outcome of the proceedings. Barnes, 94 Ohio St.3d at 27, citing
                                                5


Crim.R. 52(B). Although Kirby asserts that the trial court committed plain error, the substance

of his argument relates entirely to whether the trial court deviated from a legal rule. He has not

constructed an argument that addresses whether the alleged error was “plain” in the sense

required by Crim.R. 52(B), however, and we decline to construct one on his behalf. State v. Roy,

9th Dist. Lorain no. 13CA010404, 2014-Ohio-5186, ¶ 68.

       {¶10} Kirby’s second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN IMPOSING COSTS UPON [KIRBY] AFTER
       HAVING PREVIOUSLY WAIVED COSTS, IN VIOLATION OF THE DUE
       PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS OF THE U.S.
       CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO
       CONSTITUTION.

       {¶11} Kirby’s third assignment of error is that the trial court erred by imposing court

costs against him without giving him the opportunity to seek a waiver. We agree.

       {¶12} R.C. 2947.23 requires trial courts to impose court costs in criminal cases, and a

trial court may waive the payment of costs upon the motion of an indigent defendant. State v.

White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶ 14. A motion to waive the payment of costs must

be made at the time of sentencing, but the Ohio Supreme Court has concluded that when a trial

court fails to mention costs during the sentencing hearing, a defendant is denied the opportunity

to request a waiver. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 13. When court costs

are imposed later by means of the sentencing entry, a trial court violates Crim.R. 43(A) by

depriving the defendant of the right to be present at each stage of the proceedings. Id. at ¶ 22.

The appropriate remedy for this error is to remand the case for the limited purpose of permitting

the defendant to move for a waiver of the payment of court costs. Id. at ¶ 23.
                                                6


       {¶13} The State of Ohio acknowledges that the trial court did not mention court costs

during resentencing, but did impose them in the sentencing order. The State argues, nonetheless,

that no error resulted because under R.C. 2947.23(C), the trial court retains the jurisdiction to

revisit the issue of waiver at any time.     This Court has previously considered the State’s

argument in this regard and found it to be without merit. State v. Norris, 9th Dist. Summit No.

27630, 2016-Ohio-1526, ¶ 23-25. We reach the same conclusion in this case.

       {¶14} The trial court erred by imposing court costs against Kirby without giving him the

opportunity to seek a waiver of payment. Kirby’s third assignment of error is sustained.

                               ASSIGNMENT OF ERROR IV

       [KIRBY] WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF
       COUNSEL GUARANTEED UNDER THE SIXTH AMENDMENT TO THE
       U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE
       OHIO CONSTITUTION.

       {¶15} Kirby’s final assignment of error is that he received ineffective assistance of

counsel by failing to object to errors in connection with his resentencing. Because this Court has

sustained Kirby’s third assignment of error with respect to the imposition of court costs, his

fourth assignment of error is moot in connection with that alleged error. See State v. Mack, 9th

Dist. Summit No. 26859, 2014-Ohio-1387, ¶ 15, citing State v. Jamhour, 10th Dist. Franklin No.

06AP-20, 2006-Ohio-4987, ¶ 14. We consider Kirby’s fourth assignment of error, therefore, in

connection with his remaining arguments.

       {¶16} In order to demonstrate ineffective assistance of counsel, a defendant must show

(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,

466 U.S. 668, 687 (1984). With respect to the arguments in his first assignment of error, Kirby
                                                  7


has not demonstrated error to which trial counsel should have objected.             In other words,

counsel’s performance was not deficient and, it follows that it was not ineffective. See State v.

McDowell, 9th Dist. Summit No. 26697, 2014-Ohio-3900, ¶ 18, citing State v. Williams, 9th

Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 14. With respect to his second assignment of error,

even if this Court assumes, without deciding, that trial counsel’s performance was deficient by

virtue of not objecting during the resentencing, Kirby has not demonstrated that the outcome of

his resentencing would have been different. In this respect, we note that the trial court’s order

that resentenced Kirby did notify him of his registration obligations. In addition, although the

record does not reflect that Kirby signed the written notification of his registration obligations, it

appears that the trial court did complete the written notification in connection with his

resentencing.

       {¶17} Kirby’s fourth assignment of error is overruled.

                                                 III.

       {¶18} Kirby’s first, second, and fourth assignments of error are overruled. His third

assignment of error is sustained. The judgment of the trial court is affirmed in part and reversed

in part, and this matter is remanded to the trial court for proceedings consistent with this opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                8


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                    DONNA J. CARR
                                                    FOR THE COURT



MOORE, J.
SCHAFER, J.
CONCUR.

APPEARANCES:

JEREMY A. VEILLETTE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
