[Cite as State v. Huber, 2012-Ohio-6139.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98206



                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                    JOSEPH A. HUBER
                                                   DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-521813

        BEFORE: Boyle, P.J., Jones, J., and Keough, J.

        RELEASED AND JOURNALIZED:                    December 27, 2012
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Joseph A. Huber, appeals from a judgment issued by

the trial court after it resentenced him pursuant to a remand by this court.      He raises

three assignments of error for our review:

       [1.] The trial court lacked jurisdiction to proceed with resentencing because
       the appellate court’s decision granting reconsideration was void where only
       two judges participated in the decision in violation of the Ohio Constitution.

       [2.] The trial court’s imposition of consecutive sentences was contrary to
       law and an abuse of discretion.

       [3.] The trial court erred by ordering appellant to pay costs.

       {¶2} Finding merit to his third assignment of error, we affirm in part, reverse in

part, and remand for a limited resentencing hearing.

                       Procedural History and Factual Background

       {¶3} In August 2009, Huber was convicted of kidnapping, attempted felonious

assault, and two counts of aggravated robbery, all with repeat violent offender and notice

of prior conviction specifications.    The facts presented at a jury trial established that

Huber and two others lured a delivery driver to their location, abducted him at knife point,

forced him to make an ATM withdrawal from his personal bank account, and stole the

proceeds.   The trial court sentenced Huber to an aggregate 15 years in prison.         Huber

appealed his convictions and sentence, raising 15 assignments of error.
       {¶4} This court originally issued a decision on Huber’s direct appeal on

November 18, 2010.      See State v. Huber, 8th Dist. No. 93923, 2010-Ohio-5586 (“Huber

I”).   Huber I was heard and decided by three judges.         Almost two months later (on

January 13, 2011), however, two of the three judges granted the state’s motion for

reconsideration, vacated the original opinion, and issued a new opinion. See State v.

Huber, 8th Dist. No. 93923, 2011-Ohio-62 (“Huber II”), discretionary appeal not

allowed by, State v. Huber, 128 Ohio St.3d 1462, 2011-Ohio-1829, 945 N.E.2d 524,

reopening denied by, State v. Huber, 8th Dist. No. 93923, 2011-Ohio-3240 (Huber also

applied to this court for delayed reconsideration in June 2011, which we denied).      Huber

II indicates that Judge Ann Dyke did not participate in the reconsidered judgment.1

       {¶5} In Huber II, this court affirmed Huber’s convictions, but held that the trial

court erred by merging the two aggravated robbery sentences after finding the offenses

were allied offenses of similar import, rather than merging the two aggravated robbery

convictions as required to do under the allied offenses law.       Id. at ¶ 32.   We further

held that Huber’s aggravated robbery conviction did not merge with his kidnapping or

attempted felonious assault convictions. Id. at ¶ 35-36.        We also affirmed the trial

court’s imposition of consecutive sentences, but determined that the trial court erred by

not advising Huber of the consequences of violating the terms of his postrelease control.

Id. at ¶ 30, 37.   We remanded for resentencing. Id. at ¶ 38.




        Judge Ann Dyke retired in late 2010, and thus, was not available to participate in the
       1


reconsideration of the November 18, 2010 decision.
       {¶6} Upon remand, the state elected to proceed on the first count of aggravated

robbery.   After hearing from defense counsel and Huber, the trial court merged the

second count of aggravated robbery into the first count of aggravated robbery, and

imposed a prison term of six years for the merged aggravated robbery offense.            The trial

court noted that Huber’s sentence for kidnapping and attempted felonious assault

remained the same, as well as the court’s order that the aggravated robbery, kidnapping,

and attempted felonious assault prison terms be served consecutive to one another.

Thus, the trial court imposed an aggregate sentence of 15 years in prison.         The trial court

further notified Huber that he would be subject to five years of mandatory postrelease

control and notified him of the consequences of violating that postrelease control. The

trial court also ordered that Huber pay costs, over his objection. It is from this judgment

that Huber appeals.

