[Cite as State v. Shearer, 2019-Ohio-1352.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 107335

STATE OF OHIO

 

PLAINTIFF-APPELLEE 

vs. 

LANDRA SHEARER

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND VACATED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-08-510282-A 

BEFORE: S. Gallagher, P.J., Laster Mays, J., and E.A. Gallagher, J. 

RELEASED AND JOURNALIZED: April 11, 2019 
ATTORNEYS FOR APPELLANT 

Mark A. Stanton 

Cuyahoga County Public Defender 

By: John T. Martin 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Katherine Mullin 

Assistant Prosecuting Attorney 

Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

SEAN C. GALLAGHER, P.J.: 

{¶1} Landra Shearer has sought to correct his void sentences for almost a decade, which 

includes filing at least three appeals and no less than 11 postconviction motions. For the most 

part, Shearer attempted this task without the assistance of legal counsel. Instead of exhausting 

his appellate rights after his motions or appeals were disposed of, Shearer filed additional 

postconviction motions with the trial court, tweaking his argument along the way. Despite this 

procedural history, and based on the following rationale, we vacate the sentences imposed on the 

attempted murder and felonious assault counts based on State v. Shearer, 8th Dist. Cuyahoga No. 

92974, 2010-Ohio-1666, ¶ 31 (“Shearer I”) and State v. Williams, 148 Ohio St.3d 403, 

2016-Ohio-7658, 71 N.E.3d 234 (sentences imposed on allied offenses are void and subject to 
collateral attack at any time), and remand for a de novo resentencing after the state elects upon 

which count to proceed. 

{¶2} In Shearer I, the panel, sua sponte, concluded that Shearer’s convictions for 

attempted murder and two counts of felonious assault were in error because felonious assault is 

an allied offense of attempted murder. Id. citing State v. Williams, 124 Ohio St.3d 381, 

2010-Ohio-147, 922 N.E.2d 937. The three counts were reversed as being allied offenses of 

similar import. Id. (the record indicates that Shearer shot the sole victim twice in quick 

succession and was charged with three offenses from that one act). The state did not seek 

further review of that determination. Upon remand, the trial court imposed a new aggregate 

term of imprisonment of 13 years, but only merged one of the felonious assault offenses into the 

attempted murder. A separate sentence was consecutively imposed for the other felonious 

assault offense. Thus, the sentences imposed on the attempted murder and felonious assault 

offenses that became final upon the remand are still void — the trial court imposed sentences on 

the offenses deemed to be allied ones of similar import. Williams, 148 Ohio St.3d 403, 

2016-Ohio-7658, 71 N.E.3d 234, at ¶ 22. 

{¶3} In Williams, the offender had filed numerous postconviction motions attempting to 

vacate a void sentence. The trial court had imposed separate, but concurrent, sentences on 

offenses deemed to be allied. Despite the failure to timely exhaust appellate review, the 

offender maintained that res judicata did not preclude several attempts to remedy the sentence — 

in essence, if an offender’s sentence is void, the matter is never settled and the offender may 

continually challenge that sentence until a sentence that is authorized by law is imposed. The 

Ohio Supreme Court agreed and vacated the sentence imposed on the count deemed to be an 

allied offense. Id. at ¶ 28. 
{¶4} A trial court has no authority to impose sentences for offenses that are deemed to be 

allied under R.C. 2941.25. Id. According to Williams, it is of no consequence that an offender 

unsuccessfully attempts to remedy these void sentences on numerous occasions without 

exhausting all appellate rights. Id. at ¶ 73 (Kennedy, J., dissenting) (noting the extensive history 

of postconviction proceedings that ended unsuccessfully predating the majority’s decision to 

vacate the concurrent sentence imposed on the allied offense). A void sentence is subject to 

collateral attack “at any time,” and the doctrine of res judicata does not preclude any review.1

 

Id. at ¶ 22. If offenses are deemed to be allied under R.C. 2941.25, no court has authority to 

impose separate sentences on those offenses. Id. The trial court in this case erred when 

imposing separate sentences on the attempted murder and felonious assault counts, along with 

the firearm specifications attendant to each, deemed to be allied offenses of similar import. 

{¶5} The consecutive sentences imposed on the attempted murder and felonious assault 

counts are in violation of R.C. 2941.25 as declared in Shearer I. Id. The state claims that the 

Shearer I decision only addressed the felonious assault counts, and therefore, the resulting 

sentence is not void under Williams at ¶ 24, but merely voidable. In Shearer I, the panel 

concluded that felonious assault is an allied offense of attempted murder. Shearer I at ¶ 31-32. 

