[Cite as State v. Adams , 2012-Ohio-4440.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Ca se No. 25088 Plaintiff-Appellee : : Trial Court Ca se No. 10-CR-216/1 v. : : DARRYL E. ADAMS : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 28th da y of September, 2012.

. . . . . . . . . . . MATHIAS H. HECK, JR., by L. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, Post Office Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} Darryl E. Adams appeals from his re-sentencing following a remand for the trial court to hold a hearing to determine whether his theft and breaking-and-entering 2

 convictions were allied o ffenses of similar import. {¶ 2} Adams advances two assignments of e rror on appeal. First, he contends the trial court erroneous ly limited its hearing to his theft a nd breaking-and-entering convictions. He claims the trial court also should have considered whethe r his conviction for possession of criminal tools was subject to merger. Second, Adams alleges in effective assistance of trial counsel based on his attorney’s failure to argue that the crimin al-tools conviction should have merged with the theft conviction. {¶ 3} The charges against Adams stemmed fro m his after-hours re moval of a snow blower and a wood chipper from a Tractor Supply store. Police discovere d Adams at the scene with the snow blower and wood chipper in the back of his van. The two pieces of equipment were connected to one another by a metal cable loop that was wi red to an alarm. When Adams placed the items in his van, he unknowingly pulle d the wire, tripped the alarm, and alerted police. In addition to the snow blower and w ood chipper, police found bolt cutters in his van. {¶ 4} Based on the foregoing incident, Adams pled guilty to theft, breaking and entering, and possession of criminal tools. The trial court sentenced him to an aggregate prison term of twenty-one months. Adams appealed, ar guing that the three convictions should have merged at sentencing as allied offenses of similar import. This court resolved the appeal in a December 9, 2011 opinion, reasoning: Upon review, we conclude that th e record before us contains insufficient facts to render a determination regarding whether Adams’ convictions for theft and breaking and en tering are allied offenses of similar import, and therefore, subject to merger. Accordingly, this matter is remanded 3

 to the trial court to conduct a hearing a nd make a factual de termination whether Adams’ convictions for theft and break ing and entering should be merged. Remanded for further proceedings consistent with this opinion. State v. Adams , 197 Ohio App.3d 491, 2011-Ohio-6305, 968 N.E.2d 16, ¶ 9 (2d Dist.). {¶ 5} The trial court held the require d hearing on February 16, 2012. The only witness was Adams. He testifie d about seeing the snow blower and wood chipper outside the Tractor Supply store and deciding to steal them. (Tr. at 14-15). As he pulled the items to his van, Adams noticed a steel cable wrapped around both of them. ( Id . at 16). He proceeded to place the items in his van with the cable around them. ( Id .). He testified that it was not necessary for him to break the cable loose from the snow blower and wood chipper in order to steal them. ( Id . at 18). Adams admitted not knowing the cab le loop had been attached to an alarm that alerted police. ( Id . at 16). Finally, he admitted that bolt cutters were present in the van when police arrived. He asse rted, however, that they were present among other tools and that he had not used them in the theft. ( Id . at 19-20). {¶ 6} Based on Adams’ testimony, the trial court found that the theft and breaking and entering were allied o ffenses of similar import under State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The State elected to proceed with sentencing on the theft conviction. The trial court re-sentenced Adams to twelve months in prison for theft and a consecutive nine months for the po ssession-of-criminal-t ools conviction. ( Id . at 28-29).These were the same sentences the trial court previ ously had imposed for those offenses. The result was that he again received an aggregate twenty-one-month prison term. 1

1 Despite the merger, Adams’ aggregate prison term did not change because the trial court previous ly had ordered two nine-month 4

 {¶ 7} In his first assignment of error, Ad ams contends the trial court erred in restricting its remand hearing to his theft a nd breaking-and-entering convictions. As noted above, he claims the trial court additionally should have determined whether his possession-of-criminal-tool s conviction was subject to merger under Johnson . In making this argument, Adams notes that our prior opinion did not address merger of the criminal-tools conviction. He asserts that this omission “was cl early a scrivener’s error and [that] it was an abuse of discretion for the trial judge to refuse to consider the possession of criminal tools conviction in the merger analysis .” (Appellant’s brief at 6). {¶ 8} We disagree. On remand, this court speci fically instructed the trial court “to conduct a hearing and make a fact ual determination whether Adam s’ convictions for theft and breaking and entering should be merged.” The trial court comp lied with this remand order, and it lacked the authority to do anything more. State v. Russell , 2d Dist. Montgomery Nos. 18155, 18194, 2000 WL 1547085, *8 (Oct. 20, 2000); State v. Letts , 2d Dist. Montgomery No. 17084, 1999 WL 42011, *3 (Jan. 29, 1999) (recognizing th at “trial courts have no discretion to disregard the mandate of a re viewing court, and they have no authority to extend or vary the mandate given”). Accordingly, the fi rst assignment of error is overruled. {¶ 9} In his second assignment of error, Adams contends he received ineffective assistance counsel on remand ba sed on his attorney’s failure to seek merger of the possession-of-criminal -tools conviction. {¶ 10} Again, we disagree. The remand was for a specific, limited purpose. Given

sentences for breaking and entering and possession of criminal tool s to be served concurrent to each other but consecutive to a twelve-month sentence for theft. Therefore, removing the breaking-and-enter ing sentence from the equation did not change the result. 5

 that our remand order did not permit the trial court to consider whether the criminal-tools and theft convictions merge d, defense counsel did not provide de ficient representation by failing to urge the trial court to exceed the purpose of th e remand order. Adams’ second assignment of error is overruled. {¶ 11} The judgment of the Montgomery C ounty Common Pleas Court is affirmed.

. . . . . . . . . . . . . FAIN and DONOVAN, JJ., concur.

Copies mailed to: Mathias H. Heck, Jr. R. Lynn Nothstine Robert Alan Brenner Hon. Steven K. Dankof