[Cite as State v. James, 2015-Ohio-4987.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102604



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                        BYRON JAMES
                                                      DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART
                            AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-566251-A

        BEFORE:           Stewart, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: December 3, 2015
ATTORNEY FOR APPELLANT

P. Andrew Baker
17877 St. Clair Avenue, Suite 150
Cleveland, OH 44110


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Anna M. Faraglia
Oscar E. Albores
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Byron James repeatedly shot his victim in front of a

group of people after chasing the victim around a neighborhood — he did not even bother

to hide his identity from the group of people, all of whom knew him. A jury found these

facts sufficient to find James guilty of aggravated murder, two counts of felonious assault,

discharging a weapon near prohibited premises and into a habitation, along with firearm

specifications for those respective counts. In this direct appeal of his conviction, James

argues that trial counsel was ineffective for failing to seek a dismissal of the charges on

speedy trial grounds and for failing to object to certain trial testimony, that his conviction

was against the manifest weight of the evidence, that counts for discharging a weapon

near prohibited premises and discharging a weapon into a habitation should have merged

for sentencing, and that the court erred by concluding that the discharge specifications

were subject to mandatory consecutive service. We affirm in part, reverse in part, and

remand.

       {¶2} James’s first assignment of error complains that defense counsel was

ineffective for three reasons: (1) trial counsel failed to seek a dismissal of the indictment

on speedy trial grounds; (2) trial counsel failed to object when the state improperly

bolstered the credibility of its witnesses; and (3) trial counsel failed to request merger of

the firearm discharge specifications.
       {¶3} A defendant claiming ineffective assistance of counsel bears the burden of

establishing two elements: (1) that trial counsel’s performance fell below objective

standards for reasonably effective representation, and (2) that counsel’s deficiency

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).

       {¶4} To satisfy the first element of the Strickland test, appellant must direct the

court to specific acts or omissions by his counsel. Id. at 690. We consider whether in

light of all the circumstances counsel’s performance was outside the wide range of

professionally competent assistance. Id. Our assessment of counsel’s performance is

“highly deferential” so we indulge in “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance * * *.” Id. at 689. Further,

counsel’s performance is evaluated in light of an attorney’s discretion to develop

appropriate trial strategies according to the attorney’s independent judgment, given the

facts of the case, at least some of which may not be reflected in the trial record. Id. at

689-690.

       {¶5} To satisfy the second Strickland element, the defendant must show that there

is a reasonable probability that, but for counsel’s errors, the result of the proceedings

would have been different. Id. at 694. A “reasonable probability” is defined as one that

is “sufficient to undermine confidence in an outcome.” Id. at 694.

       {¶6} Trial counsel did not perform outside the wide range of professionally

competent assistance required in the context of speedy trial issues.
        {¶7} Although the state is required to bring a criminal defendant to trial within 270

days after arrest, see R.C. 2945.71(C), James was held in jail in lieu of bail, so the

triple-count provisions of R.C. 2945.71(E) applied. This means that the state had to

bring James to trial within 90 days of his arrest. James was arrested on December 9,

2013, so his trial should have started no later than March 10, 2014. Trial did not

commence until January 26, 2015, well outside the 90-day speedy trial time.

        {¶8} The speedy trial time can be tolled on the accused’s own motion. See R.C.

2945.72(E). James concedes that the speedy trial time was tolled many times at his

request, but claims that one continuance ordered by the court did not come at his request

and is dispositive of the speedy trial issue. That continuance, granted on October 15,

2014, stated: “Pretrial not held. Defense counsel in trial in another courtroom. Final

pretrial set at 10/29/14 at 9:00 AM. Trial set at 1/26/15 at 9:00 AM.” James argues that

this entry does not indicate that the trial date was set at his request, nor does it indicate

that he agreed to waive his speedy trial time from October 15, 2014 through January 26,

2015.
       {¶9} While James may not have specifically acquiesced to the January 26, 2015

trial date, a defendant is bound by the actions of counsel in waiving speedy trial rights by

seeking or agreeing to a continuance, even if no formal motion for a continuance has been

filed. See State v. Davis, 46 Ohio St.2d 444, 449, 349 N.E.2d 315 (1976). There is no

question that trial counsel’s inability to attend the October 15, 2014 pretrial necessitated a

delay chargeable to James that tolled the speedy trial time. See, e.g., State v. Humphries,

8th Dist. Cuyahoga No. 99924, 2014-Ohio-5423, ¶ 9 (continuances of pretrials granted at

defendant’s request tolled speedy trial time); State v. Walker, 8th Dist. Cuyahoga No.

