The opinion
[Cite as State v. Linzy, 2014-Ohio-1738.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney
:
-vs- :
: Case No. 12CA33
CAREES LINZY :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2012-
CR-37H
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: April 23, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. R. JOSHUA BROWN
Prosecuting Attorney 32 Lutz Avenue
JILL M. COCHRAN Lexington, OH 44904
JOHN NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Linzy, 2014-Ohio-1738.]
Gwin, P.J.
{¶1} Appellant, Carees Linzy (“Linzy”) was convicted after a jury trial in the
Richland County Court of Common Pleas on two counts of murder, each with a firearm
specification, having a weapon while under disability, carrying a concealed weapon,
tampering with evidence and possession of criminal tools. This Court affirmed Linzy’s
conviction. For a complete recitation of the facts underlying Linzy’s conviction see, State
v. Linzy, 5th Dist. Stark No. 2012–CA–33, 2013-Ohio-1129.
{¶2} By Judgment Entry filed September 16, 2013, this Court granted in part
Linzy’s Application for reopening pursuant to App.R. 26(B). Pursuant to our mandate,
Linzy has raised the following assignment of error,
{¶3} “I. WAS APPELLATE COUNSEL INEFFECTIVE AND THE APPELLANT
PREJUDICED BY COUNSEL’S FAILURE TO ADDRESS THE ISSUE OF WHETHER
APPELLANT’S CONVICTIONS FOR TWO COUNTS OF MURDER MUST MERGE
INTO A SINGLE CONVICTION AND IMPOSITION OF A SENTENCE THAT IS
APPROPRIATE FOR THE OFFENSE CHOSEN FOR SENTENCING.”
Analysis
{¶4} In his assignment of error, Linzy maintains he received ineffective
assistance of appellate counsel on direct appeal. The standard for reviewing claims for
ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Ohio adopted this standard in the case of
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). These cases require a two-
pronged analysis in reviewing a claim for ineffective assistance of counsel.
Richland County, Case No. 12CA33 3
{¶5} First, we must determine whether counsel's assistance was ineffective;
i.e., whether counsel's performance fell below an objective standard of reasonable
representation and volatile of any of his essential duties to the client. If we find
ineffective assistance of counsel, we must then determine whether the defense was
actually prejudice by counsel's ineffectiveness such that the reliability of the outcome of
the trial is suspect. This requires a showing that there is a reasonable probability that
but for counsel's unprofessional error, the outcome of the trial would have been
different. We apply the Strickland test to all claims of ineffective assistance of counsel,
either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. Guernsey No. 2005-
CA-41, 2006-Ohio-5214.
{¶6} Linzy argues that his trial counsel was ineffective in failing to request that
his two murder convictions be merged as allied offenses of similar import. Linzy
contends his appellate counsel was ineffective because he did not raise this issue on
appeal.
{¶7} Failure to merge allied offenses is plain error. State v. Underwood, 124
Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31; State v. Yarbrough, 104 Ohio St.3d
1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96–102.
{¶8} In State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512,
the Ohio Supreme Court noted,
When a defendant has been found guilty of offenses that are allied
offenses, R.C. 2941.25 prohibits the imposition of multiple sentences.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 12.
Therefore, a trial court must merge the crimes into a single conviction and
Richland County, Case No. 12CA33 4
impose a sentence that is appropriate for the offense chosen for
sentencing. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895
N.E.2d 149, at ¶ 41–43. In this case, the sentencing court found Damron
guilty of both offenses and sentenced him on both. The imposition of
concurrent sentences is not the equivalent of merging allied offenses.
Id. at ¶17. The Court in Whitfield further held,
“If, upon appeal, a court of appeals finds reversible error in the
imposition of multiple punishments for allied offenses, the court must
reverse the judgment of conviction and remand for a new sentencing
hearing at which the state must elect which allied offense it will pursue
against the defendant. On remand, trial courts must address any double
jeopardy protections that benefit the defendant…”
Whitfield, supra at ¶ 25.
{¶9} The scope of the sentencing hearing the trial court must conduct after
remand for an allied offenses sentencing error was addressed by the Supreme Court,
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. Whitfield, 124 Ohio St.3d 319, 2010-
Ohio-2, 922 N.E.2d 182, 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. Saxon at paragraph
three of the syllabus.
Richland County, Case No. 12CA33 5
{¶10} State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,
¶15. The Court in Wilson further held,
[O]nce the cause is remanded and the offenses to be merged are
selected by the state, the trial court is required to hold a new sentencing
hearing and impose sentences for the remaining offenses. Res judicata
does not preclude a defendant from objecting to issues that arise at the
new sentencing hearing.
Wilson, ¶34.
{¶11} In the case at bar, Linzy was charged with two counts of murder for
causing the death of Gary Hall. In the first count, Linzy was charged with purposely
causing the death of another pursuant to R.C. 2903.02(A). In the second count, Linzy
was charged with causing the death of another as a proximate result of committing
felonious assault pursuant to R.C. 2903.02(B). The two counts were charges that were
plead in the alternative and both relate to the single act of causing the death of Gary
Hall.
{¶12} In cases in which the imposition of multiple punishments is at issue, R.C.
2941.25(A)'s mandate that a defendant may only be “convicted” of one allied offense is
a protection against multiple sentences rather than multiple convictions. See, e.g., Ohio
v. Johnson (1984), 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425. A defendant
may be indicted and tried for allied offenses of similar import, but may be sentenced on
only one of the allied offenses. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569,
895 N.E.2d 149, ¶ 42, citing Geiger, 45 Ohio St.2d at 244, 74 O.O.2d 380, 344 N.E.2d
133. Because R.C. 2941.25(A) protects a defendant only from being punished for allied
Richland County, Case No. 12CA33 6
offenses, the determination of the defendant's guilt for committing allied offenses
remains intact, both before and after the merger of allied offenses for sentencing. State
v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶27. Thus, the trial
court should not vacate or dismiss the guilt determination on each count. Id. Pursuant to
Damron, the imposition of concurrent sentences is not the equivalent of merging allied
offenses.
{¶13} The state concedes that the two counts of murder in this case are allied
offenses. State’s Brief at 6. The state further agrees that this case be remanded for a
new sentencing hearing. Id.
{¶14} Linzy’s sole assignment of error is sustained.
Richland County, Case No. 12CA33 7
{¶15} Accordingly, Linzy's sentences for two counts of murder are vacated, and
he is entitled to a de novo sentencing hearing upon remand. In accordance with the
Ohio Supreme Court's decision in State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-
2669, 951 N.E.2d 381, we remand this case to the trial court for further proceedings
consistent with that opinion. This decision in no way affects the guilty verdicts issued by
the court. It only affects the entry of conviction and sentence. All of Linzy's convictions
are affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur