[Cite as State v. Collins, 2012-Ohio-3687.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97496
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
LORENZO COLLINS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-482881
BEFORE: Cooney, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: August 16, 2012 ATTORNEYS FOR APPELLANT
Robert L. Tobik Chief Public Defender
Cullen Sweeney Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
By: Mary McGrath Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Lorenzo Collins (“Collins”), appeals from his
resentencing pursuant to our mandate regarding allied offenses of felony murder and
aggravated arson. Finding no merit to the appeal, we affirm.
{¶2} In June 2006, Collins was indicted for setting fire to an apartment building
causing the death of four children. In March 2007, Collins was convicted by a jury of
four counts of felony murder, five counts of aggravated arson, and one count of arson.
He was sentenced to 106.5 years to life in prison. In June 2008, Collins appealed, and
this court reversed his convictions and remanded for a new trial. State v. Collins, 8th
Dist. No. 95415, 2008-Ohio-3016 (“Collins I”).
{¶3} In May 2010, the case proceeded to a second jury trial and Collins was again
convicted of four counts of felony murder, five counts of aggravated arson, and one count
of arson. He was sentenced to 111.5 years to life in prison. He appealed again, and
this court affirmed his convictions but remanded for resentencing for the purpose of
merging allied offenses. He argued on appeal that four of the counts of aggravated
arson should have been merged with the four counts of felony murder. This court
agreed, stating:
[t]he state concedes that the aggravated arson charges merge into the felony murder charges pursuant to the Ohio Supreme Court decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. We note that while the aggravated arson and felony murder counts merge, the separate counts as to each victim remain. Although Collins set one fire, he created a substantial risk of harm or injury to four children. See State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶48 (rejecting defendant’s argument that he set only one fire and therefore committed only one arson; court held that defendant committed six counts of aggravated arson because defendant knowingly set a fire that created a substantial risk of serious harm or injury to six people).
In light of the state’s concession and the recent Ohio Supreme Court
decision in Johnson, we sustain this argument and remand the case to the
trial court to allow the state to elect which allied offense to pursue at
resentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922
N.E.2d 182, paragraph one of the syllabus; State v. Pate, Cuyahoga App.
No. 94876, 2011-Ohio-1692; State v. Bauldwin, Cuyahoga App. No. 94876,
2011-Ohio-1066.
State v. Collins, 8th Dist. No. 95415, 2011-Ohio-3241, ¶43-45 (“Collins II”).1
{¶4} A resentencing hearing was conducted in August 2011. As directed by our
mandate in Collins II, the four counts of felony murder for each of the four separate child
victims were merged with the four counts of aggravated arson. The State elected to
proceed to sentencing on the four felony murder charges. Collins was sentenced to 15
years to life in prison for each of the four felony murder convictions. His prior sentence
of ten years in prison for the aggravated arson of the building and 18 months in prison for
Appeal not accepted, State v. Collins, 130 Ohio St.3d 1419, 2011-Ohio-5605, 956 N.E.2d 1
310. arson of the vehicle remained unchanged. The six terms were ordered to run
consecutively to each other, for an aggregate sentence of 71.5 years to life in prison.
{¶5} Collins now appeals, arguing in his sole assignment of error that the trial
court erred by sentencing him on allied offenses of similar import.
{¶6} First, Collins argues that the court erred in failing to merge the four felony
murder convictions because they arose as a proximate result of the same offense.
Second, Collins argues that the court erred in failing to merge his aggravated arson of the
building conviction with the four aggravated arson convictions or with the four
convictions of felony murder.
{¶7} Both of Collins’s claims are barred by the doctrine of res judicata. It is well
established that res judicata bars the consideration of issues that could have been raised
on direct appeal. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824,
¶ 16-17. This court has recognized that the issue of whether two offenses constitute
allied offenses subject to merger must be raised on direct appeal from a conviction, or res
judicata will bar a subsequent attempt to raise the issue. State v. Flagg, 8th Dist. Nos.
95958 and 95986, 2011-Ohio-5386, ¶ 8, citing State v. Goldsmith, 8th Dist. No. 95073,
2011-Ohio-840, ¶ 6; see also State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716, ¶ 13.
{¶8} 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. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15, citing Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, paragraph three of the syllabus.
