State v. Creel

2011 Ohio 5893

• Court: Ohio Court of Appeals
• Decided: November 16, 2011
• Docket: 25476
• Status: Published

Opinion

[Cite as State v. Creel, 2011-Ohio-5893.]

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

STATE OF OHIO C.A. No. 25476

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE WILLIAM L. CREEL COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 09 12 3845

DECISION AND JOURNAL ENTRY

Dated: November 16, 2011

CARR, Presiding Judge.

{¶1} Appellant, William Creel, appeals the judgment of the Summit County Court of

Common Pleas. This Court reverses and remands for further proceedings.

I.

{¶2} Creel was convicted of and sentenced for several criminal offenses, including two

counts of murder, improperly discharging a firearm, tampering with evidence, and felonious

assault. Creel has appealed, raising two assignments of error related to his sentence. The State

has conceded that the trial court erred in imposing sentences on allied offenses. We have

reviewed the record and agree with the parties that Creel’s sentence should be reversed and the

matter remanded to the trial court. 2

II.

{¶3} In his first assignment of error, Creel argues that the trial court erred when it

sentenced him on allied offenses of similar import. The State has conceded that the trial court

erred.

{¶4} In December 2010, several months after the trial court sentenced Creel, the

Supreme Court of Ohio announced a new test for determining whether multiple offenses are

allied offenses for sentencing purposes. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,

syllabus. Creel and the State agree that the offenses for which he was convicted are allied

offenses of similar import. Because Johnson was decided after the trial court sentenced Creel,

the trial court did not have the opportunity to consider Johnson in deciding whether the offenses

at issue were allied and, if so, the State has not had the opportunity to elect on which offense it

wishes to proceed for sentencing. This Court has consistently remanded similar cases so that the

trial court could make this determination in the first instance. See, e.g., State v. McDaniel, 9th

Dist. No. 25492, 2011-Ohio-5001; State v. Vitt, 9th Dist. No. 10CA0016–M, 2011-Ohio-1448;

State v. Jones, 9th Dist. No. 25676, 2011-Ohio-4934. Accordingly, the first assignment of error

is sustained, we reverse Creel’s sentence, and remand this case to the trial court for further

proceedings consistent with this opinion. In light of this Court's resolution of his first

assignment of error, his second assignment of error is not yet ripe for review.

III.

{¶5} Creel’s first assignment of error is sustained and we decline to address his second

assignment of error. The judgment of the Summit County Court of Common Pleas is reversed

and the matter is remanded to the trial court for consideration of the issue in light of Johnson.

Judgment reversed and cause remanded. 3

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 mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document 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(E). 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.

DONNA J. CARR FOR THE COURT

WHITMORE, J. MOORE, J. CONCUR

APPEARANCES:

JILL R. FLAGG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.