[Cite as State v. Sutton,
2011-Ohio-2249.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 90172
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL SUTTON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-481840
BEFORE: Jones, J., Kilbane, A.J., and Keough, J.
RELEASED AND JOURNALIZED: May 12, 2011
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} This cause is before this court on remand from the Supreme Court of Ohio. In
State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677 (Sutton I), this court found that
felonious assault and attempted murder were allied offenses of similar import and merged
appellant’s convictions for felonious assault and attempted murder as to each victim. This
court also reversed appellant’s conviction for two felony counts of inducing panic and
remanded the case to the lower court to enter a judgment convicting appellant of two
misdemeanor counts of inducing panic. Further, this court found that appellant’s sentence of
42½ years in prison was grossly disproportionate to the severity of his offenses. The
appellant’s convictions were affirmed by this court in all other respects.
{¶ 2} Appellant appealed our decision to the Ohio Supreme Court and the state
cross-appealed on the issue of allied offenses. In February 2009, the Ohio Supreme Court
dismissed Sutton’s appeal, but accepted the state’s cross-appeal. The trial court stayed further
action on the case pending the decision of the Supreme Court.
{¶ 3} In March 2011, the Supreme Court issued a judgment entry stating, in part:
“This cause is remanded to the court of appeals for further consideration in view of our
decision in State v. Johnson, [128 Ohio St.3d 153,
2010-Ohio-6314,
942 N.E.2d 1061].”
{¶ 4} Thus, our task is to consider whether the Ohio Supreme Court’s decision in
Johnson affects our original holding in Sutton I, where we merged Sutton’s convictions for
felonious assault and attempted murder.
{¶ 5} In Johnson, the Ohio Supreme Court overruled State v. Rance (1999), 85 Ohio
St.3d 632,
710 N.E.2d 699, which required a comparison of statutory elements solely in the
abstract under R.C. 2941.25, and 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. Johnson at ¶44.
{¶ 6} The Johnson Court held that:
“In determining whether offenses are allied offenses of similar import under R.C.
2941.25(A), the question is whether it is possible to commit one offense and commit the
other with the same conduct, not whether it is possible to commit one without
committing the other. … If the offenses correspond to such a degree that the
conduct of the defendant constituting commission of one offense constitutes commission
of the other, then the offenses are of similar import.
“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.
“Conversely, if the court determines that the commission of one offense will never
result in the commission of the other, or if the offenses are committed separately, or if
the defendant has separate animus for each offense, then, according to R.C. 2941.25(B),
the offenses will not merge.” (Internal citations omitted.) Id. at ¶ 48-51.
{¶ 7} In other words, “[i]f 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.
{¶ 8} In Sutton I, we analyzed the case pursuant to State v. Cabrales, 118 Ohio St.3d
54,
2008-Ohio-1625,
886 N.E.2d 181, and found:
“The facts in this case are straightforward. On the evening in question, appellant and
three other individuals, Kenny Phillips, Deante Creel, and Akeem Tidmore, were riding
together in a Chevrolet Caprice. Police officers saw the Chevrolet pull alongside a
Lincoln Mark VIII containing Ken Tolbert, Chris Lovelady, Kevin Tolbert, and Leonard
Brown. The police witnessed gunshots coming from the Chevrolet. The driver of the
Lincoln, Ken Tolbert, and one passenger, Chris Lovelady, sustained head injuries from
the gunshots; the other two passengers were uninjured.
1
“The grand jury issued the following indictment: four counts of attempted murder
(attempted purposely to cause the death of another); four counts of felonious assault
(knowingly causing or attempting to cause harm to another with a gun); two counts of
felonious assault (causing serious physical harm to another); and two counts of
attempted felonious assault (knowingly attempting to cause serious physical harm to
another). There were other counts in the indictment, but they are not relevant to the
issue before us here.
“…
“We hold here that shooting at someone and hitting them, but not killing them, and
shooting at someone but not hitting them, are both manners in which these attempted
murders were perpetrated. In fact, the various felonious assaults are subsumed in the
attempted murders. Hence, the first prong (the elements of all the various felonious
assaults charged here, if proved, would result in the commission of attempted murder) is
satisfied.
“The second prong of this inquiry is whether there was a separate animus to each of the
felonious assaults; we hold there was not. There is one act-shooting the automobile. The
fact that the automobile had four occupants resulted in single charges relating to each of
the four victims, but the animus of the felonious assaults and the attempted murders was
the same. Hence, we conclude that all of the felonious assaults are allied offenses of
similar import to the attempted murders.” Id. at ¶85-86, ¶93-94.
{¶ 9} Although our analysis now is under Johnson, and not Cabrales or Rance, the
outcome is still the same. In considering the conduct of Sutton, we again find that he acted
1
A complete recitation of the facts are set forth in Sutton I.
with one animus when he fired multiple successive shots into the car containing the four
victims; therefore, the animus of the felonious assaults and the attempted murders was the
same.
{¶ 10} Thus, under Johnson we hold that the trial court erred in failing to merge the
felonious assault and attempted murder convictions as to each of the four victims.
{¶ 11} The case is reversed and remanded to the trial court for proceedings consistent
with this opinion.
It is ordered that appellant recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, JUDGE
MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
