[Cite as State v. Michael,
2016-Ohio-5716.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-1113
v. : (C.P.C. No. 12CR-5497)
Devante L. Michael, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 8, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and
Valerie B. Swanson, for appellee. Argued: Valerie B.
Swanson.
On brief: Yeura R. Venters, Public Defender, and
Timothy E. Pierce, for appellant. Argued: Timothy E.
Pierce.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Devante L. Michael, appeals a final judgment of the
Franklin County Court of Common Pleas issued on November 25, 2015, sentencing him to
serve a total of 20 years in prison for his participation in a robbery and a shooting.
Because we find that the trial court did not err in determining that the offenses involved
separate animuses and as a consequence did not err in refusing to merge them, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On October 25, 2012, a grand jury indicted Michael for one count of
aggravated robbery, two counts of robbery, and one count of felonious assault, all counts
including gun specifications. He pled not guilty four days later. However, on March 27,
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2013, on an agreement with the prosecution, Michael pled guilty to aggravated robbery
and felonious assault with associated gun specifications. The remaining two counts of
robbery and related specifications were dismissed.
{¶ 3} During the plea hearing the prosecution delivered an oral summary of the
underlying facts and the defense raised no exceptions to the summary. The summary ran
thus:
[T]his occurred on October 14th of 2012. Mr. Blevins, the
victim of this offense, was walking in the area of 1179 East
Main Street. He had noticed Mr. Michael and Mr. Pinkston
were following him for a period of time, even walking past his
residence because he didn't want to get cornered by the guys
who were follow[ing] him.
At some point Mr. Michael made his way in front of
Mr. Blevins, he pulled out a blue steel revolver and ordered
that Mr. Blevins give him everything that he has. Mr. Blevins
stated that Mr. Pinkston was behind him. He pled with
Mr. Michael saying, no, no. And then at that point
Mr. Michael informed him that, it was the real deal.
Mr. Blevins being a CCW permit holder went to grab his
firearm. At that point Mr. Michael did shoot him. He then
turned around and shot Mr. Michael. And was able to turn to
his rear and shoot Mr. Pinkston who was also shooting at him
at that point.
Both Mr. Michael and Mr. Pinkston ran to attempt to get
some help for themselves, one to a cab and the other to a
police substation. And they were arrested more or less at the
scene.
And as I noted before, Mr. Blevins is a mechanic by trade, he
spent over two months in the hospital trying to recover from
these things with over $180,000.00 of medical bills. And he
now can't lift anything that's heavier than 40 pounds which
makes it very difficult for him to earn any money in his area of
knowledge and expertise.
(Mar. 27, 2013 Tr. at 19-21.)
{¶ 4} The trial court held a sentencing hearing approximately one month later, on
April 25. During the hearing, the trial court first announced that it would sentence
Michael to 7 years on both counts and 3 years on each specification, running each
sentence consecutively to each other for a total of 20 years. However, counsel for both the
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defense and prosecution expressed the view that the gun specifications could not be run
consecutively to one another. At that point, the trial court indicated it would sentence
Michael to 10 years for aggravated robbery, to be served consecutively to 7 years on the
felonious assault count and 3 concurrent years on the two specifications for the same
total, 20 years. However, when the trial court released its judgment entry, it
memorialized the first-stated intention and sentenced Michael to 7 years on both counts
and 3 years on each specification, each sentence running consecutively with the others.
{¶ 5} Michael timely appealed. Because "the trial court judge made a mistake in
journalizing a sentence which [wa]s not consistent with the sentence announced in open
court," this Court vacated the judgment entry and remanded for a new sentencing
hearing. State v. Michael, 10th Dist. No. 13AP-436, 2014-Ohio-125, ¶ 9, 15. This Court
also noted that the animuses for the offenses were separate and, therefore, that they
should not have merged. Finally, this Court explained that R.C. 2929.14(B)(1)(g) specifies
that where an offender is convicted of, inter alia, aggravated robbery and felonious
assault, prison terms for the two most serious specifications " 'shall ' " be imposed and
that they therefore " 'must be imposed.' "
Michael at ¶ 10-11, quoting R.C.
2929.14(B)(1)(g).
{¶ 6} On remand, Michael filed a sentencing memorandum that requested the
trial court merge the counts of aggravated robbery and felonious assault based on a
Supreme Court of Ohio case that was released between this Court's decision in Michael
and the date set for resentencing (arguing for merger based on State v. Ruff, 143 Ohio
St.3d 114,
2015-Ohio-995). After hearing argument on the subject at an oral resentencing
hearing, the trial court declined to merge the offenses and indicated that it would onceagain impose 10 years for aggravated robbery, to be served consecutively to 7 years on the
felonious assault count and 3 concurrent years on the two specifications for a total term of
imprisonment of 20 years. The trial court indicated that although running the firearm
specifications concurrently might violate R.C. 2929(B)(1)(g), it would still run them
concurrently because that was what the parties had agreed to and discussed during the
plea hearing. The trial court memorialized the sentence in a judgment entry filed on
November 25, 2015.
{¶ 7} Michael now appeals.
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No. 15AP-1113
II. ASSIGNMENT OF ERROR
{¶ 8} Michael posits a single assignment of error for review:
The trial court erred in failing to merge the aggravated
robbery and felonious assault convictions at sentencing in
violation of R.C. 2941.25, the Fifth and Fourteenth
Amendments of the United States Constitution, and Article I,
Sections 10 and 16 of the Ohio Constitution.
III. DISCUSSION
{¶ 9} The Ohio statute on allied offenses provides as follows:
(A) Where the same conduct by [the] 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.
R.C. 2941.25(A) and (B). This statute has been accorded numerous interpretations by the
Supreme Court. See, e.g., State v. Logan, 60 Ohio St.2d 126 (1979); State v. Blankenship,
38 Ohio St.3d 116 (1988); State v. Rance,
85 Ohio St.3d 632 (1999); State v. Cabrales,
118
Ohio St.3d 54,
2008-Ohio-1625; State v. Johnson,
128 Ohio St.3d 153,
2010-Ohio-6314.
{¶ 10} In its latest interpretation of R.C. 2941.25, the Supreme Court has held:
1. In determining whether offenses are allied offenses of
similar import within the meaning of R.C. 2941.25, courts
must evaluate three separate factors—the conduct, the
animus, and the import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant's conduct
constitutes offenses involving separate victims or if the harm
that results from each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct
supports multiple offenses may be convicted of all the offenses
if any one of the following is true: (1) the conduct constitutes
offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows
that the offenses were committed with separate animus.
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Ruff at paragraphs one through three of the syllabus. The question of whether offenses
are allied offenses of similar import is reviewed de novo. State v. Williams, 134 Ohio St.3d
482,
2012-Ohio-5699, ¶ 26-28.
{¶ 11} Because it is dispositive, we consider animus first. "Animus" is not defined
in the Ohio Revised Code. However, the Supreme Court has stated that " '[a]nimus' has
been defined as '… purpose, intent, or motive.' " Newark v. Vazirani, 48 Ohio St.3d 81,
84 (1990), quoting
Blankenship at 819 (Whiteside, J. concurring). Black's Law Dictionary
also defines "animus" in relevant part as "[i]ntention." Black's Law Dictionary 107 (10th
Ed.2014.)
{¶ 12} It is undisputed that Michael confronted Blevins, the victim, drew a
revolver, and ordered Blevins to hand over all his belongings. At that point, it is apparent
that Michael's "purpose, intent[ion], or motive" was to steal. Vazirani at 84; Black's at
107. Blevins pled with Michael who refused to yield in his demand, informing Blevins that
the robbery was "the real deal." (Tr. at 20.) Perhaps realizing the futility of further
pleading, Blevins attempted to draw his own gun; whereupon Michael shot him in the
stomach. At the moment when Michael pulled the trigger, the reasonable inference is that
his "purpose, intent[ion], or motive" was to hurt and injure Blevins—either to incapacitate
him to prevent him from drawing his weapon or simply to punish him for resisting the
robbery.
Vazirani at 84; Black's at 107. In either case, the purpose to inflict injury is
different from the motive to steal that brought him face to face with Blevins in the first
place. Thus, the facts of the interaction show that the animuses were different for the
offenses.
{¶ 13} "[A] defendant whose conduct supports multiple offenses may be convicted
of all the offenses if any one of the" three considerations set forth by Ruff is satisfied. Ruff
at paragraph three of the syllabus. Because we have now found that the animuses were
separate which satisfies the third consideration set forth by Ruff, we need not and shall
not consider whether the offenses had dissimilar import or were committed separately.
{¶ 14} We previously reached the conclusion that the animuses were separate and
that merger of the offenses was not required in Michael at ¶ 12. But because it was not
essential to that decision (which was based on the fact that "the trial court judge made a
mistake in journalizing a sentence which [wa]s not consistent with the sentence
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No. 15AP-1113
announced in open court"), it was obiter dictum and need not have controlled the result
here. Id. at ¶ 9. Although there is no indication that Ruff changed the analysis with regard
to animus, we acknowledge that between the time of our prior decision in Michael's first
appeal and Michael's resentencing post-appeal, the Supreme Court's decision in Ruff
again modified the law required for analysis of merger. See, e.g., State v. J.M., 10th Dist.
No. 14AP-621, 2015-Ohio-5574, ¶ 47-48. We, therefore, apply current law on a second
review of the question of merger, notwithstanding law of the case considerations, and we
reach the same result.
{¶ 15} Michael's sole assignment of error is overruled.
IV. CONCLUSION
{¶ 16} Because the factual circumstances in this case as recited by the prosecution
and accepted by the defense show that the defendant held separate animuses (purpose,
intent, or motive) during each offense, the trial court did not err in refusing to merge the
offenses. We, therefore, affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
DORRIAN, P.J., and LUPER SCHUSTER, J., concur.