99239, 2013-Ohio-3522, ¶ 22. The court rescheduled the pretrial for October 29, 2014,

but that pretrial was continued “at the request of defendant” for “further discussions” — a

notation that, given prior references to “ongoing plea negotiations,” we understand as

indicating that the parties were engaged in plea negotiations.                Likewise, pretrials

scheduled for November and December were continued at James’s request, with the court

noting the reason for the continuances as “further discussions.” So even though James

may have not agreed to the January 2015 trial date, counsel, on his behalf, did request

additional continuances that tolled the speedy trial time regardless of that trial date. 1

With no speedy trial issue manifest on the record, trial counsel had no duty to file a

motion to dismiss on that basis.


           There was one continuance of the “final” pretrial requested by the state on November 17,
       1


2014, causing the court to reschedule the pretrial to November 20, 2014, at which time James asked
for another continuance. James makes no argument that this three-day delay occasioned by the state’s
request, standing alone, was what violated his speedy trial right.
      {¶10} James next argues that trial counsel failed to object on numerous occasions

where the state improperly bolstered the credibility of its own witnesses by inquiring into

whether they were currently employed or had children. He argues that these questions

violated Evid.R. 608(A)(2), which states that “evidence of truthful character is admissible

only after the character of the witness for truthfulness has been attacked by opinion or

reputation evidence or otherwise.”

      {¶11} It is important to understand that the “evidence of truthful character”

referred to in Evid.R. 608(A)(2) is not the same thing as “credibility.” “Truthfulness” is

a facet of “credibility.” State v. Markland, 8th Dist. Cuyahoga No. 45137, 1983 Ohio

App. LEXIS 13748 (Apr. 21, 1983). The Staff Note to Evid.R. 608(A)(2) makes this

point, noting that a 1992 amendment to the rule “substitutes the phrase ‘character for

truthfulness’ for the term ‘credibility.’ The latter term is too broad and, therefore, may

cause confusion.”
       {¶12} None of the questions posed by the state remotely touched on Evid.R.

608(A)(2) and the witness’s character for truthfulness. They were general background

questions asked of the witnesses as they began their testimony: their age, where they

lived, whether they had a family, and their employment status. Although these kinds of

questions may indirectly give the trier of fact reason to find the witness more or less

credible, this is not the type of testimony prohibited by Evid.R. 608(A)(2). What is

more, James himself testified and answered very similar questions on direct examination

regarding whether he graduated from high school, whether he was employed, and whether

he had any children. James cannot be heard to complain that trial counsel was deficient

for failing to object to the same type of trial strategy.

       {¶13} James also complains that the state improperly asked its own witnesses

whether they had any prior convictions. The state is entitled to ask its own witnesses

whether they have any prior convictions as a preemptive attempt to “take the wind out of

the defendant’s sails regarding the witness’ credibility.” United States v. Handly, 591

F.2d 1125, 1128, fn. 1 (5th Cir.1979); see also Ohler v. United States, 529 U.S. 753, 758,

120 S.Ct. 1851, 146 L.Ed.2d 826 (2000) (noting that defendants often introduce evidence

of prior convictions on direct examination to “remove the sting”). While one of the

state’s witnesses did not have a prior conviction, that fact alone did not make the question

objectionable on the grounds that the answer bolstered that witness’s truthful character.

Counsel therefore had no reason to object to the state’s questions.
          {¶14} For his second assignment of error, James complains that the jury’s verdict

is against the manifest weight of the evidence. He argues that there was no physical

evidence to prove his identity as the shooter and that the state’s witnesses had credibility

issues.

