State v. Horn

[Cite as State v. Horn, 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY

State of Ohio                                    Court of Appeals No. WD-21-062

        Appellee                                 Trial Court No. 2015CR0474

v.

Michael C. Horn                                  DECISION AND JUDGMENT

        Appellant                                Decided: January 18, 2023

                                          …

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Andrew R. Mayle, Ronald J. Mayle, and Benjamin Padanilam,
        for appellant.

                                          …

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Michael Horn, appeals the September 30, 2021

judgment of the Wood County Court of Common Pleas which, following remand from

this court, resentenced appellant to 30 years to life imprisonment on three counts of rape

with sexually violent predator specifications. Because we find no error, we affirm.
                            I. Facts and Procedural History

      {¶ 2} In 2015, appellant was charged in a six-count bill of information with four

counts of rape involving his stepdaughter (Counts 1-4), and two counts of rape involving

his niece by marriage (Counts 5-6). The counts all contained sexually-violent-predator

specifications. The charges were as follows:

      • Count 1: August 1 to September 30, 2013, rape of S.M. whose ability to

          resist or consent was substantially impaired due to a mental or physical

          condition of which Horn was aware. R.C. 2907.02(A)(1)(c) and (B).

      • Count 2: August 1 to September 30, 2013, rape of S.M. who was

          compelled to submit by force or threat of force. R.C. 2907.02(A)(2) and

          (B).

      • Count 3: November 15 to December 14, 2013, rape of S.M. whose

          ability to resist or consent was substantially impaired due to a mental or

          physical condition of which Horn was aware. R.C. 2907.02(A)(1)(c)

          and (B).

      • Count 4: November 15 to December 14, 2013, rape of S.M. who was

          compelled to submit by force or threat of force. R.C. 2907.02(A)(2) and

          (B).

      • Count 5: November 28 to December 24, 2013, rape of J.M. whose

          ability to resist or consent was substantially impaired due to a mental or




2.
          physical condition of which Horn was aware. R.C. 2907.02(A)(1)(c)

          and (B).

       • Count 6: November 28 to December 24, 2013, rape of J.M. who was

          compelled to submit by force or threat of force. R.C. 2907.02(A)(2) and

          (B).

       {¶ 3} Following a jury trial, appellant was found guilty on all counts. Following a

bench trial on the specifications, the court found that appellant was a sexually violent

predator. Prior to sentencing, the state elected to proceed on the counts charging

impairment due to a physical or mental condition so Counts 2, 4, and 6 merged with

Counts 1, 3, and 5. Appellant was then sentenced to three, ten-years to life sentences to

be served consecutively.

                                         A. Horn I

       {¶ 4} On direct appeal, appellant argued, inter alia, that there was insufficient

evidence supporting R.C. 2907.02(A)(1)(c), that the victim’s ability to resist was

substantially impaired due to a mental or physical condition. State v. Horn, 2018-Ohio-

779, 

 (6th Dist.). Relevant to this appeal, as to Count 3 we affirmed the

trial court’s judgment finding that a familial relationship, stepfather and stepdaughter,

could support the “mental or physical condition” element of the statute. Id. at ¶ 59-60.

We then affirmed the lower court’s judgment.




3.
                          B. Supreme Court of Ohio Proceedings

       {¶ 5} On discretionary appeal to the Supreme Court of Ohio, appellant argued that

a familial relationship is not a “mental or physical condition” for purposes of R.C.

2907.02(A)(1)(c). The court agreed noting that while such a relationship may be relevant

to prove the element of force in a rape prosecution, it is not a mental or physical

condition as contemplated by the statute. State v. Horn, 

, 2020-Ohio-

960, 

. Thus, appellant’s conviction under Count 3 was reversed.

The court then remanded the matter to the appellate court for a determination as to

whether appellant’s conviction under Count 5, rape of J.M. who the state asserted had a

mental impairment, was supported by sufficient evidence. Id. at ¶ 13. Following our

decision, this court was instructed to remand the matter to the trial court for resentencing.

Id.

                                         C. Horn II

       {¶ 6} On remand from the Supreme Court of Ohio, the conviction under Count 5

was affirmed and the matter was remanded for resentencing. State v. Horn, 6th Dist.

Wood No. WD-16-053, 

.

                                      D. Resentencing

       {¶ 7} At the request of the trial court, the parties filed memoranda regarding the

scope of resentencing. Specifically, the issue of whether the court could resentence

appellant on Count 4 which, at the time of the 2016 sentencing, the state elected to have




4.
merged with Count 3. Following a lengthy analysis, the court determined that because

the jury’s finding of guilt as to Count 4 was undisturbed, it remained valid and that

sentencing appellant on this count was the purpose of the resentencing hearing ordered by

the Supreme Court of Ohio.

       {¶ 8} The resentencing hearing took place on August 24, 2021. Appellant again

objected to being sentenced on Count 4 and asserted his belief that the resentencing

hearing should be limited to the sexually violent predator specification. The court then

sentenced appellant to ten years to life imprisonment on each count, to be served

consecutively, for a total term of 30 years to life. Thereafter, appellant commenced this

appeal.

                                II. Assignments of Error

              I. At the state’s election, the common pleas court in 2016 sentenced

       Mr. Horn to prison on count 3, which is an allied offense of similar import

       to count 4, which the state did not elect for sentencing. Then, in 2021, the

       court sentenced Horn to prison on count 4. This erroneously violates R.C.

       2941.25(A), which bars successive sentences by stating that, as between

       allied offenses, the defendant may be convicted of only one.

              II. The common pleas court erroneously failed to revisit the previous

       findings of Mr. Horn’s liability on a sexually-violent-predator specification




5.
       now that the Supreme Court of Ohio has since vacated a conviction that the

       state used to prove the specification.

                                      III. Discussion

       {¶ 9} Appellant’s first assignment of error challenges the trial court’s decision to

sentence him on Count 4 which had been merged with Count 3 at the state’s election

prior to the 2016 sentencing. Appellant’s argument is straightforward. He contends that

the plain meaning of the allied offense statute’s text “convicted of only one” means that

because the state elected to proceed on Count 3, appellant could not subsequently be

convicted of the allied offense in Count 4. The state counters that because a guilt finding

that has merged for purposes of sentencing survives the merger, it follows that a

defendant may be sentenced on the offense where the initial, alternative conviction was

vacated.

