[Cite as State v. Howard-Ross, 2016-Ohio-1438.]
                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                     )   CASE NO. 13 MA 0168
                                                  )
        PLAINTIFF-APPELLEE                        )
                                                  )
VS.                                               )   OPINION AND
                                                  )   JUDGMENT ENTRY
DERRICK HOWARD-ROSS                               )
aka DERRICK ROSS-HOWARD                           )
                                                  )
        DEFENDANT-APPELLANT                       )

CHARACTER OF PROCEEDINGS:                             Appellant’s Application for Reopening
                                                      Pursuant to App.R. 26(B)

JUDGMENT:                                             Application Denied.

APPEARANCES:

For Plaintiff-Appellee:                               Atty. Paul J. Gains
                                                      Mahoning County Prosecutor
                                                      Atty. Ralph M. Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 West Boardman Street, 6th Floor
                                                      Youngstown, Ohio 44503

For Defendant-Appellant:                              Derrick Howard-Ross, Pro se
                                                      Inmate No. 650-049
                                                      Marion Correctional Institution
                                                      P.O. Box 57
                                                      Marion, Ohio 43301

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                      Dated: March 30, 2016
[Cite as State v. Howard-Ross, 2016-Ohio-1438.]
PER CURIAM.


        {¶1}    Appellant Derrick Howard-Ross has filed an application to reopen his

appeal. He raises a sole assignment of error arguing that his appellate counsel was

ineffective for failing to argue that his improper discharge of a firearm into a habitation

and felonious assault convictions are allied offenses that should have merged for

sentencing purposes. As the offenses were constituted against multiple victims, the

offenses are not allied in accordance with State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995, 34 N.E.3d 892.             Accordingly, Appellant’s application for reopening is

denied.

                                 Factual and Procedural History

        {¶2}    Appellant had previously been in a relationship with the female victim in

this case.     Sometime after the relationship ended, Appellant went to the female

victim’s house and saw her watching television with the male victim and her two-year-

old daughter. Appellant believed that the female victim was dating the male victim.

        {¶3}    Appellant knocked on the window with his gun before firing several

shots into the house, striking the male victim with one or two bullets. Appellant then

fled the scene. Shortly thereafter, he was arrested.

        {¶4}    At trial, Appellant admitted that he fired shots into the house, but

claimed that he did so in self-defense after the male victim shot at him. He was

convicted of: one count of discharging a firearm into a habitation, in violation of R.C.

2923.161(A)(1)(c); felonious assault, in violation of R.C. 2903.11(A)(2)(D); and two

firearm specifications, in violation of R.C. 2941.145(A).
                                                                                     -2-

      {¶5}   He was sentenced to eight years of incarceration on the improper

discharge count, eight years on the felonious assault count, and three years per

firearm specification. The firearm specifications merged for sentencing purposes.

The improper discharge and felonious assault counts did not merge. Each sentence

was ordered to run consecutively.      He was sentenced to an aggregate term of

nineteen years of incarceration.

      {¶6}   Appellant filed a timely appeal.      His appellate counsel raised four

assignments of error alleging the following errors: (1) the trial court denied Appellant

his constitutional right to participate in his defense; (2) the trial court erroneously

denied his motion for a mistrial after a witness blurted out testimony regarding prior

bad acts; (3) the trial court improperly imposed time restraints regarding the

presentation of his defense; and (4) the trial court improperly based his sentence on

his trial behavior. We affirmed the Appellant’s conviction and sentence in State v.

Howard-Ross, 7th Dist. No. 13 MA 168, 2015-Ohio-4810.

      {¶7}   On February 4, 2016, Appellant filed a timely application to reopen his

appeal pursuant to App.R. 26(B). He has attached an affidavit to his application

where he states his belief that his appellate counsel failed to provide him with

effective assistance.

                                      Reopening

      {¶8}   Pursuant to App.R. 26(B)(1), a criminal defendant “may apply for

reopening of the appeal from the judgment of conviction and sentence, based on a

claim of ineffective assistance of appellate counsel.” An applicant must demonstrate
                                                                                  -3-

that “there is a genuine issue as to whether the applicant was deprived of the

effective assistance of counsel on appeal.” App.R. 26(B)(5). If the application is

granted, the appellate court must appoint counsel to represent the applicant if the

applicant is indigent and unrepresented. App.R. 26(B)(6)(a).

      {¶9}   In order to show ineffective assistance of appellate counsel, the

applicant must meet the two-prong test outlined in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, the applicant

must demonstrate deficient performance of counsel and resulting prejudice. Id. at

687. See also App.R. 26(B)(9).

      {¶10} An application for reopening must contain: “One or more assignments

of error or arguments in support of assignments of error that previously were not

considered on the merits in the case by any appellate court or that were considered

on an incomplete record because of appellate counsel’s deficient representation.”

