State v. Fleckenstein

[Cite as State v. Fleckenstein, 

.]


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

STATE OF OHIO                                           C.A. No.     22CA011886

        Appellee/Cross-Appellant

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
SEBASTIAN FLECKENSTEIN                                  COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellant/Cross-Appellee                        CASE No.   21CR104908

                                  DECISION AND JOURNAL ENTRY

Dated: December 4, 2023



        FLAGG LANZINGER, Judge.

        {¶1}     Appellant/Cross-Appellee, Sebastian Fleckenstein, appeals from the judgment of

the Lorain County Court of Common Pleas. Additionally, Appellee/Cross-Appellant, the State of

Ohio, appeals the sentence imposed by that court. This Court affirms in part and reverses in part.

                                                   I.

        {¶2}     Shortly before 11:30 p.m., H.S. was traveling northbound on Apple Avenue in

Lorain. He abruptly stopped his vehicle near the intersection of Apple Avenue and East 23rd

Street. He then exited his vehicle. Six seconds later, someone shot him in the chest. Nine seconds

after that first shot, a second shot was fired. A paramedic found H.S.’s body in the street about

ten minutes later. His body was located several feet from the open driver’s door of his vehicle.

        {¶3}     The initial investigation the police conducted did not yield any leads. The police

appealed to the media for help. A media release resulted in several tips. A resident of Apple

Avenue provided the police with security footage that captured H.S.’s car, the sound of gunfire,
                                                 2


and two men fleeing from a home on Apple Avenue. A search of that home uncovered a credit

card belonging to Mr. Fleckenstein. Additionally, a man contacted the police and told them he

had purchased a firearm from Mr. Fleckenstein a few days after the shooting.

       {¶4}    The police attempted to reach out to Mr. Fleckenstein through his probation officer,

but Mr. Fleckenstein refused to cooperate. The police arrested him eleven days after the shooting.

A detective interviewed him at the police station. Mr. Fleckenstein admitted he shot H.S. He

claimed he acted in self-defense.

       {¶5}    A grand jury indicted Mr. Fleckenstein. He was charged with murder, two counts

of felony murder, involuntary manslaughter, discharging a firearm on or near prohibited premises,

two counts of felonious assault, tampering with evidence, receiving stolen property, obstructing

official business, and having a weapon under disability. The two counts of felonious assault were

charged under different subdivisions. They served as the predicate offenses for the two counts of

felony murder. Ten of Mr. Fleckenstein’s counts also carried a firearm specification. Six of his

counts carried a repeat violent offender specification.

       {¶6}    The matter proceeded to a jury trial. The trial court acquitted Mr. Fleckenstein of

obstructing official business. The court submitted his remaining counts to the jury. The jury found

him not guilty of murder and receiving stolen property. The jury found him guilty of his remaining

charges and firearm specifications. The trial court found him to be a repeat violent offender.

       {¶7}    The trial court merged Mr. Fleckenstein’s counts for felony murder, involuntary

manslaughter, discharging a firearm on or near prohibited premises, and felonious assault as allied

offenses of similar import. The State elected to proceed on one of the felony murder counts. The

court sentenced Mr. Fleckenstein to fifteen years to life in prison on that count. It also imposed a

three-year prison term on the firearm specification linked to that count. The court ordered the two
                                                  3


terms to run consecutively for a total sentence of eighteen years to life in prison. It ordered the

remainder of Mr. Fleckenstein’s prison terms to run concurrently with that sentence.

       {¶8}    Mr. Fleckenstein now appeals from his convictions. Additionally, the State appeals

the sentence the trial court imposed. Collectively, Mr. Fleckenstein and the State assign eight

errors for this Court’s review.

                                                 II.

                     MR. FLECKENSTEIN’S ASSIGNMENT OF ERROR I

       APPELLANT WAS DENIED DUE PROCESS HAVING BEEN TRIED
       WITHOUT PROPER SEPARATION OF POWERS ALLOWING THE
       EXECUTIVE RATHER THAN THE JUDICIARY TO CONDUCT THE TRIAL.