       {¶ 10} At the outset we note that the Double Jeopardy Clause, affords a defendant

three basic protections:

              “‘[It] protects against a second prosecution for the same offense after

       acquittal. It protects against a second prosecution for the same offense after

       conviction. And it protects against multiple punishments for the same

       offense.’” Brown v. Ohio, 

, 

, 

 (1977), quoting North Carolina v. Pearce, 

,

       

, 

 (1969).




6.
Ohio v. Johnson, 

, 

, 

 (1984).

       {¶ 11} R.C. 2941.25(A), the allied offense statute, provides: “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.”

       {¶ 12} R.C. 2941.25(A) was enacted to protect a defendant from multiple

punishments or convictions for the same offense, the third protection under the Double

Jeopardy Clause. A conviction, for purposes of the allied-offense statute has been

defined as a guilty verdict combined with imposition of a sentence or penalty. State v.

Whitfield, 

, 

, 

, ¶ 12. It is clear that a

defendant may be found guilty of multiple allied offenses; however, the offenses must

merge at sentencing to prevent a double jeopardy violation caused by the imposition of

multiple sentences for the same crime. Id. at ¶ 18. See State v. Bollar, Slip Opinion No.

.

       {¶ 13} The parties each contend that Whitfield supports their respective positions.

Therein, the court stated:

              In cases in which the imposition of multiple punishments is at issue,

       R.C. 2941.25(A)’s mandate that a defendant may be “convicted” of only

       one allied offense is a protection against multiple sentences rather than

       multiple convictions. See, e.g., Ohio v. Johnson (1984), 

.
       

, 

, in which the United States Supreme Court

       held that the Double Jeopardy Clause protects against successive

       prosecutions and against multiple punishments for the same offense. Thus,

       to ensure that there are not improper cumulative punishments for allied

       offenses, courts must be cognizant that R.C. 2941.25(A) requires that “the

       trial court effects the merger at sentencing.” State v. Gapen, 

, 

, 

, ¶ 135. See also State v.

       Palmer (1997), 

, 

; Stewart, 2006-

       Ohio-3310, 

, ¶ 6.

Id. at ¶ 18.

       {¶ 14} Appellant contends that the “convicted of only one” language in Whitfield

reinforces his argument for strict statutory construction. Conversely, the state asserts that

such language reinforces the general, widespread Ohio court holdings that findings of

guilt survive the merger of allied offenses.

       {¶ 15} Analyzing Whitfield and under facts analogous to the present matter, the

Second Appellate District has ruled that a defendant may be resentenced on guilty

verdicts merged for sentencing when the charge which the state elected to proceed at

sentencing is reversed on appeal. State v. Turner, 2d Dist. Clark No. 2020-CA-49, 2021-

Ohio-2216. Following a jury trial, Turner was found guilty of purposeful murder, felony

murder, and felonious assault; the charges were allied offenses and merged at sentencing.




8.
Id. at ¶ 2. On appeal, the court reversed the purposeful murder conviction based on the

court’s failure to instruct the jury on the lesser included offense of reckless homicide. Id.

at ¶ 3. On remand, the trial court sentenced appellant on the felony murder guilty verdict.

Id. at ¶ 6.

        {¶ 16} Appealing the resentencing, Turner argued that a retrial, not just a

resentencing, was necessary because he was not convicted of felony murder or felonious

assault. The court stated:

               Despite the lack of a conviction for felony murder and felonious

        assault, the fact remains that the jury returned guilty verdicts for both of

        those offenses. The Supreme Court of Ohio has explained that “the

        determination of the defendant’s guilt for committing allied offenses

        remains intact, both before and after the merger of allied offenses for

        sentencing.” (Footnote omitted.) Whitfield at ¶ 27. We have also explained

        that: “Where offenses are merged for sentencing and the conviction for the

        offense upon which the defendant was sentenced is vacated, the trial court

        must resentence the defendant on the offense that was merged with the

        vacated offense, again merging any offenses as appropriate.” State v.

        Baker, 2d Dist. Greene No. 2017-CA-55, 

. We

        therefore find that Turner’s guilty verdicts for felony murder and felonious

        assault remained intact after they merged with purposeful murder and were




9.
       available for resentencing once the purposeful murder conviction was

       reversed.

Id. at ¶ 11. See State v. Johnson, 

, 

 (8th Dist.).

       {¶ 17} We agree with the Second Appellate District’s analysis. Here, appellant

was convicted of rape under both the mental or physical condition, R.C.

2907.02(A)(1)(c), and the force or threat of force provision, R.C. 2907.02(A)(2). Only

the evidence supporting mental or physical condition element under Count 3 was found

to be insufficient. Thus, the finding of guilt under Count 4 was intact.

       {¶ 18} We further reject the notion that upon resentencing a defendant would be

precluded from appealing the new conviction. As explained by the Eleventh Appellate

District, a finding of guilt alone is not final and appealable and

       [w]ithout a final, appealable order, this court does not have jurisdiction to

       address the weight or sufficiency of the illegal manufacture of drugs or

       illegal assembly and possession of chemicals for the manufacture of drugs

       counts [remaining counts following the court vacating the aggravated arson

       conviction]. We therefore hold this matter must be remanded to the trial

       court for the state to, once again, elect the count on which it wishes to

       proceed to sentencing. Upon election, the trial court shall impose its

       sentence, at which time the new order of conviction will be final and

       appealable.




10.
State v. Payne, 11th Dist. Ashtabula No. 2014-A-0001, 

.1 See State

v. Ramos, 8th Dist. Cuyahoga No. 103596, 

.

       {¶ 19} Based on the foregoing, we find that the trial court did not err in sentencing

appellant on the merged finding of guilt under Count 4. Appellant’s first assignment of

error is not well-taken.

       {¶ 20} Appellant’s second assignment of error argues that because the Supreme

Court of Ohio vacated his rape conviction under Count 3, the trial court erred when it

failed to revisit his sexually violent predator adjudication. The state counters that

appellant’s argument is precluded by our 2018 decision affirming the court’s finding and

his failure to appeal the issue to the Supreme Court of Ohio. The state further contends

that the Supreme Court of Ohio’s decision specifically ordering that appellant be

resentenced did not order a retrial on the sexually violent predator specification.

       {¶ 21} Following a guilty verdict on the relevant charge, if a defendant elects to

have the court, rather than the jury, determine the sexually violent predator specification

the court is required to conduct a proceeding and consider evidence regarding the factors

under R.C. 2971.01(H). R.C. 2971.02.




