[Cite as State v. Wilson, 2017-Ohio-8152.]


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

STATE OF OHIO                                         C.A. No.      28187

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TRAMELL RAYSHAWN WILSON                               COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2012 02 0332

                                 DECISION AND JOURNAL ENTRY

Dated: October 11, 2017



        HENSAL, Judge.

        {¶1}     Trammell Wilson appeals his sentence for multiple offenses in the Summit

County Court of Common Pleas. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     The substantive facts and procedural history of this case were set forth by this

Court in State v. Wilson, 9th Dist. Summit No. 27361, 2015-Ohio-2023, (Wilson II) as follows:

        In June 2011, Wilson instigated a confrontation with two men outside of a
        nightclub in Akron. During the course of the confrontation, Wilson pulled out a
        gun, shot at one of the men, and actually shot the second man multiple times. A
        grand jury indicted Wilson on two counts of felonious assault and one count of
        having a weapon while under disability. Each felonious assault count also
        contained a repeat violent offender specification, pursuant to R.C. 2941.149, and a
        firearm specification, pursuant to R.C. 2941.145. A jury found Wilson guilty on
        both of his felonious assault counts, the firearm specifications linked to those
        counts, and his weapon under disability count. Thereafter, Wilson stipulated that
        he had a prior felonious assault conviction and, due to his prior conviction,
        qualified as a repeat violent offender.

        The court merged Wilson’s repeat violent offender specifications for purposes of
        sentencing, but sentenced him on all of his remaining counts. Specifically, the
                                                  2


       court sentenced Wilson to (1) three years on his repeat violent offender
       specification; (2) six years on each of his felonious assault counts; (3) three years
       on each of his firearm specifications; and (4) 36 months on his weapon under
       disability count. The court ordered each of Wilson’s prison terms to run
       consecutively with the exception of the weapon under disability count. Thus, the
       court sentenced Wilson to a total of 21 years in prison.

       On appeal from his convictions, Wilson argued that the trial court erred by failing
       to merge his convictions for felonious assault and having a weapon under
       disability. Because there was no evidence that the trial court had analyzed the
       merger issue under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, we
       determined that the trial court had to apply Johnson in the first instance.
       Consequently, we remanded the matter to the trial court for it to apply Johnson
       and to determine whether the felonious assault and having weapons under
       disability offenses should merge.

       On remand, the trial court conducted a new sentencing hearing and ultimately
       concluded that Wilson’s counts for felonious assault and having a weapon under
       disability should not merge. In keeping with its original decision, the court once
       again merged Wilson’s repeat violent offender specifications and sentenced him
       to a total of 21 years in prison. Nevertheless, the court changed the individual
       prison terms that it had originally ordered Wilson to serve. The court sentenced
       Wilson to (1) ten years on his repeat violent offender specification; (2) eight years
       on each of his felonious assault counts; (3) three years on each of his firearm
       specifications; and (4) 36 months on his weapon under disability count. The court
       then ordered the ten-year repeat violent offender specification, one of the eight-
       year felonious assault counts, and one of the three-year firearm specifications to
       be served consecutively to reach the 21–year total. The court ordered the
       remaining counts to run concurrently.

Id. at ¶ 2-5. (Internal quotations and citations omitted.)

       {¶3}    Mr. Wilson appealed the trial court’s second sentencing entry, arguing in part that

the court erred by increasing the length of his prison term on his repeat violent offender

specifications and his felonious assault counts. In Wilson II, this Court concluded that the trial

court had exceeded the scope of the remand and lacked the authority to conduct a de novo

sentencing hearing and to increase Mr. Wilson’s sentence on his repeat violent offender

specifications. Id. at ¶ 13. It determined, however, that since Mr. Wilson’s sentences for

felonious assault were reversed on appeal in State v. Wilson, 9th Dist. Summit No. 26683, 2014-
                                                  3


Ohio-376 (Wilson I), those sentences were properly before the trial court and the trial court had

the authority to resentence him on those counts. Id. at ¶ 15. Accordingly, this Court remanded

the matter to the trial court for further proceedings consistent with Wilson II.

       {¶4}    On remand, the trial court held a third sentencing hearing and re-imposed Mr.

