[Cite as State v. Woolum, 2013-Ohio-5611.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      ATHENS COUNTY

STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :
                                                                       Case No. 12CA46
        vs.                                     :
                                                                       DECISION AND
COREY WOOLUM,                                   :                      JUDGMENT ENTRY

        Defendant-Appellant.                    :                      RELEASED 12/13/2013


                                             APPEARANCES:

Robert W. Bright, Middleport, Ohio, for Defendant-Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens
County Assistant Prosecuting Attorney, Athens, Ohio, for Plaintiff-Appellee.



Hoover, J.


        {¶ 1} Corey Woolum appeals his convictions and sentence in the Athens County

Common Pleas Court for extortion, burglary, and theft from the elderly. Woolum contends that

the trial court erred in imposing separate sentences for the offenses, which he claims arose from

the same conduct, were not committed separately or with a separate animus, and should have

merged for sentencing purposes under R.C. 2941.25 and State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061. Because the trial court did not apply the appropriate test for

determining allied offenses of similar import, the matter is remanded so that the trial court can

determine whether his convictions should merge for sentencing.

        {¶ 2} Woolum also argues that he was deprived of the effective assistance of counsel

because his trial attorney failed to develop the factual record, therefore making it difficult to
Athens App. No. 12CA46                                                                                2


discern whether the offenses were allied offenses of similar import. This argument is rendered

moot by our decision to remand.

                                                 I.

                                              FACTS

       {¶ 3} A grand jury indicted Woolum for extortion, a violation of R.C. 2905.11(A), a

felony of the third degree; burglary, a violation of R.C. 2911.12(A)(3), a felony of the third

degree; and theft from the elderly, a violation of R.C. 2913.02(A)(1), a felony of the fourth

degree. At his arraignment, Woolum pled not guilty to all of the offenses.

       {¶ 4} Woolum subsequently entered into a plea agreement with the State of Ohio

(“appellee”), wherein he agreed to change his plea to guilty to all three counts of the indictment.

In exchange for the guilty plea, appellee agreed to recommend a sentence of community control,

to forego indictment for Woolum’s failure to appear at a court hearing, to recommend joint and

several restitution of $2,000.00 with Woolum’s co-defendant, and to return Woolum’s vehicle

which had been seized during investigation.

       {¶ 5} The trial court accepted the plea, and sentenced Woolum to five years of

community control. The trial court notified Woolum of the maximum possible prison term of

seven (7) years and six (6) months. The prison term was presumably calculated by adding the

maximum prison term for each offense, served consecutively. Woolum was also ordered to pay

$2,000.00 restitution, joint and severally, with his co-defendant.

       {¶ 6}    The facts giving rise to Woolum’s convictions and sentence are not clear from

the record. The indictment offers some insight noting that:

       *** [O]n or about the 11th day of September, 2011, up to and including the 21st

       day of September, 2011, at the County of Athens aforesaid, Corey J. Woolum did
Athens App. No. 12CA46                                                                           3


       commit the crime of Extortion *** [,] on or about the 22nd day of September,

       2011, at the County of Athens, aforesaid, Corey J. Woolum did commit the crime

       of Burglary *** [and] on or about the 22nd day of September, 2011, at the County

       of Athens aforesaid, Corey J. Woolum did commit the crime of Theft from the

       Elderly * * * .

(Emphasis deleted.)

       {¶ 7}    A Bill of Particulars was also filed with the trial court, and offered a few

additional details:


       On or about September 11, 2011, up to and including September 21, 2011, * * *

       Corey J. Woolum and Aires Dorst did threaten [the victim] by telling her that

       drug dealers were going to kill her if she did not give them money to pay off her

       son’s drug debts. Woolum and Dorst later returned to [the victim’s] residence and

       removed a riding mower from her garage without permission. Defendant’s acts

       are in violation of R.C. Section 2905.11(A), Extortion, a felony of the third

       degree; R.C. Section 2911.12(A)(3), Burglary, a felony of the third degree and

       R.C. Section 2913.02(A)(1), Theft from the Elderly, a felony of the fourth degree.