       {¶9}    In his first assignment of error, Mr. Fleckenstein argues he was denied due process

when the State overcharged him and the trial court instructed the jury to consider each of his counts

independently. He notes that the State charged him with murder, felony murder, involuntary

manslaughter, and other lesser-included offenses. According to Mr. Fleckenstein, there was no

opportunity for the trial court to consider whether it ought to instruct the jury on certain lesser-

included offenses because those offenses were already included in his indictment. He argues that

the State usurped the function of the judicial branch in that regard and violated the separation of

powers doctrine. Further, he argues, the State’s charging strategy set the stage for a compromised

verdict.

       {¶10} Mr. Fleckenstein acknowledges that he did not raise his due process argument in

the trial court. Nor has he argued plain error on appeal. “The failure to raise a constitutional issue

at the trial level forfeits the right to make a constitutional argument on appeal. While a defendant

who forfeits such an argument still may argue plain error on appeal, this court will not sua sponte

undertake a plain-error analysis if a defendant fails to do so.” State v. Morgan, 9th Dist. Summit
                                                   4


No. 29490, 

, quoting State v. McCraw, 9th Dist. Medina No. 14CA0009-M,

. “Because [Mr. Fleckenstein] has not argued plain error on appeal, this Court

will not create such an argument on his behalf.” McCraw at ¶ 5. Mr. Fleckenstein’s first

assignment of error is overruled.

                     MR. FLECKENSTEIN’S ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY THAT THE
        WEAPONS DISABILITY CHARGE WAS SUBJECT TO A SELF DEFENSE
        INSTRUCTION[.]

        {¶11} In his second assignment of error, Mr. Fleckenstein argues the trial court erred when

it failed to instruct the jury on self-defense with respect to his charge of having a weapon under

disability. We reject his argument.

        {¶12} Crim.R. 30(A) requires parties to object to a trial court’s “giving or the failure to

give any [jury] instructions * * * before the jury retires to consider its verdict, stating specifically

the matter objected to and the grounds of the objection.” “A defendant who fails to preserve an

objection to a trial court’s jury instruction is limited to a claim of plain error.” State v. Knight, 9th

Dist. Summit No. 29057, 

. “This Court will not construct a plain error

argument on behalf of an appellant who has failed to argue plain error on appeal.” State v. Irvine,

9th Dist. Summit No. 28998, 

.

        {¶13} Mr. Fleckenstein never asked the trial court to include a self-defense instruction

when instructing the jury on having a weapon under disability. Nor did he object when the trial

court failed to include that instruction. Further, Mr. Fleckenstein did not object during closing

arguments when the prosecutor told the jury that his self-defense claim did not apply to certain

counts, including his count of having a weapon under disability. Because he failed to properly

preserve his argument in the lower court, Mr. Fleckenstein is limited to a claim of plain error on
                                                 5


appeal. Knight at ¶ 44. Yet, he has not argued plain error. This Court will not construct an

argument on his behalf. Irvine at ¶ 42. Mr. Fleckenstein’s second assignment of error is overruled.

                    MR. FLECKENSTEIN’S ASSIGNMENT OF ERROR III

       THE CONVICTIONS IN COUNTS FOUR AND FIVE – INVOLUNTARY
       MANSLAUGHTER AND SHOOTING OVER A ROADWAY – WERE BASED
       ON INSUFFICIENT EVIDENCE.

       {¶14} In his third assignment of error, Mr. Fleckenstein argues his convictions for

involuntary manslaughter and discharging a firearm on or near prohibited premises are based on

insufficient evidence. We disagree.

       {¶15} Whether a conviction is supported by sufficient evidence is a question of law, which

we review de novo. State v. Thompkins, 

 (1997). In carrying out this

review, our “function * * * is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Jenks, 

 (1991), paragraph two of the syllabus. “The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” 

       {¶16} A person commits involuntary manslaughter if he “cause[s] the death of another *

* * as a proximate result of [his] committing or attempting to commit a felony.” R.C. 2903.04(A).

