¶1 concurring separately.
¶2 I agree with the result reached by the other members of the panel but for slightly different reasons.
¶3 I do not believe that the statutes contained in R.C. Title 29 provide for merger. What was called “merger” at common law prior to the enactment of the so-called “new criminal code” is now covered by R.C. 2941.25(A), the “multiple counts” statute, which reads:
“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.”
¶4 Thus, the trial court acted inappropriately in “merging” counts, as opposed to finding that conviction on allied offenses of similar import was barred by the statute.
¶5 As to the state RICO charge, at the time of trial, the case law was not clear whether R.C. 2941.25(A) barred convictions of both the underlying offenses and the racketeering allegation. Further, federal case law allowed conviction on both a federal RICO charge and the underlying offenses. As a result, I do not feel *96 that appellate counsel rendered ineffective assistance of counsel by failing to assert that trial counsel had been ineffective in overlooking R.C. 2941.25(A).
¶6 As to the other allegations, conferring and consulting with an appellant is preferable to processing an appeal without such communication. However, failure to consult with the client is not in and of itself a basis for a finding of ineffective assistance of counsel.
¶7 As to the assertions regarding the argument as to the third assignment of error set forth in the original appeal, appellant is simply wrong.
¶8 Thus, I also would overrule the motion for delayed reconsideration.