       {¶ 8}    Finally, appellee offered a recitation of the facts at Woolum’s change of plea

hearing, noting that:

       * * * On or about September 22nd of 2011 to October 13th of 2011 the Defendant

       and his co-defendant, Aires Dorst, told the victim * * * that drug dealers were

       going to kill her if she didn’t give them $2,100.00 to pay off her son’s drug debts.

       They later went back to the residence uh, went into her garage and took a riding

       lawn mower from her garage. So that’s where the burglary comes from. * * *
Athens App. No. 12CA46                                                                         4


       The $2,000.00 restitution is the money that uh, the victim * * * had given to the

       Defendant and the co-defendant in order to pay back a drug debt. The unalleged

       [sic] drug debt. Uh, to my knowledge none of that has been paid back. * * *


       I knew that uh, the Defendant, the co-defendant and [the victim’s son] were three

       friends that allegedly have a drug problem that got mixed into a, got mixed into

       this situation * * *.


[Change of Plea Hearing Tr. at 3-4.]


       {¶ 9} Woolum’s trial counsel declined to comment on the facts at his change in plea

hearing; and neither Woolum nor the appellee offered a statement of facts at the sentencing

hearing. Woolum’s trial counsel did, however, raise the issue as to whether the burglary and

theft charges were allied offenses of similar import:

       BY ATTORNEY HEDRICK: * * * I didn’t remember the underlying sentence

       being stated and I don’t think that the Court can properly sentence Mr. Woolum to

       both the burglary and the theft from the elderly as their, it’s basically the same

       offense but I’m assuming the State wants the F3 and he could be sentenced to

       three years consecutive to three years for a six year sentence but other than that

       your honor Mr. Woolum is prepared to uh, prepared to be sentenced and

       appreciates the State’s recommendation.

       BY THE JUDGE:           What do you think about that uh, last statement. About not

       being able to sentence on, if those merge. They appear to me like they are

       separate.

       BY PROSECUTOR SAUNDERS: I believe they are separate as well your honor.
Athens App. No. 12CA46                                                                             5


[Sentencing Hearing Tr. at 4.]

         {¶ 10} The trial court did not further discuss whether any of the offenses were allied

offenses of similar import.

                                                 II.

                                   ASSIGNMENTS OF ERROR

         {¶ 11} Woolum presents the following two assignments of error:

First Assignment of Error:

         THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO
         CRIMES WHICH WERE ALLIED OFFENSES OF SIMILAR IMPORT.
Second Assignment of Error:

         COUNSEL FOR THE APPELLANT WAS INEFFECTIVE IN FAILING TO
         DEVELOP THE FACTS OF THE CASE SUFFICIENTLY IN BOTH THE
         PLEA HEARING AND THE SENTENCING HEARING.
                                                 III.
                                        LAW & ANALYSIS
         {¶ 12} In his first assignment of error, Woolum contends that at a minimum his theft

from the elderly conviction should merge with either the burglary conviction or the extortion

conviction – arguing that the theft conviction arose from either the extortion of the money from

the victim, or from the entering of the victim’s garage and taking of the riding mower.

Alternatively, Woolum contends that all three offenses should merge for sentencing purposes

because they are allied offenses of similar import and were committed with the same conduct

and a single animus.1

         {¶ 13} Under Ohio law, “[w]here the same conduct by [the] 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.” R.C.
1
    That single animus was allegedly to obtain money for drugs or to resolve a drug debt.
Athens App. No. 12CA46                                                                            6


2941.25(A). But “[w]here 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.” R.C.

2941.25(B).

