[Cite as State v. Furman, 2012-Ohio-6211.]


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

STATE OF OHIO                                          C.A. No.    26394

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
SAMANTHA L. FURMAN                                     COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 11 09 2587 (D)

                                DECISION AND JOURNAL ENTRY

Dated: December 31, 2012



        BELFANCE, Judge.

        {¶1}      Defendant-Appellant Samantha Furman appeals from her sentences in the Summit

County Court of Common Pleas. For the reasons set forth below, we reverse and remand the

matter for proceedings consistent with this opinion.

                                                I.

        {¶2}      In November 2011, Ms. Furman was indicted on one count of aggravated

burglary, one count of aggravated robbery, one count of felonious assault, one count of grand

theft, and one count of theft from the elderly. Ultimately, Ms. Furman pleaded guilty to one

count of aggravated robbery and one count of aggravated burglary. The remaining charges were

dismissed.       Ms. Furman was sentenced to nine years in prison on each count, to run

consecutively to each other. Ms. Furman has appealed, raising two assignments of error for our

review. As Ms. Furman’s second assignment of error is dispositive of this appeal, we begin with

addressing it.
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                                                  II.

                                   ASSIGNMENT OF ERROR II

        THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DID NOT
        SENTENCE THE DEFENDANT-APPELLANT TO CONCURRENT TERMS
        FOR AGGRAVATED BURGLARY AND AGGRAVATED ROBBERY
        WHICH WERE ALLIED OFFENSES OF SIMILAR IMPORT[.]

        {¶3}   Ms. Furman asserts in her second assignment of error that the trial court

committed plain error when it sentenced her to consecutive sentences for aggravated burglary

and aggravated robbery as the offenses are allied. Because the trial court did not consider the

issue in the first instance, we remand the matter to the trial court so that it may do so.

        {¶4}   “In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, the Supreme Court

of Ohio outlined a new test for determining whether offenses are allied and subject to merger.”

State v. Linde, 9th Dist. No. 26209, 2012-Ohio-2885, ¶ 4. While Johnson was released prior to

Ms. Furman’s sentencing, the issue of allied offenses was not raised at sentencing. Thus, the

trial court did not consider and apply R.C. 2941.25. “Additionally, assuming the offenses are

allied, the State did not have the opportunity to elect the offense for which it wanted the trial

court to sentence [Ms. Furman].” Id. “This Court has consistently concluded that the trial court

should consider and apply Johnson in the first instance.” Id. Thus, we remand the matter to the

trial court so that it can consider and apply Johnson.

                                   ASSIGNMENT OF ERROR I

        THE TRIAL COURT COMMITTED PLAIN ERROR IN SENTENCING THE
        DEFENDANT-APPELLANT TO PRISON TERMS THAT WERE MORE
        THAN THE MINIMUM SENTENCE PRESCRIBED BY LAW[.]

        {¶5}   As the trial court is required to consider a sentencing issue that could impact the

length of Ms. Furman’s sentence, we decline to address Ms. Furman’s first assignment of error at

this time.
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                                                III.

       {¶6}    In light of the foregoing, we reverse the judgment of the Summit County Court of

Common Pleas and remand the matter so that it can consider and apply Johnson.

                                                                              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.

       Costs taxed to Appellee.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



MOORE, P. J.
CARR, J.
CONCUR.
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APPEARANCES:

KERRY O’BRIEN, Attorney at Law, for Appellant.

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