App.R. 26(B)(2)(c). See also State v. Clark, 7th Dist. No. 08 MA 15, 2015-Ohio-

2584, ¶19. Here, Appellant presents a single assignment of error arguing that his

appellate counsel was deficient for failing to argue that his improper discharge and

felonious assault offenses are allied and should have merged for sentencing

purposes.

                                 Assignment of Error

      THE TRIAL COURT ERRED BY CONVICTING AND SENTENCING

      HOWARD-ROSS TO CONSECUTIVE SENTENCES ON ALLIED

      OFFENSES OF SIMILAR IMPORT.
                                                                                      -4-

       {¶11} Appellant contends that he fired several shots through a window into a

house which formed the basis for both his improper discharge and felonious assault

convictions. Appellant explains that, pursuant to State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061, convictions for multiple offenses merge for

sentencing purposes when it is possible to commit both offenses with the same

conduct and the offenses were part of the same conduct. Appellant argues that both

convictions were supported by the same conduct, thus the first Johnson prong is met.

In regard to the second prong, Appellant argues that the offenses were committed

with the same intent, to injure or kill the male victim, thus he acted with a single

animus. As both Johnson prongs are met, Appellant argues that his offenses are

allied and should have merged.

       {¶12} Pursuant to State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 392, the state contends that when a defendant’s conduct constitutes offenses

against separate victims, the offenses are of dissimilar import and are not allied. The

state argues that this incident involved three victims: the male victim, the female

victim, and the female victim’s daughter. As offenses involving multiple victims are

not allied offenses, the state contends that the trial court properly determined that the

improper discharge and felonious assault convictions do not merge, here.

       {¶13} In support of his arguments, Appellant cites to the trial court’s

statement: “You can't commit that crime without committing the other crime, and you

can't commit that other crime without committing this crime. I don't know how those

things could possibly merge.” (10/1/13 Sentencing Hrg. Tr., p, 17.) While the trial
                                                                                       -5-

court’s statement is not as clear as it might be, it is apparent that the court is stating

its belief that the crimes do not merge. The trial court does clearly explain in its

sentencing entry that Appellant’s act of felonious assault had one victim, the male

victim, while the improper discharge offense had separate victims, the female victim

and her daughter.      Accordingly, the court determined that each offense had a

separate animus and were not allied offenses.

       {¶14} Appellant relies on Johnson; however, the Ohio Supreme Court

modified Johnson in State v. Ruff, supra. In Ruff, the Court announced a new test

which asks three questions: (1) whether the offenses are dissimilar in import or

significance, i.e. each offense caused a separate and identifiable harm; (2) whether

the offenses were separately committed; and, (3) whether the offenses were

committed with separate animus or motivation. Id. at ¶25. If the answer to any of

these questions is in the affirmative, then the offenses do not merge. Id.

       {¶15} Relevant to the issue at hand, Ruff also held that “[w]hen a defendant's

conduct victimizes more than one person, the harm for each person is separate and

distinct, and therefore, the defendant can be convicted of multiple counts.” Id. at ¶26.

As the state argues, this case presented three victims. The trial court specifically

determined that there was one, male, victim of the felonious assault offense and

there were two victims of the improper discharge offense, the woman and her

daughter. As Appellant’s conduct impacted multiple victims, the harm for each victim

is separate and distinct.
                                                                                     -6-

      {¶16} Appellant relies on two cases:        State v. Hodges, 1st Dist. No. C-

110630, 2013-Ohio-1195 and State v. Walton, 5th Dist. No. 2011 CA 00214, 2012-

Ohio-2597.    Appellant argues that the Hodges Court determined that multiple

gunshots that are fired in quick succession constitute the same conduct.          As to

Walton, Appellant contends that the Fifth District determined that shots fired into an

occupied apartment which caused the death of a young victim constituted both

improper discharge and felony murder.

      {¶17} Both of these cases are pre-Ruff. As such, neither acknowledges that

offenses involving multiple victims result in a separate animus. Consequently, they

are inapplicable, here. Appellant further argues that the indictment accuses him of

victimizing the male victim and fails to mention the other victims.        Contrary to

Appellant’s arguments, the improper discharge count does not specify the victims.

Pursuant to the applicable law it is apparent that Appellant’s offenses are not allied.

The trial court properly sentenced him for each offense.

      {¶18} As previously stated, in order to show ineffective assistance of

appellate counsel, Appellant must demonstrate deficient performance of counsel and

resulting prejudice.   Because the trial court correctly found separate animus,

appellate counsel’s performance is clearly not deficient for failing to raise a specious

assignment of error as to allied offenses.      Appellant has not satisfied the first

Strickland prong, thus has not raised a genuine issue as to whether he was deprived

of the effective assistance of counsel on appeal. Accordingly, Appellant’s application

for reopening is denied.
                           -7-


Waite, J., concurs.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.
