Ohio Criminal Appeals Lawyer Blog

Trial counsel was ineffective when he failed to object as the trial judge sentenced the defendant to separate prison terms for rape and gross sexual imposition, and for rape and two counts of attempted rape. The Second District Court of Appeals determined that a count or rape should have been merged with a count of gross sexual imposition because the act constituting gross sexual imposition was not committed with a separate animus but was committed during the act of rape. The Appellate Court also determined that two counts of attempted rape should have been merged with the rape count because there was no intervening acts between the attempted rapes and rape and there was no specific risk of injury from each attempt at rape. The case was remanded for re-sentencing. Another interesting thing about this case is that the Court of Appeals determined that trial counsel should have filed a motion to suppress illegally obtained statements to police, but it did not matter anyway. Read the Second District Court of Appeals decision here.

Because it found the burglary statute "is not meant to criminalize an offender's conduct toward the occupants of the structure," the Second District Court of Appeals merged two counts of aggravated burglary. State v. Marriott, 2010-Ohio-3115. Although there were two victims in the home that were injured by the burglars, there was one animus for the burglary because there was only one entry into one structure with the single purpose of committing a theft offense. Judge Fain dissented and wrote a separate opinion on this point. Read the decision by clicking here.

Judges must merge allied offenses of similar import even when the defendant pleads guilty and the sentence is agreed to beforehand. In the case of State v. Day, the Second District Court of Appeals for Greene County determined that Judge Campbell erred when he failed to merge an aggravated burglary conviction with a burglary conviction which were based on the same facts. Read the decision by clicking here.

Today in State v. Harris, the Ohio Supreme Court held that

robbery
as defined in R.C. 2911.02(A)(2) and

aggravated robbery
as defined in R.C. 2911.01(A)(1)
are allied offenses of similar import and a defendant cannot be convicted of both when they are committed with the same animus against the same victim as you can read here.