[Cite as State v. Phillips, 2012-Ohio-473.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 96329




                                         STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       KENNY PHILLIPS
                                                      DEFENDANT-APPELLANT




                                         JUDGMENT:
                                      AFFIRMED IN PART;
                                      REVERSED IN PART;
                                         REMANDED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-481840

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

        RELEASED AND JOURNALIZED: February 9, 2012
                                          2
                                           -i-

ATTORNEYS FOR APPELLANT

Matthew M. Nee, The Law Offices of Matthew M. Nee
David H. Brown, David H. Brown, LLC
Edwin J. Vargas, The Vargas Law Firm Co., LPA
1956 West 25th Street, Suite 302
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

       {¶ 1} Defendant-appellant Kenny Phillips appeals from his convictions and

sentence following a jury trial. The jury found Phillips guilty of multiple counts of

attempted murder, felonious assault, and attempted felonious assault, and two counts of

inducing panic. The jury also found Phillips guilty of firearm specifications included in

the attempted murder, felonious assault, and attempted felonious assault counts. The trial

court sentenced Phillips to 92 years incarceration plus a mandatory five-year period of

postrelease control.
                                             3
       {¶ 2} Phillips presents six assignment of error.      He asserts his convictions for

attempted murder and felonious assault are against the manifest weight of the evidence, his

convictions for attempted murder and felonious assault of a police officer are not

supported by sufficient evidence, his sentence amounts to duplicative punishment with

respect to the firearms specifications and attempted murder and felonious assault

convictions, his convictions for inducing panic are misdemeanors rather than felonies, the

state’s questions on his juvenile record deprived him of a fair trial, and his sentence is

grossly disproportionate.

       {¶ 3} Upon a review of the record, this court finds Phillips’s third and fourth

assignments of error have merit. We affirm Phillips’s convictions in part, reverse his

convictions in part, vacate his sentence, and remand for further proceedings consistent

with this opinion.

       {¶ 4} Phillips’s convictions resulted from an early morning incident on May 26,

2006 at the intersection of East 55th Street, and Kinsman and Woodland Avenues.

Phillips, Michael Sutton, Deante Creel, and Akeem Tidmore were together in a tan

Chevrolet Caprice heading southbound on East 55th Street. The Chevrolet was “boxy”

and had “84” printed on its side (“Chevy 84”).     Officers Michael Keane and Daniel Lentz

were heading northbound on East 55th Street when Keane observed Chevy 84 make a

reckless u-turn.     Keane, weaving through traffic to catch up, saw Chevy 84 turn right and

head east on Woodland.
                                             4
       {¶ 5} Keane and Lentz heard a gunshot as they turned right on Woodland.          They

saw Chevy 84 moving alongside a Lincoln Mark VIII (“Lincoln”).               Keane and Lentz

heard more gunshots and saw muzzle flashes between Chevy 84’s passenger side and the

Lincoln’s left side.   Lentz described the muzzle flashes as cone-shaped strobing, meaning

the gunshots were coming from Chevy 84.

       {¶ 6} Keane activated his lights and siren and pursued Chevy 84.        Chevy 84 first

slowed down, but accelerated and turned south on East 65th Street.            Keane followed

Chevy 84.    As Chevy 84 pulled over, four passengers exited and ran.        Keane chased the

driver, Michael Sutton, and took him into custody.

       {¶ 7} Lentz saw two males exit the passenger side.       They both wore white t-shirts

and carried handguns.     The two men ran toward a nearby house.        A third male, dressed

in black, also exited the passenger side and ran in a different direction.

       {¶ 8} Since they carried handguns, Lentz followed the first two men behind the

house. When attempting to retrieve his flashlight, Lentz heard three gunshots from two

different caliber weapons, and observed strobing and star-patterned muzzle flashes.       He

turned back and nearly collided with one of the men, who took off running. As Lentz

chased him, Lentz saw him throw something into a field.        Lentz tackled the man, Deante

Creel, and took him into custody.

       {¶ 9} Meanwhile, Officer Keane also heard gunshots coming from the direction

where Lentz chased the two men.       He saw Lentz tackle Creel.      Seeing Lentz had Creel
                                            5
under control, Keane continued searching for the other two men who exited from Chevy

84.

