[Cite as State v. Copeland , 2014-Ohio-5780.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. RONALD COPELAND Appellant C.A. No. 27009

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 09 07 2343(B)

DECISION AND JOURNAL ENTRY Dated: December 31, 2014

MOORE, Judge. {¶1} Defendant-Appellant, Rona ld Copeland, appeals from the judgment of the Summit County Court of Common Pleas. This Court reverses.

I. {¶2} A grand jury indicted Mr. Copeland on the following charges: (1) illegal manufacturing of methamphetamine; (2) illegal assembly or possession of chemicals for the manufacturing of methamphetamine; (3) six counts of child endangering, each of which pertained to a different child; (4) possession of criminal tools; (5) aggravated possession of methamphetamine; (6) possession of marijuana; (7) illegal use or possession of drug paraphernalia; and (8) having weapons while unde r disability. With respect to the first two charges (illegal manufacturing and illegal assemb ly/possession of chemicals), the indictment charged Mr. Copeland with elevated degrees of each offense on the basis that they were committed in the vicinity of juveniles.2

{¶3} Subsequently, Mr. Copeland signed a written plea of guilty in which he agreed to plead guilty to first-degree felony illegal manufacturing of drugs, aggravated possession of drugs, and four counts of child endangering in exchange for the dismissal of his remaining charges. The court conducted a plea hearing a nd accepted Mr. Copeland’s guilty plea. The court dismissed Mr. Copeland’s remaining seven charges by way ofjournal entry and ordered a presentence investigation report (“PSI”). {¶4} Before his sentencing hearing could occu r, Mr. Copeland filed a motion to merge

his convictions as allied offenses of similar import. The court c onducted a sentencing hearing at which both parties presented arguments on the allied offense issue. The court determined that Mr. Copeland’s two drug convictions should merge with one a nother, but that his four child endangering convictions should not . The court sentenced Mr. Copeland to eight years on his illegal manufacturing count and two years on each of his four child endangering counts. The

court then ordered all of Mr. C opeland’s prison terms to run consecu tively for a total of 16 years in prison. {¶5} Mr. Copeland now appeals and raises one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER R.C. 2941.25. {¶6} In his sole assignment of error, Mr. Cope land argues that the trial court erred by sentencing him to allied offenses of similar import. Specifically, he argues that the court failed to consider whether his illegal manufacturin g conviction should merge with his child3

endangering convictions for purposes of sentencing. We remand this matter to the trial court for it to conduct an allied offense analysis in the first instance. {¶7} “R.C. 2941.25 codifies the protections of th e Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, which prohibits multiple punishme nts for the same offense.” State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. That statute provides as follows: (A) 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 de fendant may be convicted of only one. (B) Where the defendant’s conduct constitute s two or more offenses of dissimilar import, or where his conduct results in tw o or more offenses of the same or similar kind committed separate ly or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convict ed of all of them. R.C. 2941.25. “A defendant’s plea to multiple c ounts does not affect the court’s duty to merge * * * allied counts at sentencing.” Underwood at ¶ 26. When the partie s do not address the allied offense issue in their plea ag reement, “the trial court is obligated under R.C. 2941.25 to determine whether the offenses are allied, and if they are, to convict the defendant of only one

offense.” Id. at ¶ 29. “Failure to merge allied offens es of similar import constitutes plain error * * * because ‘a defendant is prejudiced by having more convictions than are authorized by law.” State v. Asefi , 9th Dist. Summit No. 26430, 2012-Ohio-6101, ¶ 6, quoting Underwood at ¶ 31. {¶8} Initially, we address the State’s contenti on that we should reject Mr. Copeland’s assignment of error on the basis of invited error. Under the invited error doctrine, “[a] party will not be permitted to ta ke advantage of an error which he hims elf invited or induced the trial court

to make.” Lester v. Leuck , 142 Ohio St. 91 (1943), paragraph one of the syllabus. The doctrine requires “more than mere ‘acquiescence in the trial judge’s erroneous conclusion.’” State v.4

Campbell , 90 Ohio St.3d 320, 324 (2000), quoting Carrothers v. Hunter , 23 Ohio St.2d 99, 103 (1970). Defense counsel must have been “‘activel y responsible’ for the trial court’s error” in order for the doctrine to apply. Campbell at 324, quoting State v. Kollar , 93 Ohio St. 89, 91 (1915). Because the record reflects that defens e counsel merely acquiesced to the procedure the court employed below, we c onclude that the invited erro r doctrine does not apply. {¶9} When Mr. Copeland filed his motion fo r merger, he captioned his motion,

“DEFENDANT’S MOTION TO MERGE ALL COUNTS OF HIS CONVICTION FOR

SENTENCING PURPOSES.” He wrote in his motion: In this case, [Mr. Copeland] pled guilty to six counts, (1), illegal manufacture of drugs, R.C. 2925.04(A), F-1, (2, 3, 4, 5) endangering children, R.C. 2919.22(B)(6), F-3, and (6) aggravated po ssession of drugs, R.C. 2925.11(A), F5. This Court found him guilty of all six counts and ordered that a pre-sentence investigation (PSI) report be issued. [Mr. Copeland] argues that in this case, the facts shows that these offenses arose out of the same set of facts, are of a similar import, committed neither separa tely, nor with a separate animus as to each. Each of the offenses occurred at the same time in a single incident. Mr. Copeland then went on to argue that (1) his drug convictions should me rge with one another, and (2) his child endangering convictions shou ld merge with one another. Although Mr. Copeland did not specify that his drug convic tions and child endangering convictions should merge with one another, he also never conc eded that they were separate offenses. {¶10} At the sentencing hearing, Mr. Copeland only presented a merger argument with respect to his two drug convictions merging and his four child endangerin g counts merging. He did not argue that his drug convictions should merge with his child endangering convictions. Yet, he also never conceded that those offenses were separate offenses, and no one ever asked him to clarify his position with respect to the merg er of those offenses. Moreover, in its response to Mr. Copeland’s argument, the State specificall y argued that Mr. Copeland’s drug convictions and child endangering convictions should not me rge because they constituted “two separate5