1
 On petition for federal habeas relief, the court specifically rejected petitioner Payne’s
arguments relating to double jeopardy and the application of R.C. 2945.21(A). Payne v.
Sloan, N.D. Ohio No. 1:18CV302, 

 (July 14, 2021), adopting the
magistrate’s report and recommendations in Payne v. Sloan, N.D. Ohio No. 1:18-cv-302,

 (Nov. 23, 2020).



11.
       {¶ 22} First, we note that by supplanting the guilty verdict in Count 3 with Count

4 and proceeding to sentencing, appellant was still convicted of three, first-degree felony

rape charges. Such convictions arguably support the court’s initial determination that

appellant “committed multiple sexually violent offenses over a period of approximately

sixteen months, with two juvenile victims around the age of fourteen, both with a familial

relationship to the defendant[.]” Importantly, the findings were affirmed on direct appeal

(Horn I) by this court. We concluded that the trial court correctly considered the relevant

statutory factors and that the court did not lose its way or create a manifest miscarriage of

justice in its determination. Horn, 

, 

.

       {¶ 23} Next, following out decision in Horn I, appellant failed to appeal our

affirmance of the sexual predator specification determination. Thus, it can be argued that

appellant is barred from rearguing the issue especially in light of our rejection of

appellant’s first assignment of error.

       {¶ 24} Finally, the language used in the Supreme Court of Ohio’s and this court’s

judgments ordering the trial court to resentence appellant does not suggest that a retrial

on the sexually violent predator determination was warranted. The court did not imply

that the sexually violent predator specification was to be retried. Based on the foregoing,

we conclude that the trial court did not err when it rejected appellant’s request that the

issue be revisited. Appellant’s second assignment of error is not well-taken.




12.
                                          IV. Conclusion

       {¶ 25} On consideration whereof, we affirm the September 30, 2021 judgment of

the Wood County Court of Common Pleas. Pursuant to App.R. 24, appellant is ordered

to pay the costs of this appeal.

                                                                          Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                         ____________________________
                                                         JUDGE

Thomas R. Wright, V.J.
CONCURS AND WRITES                               ____________________________
SEPARATELY.                                              JUDGE


Gene A. Zmuda, J.,
DISSENTS AND WRITES
SEPARATELY.


       WRIGHT, J., Concurs with a Concurring Opinion

       {¶ 26} I agree with the disposition and analysis of the majority opinion. I write

separately to respond to the dissenting opinion’s position that this matter must be

reversed and remanded for the trial court to conduct a Constitutional Double Jeopardy

analysis prior to resentencing appellant on Count 4.

       {¶ 27} Initially, appellant did not argue (neither in the trial court nor on appeal)

that his resentencing was a Constitutional Double Jeopardy violation. Rather, he claimed




13.
that his statutory rights were violated when the state elected to proceed on Count 4 and

the trial court sentenced him on that count. The dissent, however, advances the position

that the trial court, sua sponte, should have conducted a Constitutional Double Jeopardy

analysis and its failure to do so was error. We are a court of error and “it is not this

court’s role to advance arguments on behalf of a party.” Zhuravlyov v. Bun, 11th Dist.

Lake No. 2019-L-102, 

. Because appellant did not argue his

constitutional rights were violated, he waived any such challenge and it is fundamentally

improper for the dissent to assert, let alone find error on appellant’s behalf. State ex rel.

Zollner v. Indus. Comm., 

, 

 (1993) (“[a] party who

fails to raise an argument in the court below waives his or her right to raise it [on

appeal].”).

       {¶ 28} Even had appellant raised the issue, however, the position the dissent

advances is flawed. In the proceedings below, the trial court requested briefing on the

parameters of sentencing pursuant to the Supreme Court’s judgment vacating Count 3,

upon which the state originally elected to proceed to sentencing. In his brief, appellant,

via counsel, asserted that R.C. 2941.25(A), Ohio’s merger statute, did not allow the court

to re-sentence him on Count 4 because the law provides a “defendant may be convicted

of only one [allied offense].” Because he was previously convicted on Count 3, appellant

maintained, apparently pursuant to his right to be free from statutory Double Jeopardy,

the court could not resentence him, i.e., he was already convicted of one merged count.




14.
The trial court considered his argument and determined that he could be resentenced on

Count 4.

       {¶ 29} “Case law has established that a conviction is composed of both a guilty

verdict and the imposition of a sentence or penalty.” State v. Kamal, 6th Dist. Lucas No.

L-18-1094, 

, citing State v. Williams, 

, 2016-

Ohio-7658, 

. The protections of R.C. 2941.25 are meant to guard

against punishing a defendant for allied offenses, but “the determination of the

defendant’s guilt for committing allied offenses remains intact, both before and after the

merger of allied offenses for sentencing.” Id. at ¶ 50, citing State v. Whitfield, 

, 

, 922 NE.2d 182, ¶ 1, paragraph three of the syllabus.

       {¶ 30} “A reversal based on insufficient evidence has the same effect as a not-

guilty verdict because such a determination ‘means that no rational factfinder could have

voted to convict the defendant.’” State v. M.L.D., 10th Dist. Franklin No. 15AP-614,

, quoting Tibbs v. Florida, 

, 

, 

 (1982). As no conviction issues from an acquittal, no conviction ever

existed or remains after a reversal on evidential insufficiency. R.C. 2941.25 permits one

conviction on an allied offense. Because the conviction on Count 3 was vacated for

insufficient evidence and has the same effect as a not guilty verdict, appellant was only

convicted of one allied offense, Count 4.




15.
       {¶ 31} Moreover, I fail to see how the trial court’s treatment of the issue would be

constitutionally problematic as the dissent suggests. Although the trial court’s analysis

was framed in terms of Ohio’s statutory Double Jeopardy provision, it is unclear how its

analysis is not coterminous with the necessary Constitutional analysis. The Double

Jeopardy Clause prevents, inter alia, multiple punishments for an allied (or “the same”)

offense. North Carolina v. Pearce, 

, 

, 

(1969), overruled on other grounds. Because Count 3 was reversed upon a determination

of insufficient evidence, that conviction was vacated. In effect, it was rendered a nullity

and, accordingly, multiple punishments for the same offense were never imposed.

       {¶ 32} By pointing out that a conviction must include both a sentence and a

penalty, the trial court concluded that the guilty verdict on Count 4 was not a conviction.