                                           Jurisdiction

       {¶7} In his first assignment of error, Huber maintains that the trial court lacked

jurisdiction to resentence him upon remand from this court in Huber II because Huber II

was only decided by two judges, and therefore, was void. Huber submits that this

court’s original decision in Huber I should, therefore, be reinstated.2




          Reinstating Huber I would be beneficial to Huber because in Huber I, this court held that
       2


Huber’s convictions for aggravated robbery and kidnapping were allied offenses of similar import,
and should have been merged. Id. at ¶ 35. But in Huber II, we determined that under the facts of
the case, Huber committed the aggravated robbery and kidnapping with a separate animus, and thus,
the trial court did not err by not merging them. Huber II at ¶ 35.
       {¶8} In Ohio, appellate courts obtain their authority from the Ohio Constitution.

Ohio Constitution, Article IV, Section 3, provides in pertinent part:

       (A) The state shall be divided by law into compact appellate districts in
       each of which there shall be a court of appeals consisting of three judges.
       * * * In districts having additional judges, three judges shall participate in
       the hearing and disposition of each case.

       ***

       (B) The courts of appeals shall have original jurisdiction in the following:

       ***

       (2) Courts of appeals shall have such jurisdiction as may be provided by law
       to review and affirm, modify, or reverse judgments or final orders of the
       courts of record inferior to the court of appeals within the district, except
       that courts of appeals shall not have jurisdiction to review on direct appeal a
       judgment that imposes a sentence of death. Courts of appeals shall have
       such appellate jurisdiction as may be provided by law to review and affirm,
       modify, or reverse final orders or actions of administrative officers or
       agencies.

       (3) A majority of the judges hearing the cause shall be necessary to render a
       judgment.

       {¶9} At the outset, we agree with the state that Huber waived his right to

challenge the fact that Huber II was issued after reconsideration with only two of the

original three judges participating.    This court clearly had original jurisdiction over

Huber’s direct appeal “to review and affirm, modify, or reverse it.”            Thus, even

assuming for the sake of argument that we should not have reconsidered the original

decision with only two judges, that would be a question regarding the exercise of our

jurisdiction; it would not make the reconsidered decision void ab initio. See Pratts v.

Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, syllabus (failure of trial
court to convene a three-judge panel in a death penalty case “does not constitute lack of

subject-matter jurisdiction that renders a trial court’s judgment void ab initio”; rather, it

“constitutes an error in the court’s exercise of jurisdiction that must be raised on direct

appeal”). Although Huber appealed Huber II to the Ohio Supreme Court and raised 15

assignments of error, he did not challenge this issue.

       {¶10} Nonetheless, we conclude that it was within our constitutional authority to

issue the reconsidered Huber II decision with only two judges participating after one of

the judges retired. We find State v. Pembaur, 69 Ohio St.2d 110, 430 Ohio St.2d 1331

(1982), to be instructive on this question. In Pembaur, the defendant’s appeal was

argued to a three-judge panel in November 1980.      One of the judges who heard the case,

Judge Gilbert Bettman, resigned on January 3, 1981. On February 18, 1981, the First

District “rendered a split decision purporting to reverse the defendant’s conviction,”

noting that Judge Bettman had “concurred in the foregoing decision prior to his

resignation from the court.”     Id.   The state appealed, arguing that the judgment of

reversal was invalid because Judge Bettman “had no legal power to participate in the

disposition of the case as he was not a judge of the court of appeals on the date the

decision and judgment entry was rendered.” Id.

       {¶11} The Ohio Supreme Court, citing to the Ohio Constitution, Article IV,

Section 3, explained:

              [U]nder the Ohio Constitution, a valid judgment of a court of appeals
       must have the concurrence of at least two judges. In the case at bar, this
       constitutional requirement was not satisfied. Although Judge Bettman may
       have indicated to his colleagues an opinion that the appellee’s conviction
       should be reversed, on the date of disposition he no longer was a judge of
       the Court of Appeals and was not qualified to participate in that court’s
       decision. The remaining two judges differed as to the proper disposition
       of the cause.

