[Cite as State v. Spears, 2011-Ohio-1538.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 10-CA-95
COREY S. SPEARS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 10-CR-195


JUDGMENT:                                      Affirmed in part; Vacated in part,
                                               and Remanded


DATE OF JUDGMENT ENTRY:                         March 30, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


BRIAN T. WALTZ                                  WILLIAM T. CRAMER
Assistant Prosecuting Attorney                  470 Olde Worthington Road, Suite 200
Licking County Prosecutor's Office              Westerville, Ohio 43082
20 S. Second St., Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 10-CA-95                                                       2

Hoffman, P.J.


         {¶1}   Defendant-appellant Corey S. Spears appeals his conviction and sentence

entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the State of

Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On July 7, 2010, Appellant entered a plea of guilty to having a weapon

while under disability, in violation of R.C. 2923.13(A)(2); improper handling of a firearm

while in a motor vehicle, in violation of R.C. 2923.16(A); and discharging a firearm on or

near a prohibited premises, in violation of R.C. 2923.162(A)(3(c)(iii). Appellant further

admitted to a firearm specification attached to the second and third counts.

         {¶3}   The trial court sentenced Appellant to a two year term of incarceration on

the having weapons under disability charge, a one year term for improperly handling a

firearm while in a motor vehicle, a three year term for discharging a firearm on or near a

prohibited premises, and a mandatory three year term on the firearm specifications.

The court imposed an additional twenty-one month term of post-release control, and

ordered the terms of incarceration to run consecutively for a total period of ten years

and nine months imprisonment.

         {¶4}   Appellant timely appeals, assigning as error:

         {¶5}   “I. THE TRIAL COURT VIOLATED APPELLANTS’ [SIC] STATE AND

FEDERAL DOUBLE JEOPARDY PROTECTIONS, STATE AND FEDERAL RIGHTS TO

DUE PROCESS, AND R.C. 2941.25 BY FAILING TO MERGE THE ALLIED

OFFENSES OF IMPROPER HANDLING OF A FIREARM WHILE IN A MOTOR

1
    A rendition of the facts is unnecessary for our disposition of this appeal.
Licking County, Case No. 10-CA-95                                                         3


VEHICLE IN VIOLATION OF R.C. 2923.16(A) AND DISCHARGING A FIREARM ON

OR NEAR PROHIBITED PREMISES IN VIOLATION OF R.C. 2923.162(A)(3).

       {¶6}   “II. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND

FEDERAL DOUBLE JEOPARDY PROTECTIONS, AND STATE AND FEDERAL

RIGHTS TO DUE PROCESS, BY IMPOSING SENTENCE ON THE FIREARM

SPECIFICATION WHEN THE FIREARM WAS AN ELEMENT OF ALL THREE OF THE

UNDERLYING OFFENSES.

       {¶7}   “III. THE TRIAL COURT ERRED BY INCLUDING IN THE SENTENCING

ENTRY A PROVISION THAT APPELLANT IS NOT TO BE CONSIDERED OR

RELEASED ON TRANSITIONAL CONTROL.”

                                                I.

       {¶8}   In the first assignment of error Appellant argues the trial court erred in not

merging the allied offenses of improperly handling a firearm while in a motor vehicle and

discharging a firearm on or near a prohibited premises.

       {¶9}   R.C. 2941.25, reads:

       {¶10} “(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.

       {¶11} “(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.”
Licking County, Case No. 10-CA-95                                                       4


       {¶12} Appellant maintains improperly handling a firearm in a vehicle, in violation

of R.C. 2923.16(A) and discharging a firearm on or near a prohibited premises, in

violation of R.C. 2923.162(A)(3) are allied offenses of similar import.

       {¶13} R.C. 2923.16(A) reads,

       {¶14} “(A) No person shall knowingly discharge a firearm while in or on a motor

vehicle.”

       {¶15} R.C. 2923.162(A)(3) reads,

       {¶16} “(A) No person shall do any of the following:

       {¶17} “***

       {¶18} “(3) Discharge a firearm upon or over a public road or highway.”

       {¶19} Recently, the Ohio Supreme Court addressed the issue raised herein in

State v. Johnson, 2010-Ohio-6314, holding,

       {¶20} “Under R.C. 2941.25, the court must determine prior to sentencing

whether the offenses were committed by the same conduct. Thus, the court need not

perform any hypothetical or abstract comparison of the offenses at issue in order to

conclude that the offenses are subject to merger.

       {¶21} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one

without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) (‘It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct
Licking County, Case No. 10-CA-95                                                       5


will constitute commission of both offenses.’ [Emphasis sic]). If the offenses correspond

to such a degree that the conduct of the defendant constituting commission of one

offense constitutes commission of the other, then the offenses are of similar import.

      {¶22} “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

      {¶23} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

      {¶24} “Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge.”

      {¶25} Based upon the test set forth in Johnson, we find improperly handling a

firearm while in a motor vehicle and discharging a firearm on or near a prohibited

premises to be allied offenses of similar import. We find both offenses were committed

by the same conduct of Appellant, and the offenses correspond to such a degree the

commission of one offense constituted commission of the other.

      {¶26} Appellant’s first assignment of error is sustained.

                                                 II.

      {¶27} In the second assignment of error, Appellant maintains the trial court erred

in imposing a sentence on the firearm specification when the firearm was an element of

all three underlying offenses.   Appellant cites the Eighth District Court of Appeals’
Licking County, Case No. 10-CA-95                                                       6

decision in State v. Elko, 2004-Ohio-5209. This Court specifically rejected the holding

in Elko in State v. Ford, 2009-Ohio-6724.

