[Cite as State v. Fortune, 2015-Ohio-4019.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2014-L-117
        - vs -                                   :

ERIC B. FORTUNE, JR.,                            :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR
000202.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, Vanessa R. Clapp, Assistant
Public Defender, and Jamie L. Ganner, Assistant Public Defender, 125 East Erie
Street, Painesville, OH 44077 (For Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Eric B. Fortune, Jr., appeals from the Judgment

Entry of Sentence of the Lake County Court of Common Pleas, in which he was

sentenced to an aggregate term of 19 years in prison for Aggravated Burglary,

Felonious Assault, Kidnapping, Having Weapons Under Disability, and three firearm

specifications. The issues to be determined by this court are whether a trial court
properly sentences a defendant to serve separate prison terms for three firearm

specifications in the absence of analysis regarding whether they arose from the same

act or transaction and whether trial counsel is ineffective by making statements at a plea

hearing that could mislead the court in applying the law. For the following reasons, we

affirm the judgment of the trial court.

       {¶2}   On February 13, 2014, a Complaint was filed against Fortune in the

Painesville Municipal Court, asserting that he violated R.C. 2911.11(A)(2), committing

Aggravated Burglary, a felony of the first degree.       Fortune waived his preliminary

hearing and the matter was bound over to the Lake County Court of Common Pleas.

       {¶3}   On April 25, 2014, Fortune was indicted by the Lake County Grand Jury

on one count of Aggravated Burglary (Count One), a felony of the first degree, in

violation of R.C. 2911.11(A)(2); two counts of Aggravated Robbery (Counts Two and

Three), felonies of the first degree, in violation of R.C. 2911.01(A)(1); one count of

Felonious Assault (Count Four), a felony of the second degree, in violation of R.C.

2903.11(A)(2); one count of Kidnapping (Count Five), a felony of the first degree, in

violation of R.C. 2905.01(A)(2); and one count of Having Weapons Under Disability

(Count Six), a felony of the third degree, in violation of R.C. 2923.13(A)(3). Each of the

first five counts had a firearm specification, pursuant to R.C. 2941.145.

       {¶4}   A change of plea hearing was held on September 22, 2014.             At the

hearing, the State described the parties’ plea agreement, which included an agreed-

upon 19-year prison term in exchange for Fortune entering a plea to Counts One, Four

and Five, as charged, with firearm specifications, and Count Six. The remaining counts

were nolled. Following a discussion of the offenses and firearm specifications, the court




                                            2
and counsel agreed that the maximum prison time faced by Fortune for the charges to

which he pled was 42 years, of which the court informed Fortune. The court also

inquired of counsel’s opinion regarding whether it could sentence Fortune for all three

firearm specifications to which he was pleading. Counsel agreed that Fortune could be

sentenced for each of the firearm specifications, with defense counsel noting, “[t]hat’s

the way I’ve read the case law in the Eleventh District.”

       {¶5}   At the plea hearing, the State described the facts which would have been

proven at trial.   Pursuant to the explanation, Fortune entered the home of the victims

and struck one victim on the head with a handgun. Another victim was held at gunpoint

and prevented from leaving her home.

       {¶6}   On September 24, 2014, a Written Plea of Guilty was filed, which included

the terms discussed at the plea hearing. On September 25, 2014, a Judgment Entry

was filed, memorializing the plea.

       {¶7}   A sentencing hearing was held on October 27, 2014. The court ordered

that Fortune serve five years in prison each on Counts One, Four, and Five, and 18

months on Count Six. The sentences for Counts One and Four were concurrent with

each other and consecutive to Count Five.           Count Six was concurrent with the

aforementioned counts. The court also ordered that Fortune serve three years on each

of the three firearm specifications, to be served consecutively with each other and to the

prison term on the other counts, for an aggregate term of 19 years.

       {¶8}   On October 30, 2014, a Judgment Entry of Sentence was filed,

memorializing Fortune’s sentence, in which the court noted the factors it considered and

the basis for the consecutive sentences.




                                             3
       {¶9}   Fortune timely appeals and raises the following assignments of error:

       {¶10} “[1.] The trial court committed plain error when it failed to merge one of the

three firearm specifications in violation of R.C. 2929.14(B)(1)(b) and the Double

Jeopardy clauses of the United States and Ohio Constitutions.