Wilson’s original sentence in a subsequent journal entry. Specifically, the trial court again

merged Mr. Wilson’s repeat violent offender specifications for purposes of sentencing, and then

sentenced Wilson to: (1) three years on the merged repeat violent offender specification; (2) six

years on each of the felonious assault counts; (3) three years on each of the firearm

specifications; and (4) 36 months on the weapon under disability count. The trial court ordered

each of the prison sentences to run consecutively with the exception of the weapon under

disability count, which was to run concurrently. In total, the trial court sentenced Mr. Wilson to

21 years. Mr. Wilson has appealed, assigning as error that the trial court failed to comply with

this Court’s remand instructions in Wilson II.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND FAILED TO ABIDE BY THIS COURT’S
       REMAND AND WENT BEYOND ITS AUTHORITY WHEN IT MODIFIED
       [MR. WILSON’S] SENTENCE RELATIVE TO THE REPEAT VIOLENT
       OFFENDER SPECIFICATION.

       {¶5}    Mr. Wilson argues that the trial court incorrectly conducted a de novo sentencing

hearing on remand from Wilson II. Specifically, he argues that only the sentence for the repeat

violent offender specification was subject to review on remand since it was the only offense

affected by the appealed error in Wilson II. In reviewing a felony sentence, “[t]he appellate

court’s standard for review is not whether the sentencing court abused its discretion.” R.C.

2953.08(G)(2). “[A]n appellate court may vacate or modify a felony sentence on appeal only if
                                                  4


it determines by clear and convincing evidence” that: (1) “the record does not support the trial

court’s findings under relevant statutes[,]” or (2) “the sentence is otherwise contrary to law.”

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is

that “which will produce in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

       {¶6}    In general, although a remand for a new sentencing hearing anticipates a de novo

hearing, “only the sentences for the offenses that were affected by the appealed error are

reviewed de novo; the sentences for any offenses that were not affected by the appealed error are

not vacated and are not subject to review.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-

2669, ¶ 15, citing State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, paragraph three of the

syllabus; R.C. 2929.19(A).      Additionally, “the law of the case doctrine ‘provides that 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.’”

Neiswinter v. Nationwide Mut. Fire Ins. Co., 9th Dist. Summit No. 23648, 2008-Ohio-37, ¶ 10,

quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). Accordingly, “[a]bsent extraordinary

circumstances, * * * an inferior court has no discretion to disregard the mandate of a superior

court in a prior appeal in the same case.” Nolan at syllabus. Nonetheless, the doctrine of law of

the case “is considered to be a rule of practice rather than a binding rule of substantive law and

will not be applied so as to achieve unjust results.” Id. at 3.

       {¶7}    Since Wilson II, this Court has updated its understanding of the scope of a remand

for an allied-offense analysis. In State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-Ohio-

536 (Ross I), the trial court sentenced Michael Ross to a total of nine and a half years
                                                 5


imprisonment. We noted that the trial court had not had the opportunity to determine whether

his offenses were allied under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, so we

remanded “the matter to the trial court for it to apply Johnson in the first instance.” Id. at ¶ 69.

On remand, the trial court found that only some of the offenses were allied. Nevertheless, it

altered the sentences for the other offenses as well.       State v. Ross, 9th Dist. Lorain Nos.

14CA010601, 14CA010602, 2015-Ohio-3399, ¶ 5 (Ross II). In Ross II, we held that the trial

court erred when it modified the sentences for the offenses that were not allied, explaining that

the trial court “did not have the authority to conduct a de novo resentencing on those offenses.”

Id. at ¶ 6. Specifically, “there was no allied offense sentencing error for it to correct on those

sentences.” Id. at ¶ 8. We concluded that this result was consistent with the Ohio Supreme

Court’s decision in State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, and we, therefore,

remanded the matter for the trial court to re-impose its original sentence for the offenses that

were not allied. Id. at ¶ 9.

        {¶8}    This Court has repeatedly followed Ross II. In State v. Powell, 9th Dist. Summit

No. 27830, 2016-Ohio-2820, this Court noted that it had previously remanded the case for the

trial court to make an initial determination whether Mr. Powell’s offenses were allied. Id. at ¶

19. On remand, the trial court determined that the offenses were not allied, so it re-imposed Mr.

Powell’s original sentence. Id. On appeal following the re-imposition of his original sentence,

Mr. Powell argued that he should have been entitled to a de novo resentencing. This Court

rejected his argument, explaining that, “when a trial court determines on remand that offenses are

not allied, it does not have authority to conduct a de novo resentencing on those offenses.” Id. at

¶ 20, citing Ross II at ¶ 6. We also followed Ross II in State v. Copeland, 9th Dist. Summit No.

27905, 2016-Ohio-1613, in which we affirmed that, when a case is “simply remanded * * * so
                                                  6


that the trial court c[an] engage in a merger analysis in the first instance[,]” “the lack of an allied

offenses error preclude[s] the trial court from disturbing the length of [the defendant’s] sentences

or the imposition of consecutive sentences[.]” Id. at ¶ 13; see also State v. McIntyre, 9th Dist.

