[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

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