       {¶11} “[2.] The defendant-appellant was denied effective assistance of counsel

in violation of the Sixth Amendment of the United States Constitution.”

       {¶12} In his first assignment of error, Fortune argues that it was improper for the

trial court to sentence him to prison terms on all three firearm specifications.

       {¶13} The State argues that the sentence is not subject to review since it was

agreed upon and the court properly exercised its discretion to sentence Fortune to

prison terms on all three specifications.

       {¶14} Pursuant to R.C. 2953.08(D)(1), “[a] sentence imposed upon a defendant

is not subject to review under this section if the sentence is authorized by law, has been

recommended jointly by the defendant and the prosecution in the case, and is imposed

by a sentencing judge.” We must decide then, whether Fortune’s prison term for the

firearm specifications, the only part of the sentence he challenges, was “authorized by

law.” “[A]ppellant’s sentence is only authorized by law if it comports with all mandatory

sentencing provisions.     If the trial court complied with all the necessary statutory

provisions regarding felony sentencing, appellant’s sentence, in accordance with the

joint recommendation, is not subject to challenge on appeal and will be upheld.” State

v. McFarland, 11th Dist. Lake No. 2013-L-061, 2014-Ohio-2883, ¶ 14; State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 19-22. If Fortune’s

sentence was not authorized by law “then R.C. 2953.08(D)(1) does not limit our review




                                             4
and we can consider the full range of possible sentencing errors.” State v. Price, 11th

Dist. Trumbull No. 2013-T-0088, 2015-Ohio-944, ¶ 15.

      {¶15} Fortune concedes that the trial court was permitted to order him to serve

sentences for two firearm specifications, as required by R.C. 2929.14(B)(1)(g), but

argues that it erred in sentencing him to a term for a third specification. This is based

on his contention that the third specification should merge, since the felonies were

“committed as part of the same act or transaction,” pursuant to R.C. 2929.14(B)(1)(b).

      {¶16} While Fortune asserts that the issue here is one of merger and that a plain

error analysis should apply, we note that this matter turns upon the correct application

of a statute providing that multiple prison terms for certain firearm specifications can be

served consecutively. This is an issue of law, reviewed under a de novo standard of

review.   State v. Elder, 11th Dist. Lake No. 2014-L-001, 2014-Ohio-4312, ¶ 43.

Provided that statute applies, it is unnecessary to conduct an analysis of whether the

offenses should merge, as will be explained further.

      {¶17} In the present case, Fortune pled guilty to three firearm specifications.

R.C. 2929.14(B)(1)(b) provides: “If a court imposes a prison term on an offender under

division (B)(1)(a) of this section [providing sentences for firearm specifications], * * *

[e]xcept as provided in division (B)(1)(g) of this section, a court shall not impose more

than one prison term on an offender under division (B)(1)(a) of this section for felonies

committed as part of the same act or transaction.” As noted within that provision,

however, R.C. 2929.14(B)(1)(g) provides an exception:

             If an offender is convicted of or pleads guilty to two or more

             felonies, if one or more of those felonies are aggravated




                                            5
              murder, murder, attempted aggravated murder, attempted

              murder, aggravated robbery, felonious assault, or rape, and

              if the offender is convicted of or pleads guilty to a

              specification of the type described under division (B)(1)(a) of

              this section in connection with two or more of the felonies,

              the sentencing court shall impose on the offender the prison

              term specified under division (B)(1)(a) of this section for

              each of the two most serious specifications of which the

              offender is convicted or to which the offender pleads guilty

              and, in its discretion, also may impose on the offender the

              prison term specified under that division for any or all of the

              remaining specifications.

        {¶18} Under this provision, the sentencing court must impose a prison term for

two specifications, which Fortune concedes was proper here, but may also choose to

impose a term for remaining specifications. As stated in (B)(1)(b), the same act or

transaction requirement does not apply under such circumstances. State v. Lewis, 11th

Dist. Lake No. 2012-L-074, 2013-Ohio-3974, ¶ 102 (“As to the imposition of multiple

three-year terms for firearm specifications, R.C. 2929.14(B)(1)(b) generally states that

multiple terms are not permissible when the underlying felonies were ‘committed as part

of the same act or transaction.’       However, R.C. 2929.14(B)(1)(b) also expressly

provides that an exception to the foregoing general rule is set forth in division (B)(1)(g)

of the statute.”); State v. Isreal, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876,

¶ 73.    While the court was not required to sentence Fortune to a third term of




                                            6
imprisonment for the third specification, it was within its discretion to do so, since he

pled guilty to multiple felonies, one of which was Felonious Assault.