{¶9} On direct appeal, Collins argued that the four aggravated arson convictions
should be merged with the four felony murder convictions. This court agreed and
remanded for that limited purpose. The trial court properly resentenced him after
merging those eight separate counts into four counts. Although Collins did not argue in
his prior appeal that the four felony murder convictions should merge into one, this court
specifically stated that the four felony murder counts do not merge because there were
four separate victims. Collins II at ¶ 44. This is the law of the case. Furthermore,
Collins never argued in the prior appeal that his aggravated arson of the building
conviction should merge with the remaining aggravated arson convictions. As the Ohio
Supreme Court stated, “[A]ny prior issues not successfully challenged in [appellant’s]
appeal are outside the scope of his resentencing and will be precluded from further
review.” Wilson at ¶ 33. Only the issues that arise in a resentencing hearing are open
to appellate review. Id. at paragraph two of the syllabus. Based on our mandate in
Collins’s prior appeal, only the four aggravated arson and the four felony murder
convictions were remanded for resentencing and are subject to our review.
{¶10} In State v. Goldsmith, a procedurally similar case, Goldsmith successfully
argued on direct appeal that two of his convictions were allied offenses. This court
reversed and remanded for resentencing. Goldsmith appealed from his resentencing,
arguing that the court failed to merge two other offenses.
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[Cite as State v. Collins, 2012-Ohio-3687.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97496
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
LORENZO COLLINS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-482881
BEFORE: Cooney, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: August 16, 2012 ATTORNEYS FOR APPELLANT
Robert L. Tobik Chief Public Defender
Cullen Sweeney Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
By: Mary McGrath Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Lorenzo Collins (“Collins”), appeals from his
resentencing pursuant to our mandate regarding allied offenses of felony murder and
aggravated arson. Finding no merit to the appeal, we affirm.
{¶2} In June 2006, Collins was indicted for setting fire to an apartment building
causing the death of four children. In March 2007, Collins was convicted by a jury of
four counts of felony murder, five counts of aggravated arson, and one count of arson.
He was sentenced to 106.5 years to life in prison. In June 2008, Collins appealed, and
this court reversed his convictions and remanded for a new trial. State v. Collins, 8th
Dist. No. 95415, 2008-Ohio-3016 (“Collins I”).
{¶3} In May 2010, the case proceeded to a second jury trial and Collins was again
convicted of four counts of felony murder, five counts of aggravated arson, and one count
of arson. He was sentenced to 111.5 years to life in prison. He appealed again, and
this court affirmed his convictions but remanded for resentencing for the purpose of
merging allied offenses. He argued on appeal that four of the counts of aggravated
arson should have been merged with the four counts of felony murder. This court
agreed, stating:
[t]he state concedes that the aggravated arson charges merge into the felony murder charges pursuant to the Ohio Supreme Court decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. We note that while the aggravated arson and felony murder counts merge, the separate counts as to each victim remain. Although Collins set one fire, he created a substantial risk of harm or injury to four children. See State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶48 (rejecting defendant’s argument that he set only one fire and therefore committed only one arson; court held that defendant committed six counts of aggravated arson because defendant knowingly set a fire that created a substantial risk of serious harm or injury to six people).
In light of the state’s concession and the recent Ohio Supreme Court
decision in Johnson, we sustain this argument and remand the case to the
trial court to allow the state to elect which allied offense to pursue at
resentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922
N.E.2d 182, paragraph one of the syllabus; State v. Pate, Cuyahoga App.
No. 94876, 2011-Ohio-1692; State v. Bauldwin, Cuyahoga App. No. 94876,
2011-Ohio-1066.
State v. Collins, 8th Dist. No. 95415, 2011-Ohio-3241, ¶43-45 (“Collins II”).1
{¶4} A resentencing hearing was conducted in August 2011. As directed by our
mandate in Collins II, the four counts of felony murder for each of the four separate child
victims were merged with the four counts of aggravated arson. The State elected to
proceed to sentencing on the four felony murder charges. Collins was sentenced to 15
years to life in prison for each of the four felony murder convictions. His prior sentence
of ten years in prison for the aggravated arson of the building and 18 months in prison for
Appeal not accepted, State v. Collins, 130 Ohio St.3d 1419, 2011-Ohio-5605, 956 N.E.2d 1
310. arson of the vehicle remained unchanged. The six terms were ordered to run
consecutively to each other, for an aggregate sentence of 71.5 years to life in prison.
