[Cite as State v. McIntyre, 2012-Ohio-5657.]


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

STATE OF OHIO                                          C.A. No.    26449

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
LEWIS LEROY MCINTYRE                                   COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 09 03 0647

                                 DECISION AND JOURNAL ENTRY

Dated: December 5, 2012



        BELFANCE, Judge.

        {¶1}     Lewis McIntyre appeals from his resentencing hearing. For the reasons set forth

below, we affirm in part and reverse in part.

                                                I.

        {¶2}     In March 2009, Mr. McIntyre was indicted for tampering with evidence in

violation of R.C. 2921.12(A)(1), petty theft in violation of R.C. 2913.02(A)(3), and obstructing

justice in violation of R.C. 2921.32(A)(4).          Several months later he was charged in a

supplemental indictment with tampering with records in violation of R.C. 2913.42(A)(1)(B)(4),

and obstructing justice in violation of R.C. 2921.32(A)(6), a felony of the fifth degree. The

matter was tried before a jury. The trial court granted Mr. McIntyre’s Crim.R. 29 motion with

regard to R.C. 2921.32(A)(4), but a jury convicted Mr. McIntyre of the remaining charges. Mr.

McIntyre was sentenced to four years in prison.
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           {¶3}   Mr. McIntyre appealed,1 and this Court overruled his first two assignments of

error. State v. McIntyre, 9th Dist. Nos. 24934, 24945, 2010-Ohio-2569, ¶ 5-10 (“McIntyre I”).

However, we sustained his third assignment of error, vacated his felony conviction for

obstructing justice because the verdict form did not contain the degree of the offense, and

remanded for resentencing on that count. Id. at ¶ 14-15.

           {¶4}   Mr. McIntyre moved to reopen his appeal, and this Court granted his motion for

the limited purpose of considering two assignments of error. See State v. McIntyre, 9th Dist.

Nos. 24934, 24945, 2012-Ohio-1173, ¶ 3 (“McIntyre II”).           Mr. McIntyre argued that his

convictions for tampering with records and obstructing justice were void. Id. at ¶ 4. In his

second assignment of error, Mr. McIntyre argued that the trial court committed plain error when

it sentenced him for allied offenses of tampering with records and tampering with evidence. Id.

at ¶ 16.

           {¶5}   Mr. McIntyre’s assignment of error regarding his arraignment was overruled. Id.

at ¶ 4-15.        However, this Court sustained Mr. McIntyre’s second assignment of error.

Accordingly, we affirmed Mr. McIntyre’s convictions but reversed and remanded the case to the

trial court so that it could consider and apply State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314 in the first instance. McIntyre II at ¶ 16-17.

           {¶6}   On remand, the trial court determined that Mr. McIntyre’s convictions for

tampering with evidence and tampering with records merged for sentencing purposes, and the

State elected to proceed on Mr. McIntyre’s tampering with evidence conviction. The trial court


           1
          Mr. McIntyre raised three assignments of error in which he argued that (1) he was
deprived of the right to represent himself, (2) his convictions for tampering with records and
obstructing official business were void due to an error at arraignment, and (3) he was sentenced
erroneously for the felony obstructing justice because the verdict form failed to state the degree
of the offense. See McIntyre I.
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sentenced Mr. McIntyre to 36 months for tampering with evidence and 6 months for obstructing

justice. Mr. McIntyre has appealed, raising four assignments of error for our review. For ease of

discussion, we have rearranged his assignments of error.

                                              II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED
       APPELLANT ON THE ALLIED OFFENSES OF TAMPERING WITH
       EVIDENCE, OBSTRUCTING JUSTICE, AND PETTY THEFT[] BY
       ORDERING THE SENTENCES TO RUN CONCURRENT.

       {¶7}   In Mr. McIntyre’s first assignment of error, he argues that the trial court

committed plain error when it sentenced him on allied offenses.

       {¶8}   R.C. 2941.25 provides:

       (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.

       {¶9}   “The General Assembly enacted R.C. 2941.25 to limit when multiple

punishments may be imposed for offenses arising from the same conduct.” State v. Wilson, 129

Ohio St.3d 214, 2011-Ohio-2669, ¶ 11. The allied-offense analysis requires consideration of

whether it is possible to commit the offenses by the same conduct as well as whether the offenses

were in fact committed by the same conduct, namely a “single act committed with a single state

of mind.” (Internal quotations and citations omitted.) Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314, at ¶ 49. Furthermore, the “imposition of multiple sentences for allied offenses of similar

import is plain error.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31.
                                                 4


       {¶10} In this case, the trial court examined and applied Johnson to only two of the four

offenses, namely tampering with evidence and tampering with records. It appears that the trial

court believed that it was limited to consideration of only these two offenses, which is

understandable given that Mr. McIntyre only argued that his sentences for tampering with

evidence and tampering with records were allied offenses in his previous appeal.          However,

when Mr. McIntyre filed his brief, tampering with evidence and tampering with records were the

only potentially allied offenses, and it was only after Johnson was decided that Mr. McIntyre’s

other convictions could potentially merge. Thus, we did not limit the scope of our remand but,

instead, reversed Mr. McIntyre’s sentence. We stated, “Because Johnson was decided after Mr.

McIntyre was sentenced, the trial court did not consider it. In light of our precedent, it is

therefore appropriate to remand this case so that the trial court can apply Johnson in the first

instance.” (Emphasis added.) McIntyre II, 2012-Ohio-1173, at ¶ 17. Accordingly, the trial court

should have considered whether any of Mr. McIntyre’s convictions were allied offenses in light

of Johnson.

       {¶11} This Court has previously determined that the trial court should consider the

allied-offense issue in the first instance, and, therefore, it is appropriate to remand the matter so

that the trial court may consider whether Mr. McIntyre’s convictions should merge. See, e.g.,

State v. Creel, 9th Dist. No. 25476, 2011-Ohio-5893, ¶ 4.

       {¶12} Mr. McIntyre’s first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DENIED
       APPELLANT’S CRIMINAL RULE 29 MOTION FOR ACQUITTAL AS TO
       THE OFFENSE OF TAMPERING WITH EVIDENCE WHEN THE STATES
       PROSECUTION HAD RESTED THEIR CASE AFTER PRESENTING
       INSUFFICIENT EVIDENCE AS TO TAMPERING WITH EVIDENCE. [(SIC)]
                                                5


       {¶13} In Mr. McIntyre’s fourth assignment of error, he argues that the trial court erred

when it denied his Crim.R. 29 motion for acquittal on the charge of tampering with evidence.

However, Mr. McIntyre could have raised this issue in his first appeal but failed to do so. See

generally McIntyre I, 2010-Ohio-2569. Furthermore, Mr. McIntyre’s conviction for tampering

with evidence was reversed solely on an allied-offense issue, and, therefore, “the guilty verdicts

underlying [his] sentences remain the law of the case and are not subject to review.” Wilson, 129

Ohio St.3d 214, 2011-Ohio-2669, at ¶ 15. Accordingly, res judicata bars him from raising it

now. See State v. Ford, 9th Dist. No. 26480, 2012-Ohio-4384, ¶ 6. See also Wilson at ¶ 30

(“The scope of an appeal from a new sentencing hearing is limited to issues that arise at the new

sentencing hearing.”).

       {¶14} His fourth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT COMMITTED PLAIN ERROR AND LACKED
       JURISDICTION TO HAVE RESENTENCED APPELLANT AS A MATTER
       OF LAW FOR THE OFFENSES TO WIT TAMPERING WITH EVIDENC[E],
       OBSTRUCTING JUSTICE, AND PETTY THEFT WHEN BOTH MINIMUM
       AND MAXIMUM TERMS THAT COULD BE IMPOSED HAD EXPIRED
       PRIOR TO RESENTENCING.

