[Cite as State v. Linzy, 2014-Ohio-1738.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                          Plaintiff-Appellee   :       Hon. Patricia A. Delaney
                                               :
-vs-                                           :
                                               :       Case No. 12CA33
CAREES LINZY                                   :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No. 2012-
                                                   CR-37H



JUDGMENT:                                          Vacated and Remanded



DATE OF JUDGMENT ENTRY:                            April 23, 2014

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant
JAMES J. MAYER, JR.                                R. JOSHUA BROWN
Prosecuting Attorney                               32 Lutz Avenue
JILL M. COCHRAN                                    Lexington, OH 44904
JOHN NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Linzy, 2014-Ohio-1738.]


Gwin, P.J.

        {¶1}     Appellant, Carees Linzy (“Linzy”) was convicted after a jury trial in the

Richland County Court of Common Pleas on two counts of murder, each with a firearm

specification, having a weapon while under disability, carrying a concealed weapon,

tampering with evidence and possession of criminal tools. This Court affirmed Linzy’s

conviction. For a complete recitation of the facts underlying Linzy’s conviction see, State

v. Linzy, 5th Dist. Stark No. 2012–CA–33, 2013-Ohio-1129.

        {¶2}     By Judgment Entry filed September 16, 2013, this Court granted in part

Linzy’s Application for reopening pursuant to App.R. 26(B). Pursuant to our mandate,

Linzy has raised the following assignment of error,

        {¶3}     “I. WAS APPELLATE COUNSEL INEFFECTIVE AND THE APPELLANT

PREJUDICED BY COUNSEL’S FAILURE TO ADDRESS THE ISSUE OF WHETHER

APPELLANT’S CONVICTIONS FOR TWO COUNTS OF MURDER MUST MERGE

INTO A SINGLE CONVICTION AND IMPOSITION OF A SENTENCE THAT IS

APPROPRIATE FOR THE OFFENSE CHOSEN FOR SENTENCING.”

        Analysis

        {¶4}     In his assignment of error, Linzy maintains he received ineffective

assistance of appellate counsel on direct appeal. The standard for reviewing claims for

ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Ohio adopted this standard in the case of

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). These cases require a two-

pronged analysis in reviewing a claim for ineffective assistance of counsel.
Richland County, Case No. 12CA33                                                         3


      {¶5}   First, we must determine whether counsel's assistance was ineffective;

i.e., whether counsel's performance fell below an objective standard of reasonable

representation and volatile of any of his essential duties to the client. If we find

ineffective assistance of counsel, we must then determine whether the defense was

actually prejudice by counsel's ineffectiveness such that the reliability of the outcome of

the trial is suspect. This requires a showing that there is a reasonable probability that

but for counsel's unprofessional error, the outcome of the trial would have been

different. We apply the Strickland test to all claims of ineffective assistance of counsel,

either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. Guernsey No. 2005-

CA-41, 2006-Ohio-5214.

      {¶6}   Linzy argues that his trial counsel was ineffective in failing to request that

his two murder convictions be merged as allied offenses of similar import. Linzy

contends his appellate counsel was ineffective because he did not raise this issue on

appeal.

      {¶7}   Failure to merge allied offenses is plain error. State v. Underwood, 124

Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31; State v. Yarbrough, 104 Ohio St.3d

1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96–102.

      {¶8}   In State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512,

the Ohio Supreme Court noted,

             When a defendant has been found guilty of offenses that are allied

      offenses, R.C. 2941.25 prohibits the imposition of multiple sentences.

      Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 12.

      Therefore, a trial court must merge the crimes into a single conviction and
Richland County, Case No. 12CA33                                                     4


       impose a sentence that is appropriate for the offense chosen for

       sentencing. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895

       N.E.2d 149, at ¶ 41–43. In this case, the sentencing court found Damron

       guilty of both offenses and sentenced him on both. The imposition of

       concurrent sentences is not the equivalent of merging allied offenses.

Id. at ¶17. The Court in Whitfield further held,

              “If, upon appeal, a court of appeals finds reversible error in the

       imposition of multiple punishments for allied offenses, the court must

       reverse the judgment of conviction and remand for a new sentencing

       hearing at which the state must elect which allied offense it will pursue

       against the defendant. On remand, trial courts must address any double

       jeopardy protections that benefit the defendant…”

Whitfield, supra at ¶ 25.

       {¶9}   The scope of the sentencing hearing the trial court must conduct after

remand for an allied offenses sentencing error was addressed by the Supreme Court,

              In a remand based only on an allied-offenses sentencing error, the

       guilty verdicts underlying a defendant's sentences remain the law of the

       case and are not subject to review. Whitfield, 124 Ohio St.3d 319, 2010-

       Ohio-2, 922 N.E.2d 182, at ¶ 26–27. Further, 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. Saxon at paragraph

       three of the syllabus.
Richland County, Case No. 12CA33                                                       5

        {¶10} State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,

¶15. The Court in Wilson further held,

               [O]nce the cause is remanded and the offenses to be merged are

        selected by the state, the trial court is required to hold a new sentencing

        hearing and impose sentences for the remaining offenses. Res judicata

        does not preclude a defendant from objecting to issues that arise at the

        new sentencing hearing.

Wilson, ¶34.

        {¶11} In the case at bar, Linzy was charged with two counts of murder for

causing the death of Gary Hall. In the first count, Linzy was charged with purposely

causing the death of another pursuant to R.C. 2903.02(A). In the second count, Linzy

was charged with causing the death of another as a proximate result of committing

felonious assault pursuant to R.C. 2903.02(B). The two counts were charges that were

plead in the alternative and both relate to the single act of causing the death of Gary

Hall.

        {¶12} In cases in which the imposition of multiple punishments is at issue, R.C.

2941.25(A)'s mandate that a defendant may only be “convicted” of one allied offense is

a protection against multiple sentences rather than multiple convictions. See, e.g., Ohio

v. Johnson (1984), 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425. A defendant

may be indicted and tried for allied offenses of similar import, but may be sentenced on

only one of the allied offenses. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569,

895 N.E.2d 149, ¶ 42, citing Geiger, 45 Ohio St.2d at 244, 74 O.O.2d 380, 344 N.E.2d

133. Because R.C. 2941.25(A) protects a defendant only from being punished for allied
Richland County, Case No. 12CA33                                                       6


offenses, the determination of the defendant's guilt for committing allied offenses

remains intact, both before and after the merger of allied offenses for sentencing. State

v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶27. Thus, the trial

court should not vacate or dismiss the guilt determination on each count. Id. Pursuant to

Damron, the imposition of concurrent sentences is not the equivalent of merging allied

offenses.

      {¶13} The state concedes that the two counts of murder in this case are allied

offenses. State’s Brief at 6. The state further agrees that this case be remanded for a

new sentencing hearing. Id.

      {¶14} Linzy’s sole assignment of error is sustained.
Richland County, Case No. 12CA33                                                         7


       {¶15} Accordingly, Linzy's sentences for two counts of murder are vacated, and

he is entitled to a de novo sentencing hearing upon remand. In accordance with the

Ohio Supreme Court's decision in State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-

2669, 951 N.E.2d 381, we remand this case to the trial court for further proceedings

consistent with that opinion. This decision in no way affects the guilty verdicts issued by

the court. It only affects the entry of conviction and sentence. All of Linzy's convictions

are affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur
