[Cite as State v. Davison,
2021-Ohio-3941.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29120
:
v. : Trial Court Case No. 2018-CR-1560
:
JAMES A. DAVISON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 5th day of November, 2021.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio
45419
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} James A. Davison appeals from the trial court’s resentencing entry imposing
separate sentences on two three-year firearm specifications pursuant to a mandate from
this court. Davison asks us to “revisit” our prior mandate regarding separate sentences
and to reverse the trial court’s imposition of such sentences. For the following reasons,
we affirm.
Factual and Procedural History
{¶ 2} Davison was found guilty and sentenced on charges of aggravated murder,
murder, evidence tampering, improper handling of a firearm in a motor vehicle, and
various specifications. Davison appealed, and the State cross-appealed. On review, we
overruled Davison’s assignments of error. On the cross-appeal, we reversed the trial
court’s judgment insofar as it had merged two substantive offenses. We also reversed the
trial court’s merger of multiple three-year firearm specifications into one. See State v.
Davison, 2d Dist. Montgomery No. 28579, 2021-Ohio-728 (“Davison I”). The Ohio
Supreme Court denied review in State v. Davison,
164 Ohio St.3d 1447,
2021-Ohio-3336.
{¶ 3} Consistent with our mandate, the trial court resentenced Davison and
imposed separate prison terms on three-year firearm specifications attendant to his
aggravated murder and murder convictions. This appeal followed.
Analysis
{¶ 4} Davison’s sole assignment of error states:
THE COURT ERRED IN FAILING TO MERGE APPELLANT’S FIREARM
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SPECIFICATIONS.
{¶ 5} Davison asks us to “revisit” our mandate in Davison I directing the trial court
to impose separate sentences on the two three-year firearm specifications referenced
above. His appellate brief effectively functions as a motion for reconsideration of Davison
I. He contends the trial court did not err when it originally merged all of the three-year
firearm specifications into one and that we erred in holding otherwise.
{¶ 6} Upon review, we conclude that Davison’s assignment of error lacks merit.
The law-of-the-case doctrine precludes him from challenging our holding in Davison I.
“[T]he doctrine provides that the decision of a reviewing court in a case remains the law
of that case on the legal questions involved for all subsequent proceedings in the case at
both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St. 3d 1, 3,
462 N.E.2d 410
(1984). Therefore, “[a]bsent extraordinary circumstances, such as an intervening decision
by the Supreme Court, an inferior court has no discretion to disregard the mandate of a
superior court in a prior appeal in the same case.”
Id. at syllabus.
{¶ 7} Our mandate in Davison I directed the trial court to impose separate
sentences on three-year firearm specifications accompanying the appellant’s aggravated
murder and murder convictions. The trial court had no liberty to disregard our mandate,
and the law-of-the-case doctrine precludes Davison from challenging our prior
determination that separate sentences were required.
{¶ 8} Finally, even if the law-of-the-case doctrine did not apply, we would find
Davison’s assignment of error to be unpersuasive. He raises no new issue or argument
that we failed to address in Davison I. He simply disagrees with our holding and asks us
to “revisit” it.
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{¶ 9} In Davison I, we addressed the firearm specifications and reasoned as
follows:
Under R.C. 2941.145, Davison was found guilty of multiple three-
year firearm specifications for having a firearm on or about his person while
committing his offenses and displaying, brandishing, indicating that he
possessed, or using it to facilitate the offenses. Davison also was found
guilty of multiple five-year firearm specifications under R.C. 2941.146 for
purposely or knowingly causing or attempting to cause the death of or
physical harm to another by discharging a firearm from a motor vehicle.
In [State v. Howard, 2020-Ohio-3819,
156 N.E.3d 433 (2d Dist.)], we
recognized that when a defendant is found guilty of a three-year and a five-
year firearm specification accompanying the same offense, a trial court is
required to impose both a three-year prison term and a five-year prison
term. Howard at ¶ 96-97. The trial court correctly did so in the present case.
The issue raised by the State’s appeal is whether the trial court should have
merged the multiple three-year firearm specifications into one. Howard
answers that question in the negative.
Although a trial court ordinarily may impose only one additional three-
year prison term for multiple firearm specifications committed as part of the
same act or transaction (see R.C. 2929.14(B)(1)(b)), an exception is
created by R.C. 2929.14(B)(1)(g), which provides:
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,
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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.
Here, Davison was convicted of, among other things, aggravated
murder and murder, and he was convicted of three-year firearm
specifications of the type described under R.C. 2929.14(B)(1)(a) in
connection with both of those felonies. Therefore, the trial court was
required to impose the three-year prison term specified under R.C.
2929.14(B)(1)(a) “for each of the two most serious specifications” of which
Davison was convicted. In short, R.C. 2929.14(B)(1)(a) obligated the trial
court to impose separate prison terms for the three-year firearm
specifications accompanying Davison’s aggravated murder and murder
convictions.
The foregoing sentencing obligation was not satisfied by merging the
three-year firearm specifications into one, merging the five-year firearm
specifications into one, and imposing a three-year prison sentence and a
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five-year prison sentence. Howard at ¶ 94. This is so because R.C.
2929.14(B)(1)(g)’s requirements apply to convictions for firearm
specifications under R.C. 2929.145, which includes Davison’s three-year
firearm specifications. It does not apply to convictions for five-year firearm
specifications under R.C. 2929.146.3. Id.
…
… Although the trial court correctly imposed three-year and five-
year prison terms on Davison’s firearm specifications under R.C. 2941.145
and R.C. 2941.146, it was obligated by R.C. 2929.14(B)(1)(g) to sentence
Davison on a three-year firearm specification for the aggravated murder of
Darion Harris and on a second three-year firearm specification for the
murder of Ashley James. …
(Footnote omitted.) Davison I at ¶ 38-44.
{¶ 10} In his present appeal, Davison continues to argue that the trial court
complied with R.C. 2929.14(B)(1)(g) by imposing a three-year prison term and a five-year
prison term for his firearm specifications. In Davison I, we explained why that is incorrect
and why the trial court was obligated to impose two separate three-year prison terms in
addition to a five-year term. We see no error in our resolution of the issue.
Conclusion
{¶ 11} Davison’s assignment of error is overruled, and the judgment of the
Montgomery County Common Pleas Court is affirmed.
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WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Charles W. Slicer, III
Hon. Mary Lynn Wiseman
