[Cite as State v. Powers, 2011-Ohio-5977.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                       :
                                                    :     Appellate Case No. 24476
        Plaintiff-Appellee                          :
                                                    :     Trial Court Case No. 09-CR-1743
v.                                                  :
                                                    :
SEAN POWERS                                         :     (Criminal Appeal from
                                                    :     (Common Pleas Court)
        Defendant-Appellant                  :
                                                    :
                                                 ...........

                                                 OPINION

                            Rendered on the 18th day of November, 2011.

                                                 ...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

LYNNE M. FLEMING, Atty. Reg. #0078520, Flanagan, Lieberman, Hoffman & Swaim, 15
West Fourth Street, Suite 100, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                                         .............

KLINE, J. (sitting by assignment)

        {¶ 1} Sean Powers appeals the judgment of the Montgomery County Court of

Common Pleas, which sentenced him to seventeen years in prison following our remand in

State v. Powers, Montgomery App. No. 23696, 2010-Ohio-4044 (hereinafter “Powers I”).
                                                                                            2


Powers argues that the trial court unconstitutionally applied a firearm specification to his

conviction for unlawful discharge of a firearm. Powers also argues that the trial court erred in

failing to merge his tampering with evidence and attempted murder convictions. Because

both of Powers’ arguments are (1) beyond the scope of our remand in Powers I and (2) not

subject to review, we disagree. Accordingly, we affirm the judgment of the trial court.

                                                   I

       {¶ 2} Powers brings this appeal as a result of his resentencing following our remand

in Powers I. As we noted in Powers I, Powers pled no contest prior to trial, and, therefore,

the facts in the record are not well developed. The record indicates that Powers shot an

unarmed man three times, hitting him in the head and neck, chest, and right forearm. Powers

I at ¶6. As a result of the gunshots, the victim suffered from paralysis from the neck down.

Id.

       {¶ 3} Following Powers’ plea, the trial court found Powers guilty of six offenses.

Specifically, Powers was found guilty of felonious assault (two counts), attempted murder,

improper discharge of a firearm on or near prohibited premises, tampering with evidence, and

having weapons under disability. Except for the weapons under disability charge, each of the

offenses carried a firearm specification. The trial court merged the felonious assault offenses

as well as the firearm specifications. The trial court, however, did not merge the felonious

assault and attempted murder convictions. The trial court sentenced Powers to twenty-four

years in prison.

       {¶ 4} Powers appealed, and, in Powers I, we sustained the sole assignment of error.

In Powers I, Powers argued that the trial court should have merged the felonious assault and
                                                                                            3


attempted murder offenses. We agreed and remanded the case to the trial court so that the

State could choose whether to pursue punishment for the felonious assault offense or the

attempted murder offense. The State chose to pursue punishment for attempted murder. The

trial court’s sentence following the resentencing hearing was essentially the same as the

original sentence absent the seven-year felonious assault sentence, which had merged with the

attempted murder offense. Thus, the trial court sentenced Powers to a seventeen-year prison

term.

        {¶ 5} Powers appeals and asserts the following assignments of error: I. “The TRIAL

COURT ERRED IN FAILING TO DISMISS THE UNCONSTITUTIONAL FIREARM

SPECIFICATION IMPOSED ON THE DISCHARGE OF A FIREARM COUNT.” And, II.

“THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE PRISON TERM FOR

POWERS’ TAMPERING WITH EVIDENCE CONVICTION.”



                                                  II

        {¶ 6} For ease of analysis, we will consider both of Powers’ assignments of error

together. In his first assignment of error, Powers argues that attaching a firearm specification

to a conviction for unlawful discharge of a firearm constitutes a Double Jeopardy violation.

In his second assignment of error, Powers argues that the trial court erred by imposing

consecutive sentences for his tampering with evidence and attempted murder convictions.

We conclude that both arguments exceed the scope of our remand in Powers I, and, therefore,

his claims are not subject to review.

        {¶ 7} In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, the Supreme Court of
                                                                                            4


Ohio analyzed the scope of (1) a trial court’s resentencing hearing following an allied-offenses

error and (2) an appeal from that resentencing decision. The Wilson court stated as follows:

“A remand for a new sentencing hearing generally anticipates a de novo sentencing hearing.

R.C. 2929.19(A). However, a number of discretionary and mandatory limitations may apply

to narrow the scope of a particular resentencing hearing. * * * In a remand based only on an

allied-offenses sentencing error, the guilty verdicts underlying a defendant’s sentences remain

the law of the case and are not subject to review. [State v.] Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2[,] at ¶26-27. Further, only the sentences for the offenses that were affected by

the appealed error are reviewed de novo; the sentences for any offenses that were not affected

by the appealed error are not vacated and are not subject to review. [State v.] Saxon[, 109

Ohio St.3d 176, 2006-Ohio-1245,] at paragraph three of the syllabus.”           Wilson, at ¶15

(emphasis added).