Mr. Fleckenstein’s involuntary manslaughter count was predicated upon his having proximately

caused H.S.’s death by discharging a firearm on or near prohibited premises. Relevant to this

appeal, a person commits that offense if he fires a gun “upon or over a public road” and “cause[s]

serious physical harm to any person * * *.” R.C. 2923.162(A)(3) and (B)(4).
                                                 6


       {¶17} Mr. Fleckenstein admits he shot H.S. He argues his convictions for involuntary

manslaughter and discharging a firearm on or near prohibited premises are based on insufficient

evidence because the State failed to prove he shot H.S. while H.S. was in the street. He notes that

H.S. was killed near the tree lawn, sidewalk, and front lawn of a house. He also notes that H.S.

did not die instantly and could have been “fully ambulatory from seconds to minutes.” According

to Mr. Fleckenstein, there was no evidence as to H.S.’s precise location when he was shot. He

argues that the street was only one of several possible locations where H.S. might have been shot.

Thus, he argues, the State did not prove that he fired a gun “over a public road.”             R.C.

2923.162(A)(3).

       {¶18} During its case-in-chief, the State introduced security footage it obtained from a

resident of Apple Avenue. The resident lived to the south of the area where Mr. Fleckenstein shot

H.S. The footage showed a vehicle driving northbound on Apple Avenue before screeching to an

audible halt. Dark conditions on the street and the distance between the vehicle and the security

camera made it impossible for anyone to see H.S. when viewing the footage. The footage did

show his driver’s door open, however, as a small light appeared on the inside, bottom of the door.

After the door opened, the light temporarily blinked out. Several officers testified that occurrence

was consistent with H.S. exiting the vehicle and briefly blocking the light. Six seconds later, a

single gunshot erupted. The gunshot was virtually contemporaneous with the driver’s door light

temporarily blinking out again. Officers testified that occurrence was consistent with H.S. falling

in the street and temporarily blocking the light as his body passed by it.

       {¶19} It is undisputed that paramedics and the police found H.S.’s body in the street. His

body was located just a few feet away from his open car door. The coroner testified that H.S. had

abrasions on both knees at the time of his autopsy. The coroner testified those abrasions were
                                                 7


consistent with H.S. falling on the pavement of the street when he was shot. Moreover, the only

blood the police found on scene was a small patch of blood directly beneath H.S.’s body.

       {¶20} Viewing the evidence in a light most favorable to the State, a rational trier of fact

could have concluded that the State proved Mr. Fleckenstein shot H.S. while H.S. was in the street,

and thus, fired a gun over a public road. See Jenks, 61 Ohio St.3d at paragraph two of the syllabus.

The State set forth evidence that H.S.’s body was found in the street. The jury heard testimony

and saw security footage tending to show he was shot within seconds of exiting his vehicle. That

same evidence tended to show he fell next to his vehicle. The jury heard testimony that the injuries

H.S. sustained to his knees were consistent with his having fallen on the pavement in the street.

They also heard testimony that the police only found blood directly beneath H.S.’s body. The jury

reasonably could have inferred from the foregoing, circumstantial evidence that H.S. was shot in

the street, fell immediately to his knees, and remained in that same location until he died. See

State v. Suggs, 9th Dist. Summit No. 21782, 

 (circumstantial evidence and

reasonable inferences to be drawn therefrom may satisfy State’s burden of production). Mr.

Fleckenstein’s third assignment of error is overruled.

                    MR. FLECKENSTEIN’S ASSIGNMENT OF ERROR IV

       THE STATE’S REBUTTAL OF SELF DEFENSE WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶21} In his fourth assignment of error, Mr. Fleckenstein argues the jury lost its way when

it rejected his claim of self-defense. We disagree.