          {¶15} The manifest weight of the evidence standard of review requires us to

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that

the trier-of-fact’s decision must be plainly or obviously contrary to all of the evidence.

This is a difficult burden for an appellant to overcome because the resolution of factual

issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or

disbelieve any witness or accept part of what a witness says and reject the rest.” State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
       {¶16} The state’s evidence consisted of the testimony of several witnesses who

collectively testified that the victim and a group of his friends had gathered in front of a

house when James pulled up in his car. James, who was not wearing anything that might

hide his identity, exited the car in the plain sight of those present. He said something to

the victim that the witnesses could not hear. He then pulled out a handgun and began

firing. The victim fled, moving between parked cars on the street. James pursued the

victim, continuing to fire between three to seven shots. One of those gunshots struck the

victim in the back and caused his death. In addition to the shot that killed the victim, one

of the shots fired by James struck a house on the street. After killing the victim, James

reentered his car and drove away. James subsequently sold the car for $80 and then

traveled to Georgia. He remained there for nearly one year despite knowing that he was

wanted for the murder, until his arrest and return to Cuyahoga County.

       {¶17} James testified in his own defense and claimed that two witnesses to the

shooting fabricated his involvement based on “differences” they had. He testified that

one of the witnesses was upset because he had been talking to the witness’s “girl”; he

testified that the other witness was “trying to be tough all the time.” James claimed that

these two witnesses had broken the front and rear windows of his car. He claimed that

he left Ohio after the shooting to attend a funeral. After learning that the police had

issued a warrant for his arrest, James said that he decided to “chill out” in Georgia until

his family was able to finance the services of an attorney.
         {¶18} James also attacks the credibility of the witnesses, arguing that they did not

identify him as the shooter in their 911 call for emergency services despite later claiming

to know who he was when the shooting occurred. One witness explained that he did not

immediately identify James based on the “code of the streets” not to “snitch.” The

witness said that at the time he made the 911 call, he believed that the victim was “okay,”

but when he learned that the victim had died, he decided to come forward and identify

James.

         {¶19} Another witness testified that he was walking down the street at the time

James drove by in his car. This witness, who had known James since they were children,

said hello to James and kept walking. He then heard, but did not see, shots being fired.

The witness ran for cover and saw the victim on the ground. He acknowledged that he

did not immediately identify James by name to the police because he did not actually see

the shooting.

         {¶20} A fourth witness, whom James claims “did absolutely nothing to contact the

police or report what he had witnessed” testified that after witnessing the shooting, he

asked his mother to call the police as he went out to attend to the victim. This witness

went to the hospital to await the victim’s treatment and stayed there for two hours before

returning to his home. He spoke to the police the following day and identified James as

the shooter.
       {¶21} Finally, James acknowledged that another witness immediately identified

him as the shooter to the police, but claimed that this witness was a convicted felon who

gave such sarcastic and flippant testimony that nothing he said was worthy of belief.

While this witness may not have been as decorous as James would wish him to be, the

witness’s testimony was consistent in all material respects with that given by the other

witnesses to the shooting. We have no basis to conclude that the jury lost its way by

finding the state’s witnesses believable.

       {¶22} James also complains that the jury’s guilty verdict on the count relating to

discharging into a habitation was against the manifest weight of the evidence because

there was no evidence to show that he knowingly fired a shot into the residence. This is

really an argument going to the sufficiency, not the weight, of the evidence.         And

because the sufficiency of the evidence has not been assigned as error on this issue, it is

not properly before us for review.2 See App.R. 16(A)(7).




         However, even had the argument been properly presented, it would be
       2


meritless: there was testimony from the occupant of the house concerning a bullet
hole in the house that did not exist prior to the shooting and another witness
testified that one of James’s missed shots left a bullet hole in the side of the house.
That evidence was sufficient to establish that James discharged a firearm into a
habitation.
       {¶23} The third assignment of error complains that the court erred by failing to

merge Counts 5 and 6 — discharging a firearm on or near prohibited premises and

discharging into a habitation — into the other four counts, all of which the court had

otherwise merged for sentencing. James acknowledges that trial counsel conceded that

Counts 5 and 6 were not allied, but argues that trial counsel was wrong to make that

concession and that plain error exists.