       {¶ 8} “The law of the case doctrine requires lower courts to follow the mandates of

reviewing courts when ‘confronted [on remand] with substantially the same facts and issues as

were involved in the prior appeal.’ Thus, litigants are not permitted to make new arguments

to the trial court on remand that were raised or could have been raised on the first appeal.

‘[A]ll questions which existed on the record, and could have been considered on the first

petition in error, must ever afterward be treated as settled by the first adjudication of the

reviewing court.’” State v. Hultz, Wayne App. No. 07CA43, 2008-Ohio-4153, at ¶5, quoting

Neiswinter v. Nationwide Mutual Insurance Co., Summit App. No. 23648, 2008-Ohio-37, at

¶10.

       {¶ 9} “Absent extraordinary circumstances, such as an intervening decision by the
                                                                                             5


Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court

in a prior appeal in the same case.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, syllabus,

approving and following State ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 29, 32.

       {¶ 10} “The only issue before the trial court on remand was re-sentencing on the

[attempted murder offense or the felonious assault offense.] * * * The doctrine of the law of

the case prevented the trial court from considering arguments unrelated to that issue.” State

v. Kendrick, Montgomery App. No. 21790, 2007-Ohio-6136, at ¶9.

                    A. Unlawful Discharge of Firearm and Firearm Specification

       {¶ 11} In his first assignment of error, Powers argues that attaching a firearm

specification to a conviction for unlawful discharge of a firearm constitutes a Double Jeopardy

violation. Essentially, Powers asserts that it is virtually impossible to unlawfully discharge a

firearm without using a firearm. Therefore, Powers claims that attaching a firearm

specification to the underlying conviction “will perpetually result in cumulative punishments

for this single action.” Appellant’s Brief at 8. According to Powers, this constitutes Double

Jeopardy, in violation of the United States and Ohio Constitutions.

       {¶ 12} Powers’ offense for improper discharge of a firearm was not affected by the

appealed error in Powers I. Powers I affected only the sentences for attempted murder and

felonious assault. Thus, any claimed error related to his sentence for improper discharge of a

firearm, or the associated firearm specification, is “not subject to review.” Wilson, at ¶15.

That is, any error in attaching a firearm specification to a discharge of a firearm offense would

have been readily apparent when Powers filed his appeal in Powers I. Therefore, because

Powers could have raised the issue in Powers I, but chose not to, review of the issue is barred
                                                                                          6


under the doctrine of the law of the case.

       {¶ 13} Accordingly, we overrule Powers’ first assignment of error.

                               B. Tampering With Evidence Sentence

       {¶ 14} In his second assignment of error, Powers argues that the trial court erred when

it ordered him to serve his sentence for tampering with evidence consecutively to his sentence

for attempted murder. According to Powers, “[b]ecause there was no evidence taken to show

that Powers’ act of tampering with evidence, whatever it may have been, was an act separate

from the murder attempt, and done with a separate animus than that representing his murder

attempt, it appears Powers’ sentence for his tampering conviction should have been imposed

concurrently with his conviction for attempted murder, rather than consecutively.”

Appellant’s Brief at 8-9.    Powers then articulates a hypothetical scenario, based on the

available facts in the record, to show that Powers could have committed the attempted murder

and tampering with evidence offenses in a manner that would require merger under R.C.

2941.25. Thus, Powers argues that the offenses should have been merged as allied offenses

of similar import.

       {¶ 15} Powers argument, regarding whether his tampering with evidence and

attempted murder offenses should have been merged, suffers from the same infirmity as the

argument in his first assignment of error. Specifically, Powers’ argument is not subject to

review. Powers’ tampering with evidence offense was not affected by the appealed error in

Powers I. And “only the sentences for the offenses that were affected by the appealed error

are reviewed de novo[.]” Wilson, at ¶15. Thus, any claimed error, based on the assertion

that the tampering with evidence and attempted murder offenses are allied offenses of similar
                                                                                       7


import, is “not subject to review.” Wilson, at ¶15. The error Powers raises in his second

assignment of error would have been readily apparent when Powers filed his appeal in Powers

I. Therefore, because Powers could have raised the issue in Powers I, but chose not to, the

issue is barred under the doctrine of the law of the case.

       {¶ 16} Accordingly, we overrule Powers’ second assignment of error.

                                                 III.

       {¶ 17} In conclusion, having overruled both of Powers’ assignments of error, we

affirm the judgment of the trial court.

       JUDGMENT AFFIRMED.

                                                    .............

GRADY, P.J., and FAIN, J., concur.

(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).


Copies mailed to:

Mathias H. Heck
R. Lynn Nothstine
Lynne M. Fleming
Hon. Timothy N. O’Connell
