[Cite as State v. Jones, 2012-Ohio-2694.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-11-60

        v.

DEMOND JONES,                                            OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR20100092

                       Judgment Reversed and Cause Remanded

                              Date of Decision: June 18, 2012




APPEARANCES:

        Michael J. Short for Appellant

        Terri L. Kohlrieser for Appellee
Case No. 1-11-60


ROGERS, J.

         {¶1} Defendant-Appellant, Demond Jones (“Jones”), appeals the judgment

of the Court of Common Pleas of Allen County sentencing him to life in prison

without the possibility of parole. On appeal, Jones contends that the trial court

erred when it imposed multiple sentences for allied offenses of similar import.

Based on the following, we agree.

         {¶2} In March 2010, the Allen County Grand Jury returned a three count

indictment against Jones, to wit: Count One, aggravated murder in violation of

R.C. 2903.01(B), an unclassified felony;1 Count Two, aggravated burglary in

violation of R.C. 2911.11(A)(1), a felony of the first degree;2 and, Count Three,

having a weapon while under disability in violation of R.C. 2923.13(A)(2), a

felony of the third degree.              The indictment arose from a February 26, 2010

incident, where Jones, without authorization, entered the residence of Marjorie

Williams and shot and killed her.

         {¶3} In September 2011, the matter proceeded to a jury trial. Jones was

found guilty on all three counts in the indictment, as well as the specifications in

1
   Count One contained three specifications, to wit: Jones committed the offense while committing
aggravated burglary in violation of R.C. 2929.04(A)(7) (“death penalty specification”); Jones used a
firearm to facilitate the offense in violation of R.C. 2941.145(A); and, Jones is a repeat violent offender as
listed in R.C. 2941.149. The State sought the death penalty in this case, but the trial court found that Jones
was mentally retarded and, therefore, not subject to the death penalty. Consequently, the trial court
dismissed the death penalty specification. The trial court also dismissed the repeat violent offender
specification.
2
  Count Two contained two specifications, to wit: Jones used a firearm to facilitate the offense in violation
of R.C. 2941.145(A); and, Jones is a repeat violent offender as listed in R.C. 2941.149. The trial court
subsequently dismissed the repeat violent offender specification.

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Case No. 1-11-60


Counts One and Two concerning the use of a firearm during the commission of the

offenses. Thereafter, the trial court immediately proceeded to sentence Jones.

With regard to Count One, the trial court sentenced Jones to life in prison without

the possibility of parole and to three years in prison for the corresponding firearm

specification. Trial Tr., p. 439-441. With regard to Count Two, the trial court

sentenced Jones to ten years in prison. Id. at p. 441. With regard to Count Three,

the trial court sentenced Jones to five years in prison. Id. After the trial court

imposed sentences on each count, the trial court proceeded to find that all three

counts were allied offenses of similar import. Id. at p. 442. As a result, the trial

court stated, “pursuant to [State v.] Johnson [128 Ohio St.3d 153, 2010-Ohio-

6314] the sentences will merge. So, the sentences in this case merge pursuant to

State v. Johnson into the one count, the sentence imposed in Count One * * *.” Id.

In its sentencing entry, however, the trial court ordered that “the prison terms

imposed in this case all merge pursuant to State v. Johnson * * *.” Sentencing

Entry, p. 6.

       {¶4} On February 23, 2012, the trial court filed a nunc pro tunc sentencing

entry so that the language in the sentencing entry concerning merger of the

sentences would conform to what was said during sentencing. As a result, the

nunc pro tunc sentencing entry ordered that “the prison terms in this case all merge




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into Count One pursuant to State v. Johnson * * *.” February 23, 2012 Nunc Pro

Tunc Sentencing Entry, p. 6.

        {¶5} Shortly thereafter, on February 28, 2012, the trial court, sua sponte,

filed a second nunc pro tunc sentencing entry in which it again altered the

language concerning merger of the sentences. As a result, the nunc pro tunc

sentencing entry ordered that “the prison terms imposed in this case are merged

into one conviction and sentence for count one only * * *.”3 February 28, 2012

Nunc Pro Tunc Sentencing Entry, p. 1-2.

        {¶6} It is from this judgment Jones appeals, presenting the following

assignment of error for our review.

                                   Assignment of Error No. I

        THE TRIAL COURT ERRED WHEN IT IMPOSED
        SENTENCES ON ALL THREE OF THE CHARGES FOR
        WHICH THE DEFENDANT WAS CONVICTED AS THESE
        WERE ALLIED OFFENSES OF SIMILAR IMPORT.

        {¶7} In his sole assignment of error, Jones contends that the trial court erred

when it imposed multiple sentences for allied offenses of similar import. As a

result, Jones contends that the trial court’s judgment of conviction must be




3
  We note that the trial court inappropriately included the language “one conviction” in the February 28,
2012 nunc pro tunc sentencing entry. “[N]unc pro tunc entries are limited in proper use to reflecting what
the court actually decided, not what the court might or should have decided or what the court intended to
decide.” (Emphasis sic.) State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164 (1995). At no point during
sentencing did the trial court state that the prison terms imposed merged into “one conviction.”
Accordingly, that portion of the February 28, 2012 nunc pro tunc entry must be disregarded.

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Case No. 1-11-60


reversed and remanded for a new sentencing hearing. Based on the following, we

agree.

         {¶8} The Ohio Supreme Court has recognized that the “imposition of

multiple sentences for allied offenses of similar import is plain error.” State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31, citing State v. Yarbrough,

104 Ohio St.3d 1, 2004-Ohio-6087, ¶ 96-102. “When a defendant has been found

guilty of offenses that are allied offenses, R.C. 2941.25 prohibits the imposition of

multiple sentences.” State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, ¶ 17,

citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 12; R.C. 2941.25(A).

When the defendant has been found guilty of two or more allied offenses the state

must select which offense it will pursue. State v. Harris, 122 Ohio St.3d 373,

2009-Ohio-3323, ¶ 21, citing Maumee v. Geiger, 45 Ohio St.2d 238, 244 (1976).

Thereafter, the trial court must merge the allied offenses into a single conviction

and impose a sentence that is appropriate for the offense selected by the state for

sentencing. Damron at ¶ 17, citing State v. Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, ¶ 41-43.

         {¶9} Here, the trial court erred when it imposed sentences on all three

counts, which it subsequently found to be allied offenses of similar import.

Because the trial court found that the offenses were allied, a step that should occur

prior to imposing a sentence, the trial court could only sentence Jones on the


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Case No. 1-11-60


offense selected by the State.     Damron at ¶ 17.       The trial court apparently

attempted to achieve this result when it merged the sentences into Count One.

Trial Tr., p. 442; February 28, 2012 Nunc Pro Tunc Entry, p. 1-2. This sentencing

scheme, however, does not negate the error caused by imposing sentences on each

count. It is well established that ordering sentences for allied offenses to run

concurrently fails to satisfy the merger doctrine because the trial court has no

authority to enter a sentence on any charge other than the one selected by the state

for sentencing. Damron at ¶ 17. While the trial court did not explicitly order the

sentences to be served concurrently, it did merge the sentences imposed for

Counts Two and Three into Count One. This merger is tantamount to ordering

Counts Two and Three to be served concurrently to Count One, and therefore is an

improper attempt to merge the allied offenses. State v. Fair, 2d Dist. No. 24120,

2011-Ohio-3330, ¶ 78, citing Damron at ¶ 17. Accordingly, we must remand this

matter to the trial court for a new sentencing hearing. Whitfield at ¶ 25.

       {¶10} In a remand based solely on an allied-offenses sentencing error,

which is the case here, the guilty verdicts underlying a defendant’s sentences

remain the law of the case and are not subject to review. State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, ¶ 15, citing Whitfield at ¶ 26-27. Further, only the

sentences for the offenses that were affected by the appealed error are reviewed de

novo. Id., citing State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, paragraph


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three of the syllabus. Accordingly, upon remand, the State must select which

offense it wants to pursue for sentencing, to wit: aggravated murder, aggravated

burglary, or having a weapon while under disability.4 Wilson at ¶ 18. Pursuant to

Whitfield, the trial court must accept the State’s selection, merge the offenses

accordingly for the purpose of sentencing, and impose a sentence that is

appropriate for the offense selected by the State. Id.

        {¶11} Accordingly, we sustain Jones’ sole assignment of error.

        {¶12} Having found error prejudicial to Jones herein, in the particulars

assigned and argued in his sole assignment of error, we reverse the judgment of

the trial court and remand the matter for further proceedings consistent with this

opinion.

                                                                           Judgment Reversed and
                                                                                Cause Remanded

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




4
 The State has not appealed the issue of whether the three offenses are properly considered allied offenses
of similar import and we will not address that issue.


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