Because the conviction on Count 3 was reversed and vacated, which has the same effect

as a not guilty verdict, there was no pre-existing conviction. The trial court therefore

considered not only the statutory Double Jeopardy ramifications, but, at the same time,

engaged in a sufficiently thorough Constitutional Double Jeopardy analysis. Because

there are not multiple punishments, in this respect, the dissent’s position would only

require the court to engage in a meaningless task. Stated otherwise, it appears the dissent

is conducting a plain-error analysis without expressly stating so; the dissent, however,

fails to discuss or establish a necessary aspect of the plain-error analysis. Namely, that

the alleged error affected a substantial right such that a manifest miscarriage of justice




16.
occurred that would require reversal. See e.g. State v. Long, 

, 

 (1978); Crim.R. 52(B). As there were no multiple punishments imposed,

there is no Constitutional Double Jeopardy violation.

       {¶ 33} The dissent draws a distinction between a substantive reversal for

insufficient evidence and a mere sentencing error (e.g., sentencing a defendant on merged

allied offenses, but running the sentences concurrently, see 

 While

there are significant legal and procedural differences between a so-called substantive

reversal and a sentencing error these differences do not impact disposition. Once Count 3

was vacated for insufficient evidence, appellant had no extant conviction on the formerly

merged offenses. The conclusion that the guilty finding on Count 3 was insufficient did

not negate the jury’s guilty finding on Count 4. Accordingly, and in light of the trial

court’s treatment of the issue, I discern no error in the manner the trial court approached

resentencing or in its legal analysis.

       {¶ 34} Of course, assuming arguendo, the trial court failed to fully consider the

Constitutional dimensions of the Double Jeopardy Clause, we review this matter of law

de novo. In this regard, the lead opinion’s assessment of the issue(s) before this court is

constitutionally sufficient and on point.

       {¶ 35} Regarding the dissent’s concern that appellant “had no legal means to

challenge” the jury’s finding of guilty on Count 4, he certainly could have challenged the

sufficiency or weight of the evidence of the now final conviction in this appeal of the




17.
current sentencing entry. See Lead Opinion, pp. 9-10, citing State v. Payne, 11th Dist.

Ashtabula No. 2014-A-0001, 

.

       {¶ 36} One final point deserves comment. As discussed above, appellant makes

the textual argument that R.C. 2941.25, by its very language, does not permit the trial

court to impose a sentence on a previously merged count. He is incorrect. He

additionally makes a policy argument, however, that when the state proceeds to

sentencing on its own election, it does so at its peril and if the election goes awry on

appeal, it is not entitled to “re-elect.” I disagree.

       {¶ 37} “It is a cardinal rule of statutory construction that a statute should not be

interpreted to yield an absurd result.” Mishr v. Poland Bd. of Zoning Appeals, 

, 

 (1996). It would be bordering on preposterous to think

the legislature intended for a defendant to avoid punishment for a crime due to an

erroneous election. In short, appellant’s policy position is inherently untenable.




       ZMUDA, J.

       {¶ 38} In State v. Whitfield, 

, 

, 

,

the Ohio Supreme Court held that a guilty finding on an allied offense, for which no

sentence is imposed, survives the imposition of sentence on another allied offense. Id. at

¶ 25. In her dissent, Justice Lanzinger foresaw the risk in this holding in that the guilt

finding was left “in limbo” and deprived an offender from the finality of judgment,




18.
potentially leaving them subject to double jeopardy should their conviction be overturned

on appeal. Id. at ¶ 36 (Lanzinger, J., dissenting), citing State v. Saxon, 

, 

, 

, ¶ 8; State v. Waters, 8th Dist. No. 85691, 2005-

Ohio-5137. While addressing an unrelated issue on allied offenses in a separate appeal,

the 8th District Court of Appeals later expressed similar apprehension as to the status of

unsentenced allied offenses.2

       {¶ 39} The limbo status of those unsentenced guilty findings, to date, has been

inconsequential as this court has not encountered a case in which the sentenced allied

offense was reversed on substantive grounds—until now. In this appeal, we must

determine whether the trial court was prohibited from sentencing appellant on count 4,

which was merged into a single conviction with count 3, when his conviction on count 3

was determined to be based on insufficient evidence on appeal. Because I find that the

trial court failed to ensure appellant’s protection from double jeopardy while sentencing

appellant on that merged offense on remand (count 4), I respectfully dissent from the

majority as to appellant’s first assignment of error.




2
  See State v. Ramos, 8th Dist. Cuyahoga No. 103596, 

 (stating,
with regard to Whitfield, “[t]his could become an issue if, at some point after appeal, the
count into which the allied offense was merged is vacated. Suppose facts similar to this
case but the aggravated murder conviction is vacated post-appeal—what would happen to
the allied offenses that were merged for sentencing? If the defendant was not sentenced
on them, he was technically not “convicted” of those offenses. Would those offenses just
disappear? Or would the defendant be subject to sentencing on the remaining counts,
having been denied the opportunity to contest the sufficiency of the evidence?”).



19.
           I. This appeal presents an issue of first impression for this court.

       A. Appellant’s constitutional right to be free from double jeopardy is
          properly before the court in this appeal.

       {¶ 40} Before addressing the merits of my dissent from the majority, I must

address whether our review of appellant’s constitutional double jeopardy protections—

and the basis for my dissent—are properly before the court in this appeal. The

concurring opinion finds that because appellant only requested that this court interpret

R.C. 2941.25 and its application to his case, that this appeal requires resolution of only a

“statutory” issue rather than appellant’s constitutional rights. Specifically, the

concurrence finds that because appellant did not explicitly assign error to the violation of

his constitutional rights, that the constitutional issue is not before the court. Further, the

concurrence finds that this court is precluded from reviewing the constitutional issue

because appellant waived that issue by not raising it at the trial court below. See State ex

rel. Zollner v. Indus. Comm., 

, 

 (1993).

Respectfully, I disagree.

       {¶ 41} The concurring opinion’s treatment of the issue before this court as being

“statutory” versus “constitutional” is a distinction without a difference. Both the U.S.

and Ohio Constitutions prohibit an offender from being subject to double jeopardy—

successive prosecutions and multiple punishments for the same offense. Whitfield at ¶ 7.