The state’s interpretation — that only one of the felonious counts merged with the attempted 

murder — is incorrect. Had Shearer I intended to reverse only one felonious assault count as 

being allied with the attempted murder count, it would have done so and affirmed the conviction 

 1

 In State v. Shearer, 8th Dist. Cuyahoga No. 103848, 2016-Ohio-7302, ¶ 7 (“Shearer II”), Shearer’s 

sentences on the firearm specifications were affirmed based on the doctrine of res judicata. In that case, Shearer 

filed a pro se appeal of a motion to vacate a void sentence, but the panel erroneously concluded that “the trial court 

complied with the ruling” in Shearer I based on the limited arguments presented in the pro se appeal. In further 

review of the procedural history, the trial court did not comply with the mandate of Shearer I. Regardless, under 

Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, we cannot rely on the Shearer II decision as a basis 

to affirm in this case. A void sentence is always void and is subject to correction at any time. 
for the felonious assault conviction unaffected by the merger decision. State v. Wilson, 129 

Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15, citing State v. Whitfield, 124 Ohio St.3d 

319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 26-27. Instead, the panel reversed both felonious assault 

convictions along with the attempted murder expressly holding that felonious assault is an allied 

offense of attempted murder. There is no ambiguity; Shearer I concluded that both the felonious 

assault convictions and the attempted murder convictions were allied offenses with each other. 

The remand was ordered to permit the state the opportunity to elect which one of the three 

offenses deemed to be allied would be pursued at sentencing. Id.

{¶6} As a result, the sentences imposed on the attempted murder and felonious assault 

counts are void and must be vacated — the trial court was not authorized to impose separate 

sentences on both counts. We remand this matter for a de novo sentencing hearing at which 

time the state may elect to proceed on either the attempted murder or the felonious assault and 

any attendant specification, but not both. Wilson at ¶ 16. We note, however, that the two-year, 

concurrent sentence for the having a weapon while under disability offense, which at this point 

has already been served, remains as originally imposed and cannot be altered. The question then 

turns to the scope of the new sentencing hearing within this mandate. 

{¶7} At that sentencing hearing, the trial court must consider the principles and purposes 

of sentencing and the felony sentencing factors anew. Nothing in our decision or in the law of 

this district should be interpreted as a limitation on the trial court’s sentencing discretion. The 

trial court enjoys the same discretion to impose any sentence authorized by law, in addition to 

any mandatory sentence on the firearm specification attendant to the base offense, as it would 

have had at the original sentencing. State v. Jackson, 8th Dist. Cuyahoga No. 92365, 

2009-Ohio-4995, ¶ 10; State v. Collins, 8th Dist. Cuyahoga Nos. 98575 and 98595, 
2013-Ohio-938, ¶ 12, fn. 4; State v. Gibson, 8th Dist. Cuyahoga No. 102391, 2015-Ohio-3479, ¶ 

11. We recognize that the 13-year aggregate term of imprisonment imposed for both offenses is 

within the permissible range of sentences on the attempted murder count alone. This possibility 

does not alter, nor limit the de novo resentencing in any way. 

{¶8} We note that at least one panel in this district has concluded that imposing a 

sentence on an individual felony offense consistent with the original aggregate term of 

imprisonment for offenses reversed under R.C. 2941.25 impermissibly implicates the sentencing 

package doctrine, which is not recognized in Ohio under State v. Saxon, 109 Ohio St.3d 176, 

2006-Ohio-1245, 846 N.E.2d 824, ¶ 10. State v. Quinones, 8th Dist. Cuyahoga No. 97054, 

2012-Ohio-1939. In Quinones, a five-year aggregate term of imprisonment imposed on multiple 

counts was vacated in the direct appeal as being imposed on allied offenses. The sentences on 

all counts were vacated, and the matter was remanded for a de novo resentencing subject to the 

state’s election. The trial court imposed a five-year sentence on the sole remaining count, which 

was within the permissible range for the degree of felony at issue. Quinones reversed, claiming 

the within-range sentence was void because it violated the prohibition against the sentencing 

package doctrine. 

{¶9} In addressing the implications of the sentencing package doctrine in the context of 

reversing multiple sentences impermissibly imposed on allied offenses, the Ohio Supreme Court 

concluded otherwise. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, at ¶ 16. 

According to Wilson, vacating all sentences for offenses that are deemed to be allied and 

remanding for a de novo sentencing hearing to impose a sentence upon the offense the state 

elects is not violative of Saxon and, more importantly, does not implicate the sentencing package 

doctrine. Id. According to Wilson, the federal sentencing package doctrine allows the 
modification or vacation of all the sentences imposed for multiple offenses in the situation where 

there is a reversal of one of the sentences that comprises the aggregate term of imprisonment. 

