[Cite as State v. Culp, 2013-Ohio-5799.]


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

STATE OF OHIO                                         C.A. No.      26188

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RICHARD A. CULP                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 11 01 0018

                                 DECISION AND JOURNAL ENTRY

Dated: December 31, 2013



        CARR, Presiding Judge.

        {¶1}     Appellant, Richard Culp, appeals the judgment of the Summit County Court of

Common Pleas. This Court reverses and remands.

                                                 I.

        {¶2}     The horrific circumstances of this case emanate from events that took place from

December 11, 2010, to December 12, 2010. Subsequently, on January 12, 2011, Culp was

indicted by the Summit County Grand Jury on five counts of rape with repeat violent offender

and sexually violent predator specifications accompanying each count, as well as one count of

kidnapping with a repeat violent offender specification and a sexual motivation specification.

Culp pleaded not guilty to the charges at arraignment, and the matter proceeded to a jury trial.

The jury found Culp guilty of the rape and kidnapping charges, and the accompanying sexual

motivation specification. The jury also found Culp to be a sexually violent predator as alleged

with each of the five counts of rape in the indictment. After a separate bench trial, Culp was also
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found to be a repeat violent offender as alleged with each underlying count in the indictment.

Culp received a prison sentence of 50 years to life.

        {¶3}    Culp filed a direct appeal to this Court. On November 21, 2012, this Court issued

a decision affirming Culp’s convictions. State v. Culp, 9th Dist. Summit No. 26188, 2012-Ohio-

5395.

        {¶4}    On February 14, 2013, Culp filed an application to reopen his direct appeal on the

basis that appellate counsel failed to assign as error that Culp was convicted of allied offenses of

similar import. The State filed a memorandum in opposition to the motion. On April 2, 2013,

this Court issued a journal entry granting the application. Culp now raises one assignment of

error for review.

                                                II.

                                  ASSIGNMENT OF ERROR

        THE TRIAL COURT COMMITTED PLAIN ERROR IN IMPOSING
        CONSECUTIVE SENTENCES OF TEN YEARS TO LIFE IMPRISONMENT
        FOR RAPE WITH SEXUALLY VIOLENT PREDATOR SPECIFICATIONS AS
        A MATTER OF LAW, AND THEREBY FAILING TO ADDRESS THE ISSUE
        OF MERGER OF THESE COUNTS AS ALLIED OFFENSES OF SIMILAR
        IMPORT.

        {¶5}    In his sole assignment of error, Culp argues that the trial court committed plain

error by failing to analyze whether the five counts of rape in this case were allied offenses of

similar import. Culp contends that this matter must be remanded for the trial court to conduct an

allied offenses analysis pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. This

Court agrees.

        {¶6}    R.C. 2941.25 states:

        (A) Where the same conduct by 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.
                                                3


       (B) Where 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.

       {¶7}    In Johnson, 2010-Ohio-6314, the Supreme Court of Ohio clarified the application

of R.C. 2941.25. Specifically, the court overruled State v. Rance, 85 Ohio St.3d 632 (1999), “to

the extent that it calls for a comparison of statutory elements solely in the abstract under R.C.

2941.25. [Now 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 ¶ 44. The trial court must first determine “whether it is possible to commit one offense and

commit the other with the same conduct[.]” Id. at ¶ 48. If the trial court answers that question in

the affirmative, “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.’” Id. at ¶ 49, quoting State v.

Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring). The Supreme

Court has further held that the “[f]ailure to merge allied offenses of similar import constitutes

plain error, and prejudice exists even where a defendant’s sentences are to run concurrently

because ‘a defendant is prejudiced by having more convictions than are authorized by law.’”

State v. Asefi, 9th Dist. Summit No. 26430, 2012-Ohio-6101, ¶ 6, quoting State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31.

       {¶8}    Having reviewed the record, it is apparent that the trial court did not conduct an

analysis pursuant to Johnson in this case to determine whether the five counts of rape constituted

allied offenses of similar import. While the trial court discussed a variety of legal issues at the

sentencing hearing, it never made the initial determination regarding whether, pursuant to

Johnson, the conduct at issue in this case constituted allied offenses pursuant to R.C. 2941.25.
                                                 4


This Court has consistently declined to undertake that analysis in the first instance. See State v.

Chisholm, 9th Dist. Summit No. 26007, 2012-Ohio-3932, ¶ 22. Accordingly, this matter must be

remanded solely on the basis that the trial court must make the initial determination of whether

Culp was convicted of allied offenses pursuant to standard set forth in Johnson.

       {¶9}    Culp’s sole assignment of error is sustained.

                                                III.

       {¶10} Culp’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed and the caused remanded for further proceedings consistent

with this decision.

                                                                              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(C). 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.




                                           DONNA J. CARR
                                           FOR THE COURT



WHITMORE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

NICHOLAS SWYRDENKO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
