[This opinion has been published in Ohio Official Reports at
81 Ohio St.3d 1262.]
THE STATE OF OHIO, APPELLANT, v. WILLIAMS, APPELLEE.
[Cite as State v. Williams, 1998-Ohio-603.]
Appeal dismissed for lack of a conflict.
(No. 96-2671—Submitted December 2, 1997—Decided May 13, 1998.)
CERTIFIED by the Court of Appeals for Stark County, No. 95-CA-0258.
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Robert D. Horowitz, Stark County Prosecuting Attorney, R. Mark Caldwell
and J. Leslie Markijohn, Assistant Prosecuting Attorneys, for appellant.
James Silvio Manello, for appellee.
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{¶ 1} The appeal is dismissed, sua sponte, for lack of a conflict.
MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
PFEIFER, COOK and LUNDBERG STRATTON, JJ., dissent.
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COOK, J., dissenting.
{¶ 2} I respectfully dissent. A majority of this court dismisses this appeal
based on its determination that there is no conflict between the appellate court’s
judgment in this case and the appellate court judgments in State v. Parra (Feb. 22,
1979), Cuyahoga App. No. 38706, unreported; State v. Mabry (1982), 5 Ohio
App.3d 13, 5 OBR 14,
449 N.E.2d 16; State v. Chatmon (May 2, 1985), Cuyahoga
App. No. 48569, unreported,
1985 WL 8972; and State v. Whalen (Nov. 27, 1991),
Cuyahoga App. No. 59366, unreported,
1991 WL 251668. I believe that this
disposition is inconsistent with our customary avoidance of presumptions that
would bring the judgments of inferior courts into question where a reasonable
presumption also exists that would make them regular and valid. See State v.
SUPREME COURT OF OHIO
Brandon (1989), 45 Ohio St.3d 85, 87,
543 N.E.2d 501, 504; Fisher & Lanning v.
Quillen (1907),
76 Ohio St. 189,
81 N.E. 182.
{¶ 3} In reaching its conclusion, the majority necessarily interprets both of
the concurring opinions in the case below to render as dicta the lead opinion’s
conclusion that felonious assault is not a lesser included offense of attempted
murder. Pivotal to that conclusion is Judge Wise’s opinion, wherein he concurred
only in judgment concerning the lead opinion’s refusal to classify felonious assault
as a lesser included offense of attempted murder. In that opinion, Judge Wise
suggested that felonious assault is a lesser included offense of attempted murder
and may be so charged to a jury so long as it is charged in its inferior degree as
attempted felonious assault.
{¶ 4} The lower court’s judgments make sense only if Judge Wise’s
concurring opinion is read to classify attempted felonious assault, but not felonious
assault itself, as a lesser included offense of attempted murder. While there is some
language in Judge Wise’s concurring opinion that suggests the contrary, Judge
Wise was one of the three judges from the Fifth Appellate District who certified
that Williams is in conflict with Parra, Mabry, Chatmon, and Whalen on the issue
of whether felonious assault is a lesser included offense of attempted murder.
Moreover, had both concurring judges in Williams completely disagreed with Judge
Gwinn’s resolution of the lesser-included-offense issue, Judge Gwinn’s opinion
should have lost its lead opinion designation. Accordingly, I would credit the court
below with proper interpretation of its judges’ opinions and would proceed to the
merits of this case.
{¶ 5} On the merits, I would vote to uphold the State v. Deem (1988), 40
Ohio St.3d 205,
533 N.E.2d 294, lesser-included-offense test against the state’s
challenges and to affirm the appellate court’s conclusion that, under Deem,
felonious assault is not a lesser included offense of attempted murder.
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January Term, 1998
PFEIFER and LUNDBERG STRATTON, JJ., concur in the foregoing dissenting
opinion.
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