Ohio Supreme Court Clarifies Process for Correcting Sentence Where Multiple Punishments Imposed for ‘Allied Offenses’

State v. Whitfield, Slip Opinion No. 2010-Ohio-2.
Cuyahoga App. No. 90244, 2008-Ohio-3150. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2.pdf

(Jan. 5, 2010) In a 5-2 decision announced today, the Supreme Court of Ohio clarified the procedures to be followed by Ohio courts in correcting criminal sentences in which a defendant has improperly received multiple punishments for convictions that should have been merged as “allied offenses of similar import.”

The majority opinion, authored by Justice Maureen O’Connor, held that when a court of appeals finds reversible error in the imposition of multiple punishments for allied offenses:

The state retains the right to choose which of the allied offenses to pursue on a remand to the trial court.
A court of appeals must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must choose which allied offense it will pursue against the defendant.
Because R.C. 2941.25(A) protects a defendant only from receiving multiple punishmentsfor allied offenses, the determination of the defendant’s guilt for committing allied offenses remains intact, both before and after the allied offenses have been merged for sentencing.
NOTE: This is one of two separate decisions announced today addressing the proper application of R.C. 2941.25, Ohio’s “allied offense statute.” See also Case Nos. 2008-2133 & 2008-2228, State v. Underwood.

Darnell Whitfield of Cleveland was indicted on multiple charges and found guilty of possession of illegal drugs, drug trafficking, having a weapon while under a disability and carrying a concealed weapon, with a firearm specification attached to each of those charges. The trial court entered convictions on all charges and specifications, and sentenced Whitfield to concurrent three-year prison terms on all counts, plus an additional one year for the firearm specifications.

Whitfield appealed, arguing that drug possession and drug trafficking are “allied offenses of similar import,” and that under Ohio’s multiple-count statute, R.C. 2941.25(A), a trial court must merge guilty verdicts for allied offenses into a single conviction and impose a single sentence for that conviction. The court of appeals agreed and entered a judgment in which it reversed Whitfield’s conviction for drug possession and remanded the case to the trial court with instructions to vacate the drug possession conviction and the sentence imposed for it. The state sought and was granted Supreme Court review of the court of appeals’ decision.

In today’s majority opinion, Justice O’Connor wrote: “This appeal poses two questions: (1) What exactly does R.C. 2941.25(A) prohibit when it states that a defendant may be ‘convicted’ of only one of two allied offenses? and (2) When a sentencing court violates this prohibition, what is the proper procedure on remand? We have little trouble with the first question. Our past decisions make clear that for purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty ... We now turn to the second question: When a sentencing court violates R.C. 2941.25(A) by convicting a defendant of two allied offenses and then sentencing the defendant on both, what is the proper procedure on remand?”

“ … (O)ur precedent, including cumulative-punishment cases that predate the 1972 enactment of R.C. 2941.25(A), makes clear that a defendant may be found guilty of allied offenses but not sentenced on them. ... In cases in which the imposition of multiple punishments is at issue, R.C. 2941.25(A)’s mandate that a defendant may only be ‘convicted’ of one allied offense is a protection against multiple sentences rather than multiple convictions. ... In this case, the court of appeals properly corrected the trial court’s error in sentencing Whitfield for the allied offenses of drug possession and drug trafficking. But the court of appeals erred in ordering that this case be ‘remanded to the trial court with instructions to vacate the conviction and sentence for drug possession only.’

“The General Assembly has made clear that it is the state that chooses which of the allied offenses to pursue at sentencing, and it may choose any of the allied offenses. ... In conferring that right on the state, the legislature did not specify when the state must make that election. The Legislative Service summary states that ‘the prosecution sooner or later must elect as to which offense it wishes to pursue,’ ... thereby implying that the state has latitude in determining when to decide which offense to pursue at sentencing. In light of the legislative history, we concluded previously that the statute does not require the state to make its election prior to trial ... We see nothing in the language of R.C. 2941.25(A) that would deny the state the same right on remand. ... As the state asserts, by enacting R.C. 2941.25(A), the General Assembly condemned multiple sentences for allied offenses, not the determinations that the defendant was guilty of allied offenses. Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant’s guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing. Thus, the trial court should not vacate or dismiss the guilt determination. ... For the reasons set forth herein, we reverse the decision of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.”

Justice O’Connor’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered an opinion, joined by Justice Paul E. Pfeifer, in which she dissented from the majority holding that R.C. 2941.25(A) does not mandate vacating both the separate determination of guilt and the separate sentence imposed on a defendant for separate counts that qualify as allied offenses.

She wrote: “In State v. Brown (2008) … this court acknowledged that R.C. 2941.25 is a legislative attempt to codify the judicial doctrine of merger, i.e., the principle that ‘a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.’ … Although the majority acknowledges the merger doctrine, it inexplicably holds that the separate determination of the defendant’s guilt on each allied offense remains intact, both before and after merged sentencing. This holding contradicts the concept of merger. … Once the state elects which allied offense it will pursue, that decision should be final, and the trial court should dismiss the other allied count. If the court of appeals reverses the judgment of conviction, the state should not be given a second chance to convict on the charge merged. By holding that the determination of guilt remains undisturbed after the merger of the allied offenses, the majority focuses on the prohibition against multiple punishments for the same offense, but ignores the equally important double jeopardy protection against successive prosecutions for the same conduct. I respectfully dissent.”

Contacts
Lisa Williamson, 216.348.4460, for the state and Cuyahoga County prosecutor’s office.

Spencer Cahoon, 614.466.5394, for Darnell Whitfield.

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