[Cite as State v. Jones, 2011-Ohio-4934.]


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

STATE OF OHIO                                          C.A. No.      25676

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DARRELL H. JONES                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2006-07-2670 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: September 28, 2011



        WHITMORE, Presiding Judge.

        {¶1}     Appellant, Darrell Jones, appeals the order of the Summit County Court of

Common Pleas that sentenced him to prison. This Court reverses.

                                                  I.

        {¶2}     In 2007, a jury found Jones guilty of possession of cocaine, trafficking in heroin,

having weapons while under a disability, possession of criminal tools, and two counts of

possession of heroin. One count of possession of heroin was a first-degree felony under R.C.

2925.11(C)(6)(e) and one was a second-degree felony under R.C. 2925.11(C)(6)(d). This is

Jones’ fourth appeal. In his first and second appeals, we vacated the trial court’s sentencing

entries without addressing his assignments of error because the trial court did not accurately

inform him of his post-release control obligations. State v. Jones, 9th Dist. No. 24520, 2009-

Ohio-3360 (“Jones I”); State v. Jones, 9th Dist. No. 23875, 2008-Ohio-5443 (“Jones II”). This

Court addressed the merits of his third appeal, reversing the trial court’s judgment in part and
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ordering a new sentencing hearing because he had received multiple sentences for allied offenses

of similar import. State v. Jones, 9th Dist. No. 25032, 2010-Ohio-4455, at ¶15-18, 21 (“Jones

III”).

         {¶3}     On October 22, 2010, the trial court sentenced Jones again.   This time, the trial

court merged his convictions for possession of heroin and trafficking in heroin for purposes of

sentencing and sentenced him to a four-year prison term. The trial court also sentenced him to

prison terms of four years for possession of cocaine; twelve months for having weapons while

under disability; six months for possessing criminal tools; and another three-year prison term for

the second conviction of possession of heroin. Jones appealed, raising four assignments of error

for our review.

                                                 II.

                                  Assignment of Error Number One

         “THE TRIAL COURT COMMITTED PLAIN ERROR IN SENTENCING
         APPELLANT BASED UPON OFFENSES WHICH WERE BARRED BY THE
         ALLIED OFFENSE STATUTE.”

         {¶4}     Jones’ first assignment of error is that the trial court committed plain error by

sentencing him to separate prison terms for each possession of heroin conviction because the

crimes did not arise from separate animus. He has argued that, although this Court reviewed the

merits of his assignment of error in his last appeal and rejected a similar argument, this Court

should reverse and remand this case on the authority of State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314.

         {¶5}     In Jones III, this Court determined that Jones’ convictions for possession of

heroin arose from separate animus based on our analysis of the offenses under State v.

Blankenship (1988), 38 Ohio St.3d 116. Jones III at ¶17. We concluded that the two convictions
                                                  3


were based on the possession of two separate amounts of heroin and overruled Jones’ assignment

of error with respect to these convictions. When we decided Jones’ last appeal, and when the

trial court resentenced him, precedent from the Ohio Supreme Court required trial courts to

analyze the elements of charged offenses in the abstract. See State v. Rance (1999), 85 Ohio

St.3d 632, paragraph one of the syllabus. The Supreme Court overruled Rance in December

2010, however, and held that “[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 syllabus. Since then, this Court has consistently remanded cases for

further proceedings in the trial court to apply Johnson for the first time. See, e.g., State v. Vitt,

9th Dist. No. 10CA0016-M, 2011-Ohio-1448, at ¶8; State v. Brown, 9th Dist. No. 25287, 2011-

Ohio-1041, at ¶50. Because imposing two sentences for allied offenses constitutes plain error,

we have also recognized that it is appropriate to remand cases for consideration under Johnson

when the appellant argues plain error. See State v. Reives-Bey, 9th Dist. No. 25138, 2011-Ohio-

1778, at ¶28-33, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, at ¶31.

       {¶6}    Jones’ previous appeal does not foreclose consideration of his argument in light of

Johnson. Under the doctrine of the law of the case, “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 v. Nolan (1984), 11 Ohio St.3d 1, 3.

Consequently, “the decision of an appellate court in a prior appeal will ordinarily be followed in

a later appeal in the same case and court.” Id. at 4. The doctrine is a rule of practice, however,

and an exception to its application exists when there has been an intervening decision of the

Supreme Court. See id. at 5. Johnson is such a decision and, in light of our precedent, it is

appropriate to remand this case so that the trial court can apply Johnson in the first instance.
                                                 4


       {¶7}    In reaching this conclusion, it is significant that Jones’ resentencing hearing in

2010 followed this Court’s opinion in which we reversed in part and remanded for resentencing

to correct another problem related to allied offenses. In a similar context, the Ohio Supreme

Court has concluded that “[t]he doctrine of res judicata does not bar a defendant from objecting

to issues that arise at the resentencing hearing or from the resulting sentence.” State v. Wilson,

129 Ohio St.3d 214, 2011-Ohio-2669, at ¶30. Other courts that have reached a different result

have done so in a different context. See, e.g., State v. Freeman, 11th Dist. No. 2010-T-0069,

2011-Ohio-2457, at ¶13; State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716, at ¶3. In those

cases, the appeal was taken after a resentencing hearing was held to correct problems with post-

release control notification. The courts applied State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, and concluded that the scope of the appeals was limited to issues arising from the

resentencing which, in turn, was limited to post-release control. See Freeman at ¶10-13; Poole at

¶10-15. As noted above, however, this case presents a different situation.

       {¶8}    Because the trial court resentenced Jones before Johnson was decided and the

imposition of multiple sentences for allied offenses constitutes plain error, his first assignment of

error is sustained. The matter is remanded to the trial court to consider the application of

Johnson.

                                Assignment of Error Number Two

       “THE TRIAL COURT’S SENTENCE WAS CONTRARY TO LAW.”

                               Assignment of Error Number Three

       “THE TRIAL COURT ERRED IN SENTENCING APPELLANT BY FAILING
       TO INCLUDE THE REQUIREMENTS OF R.C. §2929.19(B)(3)(f) IN THE
       JUDGMENT OF CONVICTION.”
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                                Assignment of Error Number Four

       “THE TRIAL COURT ERRED IN SENTENCING APPELLANT BY FAILING
       TO CALCULATE APPELLANT’S JAIL TIME CREDIT.”

       {¶9}    Jones’ remaining assignments of error challenge other aspects of his sentencing.

In light of this Court’s resolution of his first assignment of error, his second, third, and fourth

assignments of error are not yet ripe for review. See Reives-Bey at ¶35.

                                                III.

       {¶10} Jones’ first assignment of error is sustained. As set forth above, we do not reach

his remaining assignments of error. The judgment of the Summit County Court of Common

Pleas is reversed and this matter is remanded to the trial court for further proceedings consistent

with this opinion.

                                                                               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(E). 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.
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      Costs taxed to Appellee.




                                                 BETH WHITMORE
                                                 FOR THE COURT



MOORE, J.
DICKINSON, J.
CONCUR

APPEARANCES:

DEREK CEK, Attorney at Law, for Appellant.

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