       {¶15} Mr. McIntyre, relying on case law that prohibits a court from imposing post-

release control after a defendant’s prison term has expired, argues that the trial court lacked

jurisdiction to sentence him. According to Mr. McIntyre, the maximum prison term he could

receive was less than the time he had already served and, therefore, his prison term had already

expired.

       {¶16} Because this Court had reversed Mr. McIntyre’s sentences for obstructing justice,

tampering with evidence, and tampering with records, he had not completed his sentence but,

rather, was awaiting sentencing. Thus, his reliance on State v. Arnold, 189 Ohio App.3d 238,
                                                6


2009-Ohio-3636 (2d Dist.), and State v. Rollins, 5th Dist. No. 10CA74, 2011-Ohio-2652, is

misplaced because both of those cases involved an attempt to impose post-release control after

an offender had completed his sentence. See Arnold at ¶ 49-50; Rollins at ¶ 4-5. In fact, Arnold

makes clear that “it is the expiration of the prisoner’s journalized sentence * * * that is

determinative of the trial court’s authority to resentence.” (Internal quotations and citation

omitted.) (Emphasis added.) Id. at ¶ 50.

       {¶17} Furthermore, Mr. McIntyre’s argument is essentially that a trial court cannot

sentence a defendant whose credit for time served would exceed the maximum possible sentence

for his or her crimes. However, he has not directed this Court to any authority that is on point in

support. See App.R. 16(A)(7). Nor has this Court’s own research uncovered any such authority,

and it is not this Court’s duty to create Mr. McIntyre’s argument for him. See Cardone v.

Cardone, 9th Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998).

       {¶18} Accordingly, Mr. McIntyre’s fifth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
       RESENTENCED APPELLANT AS TO THE OFFENSE OF OBSTRUCTING
       JUSTICE AND ITS UNDERLYING OFFENSE PASSING BAD CHECKS F-5
       TO A LESSER INCLUDED DEGREE OF OBSTRUCTING JUSTICE AND ITS
       UNDERLYING OFFENSE PASSING BAD CHECKS-M1[] WHEN THE
       TRIAL COURT HAD PREVIOUSLY GRANTED APPELLANT’S MOTION
       FOR ACQUITTAL AS TO SAID OFFENSE AND PURSUANT TO CRIM.R.
       29.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED
       THE APPELLANT TO A THIRTY-SIX MONTH MAXIMUM PENALTY
       TERM THAT COULD BE IMPOSED FOR THE OFFENSE OF TAMPERING
       WITH EVIDENCE A NON VIOLENT FELONY THREE OFFENSE WITHOUT
       FIRST CONSIDERING AND MAKING THE MANDATORY AND
       APPROPRIATE STATUTORY FINDINGS IN ACCORDANCE WITH THE
       PRINCIPLES AND PURPOSES OF SENTENCING PURSUANT TO OHIO
                                                   7


       REVISED CODE 2929.11 AND THE SERIOUSNESS AND RECIDIVISM
       FACTORS PURSUANT TO OHIO REVISED CODE 2929.12 AND OHIO
       REVISED CODE 2929.19.

       {¶19} Based on our resolution of Mr. McIntyre’s first assignment of error, these

assignments of error are moot, and, therefore, we decline to address them.            See App.R.

12(A)(1)(c).

                                                III.

       {¶20} Mr. McIntyre’s first assignment of error is sustained.          His fourth and fifth

assignments of error are overruled, and his second and third assignments of error are moot. The

judgment of the Summit County Court of Common Pleas is reversed in part, and the matter is

remanded for further proceedings consistent with this decision.

                                                                        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.

       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.
                                             8


      Costs taxed equally to both parties.




                                                 EVE V. BELFANCE
                                                 FOR THE COURT



MOORE, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

LEWIS LEROY MCINTYRE, JR., pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