      {¶19} Based on this exception, courts have held that a sentence is permissible

on a third specification, without considering whether the conduct was part of the same

act or transaction. In State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-

4047, the trial court sentenced the defendant on three firearm specifications.         The

appellate court rejected the argument that the specifications should have merged

because they arose from a “continuous sequence of events.” It held that, pursuant to

R.C. 2929.14(D)(1)(g) [now (B)(1)(g)], the court was permitted to impose a sentence for

each of the three specifications and the “same act or transaction” requirement did not

apply. Id. at ¶ 32-34. See State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013-Ohio-

4649, ¶ 69-72 (the State did not err in ordering the defendant to serve separate terms

for more than two firearm specifications pursuant to R.C. 2929.14(B)(1)(g), regardless

of whether they were part of the same transaction); State v. Price, 10th Dist. Franklin

Nos. 13AP-1085 and 13AP-1086, 2014-Ohio-4065, ¶ 11.

      {¶20} The dissenting judge argues that the three separate sentences for the

firearm specifications were improper because the sentences on two of the three

underlying counts (Aggravated Burglary and Felonious Assault) were ordered by the

trial court to run concurrently.   The dissent contends that because two concurrent

sentences were given on underlying crimes, “only two firearm specifications remained.”

No case law whatsoever is presented to support a conclusion that running sentences for

underlying offenses concurrently would somehow eliminate a firearm specification or

require a court to order concurrent sentences on the firearm specifications as well.




                                            7
       {¶21} Firearm specifications for three offenses were separately included in the

Indictment.   Fortune pled guilty to three underlying offenses, each of which had a

specification, was convicted of all three offenses, and was sentenced on each of these

offenses. While the court did order concurrent sentences on two of the three counts,

the Ohio Supreme Court has unambiguously stated that “[t]he imposition of concurrent

sentences is not the equivalent of merging allied offenses.” State v. Damron, 129 Ohio

St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17.         Since none of the underlying

offenses merged, it can hardly be argued that only two of the three specifications still

“remained.” Further, the applicable law in this case, R.C. 2929.14(B)(1)(g), does not

require that a consecutive sentence be given on each underlying offense for all firearm

specifications to be valid and for a defendant to receive separate sentences on each.

Since the dissent’s entire argument as to this issue is conclusory and unsupported by

law, it carries no weight.

       {¶22} Fortune cites two cases he contends are “remarkably similar” to the

present case, in which the courts considered whether multiple firearm specifications

were part of the same transaction. These cases, State v. Harris, 7th Dist. Jefferson No.

04 JE 44, 2006-Ohio-3520, and State v. Marshall, 8th Dist. Cuyahoga No. 87334, 2006-

Ohio-6271, are inapplicable to the present matter. In both cases, the courts did not

address the exception contained in R.C. 2929.14(B)(1)(g). A review of the version of

R.C. 2929.14 in effect when those cases were decided shows that the (B)(1)(g)

exception was not part of the statute at that time. Thus, the analysis in these cases is

inapposite here and we adopt the reasoning of the cases cited above, in which the




                                           8
courts specifically interpreted and applied the present statutory language. The court’s

sentence was authorized by law.

       {¶23} Fortune also raises several arguments that his agreement to enter the

plea was based upon improper statements and advisements made by both the court

and his counsel regarding the consecutive nature of the three firearm specifications.

Since similar arguments are raised in his second assignment of error, we will address

this below.

       {¶24} The first assignment of error is without merit.

       {¶25} In his second assignment of error, Fortune argues that his trial counsel

was ineffective.

       {¶26} In evaluating ineffective assistance of counsel claims, Ohio appellate

courts apply the two-part test enunciated by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To

reverse a conviction for ineffective assistance of counsel, the defendant must prove “(1)

that counsel’s performance fell below an objective standard of reasonableness, and (2)

that counsel’s deficient performance prejudiced the defendant resulting in an unreliable

or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d

378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 687-688. To show prejudice

from counsel’s deficient performance, “the defendant must prove that there exists a

reasonable probability that, were it not for counsel’s errors, the result of the trial would

have been different.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).

       {¶27} Fortune first argues that counsel was ineffective by incorrectly stating to

the court that he had informed his client that the three gun specifications would be




                                             9
consecutive, as the court was only required to impose consecutive prison terms on two

of the firearm specifications, as discussed above.

      {¶28} The specific statement at issue occurred when the court inquired: “Well, in

terms of the gun specs, I need to - - would they all be consecutive?” Defense counsel

responded: “My client indicates he understood that, Your Honor.” A review of the plea

hearing transcript shows there was further explanation and discussion of this matter

following that exchange. The court inquired of counsel the following: “I’m not sure if [the

statute] means I can do all the gun specs consecutive or just two of them.            Any

opinion?” Defense counsel responded: “My understanding is you can do all of them,”

with which the State agreed.

      {¶29} While Fortune contends that this statement provided a basis for his belief

that the three terms were required, it indicates only that the court could do so, which is

provided for in the applicable law. Both the court and defense counsel used the word

“can,” not “must.” Thus, this statement should have created no belief in Fortune that the

court was required to sentence him to terms on three specifications. This is true both

for the purposes of whether the trial court erred (under the first assignment of error) and

whether trial counsel was ineffective. Nonetheless, it is hard to argue that Fortune

suffered any prejudice from either of the foregoing exchanges, since the court properly

advised him that he was subject to a maximum of 42 years of imprisonment, which

provided the basis for Fortune to agree to a sentence of 19 years, exactly the sentence

he received.




                                            10
       {¶30} Fortune also argues that trial counsel was ineffective when he incorrectly

advised the court that the number of victims supported the imposition of separate prison

terms for the firearm specifications.

       {¶31} The following exchange took place at the plea hearing while discussing

whether Fortune could serve a sentence for each of the three firearm specifications:

              Defense counsel: My understanding is because we have separate
              victims, that would change - -

              Court: Well that’s accurate, separate victims.

              Defense counsel: Right.

              Court: If there’s separate victims.

              Defense counsel: Right.

              Court: I didn’t know that. * * * I don’t know the facts yet. I’m going to
              find that out. That’s what we’re here for. Okay. We will start here
              and I’ll find out specific facts, and we’ll go from there.

       {¶32} Regarding Fortune’s contention in his first assignment of error that these

statements led to his plea based on an understanding that all firearm specifications

must run consecutively, this exchange does not include a statement to that effect.

There is also nothing in the record to indicate that the court ordered the prison term for

the third specification based on this statement regarding separate victims. The court

was permitted to impose a sentence for the third specification under (B)(1)(g), as

thoroughly described above.

       {¶33} Regardless of whether defense counsel, in his interrupted statement about

separate victims, misadvised the court of the applicable law, no prejudice resulted. As

noted above, the court did not appear to rely on such a statement in reaching its

sentence. Moreover, Fortune received exactly the sentence agreed to with the State



                                            11
and reached this agreement based on the potential 42 years he was properly advised

he faced and the nolling of the additional charges.

       {¶34} The second assignment of error is without merit.

       {¶35} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, sentencing Fortune to a prison term of 19 years, is affirmed. Costs to

be taxed against appellant.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                        _______________________________________




COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶36} I respectfully disagree and take umbrage with the tone of the majority

regarding my dissenting opinion.      This writer has no objection to the length of the

sentence, nor the agreed sentence in general. However, the methodology used by the

trial court appears to be incongruous.

       {¶37} Appellant and his brother entered the home of Mr. Claudio and Ms.

Freeman to confront Mr. Claudio about his threatening behavior towards appellant’s

brother’s girlfriend.    Appellant struck Mr. Claudio in the head multiple times with a

handgun.     Ms. Freeman was held at gunpoint and moved around the house by

appellant’s brother.




                                            12
       {¶38} Appellant was subsequently indicted and pled guilty to counts one

(aggravated burglary), four (felonious assault), and five (kidnapping), all with firearm

specifications. Appellant also pled guilty to count six (having weapons while under

disability). Defense counsel indicated appellant could be sentenced for each of the

three firearm specifications.