R.C. 2941.25 is the Ohio legislature’s incorporation of that constitutional right into Ohio

law. Id., see also State v. Rogers, 6th Dist. Erie Nos. E-21-027, E-21-031, 2022-Ohio-




20.
4126, ¶ 16, citing State v. Underwood, 

, 

, 

, ¶ 23. Both at the trial court below, and in this appeal, appellant argues that the trial

court erred in sentencing him on the merged count 4 following his successful appeal

reversing his conviction on count 3. This, he argues, resulted in successive punishments

for the same conduct, despite having had his original conviction reversed. The

concurring opinion is correct that appellant’s argument is framed as seeking review of an

alleged violation of his rights under R.C. 2941.25. However, by limiting its analysis to

the “statutory” issue, the concurring opinion does not address the clear authority that R.C.

2941.25 is the codification of an offender’s constitutional double jeopardy rights or

explain how our review of the statutory right would differ from our review of the

constitutional rights. Indeed, the concurrence finds that the trial court’s analysis of the

“statutory” double jeopardy protections are “coterminous with the necessary

constitutional analysis.” The concurring opinion’s conclusion that a trial court’s statutory

analysis would likewise ensure protection of appellant’s constitutional rights shows that

the statutory and constitutional issues are one in the same. Finding that the trial court’s

analysis ensures the protection of appellant’s right under both R.C. 2941.25 and the U.S.

and Ohio Constitutions is further evidence that the constitutional issue is properly before

this court, not that appellant waived that issue.

       {¶ 42} Further, even assuming the concurring opinion is correct that appellant only

seeks our interpretation of R.C. 2941.25 in a vacuum, without addressing whether the




21.
application of the statute violates appellant’s constitutional double jeopardy protections,

we are still not precluded from addressing that issue. The Ohio Supreme Court

previously held that while appellate courts do not consider arguments that were not raised

in the courts below, “when an issue of law that was not argued below is implicit in

another issue that was argued and is presented by an appeal, we may consider and resolve

that implicit issue.” State v. Castagnola, 

, 

, 

, citing Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 

, 

 (1993). See also Citibank, N.A. v. Hine, 2019-

Ohio-464, 

; Union Savings Bank v. Schaefer, 10th Dist. Franklin

No. 13AP-222, 

; Weiss v. State Medical Board of Ohio, 2013-

Ohio-4215, 

, ¶ 18 (10th Dist.). As described below, Whitfield established

the procedure that trial courts must follow in order to comply with the protections of R.C.

2941.25 when an appellant is successful on appeal in vacating the conviction for an allied

offense. Whitfield, 

, 

, 

. This procedure

requires the trial court to conduct a double jeopardy analysis before proceeding to

sentencing on the undisturbed guilty finding on count 4. Id. at ¶ 25. Because R.C.

2941.25 is the codification of an offender’s constitutional double jeopardy protections, I

find that ensuring compliance with those rights is implicit in our “statutory” analysis. As

the concurring opinion notes, the constitutionality of a statute, in this instance the

application of R.C. 2941.25, is an issue of law that we review de novo. Cleveland v.




22.
State, 

, 

, 

, ¶ 15. Therefore, even

assuming the concurring opinion is correct that appellant’s assigned error only raises a

“statutory” issue, the protection of his constitutional rights codified in that statute is an

issue of law implicitly subject to our review in order to resolve the assigned error.

Castagnola at ¶ 67.

       {¶ 43} In light of the indistinguishable nature of appellant’s “statutory” and

“constitutional” double jeopardy rights, and the implicit nature of the constitutional issue

to our resolution of the assigned error, I find that not addressing appellant’s constitutional

rights solely due to his use of R.C. 2941.25’s language to raise that issue would

improperly promote form over substance. Put simply, appellant seeks this court’s review

of his constitutional double jeopardy protections. That issue is properly before this court

and we should address it accordingly. In addressing this issue, I dissent from the

majority for the following reasons.

      B. The trial court failed to conduct the necessary double jeopardy analysis,
         requiring reversal of the trial court’s judgment and remand for further
         proceedings.

       {¶ 44} In affirming the trial court’s decision, the majority primarily relies on State

v. Turner, 2d Dist. Clark No. 2020-CA-49, 

. In that decision, the Second

District Court of Appeals held that because the guilty verdict on unsentenced allied

offenses survived after sentencing, that those guilty findings remained subject to

sentencing when the conviction was reversed on appeal. Id. at ¶ 11. I believe that Turner




23.
is inapplicable to the present appeal, even as persuasive authority, as it misapplied

Whitfield’s holding regarding sentencing errors.

          i. The resentencing permitted in Whitfield applies as a matter of law only
             when allied offenses are reversed for sentencing errors.

       {¶ 45} In Whitfield, the trial court imposed a sentence for both counts on which

appellant was found guilty—drug possession and drug trafficking. Whitfield at ¶ 2. On

appeal, the Eighth District Court of Appeals held that this was error since the imposition

of sentence constituted a “conviction” for each offenses and, because they were allied

offenses, R.C. 2941.25(A) prohibited more than one conviction. Id. at ¶ 4. However,

rather than remand the matter to the trial court for resentencing, and allowing the state to

elect the offense on which appellant should be sentenced, the Eighth District simply

vacated Whitfield’s conviction for drug possession. Id. The state appealed to the Ohio

Supreme Court, arguing that the proper procedure was to remand the entire case back to

the trial court to allow the state to determine the offense on which Whitfield would be

sentenced. Id. at ¶ 5.

       {¶ 46} The Ohio Supreme Court agreed with the state, holding that this was a

procedural sentencing error and that the Eighth District should have remanded the matter

back to the trial court for resentencing. Id. at ¶ 25. Specifically, the court held that “[i]f,

upon appeal, a court of appeals finds reversible error in the imposition of multiple

punishments for allied offenses, the court must reverse the judgment of conviction and

remand for a new sentencing hearing at which the state must elect which allied offense it




24.
will pursue against the defendant.” Id. (emphasis added). While this established the

procedure that must be followed on allied offense sentencing errors, “trial courts must

address any double jeopardy protections that benefit the defendant” on remand. Id. The

court further held that sentencing errors on allied offenses did not generally invoke any

double jeopardy protections stating:

       ‘At least in the absence of an acquittal or termination based on a ruling

       that the prosecution’s case was legally insufficient, no interest protected by

       the Double Jeopardy Clause precludes a retrial when reversal is predicated

       on trial error alone. … The purpose of the Double Jeopardy Clause is to

       preserve for the defendant acquittals or favorable factual determination but

       not to shield from appellate review erroneous legal conclusion not

       predicated on any factual determinations.’ Thus, the state is not precluded

       from pursuing any of the allied offenses upon a remand for a new

       sentencing hearing.

