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IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
v. : No. 13AP-436
(C.P.C. No. 12CR-5497)
Devante L. Michael, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on January 16, 2014
Ron O'Brien, Prosecuting Attorney, and Valerie Swanson,
for appellee.
Yeura R. Venters, Public Defender, and Timothy E. Pierce,
for appellant.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Defendant-appellant, Devante L. Michael ("appellant"), is
appealing from the judgment and sentences imposed following his
convictions for aggravated robbery and felonious assault. He assigns three
errors for our consideration:
First Assignment of Error: The lower court erred in
failing to merge Appellant's aggravated robbery and felonious
assault convictions at sentencing in violation of R.C. §
2941.25(A), the Fifth and Fourteenth Amendments of the
United States Constitution, and Article I, Sections 10 and 16 of
the Ohio Constitution.
Second Assignment of Error: The lower court's Judgment
Entry imposed a sentence different from the one announced
No. 13AP-436 2
in open court in violation of Rule 43(A) of the Rules of
Criminal Procedure, the Fifth and Fourteenth Amendments of
the United States Constitution and Article I, Section 16 of the
Ohio Constitution.
Third Assignment of Error: The trial court's sentence was
contrary to law in violation of R.C. § 2953.08(A)(4) when it
imposed consecutive sentences relative to the aggravated
robbery and felonious assault counts without making the
required findings under R.C. § 2929.14(C)(4).
{¶ 2} Appellant was originally charged with more counts of robbery
and entered guilty pleas to a single count of robbery with a firearm
specification and a single count of felonious assault with a firearm
specification as part of a plea bargain. The voluntariness of those guilty
pleas is not being contested on appeal, only the resulting sentences.
{¶ 3} The sentence was imposed following a sentencing hearing.
The trial court judge who imposed the sentence was inclined to impose a 20-
year sentence of incarceration. Initially, the judge ordered a sentence of 6
years on the firearm specifications and 14 years on the underlying felonies,
reflecting 3 years and 3 years consecutive to each other for firearm
specifications and 7 years consecutive to a separate 7 year sentence on the
underlying felonies.
{¶ 4} Counsel for the state of Ohio and the defendant told the judge
that the sentences for the firearm specifications could not be served
consecutively since there was a single victim and essentially a single incident.
The trial court accepted this information and imposed a 3 year sentence for
the firearm specifications but increased the sentence for aggravated robbery
from 7 to 10 years. Since the sentences for the felonies and the sentences for
the firearm specifications were to be served consecutively, the sentence again
totaled 20 years of incarceration.
{¶ 5} When signing the sentencing entry, the trial court journalized
the first sentence announced in open court, not the sentences announced
No. 13AP-436 3
after the trial court judge was told the first sentence announced was not a
legal sentence. This appeal ensued.
{¶ 6} The victim of the aggravated robbery was shot and spent over
two months in the hospital after the shooting. He is permanently harmed
and has had his ability to pursue his livelihood as a mechanic impaired. The
trial court judge was well within his discretion to order consecutive
sentences for felonious assault and aggravated robbery. However, the trial
court had to impose sentences which complied with the applicable
provisions of the Ohio Revised Code and journalize the sentence announced
in open court.
{¶ 7} The trial court judge accurately found that under the facts of
this case the offenses of aggravated robbery and felonious assault were not
allied offenses of similar import under R.C. 2941.25 which reads:
(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.
(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 information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 8} Aggravated robbery includes the committing of a theft offense
while armed with a deadly weapon. Felonious assault is either knowingly
doing physical harm with a deadly weapon or knowingly doing serious
physical harm to another. Appellant was guilty of felonious assault under
either theory.
{¶ 9} The state of Ohio has conceded that the trial court judge made
a mistake in journalizing a sentence which is not consistent with the
sentence announced in open court. Thus, the state of Ohio has admitted an
error which requires a new sentencing hearing and a new journalization of
the sentence ordered.
No. 13AP-436 4
{¶ 10} Appellate counsel for the state of Ohio now argues that trial
counsel for the state was wrong to assert that the two firearm specification
sentences must be served concurrently. Appellate counsel argues that recent
changes in the pertinent statutes makes consecutive sentences on the
firearm specification mandatory. On appeal, the state of Ohio relies on R.C.
2929.14(B)(1)(g) which reads:
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated
murder, murder, attempted aggravated murder, attempted
murder, aggravated robbery, felonious assault, or rape, and if
the offender is convicted of or pleads guilty to a specification
of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two
most serious specifications of which the offender is convicted
or to which the offender pleads guilty and, in its discretion,
also may impose on the offender the prison term specified
under that division for any or all of the remaining
specifications.
{¶ 11} R.C. 2929.14 specifies that the sentences for firearm
specifications must be imposed. This is a matter for the trial court judge to
address at the new sentencing hearing.
{¶ 12} Turning to the actual assignments of error individually, the
first assignment of error is overruled. The dominant animus for aggravated
robbery is theft. The dominant animus for felonious assault is the doing of
physical harm. Because the animus for each is separate, R.C. 2941.25 does
not apply to require merger.
{¶ 13} The state of Ohio has confessed error as to the second
assignment of error. That assignment of error is sustained.
{¶ 14} The third assignment of error is rendered moot by our ruling
on the second assignment of error. We do not know what specific findings
the trial court judge will make if the judge again orders consecutive
sentences to the enforced.
No. 13AP-436 5
{¶ 15} As a result of the foregoing, the judgment of the Franklin
County Court of Common Pleas is vacated. The case is remanded to the trial
court for a new sentencing hearing and the imposition of sentences of
incarceration following that hearing.
Judgment vacated and remanded for
new sentencing.
BROWN and KLATT, JJ., concur.