       {¶39} At sentencing, the trial court ordered appellant to serve five years in prison

each on counts one, four, and five, and 18 months on count six. The sentences on

counts one and four were concurrent with each other and consecutive to count five.

Count six was concurrent with the foregoing counts.         The court also ordered that

appellant serve three years on each of the three firearm specifications attached to

counts one, four, and five, to be served consecutively with each other and to the prison

term on the other counts, for an aggregate term of 19 years.

       {¶40} On appeal, appellant asserts he was improperly sentenced on all three

firearm specifications and his defense counsel provided ineffective assistance on this

issue. Appellant concedes the trial court was permitted to order him to serve sentences

for two firearm specifications as required by R.C. 2929.14(B)(1)(g). However, appellant

contends the court erred in sentencing him to a term for a third specification, as counts

one and four are concurrent with each other and consecutive to count five. Appellant

argues the third specification should merge since the felonies were committed as part of

the same act or transaction pursuant to R.C. 2929.14(B)(1)(b).

       {¶41} Upon review, I find appellant’s sentence violates the allied offenses

provision of R.C. 2941.25, and the firearm specification sentencing guidelines under

R.C. 2929.14(B)(1)(b).




                                            13
       {¶42} The concept of a specification is to modify and enhance a criminal count.

As a caboose must follow its train, a specification, likewise, cannot stand alone without

its predicate offense. What occurred in this case is disharmonious as a specification

cannot stand unsupported or de-coupled from a felony for purposes of sentencing as it

is by itself not a separate crime but an enhancement to an existing crime. Appellant

was charged with three counts which included three firearm specifications. However,

because two counts were ordered to run concurrent with their predicate offenses, only

two firearm specifications remained, not three.

       {¶43} A predicate offense is defined as “a crime that is a component of a more

serious offense.” itlaw.wikia.com “‘The generic, contemporary meaning of a predicate

offense “roughly correspond(s) to the definitions of (the crime).”’” United States v.

Rodriguez, 711 F.3d 541, 554 (5thCir. 2013).

       {¶44} This writer is aware of the Ohio Supreme Court precedent that “a firearm

specification is a penalty enhancement, not a criminal offense [and that] [p]enalties for a

specification and its predicate offense do not merge under R.C. 2941.25.” State v.

Ford, 128 Ohio St.3d 398, 2011-Ohio-765, paragraphs one and two of the syllabus.

This writer agrees with the precedent in Ford as a specification is a penalty

enhancement for the predicate offense. It is not a criminal offense unto itself. Ford

dealt with whether discharging a firearm into a habitation and a firearm specification are

allied offenses of similar import. Ford dealt with a separate fact issue whereby the gun

specification was argued merged with its predicate offense that called for a dangerous

weapon as an element of the offense. The majority is treating the specification like a




                                            14
separate criminal offense and is basically sentencing appellant independently of any

criminal offense using the penalty enhancement as a stand alone felony for sentencing.

      {¶45} This writer is also aware that “‘the purpose of R.C. 2941.25 is to prevent

shotgun convictions, that is, multiple findings of guilt and corresponding punishments

heaped on a defendant for closely related offenses arising from the same occurrence.’”

State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-1147, ¶68, quoting State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶43, citing Maumee v. Geiger, 45 Ohio

St.2d 238, 242 (1976).    The principles and purposes of sentencing under H.B. 86

provides: “[t]he overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others and to punish the offender using the minimum

sanctions that the court determines accomplish those purposes without imposing an

unnecessary burden on state or local government resources.”            R.C. 2929.11(A).

(Emphasis added.) Thus, the legislature has given us the tools as well as a mandate to

address the issues of keeping dangerous criminals off the street, while balancing Ohio’s

financial deficits and an already overcrowded prison system.

      {¶46} Appellant was sentenced concurrently and consecutively to an agreed

term of incarceration. The presumption in Ohio is that sentencing is to run concurrent.