       {¶ 10} Keane saw a man running on East 61st or 63rd Street.         Keane exited his

cruiser and chased the man until Keane fell and tore his calf muscle.      Lentz saw Keane

fall to the ground, and thought Keane was shot.     After a zone car picked up Creel, Lentz

chased and apprehended the man, Kenny Phillips, as he attempted a return to Chevy 84.

       {¶ 11} Both Phillips and Creel wore light-colored shirts at the time of their arrest.

A zone car picked up the fourth male, Akeen Tidmore, who wore dark clothing.

       {¶ 12} As a result of the shooting, Kenneth Tolbert, the driver of the Lincoln,

suffered paralysis to one side of his face from a gunshot wound to the head.     Christopher

Lovelady, who was behind Kenneth, suffered blindness to one eye from a gunshot wound

to the head.   Kevin Tolbert, the front passenger, and Leonard Brown, seated in the back

passenger seat, were not injured.   Bullet holes were located on the Lincoln’s left side.

       {¶ 13} Phillips’s hands and the passenger door window area of Chevy 84 tested

positive for gunshot residue. Phillips denied, however, having a weapon when exiting

Chevy 84. The hands of Creel, Sutton, and Tidmore all tested negative.

       {¶ 14} Phillips, Creel, and Sutton collectively maintained that a gold car pulled up

beside the black Lincoln, and an arm exited the gold car’s window and fired gunshots into

the Lincoln. According to them, the Lincoln stopped, the gold car left, and Chevy 84

pulled to the side to allow the police to chase after the gold car.     Officers Keane and
                                            6
Lentz both testified, however, that they did not follow the gold car because the muzzle

flashes came from Chevy 84.

       {¶ 15} At the conclusion of the both the state’s and Phillips’s case, the defense

moved for acquittal pursuant to Crim.R. 29(A). The trial court denied Phillips’s motions.

       {¶ 16} On June 7, 2007, the jury found appellant not guilty of Counts 13 and 14,

attempted aggravated murder, Count 15, attempted murder, and Count 21, resisting arrest.

The jury found him guilty of the remaining charges. On June 28, 2007, the trial court

sentenced appellant to a total of 92 years in prison and reserved judgment on restitution.

       {¶ 17} Appellant appealed his convictions and sentence to this court.             We

dismissed for lack of a final, appealable order because the judgment of conviction did not

include restitution. State v. Phillips, 8th Dist. No. 90124, 2008-Ohio-5101, 2008 WL

4438650, appeal not allowed by 120 Ohio St.3d 1527, 2009-Ohio-614, 901 N.E.2d 246.

Upon remand, the trial court resolved the matter of restitution.

       {¶ 18} Appellant appeals his convictions and sentence and presents six assignments

of error for our review:

       {¶ 19} “I.   Finding Mr. Phillips guilty of attempted murder and felonious

assault is against the manifest weight of the evidence.

       {¶ 20} II.   The trial court’s denying Mr. Phillips’s motion for acquittal

violated Mr. Phillips’s due process rights because the evidence is insufficient to
                                             7
support a guilty verdict for attempted murder of and felonious assault against

Patrolman Daniel Lentz.

       {¶ 21} III.   Improperly sentencing Mr. Phillips violated his due process rights

by subjecting him to duplicative punishment with respect to: firearms specifications

that should have been merged as part of the same transaction or occurrence; allied

offenses of similar import, namely attempted murder and felonious assault; and by

combining the seven-year firearm specification for discharging a firearm at a police

officer with other firearm specifications.

       {¶ 22} IV.    The trial court denied Mr. Phillips his due process rights by

sentencing him to a felony sentence of inducing panic.

       {¶ 23} V.     The trial court denied Mr. Phillips his due process rights by

allowing the state to questioning [sic] Mr. Phillips regarding his juvenile record

because it deprived him a fair trial.

       {¶ 24} VI.    The trial court erred by imposing a sentence that is grossly

disproportionate to the severity of Mr. Phillips’s offenses.”

       {¶ 25} In his first assignment of error, appellant asserts his convictions for

attempted murder and felonious assault are against the manifest weight of the evidence.