(Citation omitted.) Pembaur at 111.

       {¶12} The Ohio Supreme Court concluded in Pembaur that “[t]he constitutional

requirement that a majority of the court of appeals judges hearing a cause concur in the

judgment was not met in this case.” Id. The high court vacated the First District

decision and remanded the case to the appellate court for a hearing. Id.

       {¶13} This court relied on the holding in Pembaur when Judge Anne L. Kilbane

passed away in November 2004.        We released many cases with only two judges (cases in

which she had been one of the three judges to hear the case, but she died before the cases

were released).    Citing to Pembaur, we explained: “The Ohio Constitution requires the

concurrence of at least two judges when rendering a decision of a court of appeals.

Therefore, this announcement of decision is in compliance with constitutional

requirements.” See, e.g., Cannon et al. v. CSX Transp., Inc., 8th Dist. No. 84373,

2005-Ohio-99, and State v. Powers, 8th Dist. No. 84416, 2004-Ohio-7021.          See also

Cardinal Fed. S. & L. Assn. v. Michaels Bldg. Co., et al., 9th Dist. No. 14521, 1991 Ohio

App. LEXIS 2199 (May 8, 1991) (relying on Pembaur, the Ninth Appellate District

released a decision with only two judges participating, noting that the third judge had

retired prior to the disposition of the case).

       {¶14} Accordingly, we conclude that it was entirely within our province to release

Huber II on reconsideration with two judges concurring in the opinion after the third

judge retired.
       {¶15} Huber’s first assignment of error is overruled.

                                        Sentencing

       {¶16} In his second assignment of error, Huber maintains that the trial court erred

when it only resentenced him on the two aggravated robbery counts and postrelease

control.    He argues that the trial court should have conducted a de novo sentencing

hearing on all of the offenses, as well as on the consecutive portion of his sentence, in

light of H.B. 86.     We disagree that the trial court should have sentenced him on

kidnapping and attempted felonious assault because the ranges for those offenses

remained intact after Huber II, but we agree that the trial court should have resentenced

Huber de novo not only on his aggravated robbery offense and postrelease control, but

also on the consecutive nature of his sentence.

       1.      “Sentencing Package” and Law of the Case Doctrines

       {¶17} In Ohio, the “sentencing package” doctrine is not applicable. State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph two of the

syllabus. Thus, “a judge sentencing a defendant pursuant to Ohio law must consider

each offense individually and impose a separate sentence for each offense.” Id. at ¶ 9.

“Because Ohio does not ‘bundle’ sentences, nothing is ‘unbundled’ when one of several

sentences is reversed on appeal.” Id. at ¶ 13, 15. Furthermore, Ohio appellate courts do

not have the authority to vacate an entire sentence when only a portion of that sentence is

subject to remand. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d

381, ¶ 15. A sentencing hearing on remand is limited to the issue found to be in error on

appeal. Saxon at paragraph three of the syllabus; see also State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus (when

postrelease control is invalid, “[t]he new sentencing hearing to which an offender is

entitled * * * is limited to proper imposition of postrelease control.”).

       {¶18} In Wilson, the Supreme Court of Ohio analyzed the scope of a trial court’s

resentencing hearing following an allied-offenses error, holding:

              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, 922 N.E.2d 182, ¶ 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. Saxon at paragraph three of the syllabus.

Wilson at ¶ 15.