       {¶24} Ordinarily, the issue raised in this assignment of error would not be subject

to review on appeal under authority of R.C. 2953.08(D)(1). That section states: “A

sentence imposed upon a defendant is not subject to review under this section if the

sentence is authorized by law, has been recommended jointly by the defendant and the

prosecution in the case, and is imposed by a sentencing judge.” Because trial counsel

agreed with the state that Counts 5 and 6 do not merge, R.C. 2953.08(D)(1) would seem

to deprive this court of jurisdiction to consider this issue.
       {¶25} However, in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, paragraph one of the syllabus states: “When a sentence is imposed for

multiple convictions on offenses that are allied offenses of similar import in violation of

R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate review of that sentence even

though it was jointly recommended by the parties and imposed by the court.” The

Supreme Court reached this conclusion by finding that the term “authorized by law” as

used in R.C. 2953.08(D)(1) encompassed not only what the law permits, but what the law

requires. Id. at ¶ 20. As applicable here, the allied offenses statute, R.C. 2941.25(A),

states that “there may be only one conviction for allied offenses of similar import.” Id. at

¶ 26 (Emphasis sic.). The Supreme Court interpreted this language to mean that “a trial

court is prohibited from imposing individual sentences for counts that constitute allied

offenses of similar import.” Id.

       {¶26} Nevertheless, Underwood understood that a defendant can expressly waive

the protections of R.C. 2945.21 by “stipulating in the plea agreement that the offenses

were committed with separate animus.” Id. at ¶ 29. In this context, a defendant’s

waiver of statutory protection (the intentional relinquishment of a known right) is

substantively different than a forfeiture (the failure to timely assert a right) of an issue for

appeal. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20.
      {¶27} In Underwood, the parties entered into a plea agreement with an agreed

sentence, but they said nothing about whether the offenses that were the subject of the

plea agreement would merge.       In this case, there was no plea agreement, but at

sentencing the state told the court that it did not believe that Counts 5 and 6 merged for

sentencing and trial counsel agreed, stating that “Count [sic] 5 and 6 do not merge into

the first four counts * * *.” Tr. 945-946. This statement by trial counsel was enough to

constitute a waiver of R.C. 2941.25 and distinguish this case from Underwood.

      {¶28} Under similar circumstances, some appellate courts have invoked the invited

error doctrine in light of trial counsel’s agreement that offenses do not merge for

sentencing. “Invited” error is a doctrine that prevents a party from benefitting from an

action that the party induced the court to make. State v. Smith, 148 Ohio App.3d 274,

2002-Ohio-3114, 772 N.E.2d 1225, ¶ 30 (8th Dist.). In State v. Gardner, 7th Dist.

Mahoning No. 10 MA 52, 2011-Ohio-2644, the court found on very similar facts to those

in this case that a representation by defense counsel at sentencing that counts do not

merge for sentencing constituted “invited error.” Id. at ¶ 36. Similarly, in State v.

Oehler, 6th Dist. Williams No. WM-11-001, 2011-Ohio-6501, the court held that defense

counsel’s agreement to the state’s representation that two counts of an indictment were

not allied offenses and would not merge for sentencing was invited error. Id. at ¶ 11-12.

We agree with these courts and conclude that James cannot take advantage of any error

that trial counsel may have made by agreeing that Counts 5 and 6 do not merge for

sentencing.
        {¶29} Despite trial counsel having invited error with respect to the court’s failure

to merge Counts 5 and 6 for sentencing, James has a viable claim of ineffective assistance

based on trial counsel inviting the error. We have in prior cases held that an ineffective

assistance of counsel claim would not lie when a claimed error had been invited because

“[t]here is no point in having a stringent invited error doctrine only to allow it to be

overcome by finding counsel ineffective for having invited the error.” State v. Doss, 8th

Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 9.                  See also State v. West, 8th Dist.