Id., citing State v. Calhoun, 

, 

 (1985)

(emphasis added).

       {¶ 47} Therefore, while the court in Whitfield held that the trial court is always

obligated to consider double jeopardy protections on remand from an appeal related to

allied offenses, it also held that a mere sentencing error on those offenses does not invoke

double jeopardy protections. Id. at ¶ 25. This is because a sentencing error arises from




25.
an erroneous legal conclusion, the review of which does not impede the preservation of

an acquittal or factual finding in appellant’s favor. Id., citing 

.

Instead, the sentencing error is an error in applying the law to the established facts. That

type of error is not shielded from review under the Double Jeopardy Clauses of the

United States and Ohio Constitutions. 

       {¶ 48} To the contrary, Whitfield offers no conclusion as to whether double

jeopardy protections are invoked when the reversal is based on a “termination based on a

ruling that the prosecution’s case was legally insufficient[.]” 

 It is a reversal on factual

findings—for example, that the state did not introduce sufficient evidence to support the

conviction—that demands the trial court analyze appellant’s double jeopardy protections

on remand to ensure preservation of those findings in appellant’s favor. 

       {¶ 49} Put simply, the holding in Whitfield stands for the proposition that a trial

court must conduct a double jeopardy analysis upon remand from an error related to

allied offenses before conducting any additional proceedings. It does not, however,

compel or even arguably permit subsequent proceedings until the trial court has

determined that those proceedings will not violate the appellant’s double jeopardy

protections.

       {¶ 50} Recently, while addressing an issue related to the allied offense statute’s

impact on merged firearm specifications, the Ohio Supreme Court restated its holding in

Whitfield as indicating further proceedings are necessary when a conviction for an allied




26.
offense is vacated, rather than compelling a new sentencing on remand as a matter of law.

See State v. Bollar, Slip Opinion No. 

. In Bollar, the court determined

whether Whitfield’s definition of conviction under R.C. 2941.25—that is, a guilty finding

coupled with the imposition of sentence—applied to the General Assembly’s use of

“conviction” in R.C. 2929.14(B)(1)(g). Id. at ¶ 16. Relevant to this appeal, the court in

describing the import of Whitfield, stated “when allied offenses are merged, if the

judgment of conviction on the offense for which the defendant was sentenced is reversed

on appeal, the state may seek to have the defendant sentenced on remand for the merged

offense. Id. at ¶ 14, citing Whitfield at ¶ 25 (emphasis added). As we have held in regard

to statutory interpretation, the logical conclusion from Bollar’s use of “may” rather than

“shall” is that sentencing on the previously unsentenced allied offense is not compulsory

when the conviction on the sentenced offense is vacated. See Hamer v. Danbury Twnshp.

Bd. of Zoning Appeals, 

, 

 (6th Dist.), citing Dorrian

v. Scioto Conservancy Dist., 

, 

 (1971) (holding

that “statutory use of the word ‘may’ is generally construed to make the provision in

which it is contained optional, permissive, or discretionary.”) This conclusion comports

with the plain reading of Whitfield, which only mandates sentencing for an allied offense

on remand when the bases for reversal was a mere sentencing error. This most recent

decision addressing Whitfield has reaffirmed, then, the conclusion that the trial court

must complete the double jeopardy analysis to determine whether sentencing on the allied




27.
offense is warranted if the reversal of an allied offense conviction is substantive—that is,

not a mere sentencing error.

       {¶ 51} In this case, appellant’s conviction on count 3 was reversed because the

state introduced insufficient evidence. State v. Horn, 

, 2020-Ohio-

960, 

 (Horn II, as designated by the majority). The Ohio Supreme

Court remanded the case to this court to consider whether the state had introduced

sufficient evidence under its alternative theory on count 5 as we did not address that issue

on direct appeal.3 

 The Ohio Supreme Court also directed this court to “remand to the

trial court for resentencing” after resolving the appeal as to the state’s alternative theory.

 While the Ohio Supreme Court did not specify the scope of that subsequent

resentencing, it also made no specific reference to sentencing appellant on count 4 on

remand. 

 This court subsequently affirmed appellant’s conviction on count 5 under

the state’s alternative theory. State v. Horn, 6th Dist. Wood No. 2016WD0053, 2020-

Ohio-3546, ¶ 1. We then remanded this matter for “resentencing” but also did not

provide any further guidance to the trial court as to the scope of that resentencing. Id. at ¶

15.




3
  On direct appeal, we found that the state’s introduction of appellant’s familial
relationship with the victim constituted a mental or physical condition that substantially
impaired her ability to resist or consent to sexual conduct with appellant. Horn I, at ¶ 60.
In light of that conclusion, we did not address whether the victim’s “low-functioning”
mental capacity constituted a substantial impairment. Id. at ¶ 62.



28.
       {¶ 52} Whitfield establishes the procedure a trial court must follow in this

scenario. The trial court must take the primary step of conducting a double jeopardy

analysis to determine whether sentencing the offender on the previously-unsentenced

merged offense will violate the offender’s double jeopardy rights. Only after conducting

that analysis, and finding that the sentencing will not violate double jeopardy protections,

may a trial court proceed with sentencing on the merged offense. Whitfield does permit

the trial court to forego this analysis when the reversal is based on a mere sentencing

error as that type of reversal does not violate double jeopardy as a matter of law.

Whitfield at ¶ 25. I find that the trial court did not conduct this necessary analysis and

disagree with the majority’s reliance on State v. Turner, 2d Dist. Clark No. 2020-CA-49,

 to affirm the trial court’s judgment.

         ii. Turner did not determine whether double jeopardy protections are
             violated on a substantive reversal of an allied offense conviction.