       {¶22} When considering a challenge to the manifest weight of the evidence, this Court is

required to consider the entire record, “weigh the evidence and all reasonable inferences, consider

the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier

of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction
                                                 8


must be reversed and a new trial ordered.” State v. Otten, 

 (9th

Dist.1986). “A reversal on this basis is reserved for the exceptional case in which the evidence

weighs heavily against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-

Ohio-3970, ¶ 26. This Court “will not overturn a conviction as being against the manifest weight

of the evidence simply because the trier of fact chose to believe the State’s version of events over

another version.” State v. Warren, 9th Dist. Summit No. 29455, 

, quoting

State v. Tolliver, 9th Dist. Lorain No. 16CA010986, 

.

       {¶23} Self-defense is an affirmative defense in Ohio. State v. Messenger, 

, 

. “[A] defendant charged with an offense involving the use of force

has the burden of producing legally sufficient evidence that [his] use of force was in self-defense.”

Id. at ¶ 25. Once a defendant satisfies his burden of production, the burden of persuasion shifts to

the State “‘to prove beyond a reasonable doubt that the accused did not use force in self-defense.’”

State v. Moore, 9th Dist. Summit No. 29581, 

, ¶ 9, quoting State v. Brooks, 

, 

. The State’s burden “is subject to a manifest-weight review on

appeal.” 

.

       {¶24} The elements of self-defense are as follows:

       (1) that the defendant was not at fault in creating the situation giving rise to the
       affray; (2) that the defendant had a bona fide belief that he [or she] was in imminent
       danger of death or great bodily harm and that his [or her] only means of escape
       from such danger was in the use of such force; and (3) that the defendant did not
       violate any duty to retreat or avoid the danger.

(Alterations sic.) Id. at ¶ 14, quoting State v. Barnes, 

 (2002). To carry its

burden of persuasion, the State need only disprove one of the foregoing elements beyond a

reasonable doubt. State v. Williams, 9th Dist. Summit No. 29444, 

.
                                                  9


       {¶25} Mr. Fleckenstein argues the jury lost its way when it rejected his claim of self-

defense. He notes this incident took place at night in a high crime area. Further, he argues the

small size of the front lawns in the area meant the homes and their porches were close to the street.

He did not know H.S., so there was no dispute between them. Moreover, the coroner found illicit

drugs and alcohol in H.S.’s system. According to Mr. Fleckenstein, the greater weight of the

evidence tended to show he shot H.S. after H.S. skidded to a halt, ran at him, and made him fear

for his life. He claims the jury lost its way when it concluded otherwise. He also claims that

improper jury instructions aided the jury in losing its way.

       {¶26} To the extent Mr. Fleckenstein takes issue with jury instructions in the context of

this assignment of error, we decline to address his argument. His captioned assignment of error is

limited to the manifest weight of the evidence. Thus, this Court limits its review to that issue. See

State v. Miller, 9th Dist. Summit No. 30335, 

.

       {¶27} Mr. Fleckenstein did not testify at trial, but he spoke with the police after his arrest.

The State played the recording of his interview at trial. During his interview, Mr. Fleckenstein

said he was relaxing on the porch with his stepfather when a car screeched to a halt in front of the

house. He watched as H.S. emerged from the car, walked several steps to a different car parked

in the street, looked at that car’s license plate, and said, “hell no.” According to Mr. Fleckenstein,

H.S. then ran back to his car and appeared to grab something before turning and running for the

porch. Mr. Fleckenstein asked his stepfather whether he knew H.S. and whether he (Mr.

Fleckenstein) should shoot him. According to Mr. Fleckenstein, his stepfather did not know H.S.

and told Mr. Fleckenstein to go ahead and shoot. Mr. Fleckenstein claimed he used a gun that was

kept within reach of the area where he was sitting. He said he shot at H.S. because he was terrified

and thought his life was in jeopardy. He told the police that, after he fired the gun, he went over
                                                 10


to check on H.S. before leaving the area. He said he did so because he did not know whether he

had hit H.S. Mr. Fleckenstein said it was difficult for him to see because it was very dark outside

and he was blind in one eye.

       {¶28} As previously noted, the State introduced security footage taken from a residence

to the south of the shooting. The footage aided the State in establishing a timeline. It showed

H.S.’s vehicle come to a screeching halt. It showed a small light appear on the bottom, inside of

the driver’s door when it opened. It captured that same light blink out, a gunshot six seconds later,

and a second blink in the light at virtually the same time as the gunshot. The footage allowed the

State to prove that only six seconds elapsed between the time H.S. stepped out of his vehicle and

the time he was shot. See Discussion, supra. It also allowed the State to prove that H.S. fell close

enough to his vehicle to temporarily block the path between the security camera and the light on

the driver’s door. See id.

       {¶29} Apart from helping the State establish a timeline, the security footage aided the

State in disproving certain aspects of Mr. Fleckenstein’s statement. Mr. Fleckenstein claimed H.S.

exited his vehicle, walked over to a parked car, read the car’s license plate, exclaimed to himself,

ran back to his vehicle, reached inside, and ran toward the porch where Mr. Fleckenstein was

sitting. Yet, that amount of activity was inconsistent with the short span of only six seconds that

elapsed between the time H.S. exited the vehicle and the time he was shot. The location of his

body also tended to disprove Mr. Fleckenstein’s claim that H.S. ran toward the porch. The

evidence tended to show H.S. was still quite close to his vehicle when he fell to his knees and died

in the street. Finally, the security footage did not support Mr. Fleckenstein’s claim that he went

over to check on H.S. after the shooting. The footage showed two males fleeing the scene directly

after the shooting, and neither paused in the street.
                                                11


       {¶30} The police never found any weapons when they searched H.S.’s body, the area

surrounding it, or his vehicle. Nor did Mr. Fleckenstein claim to have seen H.S. with a weapon.

Indeed, Mr. Fleckenstein admitted it was dark and he had difficulty seeing due to his partial

blindness. As previously noted, Mr. Fleckenstein was arrested eleven days after the shooting.

Detective Jeremy Gray testified that the police arrested him at a home on Hamilton Avenue.

During his post-arrest interview, Mr. Fleckenstein told the police his cell phone was gone because

he broke it after the shooting. Yet, the owner of the home on Hamilton Avenue told the police that

Mr. Fleckenstein hid the phone in his attic and asked him to destroy it. Detective Gray confirmed

that the police searched the homeowner’s attic and found the phone.

       {¶31} Detective Adam Garvin performed an extraction on Mr. Fleckenstein’s cell phone.

He uncovered internet searches performed in the aftermath of the shooting. The phone had been

used to search for information related to H.S. and answers to the following questions: (1) “Can the

police track your phone[,]” and (2) “Stand your ground law if you have a felony.” Additionally,

Detective Garvin uncovered various messages sent to others before and after the shooting. Less

than thirty minutes before the shooting, the phone was used to send a message to a recipient that

asked: “Bro, do you wanna have a shootout?” After the shooting, the phone was used to send the

following message via a social media messaging service: “Man you better ask the nigga who they

just scraped off 23rd about me.” A few hours later, the phone was used to send another message

to a different social media that read: “I gotta get some shit for this bitch ass nigga I smoked[.]”

Around that same time, the phone sent a text message that read: “I shot him in his neck and

destroyed his whole spine and back of his skull[.]” Mr. Fleckenstein also used his phone to film

himself driving by a memorial held for H.S. at the scene of the shooting. Mr. Fleckenstein
                                               12


uploaded that video to a social media application and added the words “Stay dangerous” next to a

broken heart emoji.

       {¶32} Having reviewed the record, we cannot conclude the jury lost its way when it found

that the State disproved Mr. Fleckenstein’s claim of self-defense. See Messenger, 

, 

. While Mr. Fleckenstein claimed H.S. ran toward him, the

circumstantial evidence tended to show he shot H.S. where H.S. stood six seconds after he emerged

from his vehicle. The jury was in the best position to assess Mr. Fleckenstein’s credibility,

particularly in light of the messages and the video the police found on his phone. See State v.