Cuyahoga Nos. 97391 and 97900, 2013-Ohio-96, ¶ 27; State v. Benitez, 8th Dist.

Cuyahoga No. 98930, 2013-Ohio-2334, ¶ 35. We applied this rule, however, because the

claimed error had been the result of trial counsel’s exercise of trial strategy.                    For

example, in Doss, trial counsel informed the court that his client would waive a Bruton3

issue; in West, trial counsel did not request separate trials for the defendant and his

codefendant brother. In this case, there is no colorable trial strategy that would have

James serve a longer sentence than he might otherwise serve had trial counsel not

conceded the allied offenses issue. So we refuse to apply the rule that the invited error

doctrine forbids consideration of ineffective assistance of counsel claims based on the

invited error doctrine because there is no colorable trial strategy that would support the

invited error.


          In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United
        3


States Supreme Court held that in a joint trial of two defendants, a confession of one codefendant who
did not testify could not be admitted into evidence, even with a limiting instruction that the confession
could only be used against the confessing defendant.
       {¶30} The issue, then, is whether trial counsel was ineffective for agreeing that

discharging a firearm upon or over a public road or highway should not merge with the

offense of improperly discharging a firearm into an occupied structure that is a permanent

or temporary habitation. James could not be sentenced separately for each offense under

R.C. 2941.25(A) if these were allied offenses of similar import.

       {¶31} In Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the

Supreme Court held that “allied offenses are not offenses of similar import if the

offender’s conduct constitutes offenses against different victims or if the harm that results

from each offense is separate and identifiable.” Id. at ¶ 4. This conclusion followed

from its decision in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

where the court stated, “when the defendant’s conduct put more than one individual at

risk, that conduct could support multiple convictions because the offenses were of

dissimilar import.” Id. at ¶ 23. In other words, offenses are of dissimilar import when

they “constitute offenses involving separate victims.” Id. at ¶ 26.

       {¶32} Count 6, improperly discharging into a habitation in violation of R.C.

2923.161(A)(1), charged James with knowingly discharging a firearm into an occupied

structure that was the permanent or temporary habitation of its resident. There was a

stated victim for Count 6, that being the person who was inhabiting the house that had

been struck by a gunshot that James fired.
          {¶33} Count 5, discharging a firearm on or near prohibited premises, was brought

under R.C. 2923.162(A)(3) and charged James with discharging a firearm over a public

road. As defined, R.C. 2923.162(A)(3) does not contain a culpable mental element: “No

person shall do any of the following * * * [d]ischarge a firearm upon or over a public

road or highway.” When a statute does not specify a degree of culpability and does not

plainly indicate a purpose to impose strict liability, the culpable mental state is

“recklessness.” See R.C. 2901.21(B). Even though a statute may not contain a “plain”

indication of an intent to impose strict liability, the intention to impose strict liability can

be inferred from the purpose of the statute; for example, when “the acts are made

unlawful for the good of the public welfare regardless of the [offender’s] state of mind.”

State v. Schlosser, 79 Ohio St.3d 329, 333, 681 N.E.2d 911 (1997). Unlike some strict

liability offenses where there is a specific victim (for example, statutory rape), the victim

of the offense of discharging a firearm upon or over a public road or highway is the

public.     This is because it is the act itself that is prohibited.     The offense can be

completed with no one remotely near the location where the firearm is discharged upon or

over the public road or highway. R.C. 2923.162(A)(3) is a statute intended to benefit the

public good and thus imposes strict liability. Our conclusion is consistent with the

Comment to Ohio Jury Instruction 523.162: “The Committee believes that R.C. 2923.162

imposes strict liability.”    The Ohio Jury Instructions are not authoritative, but are

“helpful” as a “generally accepted interpretation” of a statute. State v. Gardner, 118

Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 97. Consistent with the model jury
instruction, the court charged the jury, with no objection from James, that the offense of

discharging a firearm over a public road or highway is a strict liability offense.