       {¶ 14} R.C. 2941.25 “codified the judicial doctrine of merger” and “prohibited the

‘cumulative punishment of a defendant for the same criminal act where his conduct can be

construed to constitute two statutory offenses, when, in substance and effect, only one offense

has been committed.’ ” State v. Ware, 63 Ohio St.2d 84, 86, 406 N.E.2d 1112 (1980), quoting

State v. Roberts, 62 Ohio St.2d 170, 172-173, 405 N.E.2d 247 (1980). The Supreme Court of

Ohio has “consistently recognized 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.” Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 43.

       {¶ 15} The Johnson court announced a new test to determine whether merger is

required. To determine whether offenses are allied offenses of similar import under R.C.

2941.25(A), the first 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.” (Emphasis sic.) Id. at ¶ 48. “If the offenses correspond to such a degree that the conduct

of the defendant constituting commission of the one offense constitutes commission of the other,

then the offenses are of similar import.” Id.

       {¶ 16} Next, “[i]f 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
Athens App. No. 12CA46                                                                                7


act, committed with a single state of mind.’ ” Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d

447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). “If the answer to both

questions is yes, then the offenses are allied offenses of similar import and will be merged.”

Johnson at ¶ 50.

       {¶ 17} “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.” (Emphasis sic.) Id. at ¶ 51.

       {¶ 18} “The question of whether offenses should merge under R.C. 2941.25 ordinarily

presents a question of law we review de novo.” State v. Delawder, 4th Dist. Scioto No.

10CA3344, 2012-Ohio-1923, ¶ 38. But, at the sentencing hearing Woolum argued only his

convictions for theft from the elderly and burglary merge. So on the question of whether his

extortion conviction should also merge with the theft and burglary convictions, we apply plain

error. 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, 922 N.E.2d 923, ¶ 31, citing State v.

Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102.

       {¶ 19} As a preliminary matter, we must address appellee’s argument that the absence of

facts in the record demonstrating that the offenses should merge precludes a finding of plain

error on appeal. In support of its argument, appellee cites State v. Barrett, 8th Dist. Cuyahoga

No. 97614, 2012-Ohio-3948, 974 N.E.2d 185. The defendant in Barrett pled guilty to nine

counts of illegal use of a minor in nudity-oriented material or performance, two counts of

voyeurism, and one count of possession of criminal tools. Id. at ¶ 1. The defendant was

sentenced on each of the child pornography counts. Id. On appeal, the defendant argued, inter
Athens App. No. 12CA46                                                                                  8


alia, that the trial court erred by failing to consider whether the child pornography counts were

allied offenses of similar import. Id.

        {¶ 20} The Eighth District Court of Appeals noted that because the defendant terminated

the proceedings against him by pleading guilty, the facts alleged in the indictment and admitted

by him were the only facts in the record. Id. at ¶ 5. The appellate court concluded: “Given the

lack of facts in the record on appeal, we cannot find that the court committed error, much less * *

* plain error, by failing to inquire prior to sentencing whether separate counts of an indictment

are allied offenses of similar import.” Id. at ¶ 8.

        {¶ 21} Appellee’s reliance on Barrett is misplaced, however, because the Barrett

decision was recently overruled. See State v. Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584,

98585, 98586, 98587, 98588, 98589, 98590, 2013-Ohio-3235, ¶ 64 (“We overrule the prior

decisions of this court to the extent they are in conflict with this decision. See, e.g., * * *

Barrett, 2012-Ohio-3948, 974 N.E.2d 185.”). In Rogers, the Eight District Court of Appeals was

again faced with the issue of “the effect of a trial court’s failure to inquire or address an allied-

offense question where it is clear from a facial review of the charges that the offenses may be

allied, even when facts necessary to determine the conduct of the offender are missing.” Id. at ¶

24. The appellate court reversed course from its prior decisions, and held that:

        (a) Where a facial question of allied offenses of similar import presents itself, a

        trial court judge has a duty to inquire and determine under R.C. 2941.25 whether

        those offenses should merge. A trial court commits plain error in failing to

        inquire and determine whether such offenses are allied offenses of similar import.


