[Cite as State v. Roper , 2013-Ohio-2176.]

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

STATE OF OHIO Appellant

v.

DARNELL LYNN ROPER KOTY HARRIS KEENER Appellees C.A. Nos. 26631 26632

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR 11 11 3219 (A) CR 11 11 3219 (C)

DECISION AND JOURNAL ENTRY Dated: May 29, 2013

BELFANCE, Presiding Judge. {¶1} Plaintiff-Appellant the State of Ohio appeals from the sentencing entries issued by the Summit County Court of Common Pleas con cerning Defendant-Appellee Darnell Lynn Roper (case number 26631) and Defendant-Appell ee Koty Harris Keener (case number 26632). For the reasons set forth below, we reverse a nd remand the matters for proceedings consistent with this opinion.

I. {¶2} Mr. Keener and Mr. Roper were separa tely indicted based upon allegations arising from the same incident. 1 Both Mr. Keener and Mr. Rope r were indicted on one count of aggravated robbery with an attendant firearm specification and an attendant specification for participating in a criminal gang, one count of aggravated burgla ry with an attendant firearm

1 Mr. Keener was a juvenile at the time of the incident at issue but was bound over from juvenile court.2

specification and an attendant speci fication for participating in a criminal gang, and one count of participating in a criminal gang. Ultimately, both Mr. Keener and Mr. Roper pleaded guilty to the charges listed above and were each sentenced to an aggregate term of nine years in prison. Both Mr. Keener and Mr. Roper received a three-year sentence for each firearm specification; however, the firearm specifications were run conc urrently to each other. The matters were consolidated for purposes of appeal, and the State has raised a single assignment of error for our

review.

II.

THE TRIAL COURT ERRED IN NOT IMPOSING CONSECUTIVE SENTENCES ON THE SEPARATE FIREARM SPECIFICATIONS. {¶3} The State asserts in its sole assignment of error that the trial court erred in failing to impose the two firearm specifications consecutiv ely instead of concurrently. We do not agree with the State’s contention, but do agree that the trial court’s sentence is erroneous. {¶4} We begin by noting, and as the State has correctly pointed out, that Mr. Keener’s sentencing entry contains a cl erical omission. At the senten cing hearing, the trial court determined that the offenses of aggravated burglary and aggravated robbery were allied and should merge, and it was determined at the hear ing that the aggravated burglary charge would merge into the aggravated robbery charge. Howe ver, the sentencing entry does not reflect this merger. Accordingly, upon remand, the trial court shall enter, nunc pro tunc, an entry reflecting what occurred at the sentencing hearing with respect to merger. See State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 13. {¶5} Appellate courts apply a two-step approach in reviewing the sentence that a trial court has imposed upon a defendant. State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio3545, ¶ 32, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4. “First, they must3

examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be review ed under an abuse-of-discretion

standard.” Kalish at ¶ 4. {¶6} In the instant matter, the State asserts th at R.C. 2929.14 required the trial court to impose the three-year term for each of the two fi rearm specifications attendant to the aggravated burglary and aggravated robbery charges consecutively to each other, and the trial court erred by imposing them concurrently over the State’s objection. Both the specifications for each individual were charged as violations of R.C. 2941.145. {¶7} R.C. 2941.145(A) states that [i]mposition of a three-year mandat ory prison term upon an offender under division (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless the indictment, count in the indi ctment, or information charging the offense specifies that the offender had a firearm on or about the offender’s person or under the offender’s control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense. {¶8} At the time Mr. Roper and Mr. Keener were sentenced, R.C. 2929.14(B)(1)(a)(ii) (comparable to former R.C. 2929.14(D)(1)(a)(ii)) provi ded that, “[e]xcept as provided in division (B)(1)(e) of this section, if an offender who is convicted of or pleads guilty to a felony also is convicted of or pleads guilty to a specification of the type described in section * * * 2941.145 of the Revised Code, the court shall impose on the o ffender * * * [a] prison term of three years * *