{¶5} Collins now appeals, arguing in his sole assignment of error that the trial
court erred by sentencing him on allied offenses of similar import.
{¶6} First, Collins argues that the court erred in failing to merge the four felony
murder convictions because they arose as a proximate result of the same offense.
Second, Collins argues that the court erred in failing to merge his aggravated arson of the
building conviction with the four aggravated arson convictions or with the four
convictions of felony murder.
{¶7} Both of Collins’s claims are barred by the doctrine of res judicata. It is well
established that res judicata bars the consideration of issues that could have been raised
on direct appeal. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824,
¶ 16-17. This court has recognized that the issue of whether two offenses constitute
allied offenses subject to merger must be raised on direct appeal from a conviction, or res
judicata will bar a subsequent attempt to raise the issue. State v. Flagg, 8th Dist. Nos.
95958 and 95986, 2011-Ohio-5386, ¶ 8, citing State v. Goldsmith, 8th Dist. No. 95073,
2011-Ohio-840, ¶ 6; see also State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716, ¶ 13.
{¶8} 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. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15, citing Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, paragraph three of the syllabus.
{¶9} On direct appeal, Collins argued that the four aggravated arson convictions
should be merged with the four felony murder convictions. This court agreed and
remanded for that limited purpose. The trial court properly resentenced him after
merging those eight separate counts into four counts. Although Collins did not argue in
his prior appeal that the four felony murder convictions should merge into one, this court
specifically stated that the four felony murder counts do not merge because there were
four separate victims. Collins II at ¶ 44. This is the law of the case. Furthermore,
Collins never argued in the prior appeal that his aggravated arson of the building
conviction should merge with the remaining aggravated arson convictions. As the Ohio
Supreme Court stated, “[A]ny prior issues not successfully challenged in [appellant’s]
appeal are outside the scope of his resentencing and will be precluded from further
review.” Wilson at ¶ 33. Only the issues that arise in a resentencing hearing are open
to appellate review. Id. at paragraph two of the syllabus. Based on our mandate in
Collins’s prior appeal, only the four aggravated arson and the four felony murder
convictions were remanded for resentencing and are subject to our review.
{¶10} In State v. Goldsmith, a procedurally similar case, Goldsmith successfully
argued on direct appeal that two of his convictions were allied offenses. This court
reversed and remanded for resentencing. Goldsmith appealed from his resentencing,
arguing that the court failed to merge two other offenses. This court stated that because Goldsmith failed to raise those issues on direct appeal, his claim was barred by the
doctrine of res judicata.
In State v. Wilson, Cuyahoga App. No. 93427, 2010-Ohio-2466, the
defendant filed an appeal following resentencing in which he claimed the
trial court failed to merge firearm specifications. Although the defendant
had not raised the issue in a direct appeal from his conviction, this court
held that the defendant was not barred by res judicata from raising the issue.
The Ohio Supreme Court reversed this court’s decision on the authority of
State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824. State
v. Wilson, 127 Ohio St.3d 406, 2010-Ohio-6285, 939 N.E.2d 1263. In
Saxon, the court held that “a defendant who fails on direct appeal to
challenge a sentence imposed on him for an offense is barred by res judicata
from appealing that sentence following a remand for resentencing on other
offenses.” Saxon, supra at ¶19.
(Emphasis added.) State v. Goldsmith, 8th Dist. No. 95073, 2011-Ohio-840, ¶10.
{¶11} Pursuant to Goldsmith, Wilson, and Saxon, the only counts ripe for appellate
review in the instant case are those that were raised on direct appeal and subject to
resentencing. Collins is barred by the doctrine of res judicata from raising merger issues
associated with the remaining counts that were not successfully challenged on direct
appeal.
{¶12} Accordingly, his sole assignment of error is overruled. {¶13} Judgment affirmed.
It is ordered that appellee recover of 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 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.
______________________________________________ COLLEEN CONWAY COONEY, JUDGE
MARY J. BOYLE, P.J., and MARY EILEEN KILBANE, J., CONCUR