Id., citing Saxon and United States v. Clements, 86 F.3d 599, 600-601 (6th Cir.1996). However, 

when multiple sentences are vacated on appeal, especially those deemed to be allied offenses, the 

sentencing package doctrine does not preclude the trial court from sentencing on the vacated 

convictions anew. Id. In accordance with Wilson, if multiple offenses are reversed in a direct 

appeal as being allied ones of similar import, the appellate court must vacate all sentences 

imposed on each of the allied offenses and remand for a de novo resentencing upon whatever 

count (or counts, if applicable) survives the state’s election. That practice does not violate 

Saxon or implicate the sentencing package doctrine. 

{¶10} Wilson’s interpretation of Saxon was also recognized in State v. King, 8th Dist. 

Cuyahoga No. 95972, 2011-Ohio-3985, ¶ 13, issued the year before Quinones. In King, it was 

also concluded that the sentencing package doctrine precludes resentencing on counts not 

reversed in the direct appeal, but notwithstanding, the trial court has authority upon remand to 

impose sentences anew on the counts vacated by the appeal. The sentencing package doctrine 

was inapplicable in Quinones and, therefore, could not serve as the basis for reversing the 

individual sentence imposed on remand. Quinones did not address the implications of Wilson or 

King and is of limited precedential value in defining the scope of this remand. We must 

recognize that Quinones is limited to the narrow facts of the case and cannot be applied in a 

broader context in light of Wilson. The Ohio Supreme Court’s decision in Wilson is binding 

authority, and we cannot apply Quinones in such a way as to contravene Wilson. 

{¶11} As a result, the scope of the de novo resentencing to be conducted upon remand is 

controlled by Wilson, which authorizes a de novo sentencing on whichever count survives the 
state’s merger election. At the new sentencing hearing conducted pursuant to this remand, the 

trial court shall sentence Shearer anew. It must be remembered that “while the defendants may 

argue for reductions in their sentences, nothing prevents the state from seeking greater penalties” 

than originally imposed for the individual offense based on its de novo consideration of all 

sentencing factors, not those that have transpired since the original sentencing. Collins, 8th 

Dist. Cuyahoga Nos. 98575 and 98595, 2013-Ohio-938, at ¶ 12, fn. 4; State v. Foster, 109 Ohio 

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470; contra Quinones, 8th Dist. Cuyahoga No. 97054, 

2012-Ohio-1939, and State v. Houston, 8th Dist. Cuyahoga Nos. 103252 and 103254, 

2016-Ohio-3319.2

 Although the scope of this remand is limited to two of the offenses in this 

case, after consideration of all that is required by law, the trial court has discretion to impose any 

sentence that is within the permissible ranges for the offense the state chooses to proceed upon, 

in addition to any sentence on the attendant specification. Collins. The two-year, concurrent 

sentence for the having a weapon while under disability offense, which at this point has already 

been served, shall not be disturbed. 

{¶12} The sentences imposed for the attempted murder and felonious assault counts are 

vacated, and the matter is remanded for a de novo sentencing on whichever of those two counts, 

including any attendant specification, survives the state’s election. Reversed and vacated. 

 2 Houston’s conclusion that a court must justify an increase in a sentence at a de novo resentencing with 

consideration of events or circumstances that occurred following the original sentencing arguably conflicted with 

State v. Cook, 8th Dist. Cuyahoga No. 90487, 2008-Ohio-4246, in which it was held that during a de novo 

resentencing the trial court is free to impose the identical sentence that was originally imposed, or a greater or lesser 

sentence within its discretion. This court has always recognized that vacated sentences must be considered anew, 

permitting but not mandating consideration of an offender’s conduct while serving the vacated term. Jackson, 8th 

Dist. Cuyahoga No. 92365, 2009-Ohio-4995, at ¶ 10. Inasmuch as Houston relied on a presumption of vindictive 

sentencing, this discussion is limited by the fact that in this district, the presumption “arises only when circumstances 

establish a ‘reasonable’ likelihood that an increased sentence is the product of vindictiveness.” State v. Schneider, 

8th Dist. Cuyahoga No. 98938, 2013-Ohio-2532, ¶ 8. In State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 

80 N.E.3d 431, ¶ 18, it was concluded that the mere fact of receiving a harsher sentence following the rejection of a 

plea offer did not give rise to the presumption of vindictiveness. By logical extension, the imposition of a harsher 
It is ordered that appellant recover of appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas 

court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

SEAN C. GALLAGHER, PRESIDING JUDGE 

ANITA LASTER MAYS, J., and 

EILEEN A. GALLAGHER, J., CONCUR 

 

sentence upon remand, in and of itself, cannot either.