       {¶19} The Ohio Supreme Court explained that under the law-of-the-case doctrine,

“‘the decision of a reviewing court in a case remains the law of that case on the legal

questions involved for all subsequent proceedings in the case at both the trial and

reviewing levels.’” Fischer at ¶ 33, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462

N.E.2d 410 (1984).     Further, “‘[t]he remainder of the sentence, which the defendant did

not successfully challenge, remains valid under the principles of res judicata.’” Id. at ¶

17, quoting State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 21-22

(O’Connor, J., dissenting, joined by Lundberg Stratton, J.). Res judicata “still applies to

other aspects of the merits of a conviction, including the determination of guilt and the

lawful elements of the ensuing sentence.” Id. at ¶ 40.
       2.      Huber’s Direct Appeal

       {¶20} Huber was originally sentenced in August 2009. In his direct appeal, this

court found errors in Huber’s sentence only with respect to the two aggravated robbery

counts (because they were allied offenses, we found that the trial court erred by merging

the sentences and not the convictions) and postrelease control (we found that the trial

court failed to inform Huber of the consequences of violating the terms of his postrelease

control).

       {¶21} Huber also challenged the consecutive nature of his sentence in his direct

appeal.     Following the law that was in place at that time for reviewing consecutive

sentences (i.e., State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 517), this

court affirmed the trial court’s imposition of consecutive sentences.

       3.      Analysis

       {¶22} Although this court remanded for a resentencing hearing “consistent with

this opinion,” the effect of Huber II is that Huber’s sentence for aggravated robbery and

postrelease control were vacated because they were contrary to law. See Wilson and

Fischer. Upon remand, according to Wilson and Fischer, Huber was entitled to a de

novo sentencing hearing on both counts of aggravated robbery and postrelease control.

       {¶23} The significance of this court’s vacation of part of Huber’s sentence is that

upon remand Huber did not have a sentence for aggravated robbery or postrelease

control. As part of Huber’s de novo sentencing hearing, the state had to elect which

aggravated robbery offense it was going to proceed on, which it did.    The trial court then

merged the aggravated robbery offenses and sentenced Huber to six years in prison for
aggravated robbery.    The trial court then noted that Huber’s sentence for attempted

felonious assault and kidnapping remained the same, as well as the consecutive portion of

Huber’s original sentence, for an aggregate 15 years in prison.     The trial court further

notified Huber that he would be subject to five years of postrelease control and notified

him of the consequences for violating that postrelease control.

       {¶24} We find that the trial court did not err when it refused to resentence Huber

on attempted felonious assault and kidnapping (because Huber did not successfully

challenge the sentence for those offenses in his direct appeal, the sentencing ranges for

those offenses remained the same). See Fischer, Saxon, and Wilson.          We agree with

Huber, however, that the trial court should have sentenced him de novo on the

consecutive portion of his sentence.       Normally, under the law of the case, the

consecutive nature of a defendant’s sentence would remain intact upon resentencing if

this court affirmed it on direct appeal.    But in this case (although we affirmed the

consecutive nature of Huber’s sentence in his direct appeal), the effect of Huber II is that

Huber did not have a sentence for aggravated robbery when he was brought back into

court for resentencing.   In Saxon, the Ohio Supreme Court explained that “[o]nly after

the judge has imposed a separate prison term for each offense may the judge then

consider in his [or her] discretion whether the offender should serve those terms

concurrently or consecutively.”      (Citations omitted.)    Id. at ¶ 9.     Thus, at the

resentencing hearing in this case, the trial court first had to sentence Huber on the merged

count of aggravated robbery — so that he had a separate prison term for each offense —
before it could consider whether the prison terms for the offenses should be served

consecutively or concurrently. Id.

        {¶25} When Huber was resentenced after a remand from this court, it was May

2012.    In September 2011, H.B. 86 became effective.      It is clear that the trial court was

aware that H.B. 86 was applicable; it followed the mandates of H.B. 86 with respect to

considering the newly amended R.C. 2929.11 (with the added language “to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources”), as well as R.C. 2929.12.     The trial court was also aware that Huber was

entitled to the old sentence range (i.e., ten years maximum) for a first degree felony (not

11 years maximum as in H.B. 86). But the trial court simply did not believe, relying on

the Ohio Supreme Court’s holding in Saxon, that it could address the consecutive portion

of Huber’s sentence because this court had affirmed that portion of Huber’s sentence in

Huber II.   This belief, however, was erroneous.

