[Cite as State v. Sutton, 2011-Ohio-2249.]


          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 90172




                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.


                                        MICHAEL SUTTON

                                                   DEFENDANT-APPELLANT




                                JUDGMENT:
                          REVERSED AND REMANDED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-481840

        BEFORE: Jones, J., Kilbane, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                    May 12, 2011
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                    ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} This cause is before this court on remand from the Supreme Court of Ohio. In

State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677 (Sutton I), this court found that

felonious assault and attempted murder were allied offenses of similar import and merged

appellant’s convictions for felonious assault and attempted murder as to each victim.   This

court also reversed appellant’s conviction for two felony counts of inducing panic and

remanded the case to the lower court to enter a judgment convicting appellant of two
misdemeanor counts of inducing panic.      Further, this court found that appellant’s sentence of

42½ years in prison was grossly disproportionate to the severity of his offenses.              The

appellant’s convictions were affirmed by this court in all other respects.

       {¶ 2} Appellant appealed our decision to the Ohio Supreme Court and the state

cross-appealed on the issue of allied offenses.     In February 2009, the Ohio Supreme Court

dismissed Sutton’s appeal, but accepted the state’s cross-appeal.    The trial court stayed further

action on the case pending the decision of the Supreme Court.

       {¶ 3} In March 2011, the Supreme Court issued a judgment entry stating, in part:

“This cause is remanded to the court of appeals for further consideration in view of our

decision in State v. Johnson, [128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061].”

       {¶ 4} Thus, our task is to consider whether the Ohio Supreme Court’s decision in

Johnson affects our original holding in Sutton I, where we merged Sutton’s convictions for

felonious assault and attempted murder.

       {¶ 5} In Johnson, the Ohio Supreme Court overruled State v. Rance (1999), 85 Ohio

St.3d 632, 710 N.E.2d 699, which required a comparison of statutory elements solely in the

abstract under R.C. 2941.25, and held that the court must consider the defendant’s conduct

when determining whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25. Johnson at ¶44.

       {¶ 6} The Johnson Court held that:
       “In determining whether offenses are allied offenses of similar import under R.C.
       2941.25(A), the 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. * * * If the offenses correspond to such a degree that the
       conduct of the defendant constituting commission of one offense constitutes commission
       of the other, then the offenses are of similar import.

       “If 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 act,
       committed with a single state of mind.’ * * *

       “If the answer to both questions is yes, then the offenses are allied offenses of similar
       import and will be merged.

       “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.” (Internal citations omitted.)   Id. at ¶ 48-51.

       {¶ 7} In other words, “[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 act, committed with a single state of mind.’      If the answer to both

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

Johnson at ¶49-50, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d

149, ¶50.

       {¶ 8} In Sutton I, we analyzed the case pursuant to State v. Cabrales, 118 Ohio St.3d

54, 2008-Ohio-1625, 886 N.E.2d 181, and found:
       “The facts in this case are straightforward. On the evening in question, appellant and
       three other individuals, Kenny Phillips, Deante Creel, and Akeem Tidmore, were riding
       together in a Chevrolet Caprice. Police officers saw the Chevrolet pull alongside a
       Lincoln Mark VIII containing Ken Tolbert, Chris Lovelady, Kevin Tolbert, and Leonard
       Brown. The police witnessed gunshots coming from the Chevrolet. The driver of the
       Lincoln, Ken Tolbert, and one passenger, Chris Lovelady, sustained head injuries from
       the gunshots; the other two passengers were uninjured.
                                                                  1




       “The grand jury issued the following indictment: four counts of attempted murder
       (attempted purposely to cause the death of another); four counts of felonious assault
       (knowingly causing or attempting to cause harm to another with a gun); two counts of
       felonious assault (causing serious physical harm to another); and two counts of
       attempted felonious assault (knowingly attempting to cause serious physical harm to
       another). There were other counts in the indictment, but they are not relevant to the
       issue before us here.

       “***

       “We hold here that shooting at someone and hitting them, but not killing them, and
       shooting at someone but not hitting them, are both manners in which these attempted
       murders were perpetrated. In fact, the various felonious assaults are subsumed in the
       attempted murders. Hence, the first prong (the elements of all the various felonious
       assaults charged here, if proved, would result in the commission of attempted murder) is
       satisfied.

       “The second prong of this inquiry is whether there was a separate animus to each of the
       felonious assaults; we hold there was not. There is one act-shooting the automobile. The
       fact that the automobile had four occupants resulted in single charges relating to each of
       the four victims, but the animus of the felonious assaults and the attempted murders was
       the same. Hence, we conclude that all of the felonious assaults are allied offenses of
       similar import to the attempted murders.” Id. at ¶85-86, ¶93-94.

       {¶ 9} Although our analysis now is under Johnson, and not Cabrales or Rance,          the

outcome is still the same.     In considering the conduct of Sutton, we again find that he acted


       1
           A complete recitation of the facts are set forth in Sutton I.
with one animus when he fired multiple successive shots into the car containing the four

victims; therefore, the animus of the felonious assaults and the attempted murders was the

same.

        {¶ 10} Thus, under Johnson we hold that the trial court erred in failing to merge the

felonious assault and attempted murder convictions as to each of the four victims.

        {¶ 11} The case is reversed and remanded to the trial court for proceedings consistent

with this opinion.

        It is ordered that appellant recover of appellee 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

common pleas court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