“When it comes to sentencing a defendant with multiple convictions, the judge usually

has a choice to order the sentence on each conviction to run ‘concurrently’ or

‘consecutively.’ This decision could make the difference of many years in prison. A

consecutive sentence (also called a ‘cumulative’ sentence) is when a defendant has

been convicted of more than one crime, usually at the same trial, and the sentences for

each crime are ‘tacked’ together, so that sentences are served one after the other. * * *




                                           15
A concurrent sentence is when sentences on more than one crime ‘run’ or are served at

the same time, rather than one after the other.”          criminal.lawyers.com/criminal-law-

basics/how-do-multiple-convictions-affect-my-sentence.

       {¶47} “It will take a courageous judge not to ‘max and stack’ every sentence in

multiple-count cases.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, ¶31

(Lanzinger, J., concurring).

       {¶48} “[A]ny felony that involves a firearm may be charged with a gun

specification added. A gun specification is simply an ‘add-on’ to an underlying criminal

charge.” ohiogunlawguide.com.

       {¶49} At the change of plea hearing, the trial judge revealed his confusion on the

firearm specification sentencing issue by asking for opinions from counsel whether he

could do all three specifications consecutively or just two of them. Defense counsel and

the trial judge incorrectly stated that the number of victims controls whether consecutive

sentences can be administered. Appellant’s agreement to the 19-year sentence was

predicated on the mistaken belief that all three sentences on the firearm specifications

must run consecutively to one another, when, in fact, the court is only required to

impose a sentence on two.

       {¶50} While firearm specification sentences imposed pursuant to R.C.

2929.14(B)(1)(a) are mandatory and generally run consecutively, R.C. 2929.14(B)(1)(b)

provides an exception and states in part:

       {¶51} “If a court imposes a prison term on an offender under division (B)(1)(a) of

this section * * * [e]xcept as provided in division (B)(1)(g) of this section, a court shall not




                                              16
impose more than one prison term on an offender under division (B)(1)(a) of this section

for felonies committed as part of the same act or transaction.”

       {¶52} The    exception   in   R.C.   2929.14(B)(1)(g)      deals   directly   with   the

circumstances present in this appeal and states in part:

       {¶53} “If an offender is convicted of or pleads guilty to two or more felonies, if

one or more of those felonies are * * * felonious assault * * * and if the offender is

convicted of or pleads guilty to a specification of the type described under division

(B)(1)(a) of this section in connection with two or more of the felonies, the sentencing

court shall impose on the offender the prison term specified under division (B)(1)(a) of

this section for each of the two most serious specifications of which the offender is

convicted or to which the offender pleads guilty and, in its discretion, also may impose

on the offender the prison term specified under that division for any or all of the

remaining specifications.”

       {¶54} Because appellant was convicted of three separate felonies carrying

identical firearm specifications, one of which was felonious assault, the trial court was

required under R.C. 2929.14(B)(1)(g) to impose a prison term for the “two most serious

specifications.”   Since each firearm specification carried a three-year mandatory

sentence, the court was required to impose two three-year mandatory sentences upon

appellant. The court was not required to sentence appellant consecutively on all three

firearm specifications. As stated, a specification cannot stand alone. What occurred in

this case is disharmonious as a specification cannot be unsupported or de-coupled from

its predicate offense.




                                            17
       {¶55} The trial court ran the underlying sentences on counts one and four

concurrent with each other and consecutive to count five. While the court was correct in

running two of the specifications consecutive to another in compliance with R.C.

2929.14(B)(1)(g), it was not required to impose the third firearm specification. Instead

of running the sentences consecutively, the court should have exercised its discretion

under R.C. 2929.14(B)(1)(b) and ordered the third firearm specification to be served

with the first two since the felonies were committed as part of the same act or

transaction, and the third specification cannot stand alone.

       {¶56} The record establishes that appellant and his brother entered the victims’

home to commit a felony. As stated, appellant struck Mr. Claudio in the head multiple

times with a handgun. Ms. Freeman was held at gunpoint and moved around the house

by appellant’s brother. Appellant’s intent on entering the home was to threaten Mr.

Claudio with violence. Although the kidnapping of Ms. Freeman was not part of the

original plan, all of the acts committed by appellant and his brother were done with the

main purpose of scaring and committing a felonious assault upon Mr. Claudio. Thus,

the events at issue involve a single act or transaction. Therefore, as addressed, this

humble writer asserts it is error to have the third firearm specification stand alone.

       {¶57} For the foregoing reasons, I respectfully dissent.




                                             18
