[Cite as State v. Shepherd, 2013-Ohio-4912.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99503

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ELIJAH SHEPHERD

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-550339 

BEFORE: Keough, J., S. Gallagher, P.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: November 7, 2013 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Public Defender 

By: Jeffrey M. Gamso 

Asst. Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: James M. Price 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, J.: 

{¶1} Defendant-appellant, Elijah Shepherd, appeals from the trial court’s 

resentencing. Finding no merit to the appeal, we affirm. 

{¶2} In 2011, Shepherd was charged with two counts of felonious assault, both 

containing one- and three-year firearm specifications, and one count of having a weapon 

while under disability. The matter proceeded to trial, where Shepherd was found guilty 

of all counts, including the firearm specifications. At sentencing, the trial court merged 

the felonious assault counts and sentenced Shepherd to seven years for felonious assault. 

The court also found that the one- and three-year firearm specifications merged; and thus 

sentenced him to the mandatory three years. Finally, the court sentenced Shepherd to 

three years for having a weapon while under disability. The trial court ordered all 

sentences to be served consecutively for a total aggregate prison term of 13 years. 

{¶3} Shepherd appealed his convictions and sentence to this court in State v. 

Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415. This court affirmed his 

convictions, but concluded that the trial court failed to make the necessary findings 

pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive sentences. Id. at ¶ 87 and 

89. Accordingly, this court vacated the consecutive sentences and postrelease control 

portions of Shepherd’s sentence and remanded the case for a new sentencing hearing on 

those vacated portions. Id. at ¶ 89. 
{¶4} At resentencing and after making the appropriate findings, the trial court 

imposed the same aggregate sentence of 13 years — seven years for felonious assault, 

three years for the firearm specification, and three years for having a weapon while under 

disability. Shepherd again appeals his sentence. 

{¶5} In his first assignment of error, Shepherd contends that the trial court erred 

when it sua sponte elected to proceed to sentence him on the three-year firearm 

specification. Shepherd argues that the state was required to elect which specification 

the court should sentence on; the trial court was not authorized to unilaterally choose. 

{¶6} Shepherd was found guilty of felonious assault with firearm specifications 

that carry both one- and three-year mandatory prison sentences. Accordingly, the trial 

court was required pursuant to R.C. 2929.14(B)(1)(a)(ii) to impose the mandatory penalty 

of three years. There was no discretion, and the state was not even in a position to elect 

which specification to proceed with sentencing on. The mandatory three-year sentence 

necessarily subsumes the mandatory one-year sentence. See R.C. 2929.14(B)(1)(b). 

{¶7} Accordingly, we find no merit to Shepherd’s first assignment of error. 

{¶8} In his second assignment of error, Shepherd contends that having a weapon 

while under disability is an allied offense of similar import to a firearm specification. 

This argument has been considered and consistently rejected by this court. See State v. 

Whittsette, 8th Dist. Cuyahoga No. 70091, 1997 Ohio App. LEXIS 500, *6 (Feb. 13, 

1997), citing State v. Blankenship, 102 Ohio App.3d 534, 547, 657 N.E.2d 559 (12th 

Dist.1995); State v. Williams, 8th Dist. Cuyahoga No. 81949, 2003-Ohio-3950, ¶ 19-21, 
appeal not allowed, State v. Williams, 100 Ohio St.3d 1509, 2003-Ohio-6161, 799 N.E.2d 

187; State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192. 

{¶9} Accordingly, Shepherd’s second assignment of error is overruled. 

{¶10} In his third assignment of error, Shepherd argues that counsel was 

ineffective for failing to object to the trial court’s sua sponte election of which firearm 

specification he should be sentenced on and for failing to request that the firearm 

specification and weapon under disability charge should merge. Shepherd’s claim for 

ineffective assistance of counsel, which is premised on his previously rejected 

assignments of error, must equally fail. The third assignment of error is overruled. 

{¶11} Judgment affirmed. 

It is ordered that appellee recover from appellant 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. Case remanded to the trial court for 

execution of sentence. 

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

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 

SEAN C. GALLAGHER, P.J., and 

MARY EILEEN KILBANE, J., CONCUR