Moore, 9th Dist. Summit No. 29581, 

, ¶ 12. The jury reasonably could have

concluded that Mr. Fleckenstein was at fault in creating the situation that led to H.S.’s death

because H.S. never ran toward Mr. Fleckenstein and Mr. Fleckenstein shot him where he stood

absent any provocation on the part of H.S. See 

, quoting Barnes, 

. For that same reason, the jury reasonably could have concluded that Mr. Fleckenstein lacked

a bona fide belief that he was in imminent danger of death or great bodily harm from H.S. and that

his only means of escape was the use of deadly force. See 

, quoting 

. Mr. Fleckenstein has not shown that this is the exceptional case where the evidence weighs

heavily against the conclusion that the State disproved his claim of self-defense. See State v.

Williams, 9th Dist. Summit No. 29444, 

. Thus, his fourth assignment of

error is overruled.

                      MR. FLECKENSTEIN’S ASSIGNMENT OF ERROR V

       R.C. 2903.02(B) VIOLATES THE FEDERAL AND STATE CONSTITUTIONS
       WHEN THE PREDICATE OFFENSE IS THE LETHAL ACT WICH (sic)
       CAUSES DEATH[.]
                                                  13


       {¶33} In his fifth assignment of error, Mr. Fleckenstein argues the felony murder statute

is unconstitutional. He urges this Court to adopt the independent felony/merger doctrine. Yet, our

review of the record reveals that Mr. Fleckenstein forfeited his argument by failing to raise it in

the lower court. See Morgan, 

, quoting McCraw, 

. Mr. Fleckenstein has not argued plain error, and this Court will not construct an argument on

his behalf. 

. Thus, his fifth assignment of error is overruled.

                    MR. FLECKENSTEIN’S ASSIGNMENT OF ERROR VI

       APPELLANT WAS PREJUDICED BY OHIO LAW WHICH PROHIBITS
       IMPERFECT SELF DEFENSE TO MITIGATE PUNISHMENT.

       {¶34} In his sixth assignment of error, Mr. Fleckenstein argues the trial court erred when

it failed to instruct the jury on the imperfect self-defense doctrine. He acknowledges that he did

not request such an instruction. Nor did he object when the trial court failed to give that instruction.

As previously noted, “[a] defendant who fails to preserve an objection to a trial court’s jury

instruction is limited to a claim of plain error.” Knight, 

. See also Crim.R.

30(A). Mr. Fleckenstein failed to preserve his objection and has not argued plain error on appeal.

“This Court will not construct a plain error argument on [his] behalf * * *.” Irvine, 2019-Ohio-

959, at ¶ 42. As such, his sixth assignment of error is overruled.

                    MR. FLECKENSTEIN’S ASSIGNMENT OF ERROR VII

       APPELLANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF
       TRIAL COUNSEL[.]

       {¶35} In his seventh assignment of error, Mr. Fleckenstein argues that he received

ineffective assistance of counsel. We disagree.

       {¶36} “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor,

, 

, ¶ 62. To prevail on a claim of ineffective assistance of
                                                 14


counsel, Mr. Fleckenstein must establish: (1) that his counsel’s performance was deficient to the

extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment[;]” and (2) that “the deficient performance prejudiced the defense.” Strickland v.

Washington, 

 (1984). A deficient performance is one that falls below an

objective standard of reasonable representation. State v. Bradley, 

 (1989),

paragraph two of the syllabus. To establish prejudice, Mr. Fleckenstein must show that there

existed a reasonable probability that, but for his counsel’s errors, the outcome of the proceeding

would have been different. State v. Sowell, 

, 

, ¶ 138. “This

Court need not address both prongs of Strickland if an appellant fails to prove either prong.” State

v. Carter, 9th Dist. Summit No. 27717, 

.

       {¶37} Mr. Fleckenstein argues his trial counsel was ineffective for two reasons. First, he

claims counsel should have objected to his indictment because it contained “duplicative lesser[-

]included offenses * * *.” He argues that error allowed the jury to reach a compromised verdict.