       {¶ 53} In affirming the trial court’s decision, the majority primarily relies on the

Second District Court of Appeals’ analysis in State v. Turner, 2d Dist. Clark No. 2020-

CA-49, 

. In Turner, the defendant was convicted of purposeful murder,

felony murder, and felonious assault. Id. at ¶ 2. The trial court held that these were allied

offenses and Turner was sentenced on the purposeful murder offense. Id. In his first

appeal, the Second District Court of Appeals vacated his purposeful murder conviction

because the trial court failed to give a proper jury instruction on the lesser-included

offense of reckless homicide. Id. at ¶ 3. On remand, the trial court sentenced Turner on




29.
the felony murder offense, merging the felonious assault count into that conviction. Id. at

¶ 6. Turner appealed alleging that he was entitled to a new trial rather than a

resentencing. The court, citing State v. Baker, 2d Dist. Greene No. 2017-CA-55, 2018-

Ohio-1856, ¶ 22, held that the trial court did not err in resentencing appellant on the

merged allied offenses since the guilty findings remained intact following his conviction.

Id. at ¶ 11, citing Whitfield at ¶ 12. In light of this, I believe that Turner was incorrectly

decided.

       {¶ 54} Initially, I note that Turner’s reliance on Baker does not comport with the

holding in Whitfield. Baker is indeed factually similar to the present appeal in that it

involves the reversal of a conviction for an allied offense and the subsequent sentencing

on remand for the merged offense. Baker at ¶ 22. However, in Baker, the basis for the

reversal of the conviction was that the sentenced offense—attempted felony murder—did

not exist under Ohio law. Id. In other words, the conviction was based on an erroneous

legal conclusion and not predicated on any factual determinations that benefited Baker.

Id. Under Whitfield’s guidance, this error would not invoke double jeopardy protections

as it did not terminate the proceedings based on a factual finding in Baker’s favor. See

Whitfield at ¶ 25. Because the error in Baker did not compel double jeopardy analysis on

remand, it provides no guidance for the present appeal. In turn, Turner’s reliance on

Baker to find that sentencing an offender on the merged allied offense on remand,

without regard to the bases on which the conviction was reversed, is misplaced.




30.
       {¶ 55} The court in Turner compounds this issue by also not addressing the

defendant’s double jeopardy protections in that case, despite the fact that his conviction

was reversed on a substantive factual issue. Instead, the court in Turner erroneously

presumed resentencing was appropriate in light of Baker. Whitfield plainly requires the

trial court to conduct a double jeopardy analysis on remand for an error in allied offense

convictions before conducting any further proceedings on the unsentenced allied offense.

Whitfield at ¶ 22. Turner is devoid of any analysis related to whether appellant could be

sentenced on remand for the previously-unsentenced allied offense without violating his

double jeopardy protections. This alone brings Turner’s holding as persuasive authority

for the present appeal into question. Therefore, I find that the majority’s reliance on

Turner is misplaced.

                iii. Whitfield’s holding as applied to the present appeal

       {¶ 56} While finding that Turner is not controlling authority on the issue before

us, I make careful note that the procedure established in Whitfield to ensure an offender’s

double jeopardy rights are protected is directly applicable to our resolution of the present

appeal. The Ohio Supreme Court made clear that the reversal of a conviction for an

allied offense based on “an acquittal or a termination based on a ruling that the

prosecution’s case was legally insufficient” obligates the trial court to perform a

constitutional double jeopardy analysis on remand prior to imposing a sentence on count




31.
4. The record shows that the trial court did not complete this analysis in accordance with

Whitfield.

      C. The trial court erred in failing to determine whether appellant’s rights
         under the Double Jeopardy Clause were violated.

       {¶ 57} Following his successful appeal, the Ohio Supreme Court remanded

appellant’s appeal to this court to consider whether the state’s previously-unaddressed,

alternative argument that the evidence supported appellant’s conviction on count 5 was

sufficient. Horn II, 

, 

, 

. Upon

affirming appellant’s conviction on count 5, we remanded this matter to the trial court for

resentencing as instructed by the Ohio Supreme Court in Horn II. State v. Horn, 6th Dist.

Wood No. WD-16-053, 

.

       {¶ 58} On remand, the trial court requested the parties address their positions as to

the scope of that resentencing, particularly as to whether the trial court could impose a

sentence on count 4 which had previously been merged into count 3 for purposes of

sentencing. Appellant filed his brief on March 2, 2021. Appellant argued that the

imposition of sentence on count 4 would result in multiple convictions for the previously

merged allied offenses and violate R.C. 2945.01’s codified double jeopardy protections.

In its April 8, 2021 brief, the state argued that appellant’s success on appeal ended the

requirement that the counts be merged and, that to adopt appellant’s argument would

allow him to escape sentencing on an otherwise valid guilty finding. Appellant’s April

23, 2021 reply brief reiterated his prior argument and alleged that the state’s election to




32.
sentence him on count 3 precluded the trial court from sentencing him on count 4 in any

subsequent proceedings.

       {¶ 59} In its May 24, 2021 order determining the scope of resentencing, the trial

court noted that there was a “paucity of case law” regarding this issue. The court focused

its attention on the general procedures it should follow when an appeal is remanded for

resentencing. Specifically, the trial court noted that an order to resentence an offender

“generally anticipates a de novo sentencing hearing.” State v. Stubbs, 6th Dist. Sandusky

No. S-19-048, 

, citing State v. Wilson, 

, 2011-Ohio-

2669, 

, ¶ 10. That scope can be limited, however, when the only issues

reversed on appeal were sentencing errors. 

 citing State v. Nia, 

, 

, ¶ 21-22 (8th Dist.). The trial court relied on this authority to find that the

“resentencing” ordered on remand required it to sentence appellant on count 4 since that

was the only issue unresolved on appeal, a conclusion affirmed by the majority. I dissent

from the majority’s conclusion and find that the trial court erred when it imposed a

sentence on count 4 without first conducting the double jeopardy analysis required by

Whitfield.

       {¶ 60} In appellant’s original trial, the state conceded that counts 3 and 4 were

allied offenses and subject to merger for purposes of sentencing. Despite the merged

conviction having been reversed on appeal for insufficient evidence—that is, a

substantive reversal rather than an “erroneous legal conclusion not predicated on any




33.
factual determinations” as described in Whitfield—the trial court treated this reversal as a

sentencing error on remand. Specifically, the trial court stated that while appellant’s

guilty verdict on count 4 survived his conviction on count 3 pursuant to Whitfield, the

remand order must be “considered in conjunction with the rules relative to the scope of

resentencing[.]” The trial court made no reference to appellant’s double jeopardy

protections. In light of the case authority addressing sentencing errors, the trial court held

that solely because appellant’s guilty verdict on count 4 was the only issue “undisturbed

by either the Sixth District Court of Appeals or the Ohio Supreme Court,” that the

remand order was limited in scope to that issue only.