A review of the record fails to support his argument.

       {¶ 26} In reviewing a claim challenging the manifest weight of the evidence, the

appellate court determines whether “there is substantial evidence upon which a jury could
                                            8
reasonably conclude that all the elements have been proved beyond a reasonable doubt.”

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81. This court

examines the entire record in order to determine whether the jury clearly lost its way and

created such a manifest miscarriage of justice that the convictions must be reversed and a

new trial ordered. Id.

       {¶ 27} The weight of the evidence supports Phillips’s attempted murder and

felonious assault convictions with respect to the Tolberts, Lovelady, and Brown. Two

Cleveland police officers saw multiple gunshots fired from Chevy 84 into the Lincoln’s

left side as the two vehicles were side by side on Woodland Avenue. When Chevy 84

pulled over, Phillips exited from the passenger’s side with a handgun. Phillips admitted

being in Chevy 84. Phillips’s hands and the passenger door area of Chevy 84 tested

positive for gun residue. The left side of the Lincoln had bullet holes, and bullets struck

the Lincoln’s driver and the passenger behind him.

       {¶ 28} The jury did not clearly lose its way and create such a manifest miscarriage

of justice requiring a reversal of Phillips’s convictions and an order for new trial.   While

the defense presented testimony about the gold car being the source of the gunshots, the

jury could reasonably determine the unreliability of this evidence. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967) paragraph one of the syllabus. Phillips’s first

assignment of error is overruled.
                                           9
       {¶ 29} In his second assignment of error, Phillips argues the trial court erred in

overruling his motion for acquittal because the evidence was insufficient to support his

convictions for attempted murder and felonious assault against Officer Lentz. Phillips

submits the state’s complicity theory did not support his convictions because Creel was

found not guilty of these charges.

       {¶ 30} The jury found Phillips not guilty of the attempted murder of Officer Lentz.

We find sufficient evidence supporting Phillips’s guilty verdicts for felonious assault and

attempted felonious assault of Officer Lentz.

       {¶ 31} A motion for acquittal under Crim.R. 29(A) is governed by the same

standard used for determining whether a verdict is supported by sufficient evidence. State

v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. “The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. * * * .” Id.

       {¶ 32} In order to convict an offender of complicity, the state is not required to

establish the principal’s identity. State v. Perryman, 49 Ohio St.2d 14, 258 N.E.2d 1040

(1976) paragraph four of the syllabus, vacated on other grounds, 438 U.S. 911, 98 S.Ct.

3136, 57 L.E.2d 1156 (1976). The state, therefore, was not required to identify Phillips,

Sutton, or Creel as the person who fired at Officer Lentz.
                                          10
       {¶ 33} The state was required to prove, at a minimum, that Phillips supported,

assisted, encouraged, cooperated with, advised, or incited the person who fired the shots,

and shared the criminal intent of that person. R.C. 2923.03(A)(2) and State v. Johnson,

93 Ohio St.3d 240, 245-246, 2001-Ohio-1336, 754 N.E.2d 796. “‘[C]riminal intent may

be inferred from presence, companionship and conduct before and after the offense is

committed.’” Johnson, citing State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th

Dist. 1971).

       {¶ 34} The state presented sufficient evidence from which the jury could reasonably

infer Phillips was the shooter or Phillips supported, assisted, encouraged, cooperated with,

advised, or incited the person who fired the shots. Lentz saw two men wearing white

t-shirts and carrying handguns exit Chevy 84’s passenger side. Lentz lost sight of these

men when they ran into nearby brush.     When attempting to retrieve his flashlight, Lentz

heard three gunshots and saw muzzle flashes.         Officer Keane also heard gunshots.

Phillips wore a light colored shirt when later apprehended. Phillips admitted being in and

running from Chevy 84. Phillips’s hands tested positive for gun residue.

       {¶ 35} The evidence, when viewed in a light most favorable to the prosecution,

supports Phillips’s felonious assault and attempted felonious assault convictions. The

trial court did not err in denying Phillips’s motion for acquittal.       Phillips’s second

assignment of error is overruled.
                                           11
       {¶ 36} In his third assignment of error, Phillips makes three arguments concerning

his sentence.

