[Cite as State v. Legg, 2013-Ohio-3905.]


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

STATE OF OHIO                                          C.A. No.      26768

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
RONALD S. LEGG                                         COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 12 03 0632 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: September 11, 2013



        CARR, Judge.

        {¶1}     Appellant, Ronald Legg, appeals the judgment of the Summit County Court of

Common Pleas. This Court reverses and remands.

                                                  I.

        {¶2}     This matter arises out of the murder of baby Patrick Lerch.

        {¶3}     On March 19, 2012, the Summit County Grand Jury indicted Legg and three co-

defendants on one count of illegal manufacture of drugs, one count of illegal assembly or

possession of chemicals for the manufacture of drugs, one count of aggravated possession of

drugs, and one count of illegal use or possession of drug paraphernalia. On April 5, 2012, the

Grand Jury returned a supplemental indictment charging Legg with numerous additional

felonies, including murder and endangering children. The supplemental indictment also charged

Legg’s co-defendants with additional offenses.
                                                2


        {¶4}    After initially pleading not guilty to the offenses, Legg appeared for a change of

plea hearing on September 21, 2012. Legg pleaded guilty to one count of endangering children,

one count of murder, and one count of illegal manufacture of drugs. The remaining counts in the

indictments were dismissed. Legg also pleaded guilty to violating the terms of community

control in two prior cases. The trial court conducted a sentencing hearing on September 25,

2012.   For endangering children, Legg received an eight-year prison sentence, which was

ordered to run concurrently with the sentence for murder, which was 15 years to life

imprisonment. Legg also received a ten-year sentence for illegal manufacture of drugs, which

was ordered to run consecutively to the sentences for murder and endangering children. The trial

court further ordered that Legg’s total sentence in this case was to be served consecutively to

prison terms for violating community control in his two prior cases. The aggregate sentence

Legg received was 27 years to life imprisonment.

        {¶5}    On January 25, 2013, Legg filed a motion for a delayed appeal, which was

subsequently granted by this Court. On appeal, Legg raises one assignment of error pertaining to

his sentence.

                                                II.

                                  ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES
        FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT
        COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS, AND
        SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER
        R.C. 2941.25.

        {¶6}    In his sole assignment of error, Legg contends that the trial court failed to

properly analyze whether the offenses for which he was convicted were allied offenses of similar

import. This Court agrees.
                                                    3


       {¶7}    R.C. 2941.25 states:

       (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}    In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Supreme Court of

Ohio clarified the application of R.C. 2941.25. Specifically, the court overruled State v. Rance,

85 Ohio St.3d 632 (1999), “to the extent that it calls for a comparison of statutory elements

solely in the abstract under R.C. 2941.25. [Now w]hen 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.” Johnson at ¶ 44.

       {¶9}    At the September 21, 2012 plea hearing, the assistant prosecutor stated, “In

regards to the potential sentence in this case, the State has agreed with the defense and would ask

the Court to accept our agreement, and that for purposes of this * * * sentencing and this

defendant, that the endangering children, Count 5, and Count 6, the murder, would merge for

purposes of sentencing.” The State further noted that pursuant to the parties’ agreement, Legg

would be free to argue that the sentence for murder should run concurrently with the sentence for

illegal manufacture of drugs. After being put on notice of the parties’ agreement, the trial court

did not ask the parties for a statement of facts.

       {¶10} Four days after the plea hearing, on September 25, 2012, the trial court conducted

the sentencing hearing. At the outset of the hearing, the State emphasized the need for a “harsh

sentence” to be imposed in this case. The State made several references to the trial of one of
                                                4


Legg’s co-defendants, stating that while only a “sanitized version” of the incident was presented,

the “horrible photos” introduced at trial revealed what kind of suffering the victim endured.

Defense counsel responded to these statements, arguing that Legg was “not the monster that he

has been portrayed during the course of this case.” Defense counsel further stated, “For purposes

of sentencing, the State has agreed that the child endangering charge would merge with the

murder charge. And I would argue to you as well that the activity that led to the death is the

manufacturing, and I would urge you to give him concurrent time on that charge as well.”

Before permitting Legg to make a statement on his own behalf, the trial court stated, “I will

indicate to counsel that the Court does not intend to merge the sentences on Counts 5

(endangering children) and 6 (murder), because the information made available to the Court as

the evidence has developed in these cases suggests that merger would not be appropriate. There

were many more acts involved here than merely manufacturing methamphetamine.” After Legg

made a statement, the trial court spoke about the number of lives that were impacted by Legg’s

actions, as well as the factors the trial court must consider in fashioning a sentence. The trial

court then proceeded to impose separate sentences for endangering children, murder, and illegal

manufacture of drugs. In imposing these sentences, the trial court did not discuss the specific

conduct at issue in this case, nor did it mention the allied offenses standard articulated by the

Supreme Court in Johnson.

       {¶11} In its sentencing entry that was journalized on October 5, 2012, the trial court

stated, “the court conducted an analysis to determine whether the Count 5 offense of

ENDANGERING CHILDREN and the Count 6 offense of MURDER were allied offenses of

similar import, applying State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6324. The court

found that those offenses were not committed by the same conduct of the defendant in this
                                                  5


instance. Accordingly, the court determined that those offenses are NOT subject to merger as

allied offenses of similar import.”

       {¶12} On appeal, Legg argues that while he pleaded guilty to murder, endangering

children, and illegal manufacture of drugs, there were no facts in the record for the trial court to

justify refusing to merge those offenses for the purpose of sentencing. In its merit brief, the State

concedes that this matter must be remanded, stating, “the State contends that the matter should

be remanded for the trial court to apply Johnson in the first instance with respect to the offense

of illegal manufacturing and child endangering.” The State further states, “the matter should

[also] be remanded for the trial court to apply [] Johnson with regard to the offenses of Murder

and Child Endangering and to articulate on the record the specific reasons for which the Court

found that the offenses are not allied so that the reviewing court can conduct a de novo review.”

       {¶13} We agree with the contention of both parties that this matter must be remanded

for the trial court to analyze in the first instance whether Legg was convicted of allied offenses of

similar import. As noted above, the allied offenses analysis under Johnson is a fact-based

inquiry. Johnson at ¶ 44. This matter was resolved by way of a negotiated guilty plea, and the

parties had reached an agreement regarding which offenses constituted allied offenses. While

the trial court stated in its sentencing entry that it had conducted an allied offenses analysis

pursuant to Johnson, the absence of a presentation of facts pertinent to Legg’s case rendered the

trial court unable to undertake the Johnson analysis in its entirety. Because there was not a

statement of facts before the court, there is no basis in the record to substantiate the trial court’s

decision to reject the parties’ stipulation that the offenses of murder and child endangering

should be merged. It follows that this matter must be remanded for the trial court to conduct a

new sentencing hearing.
                                                 6


       {¶14} The assignment of error is sustained.

                                                III.

       {¶15} Legg’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed and the cause remanded for further proceedings consistent

with this decision.

                                                                              Judgment reversed,
                                                                             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.

       Costs taxed to Appellee.




                                                       DONNA J. CARR
                                                       FOR THE COURT


MOORE, P. J.
BELFANCE, J.
CONCUR.
                                          7



APPEARANCES:

STEPHEN A. GOLDMEIER, Assistant State Public Defender, for Appellant.

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