Second, he claims counsel should have requested jury instructions to clarify that his felony

disability did not prohibit him from acting in self-defense and using a firearm to do so. He argues

that error affected the jury’s verdict with respect to his count of having a weapon under disability.

He further argues that error affected his other counts because, if it was unlawful for him to possess

a firearm, then the logical conclusion to be drawn therefrom was that he was at fault in creating

the incident with H.S.

       {¶38} This Court rejects Mr. Fleckenstein’s argument that his counsel was ineffective for

not objecting to his indictment. “Prosecutors enjoy wide discretion in charging decisions, and such

decisions are generally not subject to judicial review.” State v. Krowiak, 9th Dist. Medina No.

21CA0003-M, 

. Accord State ex rel. Whittaker v. Lucas County Prosecutor’s
                                                 15


Office, 

, 

. Trial counsel may well have decided that any

challenge to the prosecutor’s decision to charge Mr. Fleckenstein with lesser-included offenses

was unlikely to succeed. See State v. Mosley, 9th Dist. Wayne No. 19AP0016, 

. “This Court has consistently held that trial counsel’s failure to make objections is within the

realm of trial tactics and does not establish ineffective assistance of counsel.” State v. Smith, 9th

Dist. Wayne No. 12CA0060, 

, quoting State v. Guenther, 9th Dist. Lorain

No. 05CA008663, 

.

       {¶39} This Court also rejects Mr. Fleckenstein’s argument that his counsel was ineffective

for not requesting additional jury instructions regarding his claim of self-defense. The trial court

instructed the jury on self-defense with respect to Mr. Fleckenstein’s charges of murder, felony

murder, involuntary manslaughter, discharging a firearm on or near prohibited premises, and

felonious assault. The jury chose to believe the State’s version of the events with respect to each

of those charges. Mr. Fleckenstein has not explained how an additional instruction on self-defense

with respect to his charge of having a weapon under disability would have resulted in a different

outcome. See Sowell, 

, 

, at ¶ 138. At no point was the jury

told that Mr. Fleckenstein’s felony disability made him ineligible for a claim of self-defense. The

jury listened to the evidence and determined that the State disproved Mr. Fleckenstein’s claim of

self-defense. Even setting aside the at fault element of self-defense, the jury reasonably could have

concluded that Mr. Fleckenstein lacked a bona fide belief that he was in imminent danger of death

or great bodily harm from H.S. and that his only means of escape was the use of deadly force. See

Discussion, supra. Mr. Fleckenstein has not shown that, but for his counsel’s failure to request

additional instructions on the at fault element of self-defense, there is a reasonable probability the

outcome of his trial would have been different. See Sowell at ¶ 138. Because Mr. Fleckenstein
                                                16


has not established his claim of ineffective assistance of counsel, his seventh assignment of error

is overruled.

                             STATE’S ASSIGNMENT OF ERROR

       THE TRIAL COURT’S SENTENCE IS CONTRARY TO LAW BECAUSE THE
       COURT FAILED TO IMPOSE PRISON TERMS FOR THE TWO MOST
       SERIOUS FIREARM SPECIFICATIONS AS REQUIRED BY R.C.
       2929.14(B)(1)(G).

       {¶40} In its sole assignment of error, the State argues the trial court erred when it failed

to sentence Mr. Fleckenstein on the firearm specifications linked to his two most serious offenses.

This Court agrees.

       {¶41} In reviewing a felony sentence, “[t]he * * * standard for review is not whether the

sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing evidence” that:

(1) “the record does not support the trial court’s findings under relevant statutes[,]” or (2) “the

sentence is otherwise contrary to law.” State v. Marcum, 

, 

. Clear and convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 

 (1954), paragraph three of the syllabus.