Merger of Firearm Specifications (Counts 1-4)

       {¶ 37} Phillips asserts the trial court unconstitutionally subjected him to multiple

sentences by imposing multiple firearm specifications and ordering them to be served

consecutively.   This court has previously held that a three-year firearm specification that

is added to an offense does not create a separate offense.   State v. Price, 24 Ohio App.3d

186, 493 N.E.2d 1372 (8th Dist. 1985). Thus, the defendant does not incur multiple

punishments for the same crime.     Id.

       {¶ 38} Additionally, cumulative sentences for three- and five-year firearm

specifications are permitted in an attempted murder case where gunshots are fired from a

moving vehicle. R.C. 2929.14(D)(1)(b). The specifications prohibit different activity

and require different proof, thus imposing different penalties.   State v. Walker, 2d Dist.

No. 17678, 2000 WL 873222 (June 30, 2000). As such, Phillips could be sentenced to an

additional three, plus an additional five years, for a total of eight years for the firearm

specifications in Counts 1, 2, 3, and 4.

       {¶ 39} The state, however, concedes, and we agree, that the trial court failed to

merge the three- and five-year firearm specifications in Count 1 with those firearm

specifications in Counts 2, 3, and 4. The court sentenced Phillips as follows:

 Count 1                 Count 2               Count 3                Count 4
 Attempted Murder of     Attempted Murder of   Attempted Murder of    Attempted Murder of
                                              12
 Kenneth Tolbert        Christopher Lovelady     Kevin Tolbert            Leonard Brown
   10 years on base        10 years on base          10 years on base       10 years on base
    plus 3-year gun        plus 3-year gun            plus 3-year gun       plus 3-year gun
     specification          specification              specification         specification
    plus 5-year gun        plus 5-year gun            plus 5-year gun       plus 5-year gun
     specification          specification              specification         specification
           =                      =                          =                     =
       18 years                18 years                  18 years              18 years
    Consecutive to         Consecutive to             Consecutive to        Consecutive to
   Counts 2, 3, and 4     Counts 1, 3, and 4         Counts 1, 2, and 4    Counts 1, 2, and 3

                                                                         TOTAL =
                                                                                72 years


       {¶ 40} R.C. 2929.14(D)(1)(b) provides, “[a] court shall not impose more than one

prison term on an offender under division (D)(1)(a) of this section for felonies committed

as part of the same act or transaction.”       The Supreme Court of Ohio has defined “the

same act or transaction” as a “series of continuous acts bound by time, space and purpose,

and directed toward a single objective.” State v. Wills, 69 Ohio St.3d 690, 691, 635

N.E.2d 370 (1994).

       {¶ 41} The multiple shots fired into the Lincoln was the same act or transaction.

The trial court erred in failing to merge the three- and five-year firearm specifications

across the four counts.       We vacate Phillips’s multiple sentences on the firearm

specifications in Counts 1, 2, 3, and 4, and remand the matter to the trial court for merger

of the specifications, and resentencing.

Merger of Allied Offenses (Counts 1-12)
                                           13
       {¶ 42} Phillips argues the attempted murder, felonious assault, and attempted

felonious assault convictions involving the Tolberts, Lovelady, and Brown are allied

offenses of similar import, and the trial court erred in not merging these offenses prior to

sentencing.   The state concedes this argument.

       {¶ 43} The trial court sentenced Phillips on each of the following counts:


 Kenneth Tolbert        Christopher Lovelady          Kevin Tolbert      Leonard Brown

 Count 1:                Count 2: Attempted     Count 3: Attempted     Count 4: Attempted
 Attempted Murder             Murder                 Murder                 Murder

 Count 5: Felonious      Count 6: Felonious       Count 7: Felonious   Count 8: Felonious
 Assault                     Assault                  Assault              Assault

 Count 9: Felonious          Count 10:              Count 11:              Count 12:
 Assault                  Felonious Assault     Attempted Felonious    Attempted Felonious
                                                     Assault                Assault

       {¶ 44} In light of the state’s concession and the recent Ohio Supreme Court

decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

Phillips’s second assignment of error is sustained.

       {¶ 45} R.C. 2941.25 provides:

       {¶ 46} “(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.