Summit No. 27670, 2016-Ohio-93, ¶ 12 (“Nor did the trial court have authority [on remand] to

alter the sentence on [count five], absent a conclusion that it was an allied offense that merged

for purposes of sentencing.”).

       {¶9}    In Wilson I, this Court, similar to Ross I, remanded “the matter * * * for the trial

court to apply State v. Johnson in the first instance.” Wilson I, 9th Dist. Summit No. 26683,

2014-Ohio-376, at ¶ 61. On remand, the trial court determined that none of Mr. Wilson’s

offenses were allied.    Mr. Wilson, therefore, “was not entitled to a de novo resentencing

hearing[.]” Powell at ¶ 21. In Wilson II, we should have directed the trial court to do exactly

what it did do in its third sentencing entry, which was to re-impose Mr. Wilson’s original

sentence. Ross II at ¶ 9. After careful review, we conclude that extraordinary circumstances

exist and that the doctrine of law of the case should not be applied to the trial court’s judgment

on remand from Wilson II.

       {¶10} At the third sentencing hearing, the trial court reasoned that “[t]o now say that the

Court must either impose a higher sentence or a lower sentence, based upon what was essentially

a harmless failure to consider the merger issue back in 2012, is illogical.” Instead, it decided that

“at this point I am going to go back and do what the Court of Appeals said was my authority

upon the first remand, and that was to consider whether the * * * counts should merge. I did

that. I determined that they should not merge and therefore just leave the sentence where it was

in 2012.” The trial court’s assessment is consistent with this Court’s holdings in Ross II, Powell,

Copeland, and McIntyre. Accordingly, we conclude that Mr. Wilson has not demonstrated by
                                                 7


clear and convincing evidence that the trial court acted contrary to law when it re-imposed his

original sentence. Mr. Wilson’s assignment of error is overruled.

                                                III.

       {¶11} Mr. Wilson’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       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 Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT




CARR, P. J.
CONCURS IN JUDGMENT ONLY.
                                                 8


SCHAFER, J.
DISSENTING.

          {¶12} As the majority in Wilson II determined that the trial court lacked authority to

resentence Wilson on all of his offenses and erred by increasing Wilson’s sentence on his repeat

violent offender specification, the only action the trial court was authorized to take on remand

from Wilson II was to reinstate the three year prison sentence on Wilson’s repeat violent offender

specification. The Supreme Court of Ohio has stated that the doctrine of the law of the case “is

necessary to ensure the consistency of results in a case, to avoid endless litigation by settling the

issues, and to preserve the structure of superior and inferior courts as designed by the Ohio

Constitution. In pursuit of these goals, the doctrine functions to compel trial courts to follow the

mandates of reviewing courts.” (Internal citation omitted.) Nolan v. Nolan, 11 Ohio St.3d 1, *3

(1984).

          {¶13} Although I am troubled by the potential consequences, I do not believe the

circumstances of this case are so extraordinary that this Court should ignore the law of this case

or the principles of finality and judicial economy. First, it is axiomatic that on remand, “the

sentences for any offenses that were not affected by the appealed error are not vacated and are

not subject to review.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 15. Second, the

reduction of a sentence based upon a trial court error is not an inherently unjust result nor is it

untenable in this case. Third, the Supreme Court of Ohio did not issue an intervening decision.

Fourth, while this Court acknowledges that three months after our decision in Wilson II, this

Court limited the scope of the remand for an allied offense analysis, see State v. Ross, 9th Dist.

Lorain Nos. 14CA010601, 14CA010602, 2015-Ohio-3399, ¶ 6, the allied offenses issue was not

an issue on appeal in Wilson II and was, therefore, not within the scope of the remand.

Moreover, even if the allied offenses issue was within the scope of the remand, the law of the
                                               9


case doctrine would still have precluded the trial court from applying the holding in Ross

because “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 at 3. Finally, this Court’s subsequent change of course as to the scope of the

remand for an allied offenses error in Ross is not such an uncommon or extraordinary

circumstance that it demands this Court disregard the law of this case.          Indeed, such a

determination would set a disturbing precedent and undermine the finality of countless cases.

       {¶14} Therefore, I would conclude that the trial court acted contrary to law when it re-

imposed Wilson’s original sentence. Moreover, had the majority found that the trial court had

acted contrary to law, it would have had the authority to “increase, reduce, or otherwise modify”

Wilson’s sentence without the need to remand the matter to the trial court.             See R.C.

2953.08(G)(2). Such an action would have satisfied the principle of judicial economy.

       {¶15} For the reasons stated above, I respectfully dissent.


APPEARANCES:

LAWRENCE J. WHITNEY, Attorney at Law, for Appellant.

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