acts.” It was not the State’s position that Mr. Co peland had conceded that those offenses should merge. Nor was it the trial court’s position. Th e court simply did not address the merger of those two sets of convictions, and Mr. Copeland did not object to the court’s analysis. {¶11} Having reviewed the record, we cannot c onclude that Mr. C opeland was “actively responsible” for any error the trial court may have made in not addressing the merger of his drug

convictions with his child endangering convictions. Campbell , 90 Ohio St.3d at 324, quoting

Kollar , 93 Ohio St. at 91. This case is distinct from cases where defense counsel has expressly conceded that certain offenses do not merge. Compare, e.g., State v. Gardner , 7th Dist. Mahoning No. 10MA52, 2011-Ohio-2644, ¶ 36 (invite d error applied where “defense counsel specifically stated that felonious assault would st and by itself and would not merge”). As such, we decline to apply the invited error doctrine in the instant matter. See Campbell at 324 (no invited error where defense counsel “did not sugg est, request, or affirmatively consent to [the] procedure”). {¶12} In its allied offense analysis, the trial court did not address the merger of Mr. Copeland’s drug convictions with his child endangering convicti ons. Mr. Copeland argues that the court committed plain error by failing to consider whether those charges merged. He argues that, because the court failed to pe rform any allied offense analysis with respect to those charges,

this Court should remand this matter for the tr ial court to do so in the first instance. {¶13} In the context of a guilty plea, “if a trial court fails to merge allied offenses of similar import, the defendant * * * has the right to appeal the sentence.” Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, at ¶ 29. The scope of that appeal is not confined to the charges to which the defendant objected at the time of sentencing. See State v. Washington , 9th Dist. Lorain Nos. 10CA009767 & 10CA009768, 2011-Ohio-1149, ¶ 23-28; Underwood at ¶ 29 (“ When the plea6

agreement is silent on the issue of allied offenses of similar import, * * * the trial court is obligated under R.C. 2941.25 to determine whether the offenses are allied, and if they are, to convict the defendant of only one offense. ”). In Washington , the defendant argued at the time of his sentencing that two of his offenses were allied offenses. Id. at ¶ 20. He neglected to object to the court’s imposition of multiple prison terms on two of his other offenses. Id. at ¶ 23. Nevertheless, he challenged both the former and latter sets of charges on appeal. Id. at ¶ 20-28. With respect to the latter set of charges, this Court remanded the matter so that the trial court could apply the law applicable to allied offenses in the first instance. Id. at ¶ 27-28, citing State

v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314. {¶14} The record reflects that the trial court did not consider whether Mr. Copeland’s drug convictions should merge with his child en dangering convictions. Although the trial court applied Johnson to resolve several of Mr . Copeland’s charges, the court did not apply it to determine whether Mr. Copeland’ s drug convictions and child endangering convictions should merge with each other. Recently, in State v. Helmick , 9th Dist. Summit No. 27179, 2014-Ohio4187, ¶ 24, this Court stated: While the trial court still has the duty to consider whether offenses are allied at the time of sentencing, and cannot impos e multiple convictions for the same conduct, see State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 27, given the time that has passed since Johnson , under certain circumstances, we now conclude that a remand to the trial court is unnecessary, even where the trial court failed to consider Johnson . Where it is apparent from the face of the record that the convictions at issue could not merge, this Court sees no reason to remand the matter for the trial court to consider Johnson * * *

. Here, it is unclear from the face of the record whether these offenses could not merge. Consequently, we remand this matter to the trial court for it to determine whether Mr. Copeland’s drug convictions and ch ild endangering convictions are, in fact, allied offenses of similar import. See State v. Truitt , 9th Dist. Summit No. 25527 2011-Ohio-6599, ¶ 47. See also7

Washington , 2011-Ohio-1149, at ¶ 23-28. Mr. Copeland’s so le assignment of error is sustained

on that basis.

III. {¶15} Mr. Copeland’s sole assignment of error is sustained to the extent that the judgment must be reversed for the application of State v. Johnson . The judgment of the Summit County Court of Common Pleas is reversed, and the cause is rema nded to the trial court for its

consideration of the issue raised in Mr . Copeland’s sole assi gnment of error. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

CARLA MOORE FOR THE COURT8

BELFANCE, P. J. CONCURS. CARR, J. DISSENTING. {¶16} I respectfully dissent for the reas ons enunciated in my dissent in State v. Asefi , 9th Dist. Summit No. 26931, 2014-Ohio-2510, ¶ 17-22. Moreover, Copeland has failed to demonstrate any error by the trial court, as he fa iled to meet his burden of demonstrating that he is entitled to the merger of the drug offense with the child endangering offenses. See State v. Washington , 137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 18. He did not move for merger of those offenses below. Nor did he object to the tr ial court’s failure to merge those offenses. Accordingly, given the absence of facts outside those alleged in the i ndictment, Copeland failed to demonstrate that he was entitled to merger and that the trial court committed plain error in failing to merge the drug offense with the child endangering offenses. Under these circumstances, I would affirm the trial court’s judgment.

APPEARANCES: STEPHANIE YUHAS, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.