[Cite as State v. Powers, 2011-Ohio-5977.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 24476 

Plaintiff-Appellee : 

: Trial Court Case No. 09-CR-1743 

v. : 

: 

SEAN POWERS : (Criminal Appeal from 

: (Common Pleas Court) 

Defendant-Appellant : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 18th day of November, 2011. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. 

Box 972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

LYNNE M. FLEMING, Atty. Reg. #0078520, Flanagan, Lieberman, Hoffman & Swaim, 15 

West Fourth Street, Suite 100, Dayton, Ohio 45402 

Attorney for Defendant-Appellant 

 . . . . . . . . . . . . . 

 

KLINE, J. (sitting by assignment) 

{¶ 1} Sean Powers appeals the judgment of the Montgomery County Court of 

Common Pleas, which sentenced him to seventeen years in prison following our remand in 

State v. Powers, Montgomery App. No. 23696, 2010-Ohio-4044 (hereinafter “Powers I”). 
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Powers argues that the trial court unconstitutionally applied a firearm specification to his 

conviction for unlawful discharge of a firearm. Powers also argues that the trial court erred in 

failing to merge his tampering with evidence and attempted murder convictions. Because 

both of Powers’ arguments are (1) beyond the scope of our remand in Powers I and (2) not 

subject to review, we disagree. Accordingly, we affirm the judgment of the trial court. 

I 

{¶ 2} Powers brings this appeal as a result of his resentencing following our remand 

in Powers I. As we noted in Powers I, Powers pled no contest prior to trial, and, therefore, 

the facts in the record are not well developed. The record indicates that Powers shot an 

unarmed man three times, hitting him in the head and neck, chest, and right forearm. Powers 

I at ¶6. As a result of the gunshots, the victim suffered from paralysis from the neck down. 

Id. 

{¶ 3} Following Powers’ plea, the trial court found Powers guilty of six offenses. 

Specifically, Powers was found guilty of felonious assault (two counts), attempted murder, 

improper discharge of a firearm on or near prohibited premises, tampering with evidence, and 

having weapons under disability. Except for the weapons under disability charge, each of the 

offenses carried a firearm specification. The trial court merged the felonious assault offenses 

as well as the firearm specifications. The trial court, however, did not merge the felonious 

assault and attempted murder convictions. The trial court sentenced Powers to twenty-four 

years in prison. 

{¶ 4} Powers appealed, and, in Powers I, we sustained the sole assignment of error. 

In Powers I, Powers argued that the trial court should have merged the felonious assault and 
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attempted murder offenses. We agreed and remanded the case to the trial court so that the 

State could choose whether to pursue punishment for the felonious assault offense or the 

attempted murder offense. The State chose to pursue punishment for attempted murder. The 

trial court’s sentence following the resentencing hearing was essentially the same as the 

original sentence absent the seven-year felonious assault sentence, which had merged with the 

attempted murder offense. Thus, the trial court sentenced Powers to a seventeen-year prison 

term. 

{¶ 5} Powers appeals and asserts the following assignments of error: I. “The TRIAL 

COURT ERRED IN FAILING TO DISMISS THE UNCONSTITUTIONAL FIREARM 

SPECIFICATION IMPOSED ON THE DISCHARGE OF A FIREARM COUNT.” And, II. 

“THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE PRISON TERM FOR 

POWERS’ TAMPERING WITH EVIDENCE CONVICTION.” 

II 

{¶ 6} For ease of analysis, we will consider both of Powers’ assignments of error 

together. In his first assignment of error, Powers argues that attaching a firearm specification 

to a conviction for unlawful discharge of a firearm constitutes a Double Jeopardy violation. 

In his second assignment of error, Powers argues that the trial court erred by imposing 

consecutive sentences for his tampering with evidence and attempted murder convictions. 

We conclude that both arguments exceed the scope of our remand in Powers I, and, therefore, 

his claims are not subject to review. 

{¶ 7} In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, the Supreme Court of 
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Ohio analyzed the scope of (1) a trial court’s resentencing hearing following an allied-offenses 

error and (2) an appeal from that resentencing decision. The Wilson court stated as follows: 

“A remand for a new sentencing hearing generally anticipates a de novo sentencing hearing. 

R.C. 2929.19(A). However, a number of discretionary and mandatory limitations may apply 

to narrow the scope of a particular resentencing hearing. * * * In a remand based only on an 

allied-offenses sentencing error, the guilty verdicts underlying a defendant’s sentences remain 

the law of the case and are not subject to review. [State v.] Whitfield, 124 Ohio St.3d 319, 

2010-Ohio-2[,] at ¶26-27. Further, only the sentences for the offenses that were affected by 

the appealed error are reviewed de novo; the sentences for any offenses that were not affected 

by the appealed error are not vacated and are not subject to review. [State v.] Saxon[, 109 

Ohio St.3d 176, 2006-Ohio-1245,] at paragraph three of the syllabus.” Wilson, at ¶15 

(emphasis added). 

{¶ 8} “The law of the case doctrine requires lower courts to follow the mandates of 

reviewing courts when ‘confronted [on remand] with substantially the same facts and issues as 

were involved in the prior appeal.’ Thus, litigants are not permitted to make new arguments 

to the trial court on remand that were raised or could have been raised on the first appeal. 

‘[A]ll questions which existed on the record, and could have been considered on the first 

petition in error, must ever afterward be treated as settled by the first adjudication of the 

reviewing court.’” State v. Hultz, Wayne App. No. 07CA43, 2008-Ohio-4153, at ¶5, quoting 

Neiswinter v. Nationwide Mutual Insurance Co., Summit App. No. 23648, 2008-Ohio-37, at 

¶10. 

{¶ 9} “Absent extraordinary circumstances, such as an intervening decision by the 
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Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court 

in a prior appeal in the same case.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, syllabus, 

approving and following State ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 29, 32. 

{¶ 10} “The only issue before the trial court on remand was re-sentencing on the 

[attempted murder offense or the felonious assault offense.] * * * The doctrine of the law of 

the case prevented the trial court from considering arguments unrelated to that issue.” State 

v. Kendrick, Montgomery App. No. 21790, 2007-Ohio-6136, at ¶9. 

A. Unlawful Discharge of Firearm and Firearm Specification 

{¶ 11} In his first assignment of error, Powers argues that attaching a firearm 

specification to a conviction for unlawful discharge of a firearm constitutes a Double Jeopardy 

violation. Essentially, Powers asserts that it is virtually impossible to unlawfully discharge a 

firearm without using a firearm. Therefore, Powers claims that attaching a firearm 

specification to the underlying conviction “will perpetually result in cumulative punishments 

for this single action.” Appellant’s Brief at 8. According to Powers, this constitutes Double 

Jeopardy, in violation of the United States and Ohio Constitutions. 

{¶ 12} Powers’ offense for improper discharge of a firearm was not affected by the 

appealed error in Powers I. Powers I affected only the sentences for attempted murder and 

felonious assault. Thus, any claimed error related to his sentence for improper discharge of a 

firearm, or the associated firearm specification, is “not subject to review.” Wilson, at ¶15. 

That is, any error in attaching a firearm specification to a discharge of a firearm offense would 

have been readily apparent when Powers filed his appeal in Powers I. Therefore, because 

Powers could have raised the issue in Powers I, but chose not to, review of the issue is barred 
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under the doctrine of the law of the case. 

{¶ 13} Accordingly, we overrule Powers’ first assignment of error. 

B. Tampering With Evidence Sentence 

{¶ 14} In his second assignment of error, Powers argues that the trial court erred when 

it ordered him to serve his sentence for tampering with evidence consecutively to his sentence 

for attempted murder. According to Powers, “[b]ecause there was no evidence taken to show 

that Powers’ act of tampering with evidence, whatever it may have been, was an act separate 

from the murder attempt, and done with a separate animus than that representing his murder 

attempt, it appears Powers’ sentence for his tampering conviction should have been imposed 

concurrently with his conviction for attempted murder, rather than consecutively.” 

Appellant’s Brief at 8-9. Powers then articulates a hypothetical scenario, based on the 

available facts in the record, to show that Powers could have committed the attempted murder 

and tampering with evidence offenses in a manner that would require merger under R.C. 

2941.25. Thus, Powers argues that the offenses should have been merged as allied offenses 

of similar import. 

{¶ 15} Powers argument, regarding whether his tampering with evidence and 

attempted murder offenses should have been merged, suffers from the same infirmity as the 

argument in his first assignment of error. Specifically, Powers’ argument is not subject to 

review. Powers’ tampering with evidence offense was not affected by the appealed error in 

Powers I. And “only the sentences for the offenses that were affected by the appealed error 

are reviewed de novo[.]” Wilson, at ¶15. Thus, any claimed error, based on the assertion 

that the tampering with evidence and attempted murder offenses are allied offenses of similar 
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import, is “not subject to review.” Wilson, at ¶15. The error Powers raises in his second 

assignment of error would have been readily apparent when Powers filed his appeal in Powers 

I. Therefore, because Powers could have raised the issue in Powers I, but chose not to, the 

issue is barred under the doctrine of the law of the case. 

{¶ 16} Accordingly, we overrule Powers’ second assignment of error. 

III. 

{¶ 17} In conclusion, having overruled both of Powers’ assignments of error, we 

affirm the judgment of the trial court. 

JUDGMENT AFFIRMED. 

 . . . . . . . . . . . . . 

GRADY, P.J., and FAIN, J., concur. 

(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief 

Justice of the Supreme Court of Ohio). 

Copies mailed to: 

Mathias H. Heck 

R. Lynn Nothstine 

Lynne M. Fleming 

Hon. Timothy N. O’Connell