       {¶ 47} “(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
                                          14
information may contain counts for all such offenses, and the defendant may be convicted

of all of them.”

       {¶ 48} In Johnson, the Ohio Supreme Court held that the court must consider the

defendant’s conduct when determining whether two offenses are allied offenses of similar

import subject to merger under R.C. 2941.25. “If the multiple offenses can be committed

by the same conduct, then 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.’     If the

answer to both questions is yes, then the offenses are allied offenses of similar import and

will be merged.” Johnson at ¶ 49-50, quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶ 50.

       {¶ 49} On May 26, 2006, Phillips, Michael Sutton, Deante Creel, and Akeem

Tidmore, were together in Chevy 84. Police officers saw Chevy 84 pull alongside the

Lincoln containing the Tolberts, Lovelady, and Brown. The officers saw gunshots fired

from the right side of Chevy 84 into the left side of the Lincoln. Kenneth Tolbert, the

driver, and Leonard Brown, who sat behind Kenneth Tolbert, sustained head injuries from

the gunshots; Kevin Tolbert and Christopher Lovelady did not sustain any injuries.

       {¶ 50} Phillips committed the multiple offenses of attempted murder, felonious

assault, and attempted felonious assault by the same conduct. The gunshots fired at the

Lincoln was one act. Phillips acted with one animus when he, or acting in complicity

with the shooter, fired multiple gunshots into the Lincoln containing the four victims.
                                           15
The animus of the attempted murders, felonious assaults, and attempted felonious assaults

was the same.

       {¶ 51} In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, the

Ohio Supreme Court held that if a court of appeals finds reversible error in the imposition

of multiple punishments for allied offenses, the court must reverse the judgment of

conviction and remand for a new sentencing hearing at which the state must elect which

allied offense it will pursue against the defendant. Id. at ¶ 25.   The determination of the

defendant’s guilt for committing allied offenses remains intact, however, both before and

after the merger of allied offenses for sentencing. Id. at ¶ 27.

       {¶ 52} The determinations of Phillips’s guilt of attempted murder, felonious assault,

and attempted felonious assault, with firearm specifications, remain intact.     We vacate,

however, Phillips’s sentence, and remand the case pursuant to Johnson in order for the

state to elect among Counts 1, 5, and 9 for Kenneth Tolbert; to elect among Counts 2, 6,

and 10 for Christopher Lovelady; to elect among Counts 3, 7, and 11 for Kevin Tolbert;

and to elect among Counts 4, 8, and 12 for Leonard Brown, and for resentencing

consistent with the state’s elections and this court’s opinion. Whitfield at ¶ 25.

Merger of Allied Offenses and Firearm Specifications (Counts 16-17)

       {¶ 53} The trial court imposed the following sentences on Counts 16 and 17:


                  Count 16                                      Count 17
             Felonious Assault of                     Attempted Felonious Assault of
                Officer Lentz                                 Officer Lentz
                                           16

            10 years on base charge                       8 years on base charge
         Plus 3-year gun specification                 Plus 3-year gun specification
         Plus 7-year gun consecutive                    Plus 7-year gun consecutive
                      =                                             =
                   20 years                                      18 years
              Concurrent with 17                            Concurrent with 16
                                                          TOTAL = 20 years


       {¶ 54} Phillips argues his convictions for felonious assault and attempted felonious

assault of Officer Lentz are allied offenses of similar import, and should merge for

sentencing. The state concedes this argument. Phillips committed the multiple offenses

of felonious assault and attempted felonious assault by the same conduct.        The gunshots

fired in the field was one act. Phillips acted with one animus when he fired these

gunshots. The animus of the felonious assault and the attempted felonious assault was

the same.

       {¶ 55} Additionally, Phillips argues pursuant to R.C. 2929.14(D)(1)(f) that the

seven-year firearm specifications accompanying these counts cannot be combined with the

other firearm specifications.   The state also concedes this argument.

       {¶ 56} The determinations of Phillips’s guilt of felonious assault and attempted

felonious assault, with firearm specifications, remain intact.        We vacate, however,

Phillips’s sentence, and remand the case pursuant to Johnson in order for the state to elect
                                          17
among Counts 16 and 17, and for resentencing consistent with the state’s election and this

court’s opinion. Whitfield at ¶ 25.