       {¶42} The jury found Mr. Fleckenstein guilty of the firearm specifications linked to his

counts for felony murder, involuntary manslaughter, discharging a firearm on or near prohibited

premises, felonious assault, tampering with evidence, and having a weapon under disability. When

sentencing him, the trial court ordered him to serve a three-year sentence on the firearm

specification linked to one of his felony murder counts. The court either merged the remainder of

his firearm specifications or ordered them to run concurrently with that three-year term. The State

argues the trial court erred when it failed to sentence Mr. Fleckenstein on both the firearm
                                                 17


specification linked to his felony murder count and the firearm specification linked to one of his

felonious assault counts. The State argues, by statute, the trial court was required to sentence Mr.

Fleckenstein on both specifications and order the consecutive service of those three-year terms.

       {¶43} “In the instance of multiple firearm specifications, a defendant generally will be

subject to only one three-year sentence ‘for felonies committed as part of the same act or

transaction.’” State v. Rouse, 9th Dist. Summit No. 28301, 

, quoting former

R.C. 2929.14(B)(1)(b). “The general rule does not apply, however, when R.C. 2929.14(B)(1)(g)

controls.” Rouse at ¶ 10. That statute provided, in relevant part:

       If an offender is convicted of * * * two or more felonies, if one or more of those
       felonies are * * * felonious assault * * *, and if the offender is convicted of * * * a
       [three-year firearm] specification * * * in connection with two or more of the
       felonies, the sentencing court shall impose on the offender the [three-year] prison
       term * * * for each of the two most serious specifications of which the offender is
       convicted * * * and, in its discretion, also may impose on the offender the prison
       term specified under that division for any or all of the remaining specifications.

R.C. 2929.14(B)(1)(g). “The statute makes no exception to the application of its provisions if one

of the underlying felony offenses has been merged.” State v. Bollar, Slip Opinion No. 2022-Ohio-

4370, ¶ 19. It requires the trial court to order consecutive service of a defendant’s specifications

under the conditions set forth therein. Rouse at ¶ 10, citing State v. Urconis, 9th Dist. Wayne No.

16AP0061, 

.

       {¶44} The jury found Mr. Fleckenstein guilty of the three-year firearm specification

linked to one of his felonious assault counts. It also found him guilty of the three-year firearm

specifications linked to his other count of felonious assault and his counts for felony murder,

involuntary manslaughter, and discharging a firearm on or near prohibited premises. The trial

court only sentenced Mr. Fleckenstein to serve one three-year term for the firearm specification

linked to his felony murder count. It found that his remaining three-year specifications merged
                                                  18


with that count for purposes of sentencing. Yet, R.C. 2929.14(B)(1)(g) “makes no exception to

the application of its provisions if one of the underlying felony offenses has been merged.” Bollar

at ¶ 19. The trial court was required to impose a three-year sentence for each of Mr. Fleckenstein’s

two most serious specifications and run those terms consecutively. R.C. 2929.14(B)(1)(g). Accord

State v. Ross, 9th Dist. Lorain No. 21CA011729, 

. Because the trial court

failed to do so, that portion of its sentencing entry is contrary to law.

       {¶45} This Court vacates Mr. Fleckenstein’s sentence to the extent the trial court merged

his three-year firearm specifications for felonious assault and felony murder. The matter is

remanded for resentencing on those two specifications. See R.C. 2953.08(G). The State’s

assignment of error is sustained.

                                                  III.

       {¶46} Mr. Fleckenstein’s assignments of error are overruled. The State’s assignment of

error is sustained. The judgment of the Lorain County Court of Common Pleas is affirmed in part,

reversed in part, and the cause is remanded for further proceedings consistent with the foregoing

opinion.

                                                                            Judgment affirmed in part,
                                                                                     reversed in part,
                                                                                 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 Lorain, 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.
                                                19


       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(C). 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 Appellant/Cross-Appellee.




                                                     JILL FLAGG LANZINGER
                                                     FOR THE COURT




HENSAL, P. J.
STEVENSON, J.
CONCUR.

APPEARANCES:

JOHN F. CORRIGAN, Attorney at Law, for Appellant/Cross-Appellee.

J. D. TOMLINSON, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee/Cross-Appellant.