       {¶34} Because the offense of discharging a firearm over a public road or highway

is a strict liability offense, the public was the victim for that offense. The victim of the

offense of discharging a firearm into a habitation was the person occupying the house

struck by the bullet. We thus find that there were separate victims for each offense, so

the counts would not merge for sentencing. On that basis, trial counsel’s concession that

the two counts do not merge did not amount to ineffective assistance of counsel.

       {¶35} Even if there were not separate victims of the two offenses, we agree with

the court’s finding that the offenses were committed with a separate animus and were not

allied. See Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at paragraph

three of the syllabus.

       {¶36} “[I]t is a question of fact whether a separate animus has been established or

whether the offenses have been committed separately.” State v. Kohr, 5th Dist. Licking

No. 2008 CA 00147, 2009-Ohio-5297, ¶ 41, citing State v. Hunt, 9th Dist. Summit No.

10632, 1982 Ohio App. LEXIS 14455 (Nov. 24, 1982). As with any other question of

fact, we defer to the findings of the trier of fact, but review the court’s application of the

law to those facts de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983

N.E.2d 1245, ¶ 26.
         {¶37} The evidence showed that James fired four to seven shots, and only two of

those shots were accounted for: the shot that killed the victim and the shot that lodged in a

house.     The house that had been fired upon was located on a corner of two streets.

James drove up in front this house, exited his vehicle, said something to the victim, and

then fired his gun. James missed and the victim ran down the street with James in

pursuit, continuing to fire his gun. The rational conclusion is that the missed shot, fired

when James was in front of the house facing the group who had been gathered in front the

house, was the one that struck the house. As James pursued the victim, he continued to

fire. The victim was found more than one block away, on another street, having been

shot in the back.

         {¶38} With witnesses testifying that they heard as few as three and as many as

seven shots fired, the court could easily have concluded that some of those missed shots

would have crossed the public road. This was not a situation where James fired a

successive volley of shots, but one where the gunshots were separated by time in the

course of his pursuing the victim.    It follows that the offenses of discharging a firearm

into a habitation and discharging a firearm over a public roadway were separate acts that

did not merge for sentencing. Trial counsel’s acknowledgment of this fact did not

constitute ineffective assistance of counsel.
          {¶39} The court ordered James to serve a total sentence of life with parole

eligibility after 39 years. The primary sentence was a term of life in prison with parole

eligibility after 30 years on Count 1. Counts 2-4 were merged into Count 1. The court

ordered James to serve three years on Counts 5 and 6, but ordered those counts to be

served concurrent and concurrent to the life term in Count 1.          Each count of the

indictment carried one- and three-year firearm specifications, and the court merged the

one-year firearm specification for each count into the corresponding three-year firearm

specification. The court merged the specifications for Counts 2-4 into the specification

for Count 1, but refused to merge the three-year firearm specifications for Counts 5 and 6.

 Instead, it ran the firearm specifications for Counts 5 and 6 consecutive to each other,

and in turn ran those specifications consecutive to the firearm specification on the

aggravated murder charge in Count 1. James argues that the court not only should have

merged the firearm specifications for Counts 5 and 6, but that the merged firearm

specifications should have been merged into the firearm specification for the aggravated

murder count. We disagree.

          {¶40} “Ordinarily, the court is forbidden from imposing sentence on multiple

firearm specifications for ‘felonies committed as part of the same act or transaction.’”

State v. Cassano, 8th Dist. Cuyahoga No. 97229, 2012-Ohio-4047, ¶ 33, quoting former

R.C. 2929.14(D)(1)(b) (now R.C. 2929.14(B)(1)(b)). However, R.C. 2929.14(B)(1)(g)

states:
       If an offender is convicted of or pleads guilty to two or more felonies, if one
       or more of those felonies are aggravated murder, murder, attempted
       aggravated murder, attempted murder, aggravated robbery, felonious
       assault, or rape, and if the offender is convicted of or pleads guilty to a
       specification of the type described under division (B)(1)(a) of this section in
       connection with two or more of the felonies, the sentencing court shall
       impose on the offender the prison term specified under division (B)(1)(a) of
       this section for each of the two most serious specifications of which the
       offender is convicted or to which the offender pleads guilty and, in its
       discretion, also may impose on the offender the prison term specified under
       that division for any or all of the remaining specifications.