       {¶ 61} The trial court’s rationale is faulty for three reasons. First, and most

importantly, it treated the Ohio Supreme Court’s reversal on count 3 as a sentencing error

rather than a substantive error. Whitfield clearly requires that on remand, the trial court

was obligated to conduct the necessary analysis to ensure appellant’s double jeopardy

protections were not violated should it proceed with sentencing on count 4. The trial

court failed to conduct any double jeopardy analysis and instead relied on authority

related to sentencing errors only. This alone warrants reversal of the imposition of

appellant’s sentence on count 4.

       {¶ 62} Second, the trial court’s reasoning that it must sentence appellant on the

guilty finding on count 4 simply because it is the only issue “undisturbed” on appeal

presumed that count 4 could have been addressed on appeal. This is incorrect.




34.
Appellant’s guilty finding on count 4 did not constitute a conviction because there was no

sentence imposed on that count. Whitfield at ¶ 12, citing State v. Gapen, 

, 

, 

, ¶ 135 (holding that a “conviction consists of a

verdict and a sentence”). Therefore, the guilt finding on count 4 was not subject to direct

appeal. See State v. Worley, 8th Dist. Cuyahoga No. 103105, 

(holding that the guilt findings on unsentenced allied offenses are not convictions and

therefore not subject to appellate review). It is illogical, then, for the trial court to base its

conclusion that appellant was subject to sentencing on the guilty finding on count 4

because it remained “undisturbed” when appellant had no legal means to challenge that

finding.

       {¶ 63} The trial court’s presumption, likewise, negates the purpose of any double

jeopardy protections afforded to appellant. The Double Jeopardy Clauses of the United

States and Ohio Constitutions, along with R.C. 2941.25, prohibited the imposition of

sentence on count 4, the allied offense, at appellant’s original sentencing. By presuming

that this count must be resentenced on appeal without first conducting the double

jeopardy analysis, the trial court, as a matter of law, equated an “undisturbed” guilt

finding with a guilt finding that remained unsentenced due to double jeopardy

protections. If this were true, the Ohio Supreme Court in Whitfield would not have

obligated trial courts to conduct a double jeopardy analysis upon reversal of a conviction

for an allied offense. An allied offense conviction, by its very nature, always leave an




35.
“undisturbed” guilt finding without an accompanying sentence. There would be no need

for Whitfield’s mandate to conduct the double jeopardy analysis if those unsentenced

counts remained viable for sentencing on remand as a matter of law. If the trial court’s

presumption that any “undisturbed” guilt finding is subject to sentencing on remand were

correct, offenders who succeed in reversing an allied offense conviction on appeal may

have their double jeopardy protections summarily denied without any further recourse.

This simply cannot be the case.

       {¶ 64} Lastly, the trial court’s conclusion incorrectly presumed that a sentence

must be imposed on any guilty verdict that is not merged with another allied offense.

There is no prohibition in Ohio law against a guilty verdict remaining unsentenced. The

Ohio Supreme Court in Whitfield recognized this fact when it noted that an unsentenced

guilt finding may remain on an offender’s record and be used against them in the future.

See Whitfield at ¶ 13, citing State ex rel. Watkins v. Fiorenzo, 

,

 (holding that an unsentenced guilty finding constitutes a “conviction”

prohibiting a public official’s unlawful interest in a contract pursuant to R.C. 2941.42);

State v. Cash, 

, 

 (holding that an unsentenced guilty

finding constitutes a “conviction” for purposes of Evid.R. 609(A) and could be used for

impeachment of a witness). Indeed, this court recently vacated the sentence on a guilty

finding without vacating the verdict itself. See State v. Edmead, 6th Dist. Wood No.

WD-21-074, 

, citing State v. Owens, 

, 2009-




36.
Ohio-1508, 

 (7th Dist.) (holding that the remedy for an

unreasonable delay in sentencing is for “the sentence to be reversed, rather than a full

dismissal of the charges”). The presence of an unsentenced guilt finding on count 4

should not, then, form the basis for the compulsory imposition of sentence on that count,

particularly when the trial court has not ensured the protection of appellant’s

constitutional rights on remand.

       {¶ 65} Having determined that the trial court erred in not properly addressing

appellant’s constitutional double jeopardy protections, I must address the concurring

opinion’s apparent misunderstanding of the ramifications of this finding. The concurring

opinion disagrees with my dissent, in part, based on the fact that appellant purportedly

would not succeed in showing that his double jeopardy rights were violated because his

guilty finding on count 4 was not disturbed on appeal. Essentially, the concurring

opinion performs the double jeopardy analysis and finds that appellant’s rights were not

violated. As a result, the concurrence finds that appellant’s constitutional rights were

protected and the judgment should be affirmed.

       {¶ 66} This analysis incorrectly presumes that my conclusion is that the trial court

should resolve the double jeopardy issue in appellant’s favor. It does not. My conclusion

makes no determination as to whether appellant’s sentencing is constitutionally

permissible, nor do I suggest how the trial court should rule when it performs the

appropriate double jeopardy analysis. The sole impact of my conclusion is that this




37.
matter needs to be remanded for the trial court to conduct the appropriate analysis before

we address whether appellant’s sentencing on count 4 was permissible. Should the trial

court determine that appellant is subject to sentencing on count 4 after it has performed

the correct analysis, we may address the merits of that decision on a subsequent appeal.

My dissent does not reach this issue and should only be construed as ensuring that the

constitutional procedural requirements identified in Whitfield are met before we address

appellant’s assigned error.

       {¶ 67} In conclusion, I find that it was incumbent on the trial court to consider the

implications of the Ohio Supreme Court’s vacation of appellant’s conviction on the

merged offense on substantive grounds as it relates to any proceedings on the

unsentenced allied offense by considering appellant’s double jeopardy protections prior

to imposing a sentence on count 4. The trial court failed to conduct this analysis.

Moreover, I find it would be inappropriate for this court to conduct this analysis for the

first time on appeal. The appropriate action is to remand this matter to the trial court to

conduct the required analysis.

                                       B. Conclusion

       {¶ 68} For these reasons, I would find appellant’s first assignment of error well-

taken and would remand this matter to the trial court for further proceedings. Because

the majority affirms the trial court’s judgment on appellant’s first assignment of error, I

respectfully dissent.




38.
Judge Thomas R. Wright, Eleventh District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio.




       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




39.