      {¶28} In Ford, this Court held,

      {¶29} “A firearm specification does not charge a separate criminal offense, and

R.C. 2941.25(A) is not applicable. State v. Vasquez (1984), 18 Ohio App.3d 92, 94, 481

N.E.2d 640, 643; State v. Turner (June 11, 1987), Cuyahoga App. No. 52145,

unreported; State v. Wiffen (September 12, 1986), Trumbull App. No. 3560, unreported;

State v. Price (1985), 24 Ohio App.3d 186, 188, 493 N.E.2d 1372, 1373. The firearm

specification only comes into play once a defendant is convicted of a felony as set forth

in the statute. Price, supra, at 188, 493 N.E.2d 1372. The firearm specification is merely

a sentencing provision which requires an enhanced penalty if a specific factual finding is

made. Vasquez, supra, at 95, 481 N.E.2d 640; Turner, supra; Wiffen, supra.

      {¶30} “Our conclusion that R.C. 2941.25 does not apply to firearm specifications

is further buttressed by the fact that the legislature has set forth a separate test to

determine when firearm specifications merge. R.C. 2929.14(D)(1)(b) provides that a

court shall not impose more than one prison term on an offender for multiple firearm

specifications if the underlying felonies were committed as part of the same act or

transaction. Although crimes may be part of the same transaction and, therefore, the

firearm specifications merge, it does not necessarily follow that the base charges are

allied offenses of similar import and cannot be run consecutively to each other. State v.

Marshall, Cuyahoga App. No. 87334, 2006-Ohio-6271, ¶ 36. If R.C. 2941.25(A) was

intended to apply to firearm specifications in the same manner the statute applies to
Licking County, Case No. 10-CA-95                                                        7


other criminal offenses, there would be no need for a separate statutory provision for

merger of firearm specifications.

       {¶31} “***

       {¶32} “Ohio courts have held in accordance with Missouri v. Hunter that the

sentencing statutes requiring a mandatory, consecutive term of incarceration for a

firearm specification indicate a clear legislative intent to impose cumulative punishment

under two statutes regardless of whether the statutes proscribe the same conduct, and

Double Jeopardy is therefore not violated by a conviction on the underlying offense and

the firearm specification. Vasquez, supra, at 95, 481 N.E.2d 640; Turner, supra; Price,

supra, at 189, 493 N.E.2d 1372; State v. Sims (1984), 19 Ohio App.3d 87, 89-90, 482

N.E.2d 1323; State v. Cole (Dec. 20, 1995), Summit App. No. 17064, unreported.”

       {¶33} Based upon the above, Appellant’s second assignment of error is

overruled.

                                               III.

       {¶34} In the third assignment of error, Appellant argues the trial court erred in

including as part of Appellant’s sentencing a provision not to consider transitional

control.

       {¶35} R.C. 2967.26 allows for the creation of a transitional control program for

those nearing the end of their prison sentence. The statute reads, in pertinent part,

       {¶36} “(2) At least three weeks prior to transferring to transitional control under

this section a prisoner who is serving a term of imprisonment or prison term for an

offense committed on or after July 1, 1996, the adult parole authority shall give notice of

the pendency of the transfer to transitional control to the court of common pleas of the
Licking County, Case No. 10-CA-95                                                            8


county in which the indictment against the prisoner was found and of the fact that the

court may disapprove the transfer of the prisoner to transitional control and shall include

a report prepared by the head of the state correctional institution in which the prisoner is

confined. The head of the state correctional institution in which the prisoner is confined,

upon the request of the adult parole authority, shall provide to the authority for inclusion

in the notice sent to the court under this division a report on the prisoner's conduct in the

institution and in any institution from which the prisoner may have been transferred. The

report shall cover the prisoner's participation in school, vocational training, work,

treatment, and other rehabilitative activities and any disciplinary action taken against the

prisoner. If the court disapproves of the transfer of the prisoner to transitional control,

the court shall notify the authority of the disapproval within thirty days after receipt of the

notice. If the court timely disapproves the transfer of the prisoner to transitional control,

the authority shall not proceed with the transfer. If the court does not timely disapprove

the transfer of the prisoner to transitional control, the authority may transfer the prisoner

to transitional control.”

       {¶37} While the statute does not specifically prohibit the court from denying the

transitional control prior to notice, we find to do so clearly thwarts the design and

purpose of the statute. The statute is designed to promote prisoner rehabilitation effort

and good behavior while incarcerated.            To prematurely deny the possibility of

transitional control runs contra to those purposes. While the trial court retains discretion

to disapprove the transitional control, we find to do so in the sentencing entry prior to

notice from the adult parole authority is premature.

       {¶38} Appellant’s third assignment of error is sustained.
Licking County, Case No. 10-CA-95                                                      9


      {¶39} Appellant’s sentence and convictions for improperly handling a firearm in a

motor vehicle and discharging a firearm on or near prohibited premises are vacated and

this matter is remanded to the trial court for further proceedings in accordance with the

law and this opinion.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
Licking County, Case No. 10-CA-95                                                 10


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
COREY S. SPEARS                           :
                                          :
       Defendant-Appellant                :         Case No. 10-CA-95


       For the reasons stated in our accompanying Opinion, Appellant’s sentence and

convictions for improperly handling a firearm in a motor vehicle and discharging a

firearm on or near prohibited premises are vacated. Appellant’s other convictions are

affirmed.   This matter is remanded to the trial court for further proceedings in

accordance with the law and our opinion. Costs to Appellee.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