      {¶ 57} In his fourth assignment of error, Phillips argues the trial court erred in

sentencing him to a felony rather than a first-degree misdemeanor for inducing panic

because the jury verdict did not contain the additional findings required under R.C.

2917.31(C)(2). In light of the state’s concession and the Ohio Supreme Court’s decision in

State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, Phillips’s fourth

assignment of error is sustained.     Phillips can only be convicted of a first-degree

misdemeanor for both Counts 18 and 19, the least degree under R.C. 2917.31(C)(2) for the

offense of inducing panic. Accordingly, we reverse Phillips’s felony convictions for

inducing panic, and remand the case for the trial court to enter the inducing panic

convictions as first-degree misdemeanors and sentence him accordingly.

      {¶ 58} In his fifth assignment of error, Phillips asserts the trial court erred in

permitting the state to question him about his juvenile record. This court disagrees.

      {¶ 59} Generally, pursuant to Evid.R. 609(D) and R.C. 2151.358(H), the state is

barred from introducing evidence of a defendant’s juvenile adjudications at trial. However,

in State v. Marinski, 139 Ohio St. 559, 41 N.E.2d 387 (1942), syllabus, the Supreme Court

stated “when a defendant in a criminal case is permitted to introduce evidence of his life

history, he waives the protection of the [predecessor of R.C. 3151.358] and may be
                                            18
cross-examined with reference to the disposition of any charge preferred against him as a

juvenile.” See also State v. Cox, 42 Ohio St.2d 200, 327 N.E.2d 636 (1975).

       {¶ 60} Phillips testified during direct examination that he was scared because he

“ain’t never been in that type stuff * * * we don’t be in trouble. This is my first time ever

getting in trouble.” Upon cross-examination, Phillips confirmed that he had “never

been in trouble,” and qualified “not as an adult.”     Phillips testified earlier, however, that

he was celebrating his 18th birthday on the date of the incident. Phillips’s testimony also

included that “he ain’t never been in trouble as an adult,” he had “been in trouble as a

juvenile, only twice,” and he “really wasn’t never convicted.”

       {¶ 61} The state questioned Phillips during cross-examination about his juvenile

adjudications only after Phillips testified about his life history, including statements that he

was “never been in trouble.”       This testimony allowed the state to use the Marinski

exception to ask about Phillips’s juvenile adjudications. Phillips’s fifth assignment of

error is overruled.

       {¶ 62} In light of the disposition in this case, it is premature for this court to address

Phillips’s sixth and final assignment of error, in which he argues his 92-year sentence for

his convictions was excessive. This court cannot presume which offenses the state will

elect, and cannot assume the trial court will fail to consider the purposes and principles of

sentencing at Phillips’s resentencing hearing. State v. Thomas, 8th Dist. Nos. 96146 and

96798, 2011-Ohio-6073, 2011 WL 5869777; State v. Jones, 2d Dist. No. 23926,
                                             19
2011-Ohio-1984, 2011 WL 1591285, ¶ 38-54; cf. State v. Corrao, 8th Dist. No. 95167,

2011-Ohio-2517, 2011 WL 2112721; but see State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 25.           Phillips’s sixth assignment of error, at this

juncture, is moot. App.R. 12(A)(1)(c).

       {¶ 63} The state agrees with Phillips that the sentence imposed is beyond the

maximum permitted under statute. Although the trial court could have invited sentencing

memorandums from the parties on the allied offense issue, it should not have to under the

circumstances of this case and similar cases.    The state is duty bound to provide the trial

court with a detailed sentencing memorandum when the state indicts on a defendant’s

same conduct, but on alternative theories,    with many firearm specifications.

       {¶ 64} Phillips’s convictions are affirmed in part and reversed in part.   This case is

remanded for the state to elect which counts to pursue, for the trial court to vacate

Phillips’s felony convictions for inducing panic and enter them as first-degree

misdemeanors, and for appropriate resentencing.

       It is ordered that Phillips recover from appellee 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 convictions having

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

court for sentencing.
                                          20
      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.


_________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
