State v. Washington, 2012-1070
| Decision Date | 14 November 2013 |
| Docket Number | No. 2012-1070,2012-1070 |
| Citation | 2013 OHIO 4982 |
| Parties | THE STATE OF OHIO, APPELLANT, v. WASHINGTON, APPELLEE. |
| Court | Ohio Supreme Court |
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as State v. Washington, Slip Opinion No. 2013-Ohio-4982.]
Criminal law—Sentencing—R.C. 2941.25—Multiple counts—Merger at sentencing—Court must review entire record, including arguments and information presented at sentencing hearing, to determine whether offenses were committed separately or with separate animus.
When deciding whether to merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review the entire record, including arguments and information presented at the sentencing hearing, to determine whether the offenses were committed separately or with a separate animus.
{¶ 1} In this case, we consider the impact of our syllabus in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, which instructs courts that a defendant's conduct "must be considered" when determining whether multiple offenses merge at sentencing pursuant to R.C. 2941.25. We hold that the court of appeals erred by relying on Johnson for the proposition that a court may consider a defendant's conduct only as it was described by the state's "theory" at trial.
{¶ 2} In 2009, a jury found defendant-appellee, David Washington, guilty of several offenses, including one third-degree-felony count of failure to comply with a police officer under R.C. 2921.331(B) and one fifth-degree-felony count of obstruction of official business under R.C. 2921.31(A).
{¶ 3} The evidence at trial established that Washington and his brother attacked a woman in a mall parking lot in Lorain County, stole her SUV, and led police on a car and foot chase in Lorain and Cuyahoga counties. Immediately after the carjacking, the victim called 9-1-1, and a police dispatch aired a description of the SUV. Within minutes, Avon police spotted the SUV heading east on I-90 toward Cuyahoga County. When police attempted to initiate a traffic stop, Washington accelerated the SUV and began weaving in and out of traffic, reaching speeds in excess of 100 miles per hour. Additional units joined the pursuit, including the Westlake police, who were waiting near the Cuyahoga County border with stop sticks. Washington drove over the stop sticks, which deflated two of the SUV's tires, causing it to lose control and strike the median. Washington then turned the SUV around and headed the wrong way up an exit ramp. He drove toward a police officer, who fired two rounds at the SUV. Washington passed the officer, sideswiped a car stopped at an intersection, and continued for approximately one mile until the SUV jumped the curb and stoppedin a wooded area. Washington and his brother abandoned the SUV and fled, with several police officers in pursuit. Soon thereafter, police found Washington hiding in a drainage ditch.
{¶ 4} A jury found Washington guilty of several offenses, including failure to comply with the order of a police officer and obstruction of official business. The trial court imposed separate sentences for those two offenses, and Washington appealed on the ground that they should have merged at sentencing as allied offenses of similar import under R.C. 2941.25. While his appeal was pending, this court released Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, which overruled the prior standard for determining whether offenses merge at sentencing under R.C. 2941.25. The Ninth District remanded the matter for the trial court to determine whether the offenses were allied offenses under Johnson. State v. Washington, 9th Dist. Lorain Nos. 10CA009767 and 10CA009768, 2011-Ohio-1149, ¶ 28.
{¶ 5} At the resentencing hearing, Washington argued that the offenses merged under Johnson because his flight from police amounted to one continuous act, beginning on the highway and ending in the woods. Plaintiff-appellant, the state of Ohio, countered that each offense was based on separate conduct. Specifically, the state maintained that Washington's flight from police in the motor vehicle established the failure-to-comply offense, whereas his subsequent flight from police on foot in the woods established the obstruction-of-official-business offense. The trial court agreed with the state, determined that the offenses were not allied offenses of similar import, and imposed separate and consecutive prison terms for the two offenses.
{¶ 6} In a divided opinion, the court of appeals reversed, concluding that Washington's offenses merged under Johnson because they were based on the same conduct. State v. Washington, 9th Dist. Lorain No. 11CA010015, 2012-Ohio-2117, ¶ 17. Although the state argued at resentencing that the car chase andthe foot chase constituted separate criminal acts, the court of appeals held that Johnson prohibited consideration of that argument because the state did not make that distinction during trial. Id. at ¶ 15, 16. According to the court of appeals, the offenses merged because the state's "theory at trial" was that the car chase formed the basis for both offenses. Id. at ¶ 16. The dissent countered that the state's theory at trial was not dispositive of whether the offenses were based on the same conduct and that the state was not required to address merger during trial. Id. at ¶ 24 (Carr, J., concurring in part and dissenting in part). According to the dissent, the offenses did not merge, because the car chase and the foot chase were separate criminal acts, each supported by the evidence. Id. at ¶ 25.
{¶ 7} We accepted the state's discretionary appeal to consider the following proposition of law: "The Johnson allied offense analysis is only triggered subsequent to findings of guilt as to criminal offenses by a judge or jury[;] thus the trial court may base its allied offense decision on any grounds supported by the evidence."
{¶ 8} At the outset, we will address the motion to dismiss filed by Washington on July 12, 2013. On August 31, 2012, after the state filed its notice of appeal in the present case, the trial court resentenced Washington in response to the court of appeals' remand, merging the two counts at issue. Washington asks this court to dismiss the instant appeal, alleging that the trial court's resentencing renders the appeal moot. The state responded, arguing that the trial court lost jurisdiction to act when the state filed its notice of appeal to this court.
In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9. Thus, the trial court in this case had no jurisdiction to resentence the defendant once the state had filed its notice of appeal. The motion to dismiss is denied.
{¶ 9} The state asks us to clarify the effect of Johnson on the standard for determining whether "the same conduct by defendant can be construed to constitute two or more allied offenses of similar import" under R.C. 2941.25(A). We hold that while Johnson abandoned a portion of the test for determining whether offenses share a "similar import," it did not change the test for determining whether those offenses resulted from the "same conduct."
{¶ 10} The Fifth Amendment's Double Jeopardy Clause "protects only against the imposition of multiple criminal punishments for the same offense, * * * and then only when such occurs in successive proceedings * * *." (Emphasis deleted.) Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 24. Whether multiple punishments imposed in the same proceeding are permissible is a question of legislative intent. Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
{¶ 11} Absent a more specific legislative statement, R.C. 2941.25 is the primary indication of the General Assembly's intent to prohibit or allow multiple punishments for two or more offenses resulting from the same conduct. State v. Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000). We have described the statute as an attempt to codify the judicial doctrine of merger, State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), the penal philosophy that " 'whereone crime necessarily involves another, * * * the offense so involved is merged in the offense of which it is a part,' " State v. Botta, 27 Ohio St.2d 196, 201, 271 N.E.2d 776 (1971), fn. 1, quoting 21 American Jurisprudence 2d 90 (1965). In its entirety, R.C. 2941.25 provides:
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