2008-2037. State v. Williams, Slip Opinion No. 2010-Ohio-147.
Cuyahoga App. No. 89726, 2008-Ohio-5286. Judgment of the court of appeals reversed in part, and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton and O'Connor, JJ., concur.
Cupp, J., concurs in judgment only.
Lanzinger, J., concurs in part and dissents in part.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-147.pdf
(Jan. 27, 2010) The Supreme Court of Ohio ruled today that pursuant to Ohio’s multiple-count statute:
a defendant’s conviction for felonious assault based on causing serious physical harm [R.C. 2903.11(A)(2)] is an allied offense of an attempt to commit murder while committing an offense of violence [R.C. 2903.02(B) and 2923.02],
a defendant’s conviction for felonious assault based upon causing or attempting to cause physical harm by means of a deadly weapon [R.C. 2903.11(A)(2)] is an allied offense of attempted murder [R.C. 2093.02(B)], and
therefore these respective counts of felonious assault merge with the respective counts of attempted murder.
In accordance with this holding and the court’s recent holding in State v. Whitfield, Slip Op. No. 2010-Ohio-2, the court reversed the judgment of the 8th District Court of Appeals finding that Kevin Williams could only be convicted of one count of attempted murder in this case, and remanded the case to the Cuyahoga County Court of Common Pleas for the prosecutor to elect which of the allied offenses to pursue on sentencing. Today’s majority opinion was authored by Justice Terrence O’Donnell.
After an argument broke out between Williams and another participant in a 2006 dice game in East Cleveland, Williams pulled a gun. As the other players, including LayShawn McKinney, attempted to run away, Williams fired two shots, one of which struck McKinney in the back, paralyzing him. McKinney and others identified Williams as the shooter, and he was arrested.
Williams was subsequently charged and convicted on two counts of felonious assault: one for knowingly causing physical harm to McKinney, and one for using a deadly weapon to cause physical harm. He was also found guilty on two counts of attempted murder: one for purposely attempting to kill McKinney and the second for attempting to kill McKinney during the commission of a crime of violence (i.e., felonious assault). At sentencing, Williams’ attorneys moved the trial court to: 1) merge his two felonious assault counts into a single conviction; 2) merge his two attempted murder counts into a single conviction; and 3) merge the felonious assault conviction into the attempted murder conviction resulting in a single conviction for attempted murder subject to a single sentence based on the statutory penalties for that offense. The trial court declined to merge any of the counts, and proceeded to convict and sentence Williams on all four felony charges. The resulting prison terms, including additional time for a firearm specification and a separate conviction for possession of a gun under disability, totaled 20 years.
Williams appealed. On review, the 8th District Court of Appeals reversed and remanded the case to the trial court, holding that the felonious assault and aggravated murder counts were allied offenses of similar import under Ohio’s multiple-count statute, R.C. 2941.25. The court of appeals directed the trial court to merge the four counts into a single conviction for attempted murder, and to resentence Williams accordingly. The Cuyahoga County prosecutor’s office sought and was granted Supreme Court review of the 8th District’s ruling.
In today’s majority opinion, Justice O’Donnell wrote: “A two-step analysis is required to determine whether two crimes are allied offenses of similar import. ... Recently, in State v. Cabrales (2008), we stated: ‘In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.’ ... If the offenses are allied, the court proceeds to the second step and considers whether the offenses were committed separately or with a separate animus.”
Applying the Cabrales criteria to the facts of this case, Justice O’Donnell wrote: “(F)or each bullet Williams fired at McKinney, he was found guilty of one count of felonious assault and one count of attempted murder. Accordingly, we consider whether the attempted murder and felonious assault charges relating to each gunshot are allied offenses of similar import. ... In order to commit the offense of attempted murder as defined in R.C. 2903.02(B), one must purposely or knowingly engage in conduct that, if successful, would result in the death of another as a proximate result of committing or attempting to commit an offense of violence. Since felonious assault is an offense of violence, R.C. 2901.01(A)(9), the commission of attempted murder, as statutorily defined, necessarily results from the commission of an offense of violence, here, felonious assault. Accordingly, felonious assault as defined in R.C. 2903.11(A)(1) is an allied offense of attempted murder as defined by R.C. 2903.02(B) and 2923.02. ... Williams knowingly engaged in conduct that, if successful, would have resulted in the death of another as a proximate result of committing felonious assault. He did so by knowingly firing a gun at McKinney and paralyzing him with one bullet. Thus, he committed the offenses of attempted murder and felonious assault with a single act and animus. Accordingly, while he may be found guilty of both offenses, he may be sentenced for only one.”
“In order to commit the offense of attempted murder as defined in R.C. 2903.02(A), one must engage in conduct that, if successful, would result in purposely causing the death of another; and to commit felonious assault as defined in R.C. 2903.11(A)(2), one must cause or attempt to cause physical harm to another by means of a deadly weapon. Considering these elements in the abstract, although they do not align exactly, when Williams attempted to cause harm by means of a deadly weapon, he also engaged in conduct which, if successful, would have resulted in the death of the victim. Here, felonious assault as defined by R.C. 2903.11(A)(2) is an allied offense of attempted murder as defined in R.C. 2903.02(A) and 2923.02. ... Williams knowingly engaged in conduct that, if successful, would have purposely caused the death of another by knowingly firing a bullet that missed McKinney; thus these offenses were both committed with the same animus. Therefore, while Williams may be found guilty of both offenses, he may be sentenced for only one.”
Having thus determined that the 8th District erred in ordering that Williams be resentenced for a single count of attempted murder, the Court remanded the case to the trial court for new proceedings consistent with today’s decision.
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Maureen O’Connor. Justice Robert R. Cupp concurred in judgment only. Justice Paul E. Pfeifer dissented without opinion.
Justice Judith Ann Lanzinger entered a separate opinion in which she concurred with the majority’s holdings that both counts of felonious assault were allied offenses of attempted murder that should have been merged with the latter offense for sentencing, and also agreed that, pursuant to Whitfield,the case should be remanded to allow the state to elect which offense Williams should be sentenced for. She disagreed, however, with the majority’s conclusion that Williams is subject to resentencing on two separate counts, stating that in her view the court of appeals correctly determined that the two counts of attempted murder on which he was found guilty also should have been merged, and therefore Williams should be resentenced on a single count.
In support of that position, Justice Lanzinger suggested that a line of recent decisions interpreting the multiple-count statute, R.C. 2941.25, has been skewed by the Court’s continuing adherence to a 1999 case, State v. Rance, in which it held that the determination of whether crimes are allied offenses subject to merger must be based on an “abstract comparison” of the statutory elements of the charged crimes, without reference to the specific facts of a particular case. She wrote: “Whether the commission of one offense necessarily resulted in commission of the other is best resolved when the actual evidence adduced at trial is allowed to be considered. I realize that in Cabrales this court ‘clarified’ the test set forth in State v. Rance, ... but I would go further to frankly reverse Rance. For omitting consideration of the evidence at trial is contrary to the statute, which states that the defendant’s conduct must be considered in comparing the offenses: Did the commission of the one offense in this case necessarily result in the commission of the other? If so, the offenses are allied and of similar import.”
Contacts
Kristen Sobieski, 216.698.2226, for the Cuyahoga County prosecutor’s office.
John Martin, 216.443.3675, for Kevin Williams.
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