*.” {¶9} At the time of sentencing, the trial court merged Mr. Roper’s and Mr. Keener’s aggravated robbery and aggravated burglary offens es. The transcript of the sentencing hearing indicates that, for Mr. Keener, the offense of aggravated burglary was to merge into the offense4

of aggravated robbery, whereas Mr. Roper’s se ntencing entry indicates that the offense of aggravated robbery merged into the offense of ag gravated burglary. Neit her side disputes that Mr. Roper and Mr. Keener could only be senten ced for one of the allied offenses – either aggravated robbery or aggravated burglary, depending on the election. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 17. Nonetheless, the State maintains that, despite the fact that Mr. Roper and Mr. Keener could each only be sentenced on one of the offenses, both Mr. Roper and Mr. Keener should be sentenced on bot h firearm specifications that accompanied the two offenses, and that the sentences on those specif ications should be served consecutively. The State’s argument defies logic and goes against sound principles established in Ohio precedent. {¶10} The issue in this case is whether a court can sentence a defendant on specifications, either concurrently or consecutively, when the underlying offense that is the basis for the specifications merges into another offense. In order to address that question, we first observe that a specification is not a separate of fense but is an enhanced penalty attendant to a

criminal offense. See State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765 , ¶ 19. In examining whether an offense and a firearm specification were allied offenses of similar import pursuant to R.C. 2941.25, the Supreme Court of Ohio has exa mined former R.C. 2929.14(D)(1)(a), which is comparable to the version of R.C. 2929.14(B)(1)(a) in effect at the time of sentencing, and R.C. 2941.145 to determine whether the firearm spec ification at issue was an offense. Ford at ¶ 9-16. In concluding that the firearm specification was not an offense subject to R.C. 2941.25, the Supreme Court stated that, “the language in these provisions indicates that the firearm specification is contingent upon an underlying felony conviction .” (Emphasis added.) Ford at ¶ 16. Normally, a conviction consists of both a finding of guilt and a sentence. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, at ¶ 13. In other words, “these provisions indicate that if a5

defendant is convicted of a felony offens e and, during the commission of that offense, if the defendant displays, indicates possession of, or uses a firearm to facilitate the offense, the defendant’s underlying felony sentence will be in creased by three years.” (Emphasis sic.) Ford at ¶ 16. Thus, a firearm specifica tion is merely a sentencing provi sion that requires an enhanced penalty upon certain findings. See id . at ¶ 19. {¶11} Here Mr. Roper and Mr. Keener could not be sentenced for both aggravated robbery and aggravated burglary because the trial cour t found them to be allied offenses of similar import, and, thus, they could only be convicted of one of the two offenses. See Whitfield at ¶ 13, 17. The firearm specifications were cont ingent on there being a conviction (i.e. finding of guilt and sentence) for the underlying offens e and attach to the predicate offense. See Ford at ¶ 16. Moreover, the classification of a firearm sp ecification as “penalty en hancement” inherently implies that there is an underlying penalty to enhance. Ford at ¶ 19. Thus, because one of the underlying offenses at issue merged into the ot her underlying offense, the merged offense could not be penalized. See Whitfield at ¶ 17. Unlike Ford , there is no dispute that the underlying offenses at issue in these cases were allied, and R.C. 2941.25 prohibits pe nalizing the defendants for the offense that merged. In Mr. Roper’s case , he could be sentenced for aggravated burglary but not aggravated robbery. In Mr. Keener’s case, he could be sentenced for the aggravated robbery but not the aggravated burglary. To allow sentences on their respective aggravated robbery and burglary firearm specifications, e ither concurrently or consecutively, would impermissibly impose an enhanced penalty base d upon offenses for which they could not be sentenced. This is not to say that the firearm specification “merges” into the underlying offense, as such is not possible. See Ford at paragraph two of the syllabus. Instead, we simply hold that it is impermissible to sentence an offender for a specification when the underlying offense upon6

which the specification is predicated has merged with another allied offense. To hold otherwise would result in improperly imposing a penalty enhancement under circumstances where there can be no sentence imposed for the underlying predi cate offense. Thus, the trial court’s act of sentencing Mr. Roper and Mr. Keener on specifica tions that were predicated on offenses that were merged is contrary to law. {¶12} Pursuant to Kalish , having concluded that the sentences are clearly and convincingly contrary to law, th is Court must reverse the tria l court’s sentence and remand for

the trial court to resenten ce Mr. Roper and Mr. Keener. See Kalish , 120 Ohio St.3d 23, 2008- Ohio-4912, at ¶ 15.

III. {¶13} In light of the foregoing, the judgment of the Summit County Court of Common Pleas is reversed, and the matte r is remanded for resentencing consistent with this opinion. 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 is7

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 Appellees.

EVE V. BELFANCE FOR THE COURT

WHITMORE, J. HENSAL, J. CONCUR.

APPEARANCES: SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellant. LAWRENCE J. WHITNEY, Attorney at Law, for Appellee. NICHOLAS JACK MARINO, Attorney at Law, for Appellee.