        (b) A defendant’s failure to raise an allied offenses of similar import issue in the

        trial court is not a bar to appellate review of the issue.
Athens App. No. 12CA46                                                                                9


        (c) While facts establishing the conduct of the offender offered at the time of a

        plea may be used to establish that offenses are not allied, a guilty plea alone that

        does not include a stipulation or a finding that offenses are not allied offenses of

        similar import does not conclusively resolve the merger question. * * *


Id. at ¶ 63.


        {¶ 22} “When a facial review of the charges and the elements of the crimes present a

viable question of merger, the [trial] court must apply the Johnson test.” Id. at ¶ 28. “A

defendant’s conviction on multiple counts, regardless of how achieved, does not affect the

court’s duty to merge allied offenses of similar import at sentencing.” Id. at ¶ 27.


        {¶ 23} Put simply, when the plea agreement is silent on the issue of allied offenses of

similar import, the trial court is obligated under R.C. 2941.25 to determine whether the offenses

are allied, and if they are, to convict the defendant of only one offense. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 29. “This duty is mandatory, not discretionary.”

Id. at ¶ 26.

        {¶ 24} In the case sub judice, the record indicates that the question of allied offenses of

similar import was minimally discussed at sentencing. There is no indication that the trial court

undertook a Johnson analysis. Rather it appears that the trial court relied upon the appellee’s

representation that the offenses were separate. Moreover, there are insufficient facts in the

record for this court to make an allied offense determination. We have consistently declined to

conduct the Johnson analysis in the first instance. See, e.g., State v. Hurst, 4th Dist. Washington

No. 10CA33, 2013-Ohio-4016, ¶ 9; State v. Grube, 4th Dist. Gallia No. 12CA7, 2013-Ohio-692,

987 N.E.2d 287, ¶ 52; Delawder, 2012-Ohio-1923, at ¶ 41. “We find it to be inappropriate for
Athens App. No. 12CA46                                                                            10


this Court to make such an initial determination when the trial court has yet to consider this

particular question * * *.” Hurst at ¶ 9.

       {¶ 25} Accordingly, we sustain Woolum’s first assignment of error in part, and remand

the case to the trial court for consideration in the first instance of whether Woolum’s offenses are

allied offenses of similar import under Johnson, supra.

                                                IV.

                                            CONCLUSION

       {¶ 26} Woolum’s first assignment of error is sustained in part. In light of our decision

on this assignment of error, Woolum’s argument that he received ineffective assistance of

counsel is moot. The judgment of the Athens County Common Pleas Court is affirmed in part,

reversed in part, and remanded for further proceedings consistent with this opinion.

                                                             JUDGMENT AFFIRMED IN PART,
                                                                      REVERSED IN PART,
                                                                  AND CAUSE REMANDED.
Athens App. No. 12CA46                                                                             11




Harsha, J., concurring in part and dissenting in part:

       {¶ 27} I agree that we should reverse and remand on the issue of whether the theft and

burglary charges should merge. However, I would not apply plain error to the extortion merger

issue because appellant’s counsel invited any error in that regard by specifically contending that

merger applied only to the theft and burglary charges. A defendant who invited an error cannot

avail him/herself of the benefits of the plain error doctrine. See State v. Black, 4th Dist. No.

12CA3327, 2013-Ohio-2105, ¶ 71, Harsha, J., concurring in part and dissenting in part, citing

State v. Humberto, 196 Ohio App.3d 230, 2011-Ohio-3080, 963 N.E.2d 162, ¶ 42.
Athens App. No. 12CA46                                                                           12



                                     JUDGMENT ENTRY


       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs herein
taxed.
       The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Athens County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

McFarland, P.J.: Concurs in Judgment Only.
Harsha, J.: Concurs in part and dissents in part with separate opinion.

                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