        {¶26} R.C. 2929.14(C)(4), as revived, now requires that a trial court engage in a

three-step analysis in order to impose consecutive sentences.      First, the trial court must

find that “consecutive service is necessary to protect the public from future crime or to

punish the offender.” Id.     Next, the trial court must find that “consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.”   Id.   Finally, the trial court must find that at least one of

the following applies: (1) the offender committed one or more of the multiple offenses

while awaiting trial or sentencing, while under a sanction, or while under postrelease
control for a prior offense; (2) at least two of the multiple offenses were committed as

part of one or more courses of conduct, and the harm caused by two or more of the

offenses was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness of

the offender’s conduct; or (3) the offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.    Id.

       {¶27} Although the trial court stated that it could not address the consecutive

aspect of Huber’s sentence, believing that it did not have to because this court affirmed

that portion of Huber’s sentence, we find after reviewing the transcript that the trial court

did in fact make the proper R.C. 2929.14(C)(4) findings before imposing consecutive

sentences.    The trial court noted that it considered Huber’s criminal history, which was

extensive.    It further stated:

       [1] I believe that the harm was so great or unusual that a single term would
       not adequately reflect the seriousness of the conduct and that the
       defendant’s criminal history shows a consecutive sentence is needed to
       protect the public,

       [2] “I believe that the criminal history shows that the defendant is not
       amendable to any lesser punishment and that the consecutive sentences are
       necessary to protect the public and to punish the offender, and

       [3] The nature of these crimes were over an extended period of time where
       the victim here was stripped naked on two occasions, threatened with his
       life, and this continued for an extended period of time * * * clearly raises
       the level and nature of this crime above just a single sentence.

       {¶28} We conclude that the trial court’s express findings were sufficient under

H.B. 86 and R.C. 2929.14(C) to impose consecutive sentences.
       {¶29} Accordingly, we overrule Huber’s second assignment of error.

                                          Costs

       {¶30} In his third assignment of error, Huber argues that the trial court erred when

it ordered him to pay costs because it failed to warn him that if he did not pay costs, the

court could require him to perform community service.       The state concedes this error

and we agree.

       {¶31} R.C. 2947.23(A)(1)(a) provides that:

       In all criminal cases, including violations of ordinances, the judge or
       magistrate shall include in the sentence the costs of prosecution, * * * and
       render a judgment against the defendant for such costs. At the time the
       judge or magistrate imposes sentence, the judge or magistrate shall notify
       the defendant of both of the following:

       (i) If the defendant fails to pay that judgment or fails to timely make
       payments towards that judgment under a payment schedule approved by the
       court, the court may order the defendant to perform community service in
       an amount of not more than forty hours per month until the judgment is paid
       or until the court is satisfied that the defendant is in compliance with the
       approved payment schedule.

       {¶32} The Ohio Supreme Court has held that the notification under R.C.

2947.23(A)(1) is mandatory and must be given at the sentencing hearing. State v. Smith,

131 Ohio St.3d 297, 2012-Ohio-781, 964 N.E.2d 423, ¶ 10.

       {¶33} Accordingly, we sustain Huber’s third assignment of error and reverse and

remand for a limited resentencing hearing on the issue of costs.

       {¶34} Huber also raises four assignments of error pro se.           But all of his

assignments of error relate to his trial and convictions. This court is prohibited from

reviewing any errors on appeal that Huber raises or should have raised in his direct
appeal. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40 (“The scope

of an appeal from a resentencing hearing in which a mandatory term of postrelease

control is imposed is limited to issues arising at the resentencing hearing.”).

