Ohio Criminal Appeals Lawyer Blog

Often times when a defendant pleads guilty, no contest, or nolo contendere to multiple charges, the record is not going to be clear as to whether two or more of the offenses are allied offenses of similar import that must be merged for sentencing. That is because the facts of the case are not hashed out during a plea hearing like they would be during a trial. Today, the Second District Court of Appeals for Montgomery County held that:

"[W]here the record suggests that multiple offenses of which a defendant has been found guilty may be allied offenses of similar import under R.C. 2941.25, but is inconclusive in that regard, it is plain error for the trial court not to conduct the necessary inquiry to determine whether the offenses are, in fact, allied offenses of similar import." Read the decision in State v. Andre R. Cleveland, 2011-Ohio-4868, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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The Tenth District Court of Appeals of Franklin County reversed sentences for robbery and theft convictions because the trial court committed plain error when it failed to merge them for purposes of sentencing. The Court of Appeals applied State v. Johnson, 2010-Ohio-6314 and determined that the defendant could commit the robberies and thefts with the same conduct. And since the robberies and thefts were committed with a single act with a single animus (state of mind), they were allied offenses of similar import that should have been merged. Read the decision here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

A defendant was convicted of rape and sexual battery that covered the same conduct and then he was sentenced to prison time on all counts. On appeal we argued that the offenses should have been merged since they are allied offenses of similar import. The Court of Appeals decided the trial court must determine whether the offenses were committed separately or with a separate animus. On remand, the offenses were merged pursuant to State v. Johnson, 2010-Ohio-6314.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Another of my wins on appeal. 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 were 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 that it would not have mattered anyway. Read the Second District Court of Appeals decision here. If you need help with an appeal, contact me by clicking 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.