       {¶41} We have construed R.C. 2929.14(B)(1)(g) to mean that in cases like this,

where James was found guilty of three or more felonies, one of which was aggravated

murder, and those felony counts contained firearm specifications, the trial judge is

required to impose prison terms for the two most serious specifications, and could also, in

its discretion, impose a sentence for any other specification. Id. at ¶ 34; State v. Sheffey,

8th Dist. Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 28.

       {¶42} James next argues that the court mistakenly believed that it was required to

run all three firearm specifications consecutively when, in fact, R.C. 2929.14(B)(1)(g)

requires only that two specifications be run consecutively and that the court has the

discretion to run any other firearm specifications consecutively.
       {¶43} The trial transcript supports James’s argument on this point. The court

stated: “The gun specifications, I believe by law, pursuant to the memorandums and the

law cited therein, will have to — the three year gun specifications will have to run

consecutive to each other and consecutive to the three year firearm specification now

under sentence in Count 1.” By indicating that all three firearm specifications would

“have to” run consecutively, the court showed its mistaken belief that consecutive service

of all three firearm specifications was compulsory.

       {¶44} The state makes no direct attempt to counter James’s argument that the court

believed it to be required to order consecutive service on the firearm specifications apart

from suggesting that the court could have ordered consecutive service on the third firearm

specification “for public safety reasons.” This is nothing more than an argument that the

court exercised its discretion to order consecutive service of the third firearm

specification.   There can be no exercise of sentencing discretion when the court so

plainly indicates its belief that it is compelled by statute to impose consecutive sentences.

We agree with James that the court erred by indicating that it had to order consecutive

service on the third firearm specification (Count 6). We remand this part of James’s

sentence for resentencing.

       {¶45} James’s final argument is that to the extent that the court has discretion to

order consecutive service of the third firearm specification, it was required to comply

with R.C. 2929.14(C)(4) and make the findings required under that statute before

ordering consecutive service.
      {¶46} We have held that the mandatory requirement to order consecutive service

of certain specifications under R.C. 2929.14(B)(1)(g) supersedes the findings required by

R.C. 2929.14(C)(4).      See State v. Young, 8th Dist. Cuyahoga No. 102202,

2015-Ohio-2862, ¶ 10.     We have not, however, specifically addressed whether the

discretionary decision to order consecutive service of a third specification should be

similarly treated. There are several appellate decisions addressing whether the court

abused its discretion by ordering consecutive service of a third specification under R.C.

2929.14(B)(1)(g), but none of them consider whether the sentencing judge had to make

the findings required by R.C. 2929.14(C)(4). See, e.g., State v. Vanderhorst, 8th Dist.

Cuyahoga No. 97242, 2013-Ohio-1785; State v. Fortune, 11th Dist. Lake No.

2014-L-117, 2015-Ohio-4019; State v. Isreal, 12th Dist. Warren No. CA2011-11-115,

2012-Ohio-4876.
       {¶47} The consecutive sentencing statute applies to “multiple prison terms [that]

are imposed on an offender for convictions of multiple offenses[.]” (Emphasis added.)

R.C. 2929.14(C)(4).     A specification is a sentencing enhancement, not a separate

criminal offense, State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶

16.   By its own terms, R.C. 2929.14(C)(4) does not apply to penalty enhancing

specifications.   R.C. 2929.14(B)(1)(g) specifically applies to penalty enhancing

specifications, so this statute controls.     With there being no requirement in R.C.

2929.14(B)(1)(g) for the court to make findings of any kind before ordering a third

penalty enhancing specification to be served consecutively, the court had no obligation to

make any findings.

       {¶48} Judgment affirmed in part; reversed in part; and remanded.

       It is ordered that appellant and appellee share the 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.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