       {¶35} Judgment affirmed in part, reversed in part, and remanded for a limited

resentencing hearing as set forth in this opinion.

       It is ordered that appellant and appellee share 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.      Case remanded to the trial court

for a limited resentencing hearing.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY
WITH SEPARATE OPINION


LARRY A. JONES, SR., J., CONCURRING IN JUDGMENT ONLY:
       {¶36} I concur in judgment only and write separately to address the issue of

whether it was in this court’s constitutional authority to issue Huber II with only two

judges participating in the decision. I would find that it was not.

       {¶37} I reluctantly agree with the majority that Huber waived the germane issue of

whether this court could issue Huber II with only two judges participating in the decision

because he did not appeal the issue with the Ohio Supreme Court. The trial court’s

proceedings on remand were not based on a void order; they were based on a voidable

order. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 860 N.E.2d 992,

syllabus. As such, because Huber did not raise the issue in his direct appeal to the Ohio

Supreme Court, he has waived his right to challenge the issue now.

       {¶38} That being said, I would find that this court erred in granting the motion for

reconsideration and issuing Huber II with only two judges participating in the decision.

Section 3 of Article IV of the Ohio Constitution provides, in part:

       (A) The state shall be divided by law into compact appellate districts in
       each of which there shall be a court of appeals consisting of three judges. *
       * * In districts having additional judges, three judges shall participate in the
       hearing and disposition of each case. * * *

       [B](3) A majority of the judges hearing the cause shall be necessary to

       render a judgment. * * *

       {¶39} Thus, under Article IV, Sections 3(A) and (B)(3) of the Ohio Constitution,

three judges must participate in the hearing and disposition of a case, but only a majority

of two judges is necessary to render a judgment.      “The plain language of Section 3(A),

Article IV mandates that appellate cases shall be heard by at least three judges to ensure
that each case is properly reviewed * * *.”       McFadden v. Cleveland State Univ., 120

Ohio St.3d 54, 57-58, 2008-Ohio-4914, 896 N.E.2d 672.

       {¶40} Pembaur does not stand for the proposition that if two judges on a three-

judge panel concur on a case, that it is acceptable for a case to be decided by only two

judges. This flies in the face of the Ohio Constitution’s requirement that appellate cases

in districts with more than three judges be heard and disposed of by a panel of three

judges. Moreover, even though this court relied on Pembaur in issuing 14 cases decided

by two judges in the months following Judge Anne Kilbane’s death, in each of the cases

Judge Kilbane had participated in the decision. See Cannon v. CSX Transp., Inc., 8th

Dist. No. 84373, 2005-Ohio-99, ¶ 26 (“Judge Anne L. Kilbane concurred in judgment,

but did not have the opportunity to review this journal entry and opinion prior to her

death”); State v. Brown, 8th Dist. No. 84322, 2004-Ohio-6421, ¶ 12 (“Judge Anne L.

Kilbane concurred in this Journal Entry and Opinion prior to her death”); State v.

Washington, 8th Dist. No. 83867, 2004-Ohio-7017, ¶ 9 (“Judge Anne L. Kilbane

participated in this decision prior to her death.”)

       {¶41}    In this case, although Judge Dyke participated in the hearing and decision

on Huber I, there is no evidence that Judge Dyke participated in the motion for

reconsideration at all.   In fact, the Huber II opinion clearly states she did not participate.

       {¶42} Holding as the majority does, one could argue that any case could be

decided by two appellate judges, so long as those two judges concur. I find that to be

unconstitutional. Moreover, in this case, the reconsidered opinion was detrimental to the

defendant; the first opinion found that Huber’s convictions for aggravated robbery and
kidnapping were allied offenses but upon reconsideration the panel found that his

conviction for aggravated robbery did not merge with his convictions for kidnapping.

Therefore, although constrained by the fact that Huber waived this issue, I would find that

it was wholly improper for a panel of only two appellate judges in this district to consider

and render a decision on a motion for reconsideration.
