State v. Whitfield, 2008-1669.

• Citation: 922 N.E.2d 182,124 Ohio St.3d 319,2010 Ohio 2
• Decision Date: 05 January 2010
• Docket Number: No. 2008-1669.,2008-1669.
• Parties: The STATE of Ohio, Appellant, v. WHITFIELD, Appellee.
• Court: United States State Supreme Court of Ohio

922 N.E.2d 182

124 Ohio St.3d 319

2010-Ohio-2

The STATE of Ohio, Appellant, v. WHITFIELD, Appellee.

No. 2008-1669.

Supreme Court of Ohio.

Submitted September 15, 2009.

Decided January 5, 2010.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Kristen L. Sobieski, Assistant Prosecuting Attorney, for appellant.

Timothy Young, Ohio Public Defender, and Spencer Cahoon, Assistant Public Defender, for appellee.

O'CONNOR, J.

{¶ 1} In this appeal, we address the proper procedure for courts of appeals to follow after finding reversible error with respect to sentences imposed for allied offenses of similar import.

Relevant Background

{¶ 2} After a bench trial, the trial judge found appellee, Darnell Whitfield, guilty of drug possession, drug trafficking, having a weapon under disability, and carrying a concealed weapon, as well as three firearms specifications. The judge imposed three-year concurrent sentences on all counts, to be served consecutively to a term of one year for the three firearms specifications, which the judge merged at sentencing.¹

{¶ 3} Whitfield appealed, arguing that the trial court had erred in denying his motions to suppress and for acquittal and that it had "committed plain error by convicting and sentencing him on both drug possession and drug trafficking which are allied offense of similar import." After rejecting his claims on suppression and acquittal, the court of appeals applied our decision in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, paragraph two of the syllabus, and agreed that the trial court had committed plain error by convicting Whitfield of both drug possession and drug trafficking, which are allied offenses of similar import. State v. Whitfield, Cuyahoga App. No. 90244, 2008-Ohio-3150, 2008 WL 2533062, ¶ 36-37. There was no error in that portion of the ruling.

{¶ 4} In reversing, however, the court of appeals stated, "We therefore sustain [Whitfield's] third assignment of error, reverse the conviction for drug possession and remand the case to the trial court to vacate the drug possession conviction. See R.C. 2953.08(G)(2); State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245 ; State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087 ." (Emphasis added.) Id. at ¶ 38.

{¶ 5} We accepted discretionary review of the state's appeal, 120 Ohio St.3d 1486, 2009-Ohio-278, 900 N.E.2d 197. The state asserts that "upon finding one or more counts to constitute two or more allied offenses of similar import, R.C. 2941.25(A) requires that the convictions are merged for the purposes of sentencing and [that] the defendant [can] be sentenced only on one." We agree and take this opportunity to provide guidance on the proper manner in which the courts of appeal should remand cases after finding errors committed in sentencing on allied offenses.

Analysis

{¶ 6} R.C. 2941.25(A) provides, "Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one."

{¶ 7} At the outset of our analysis, we recognize that the statute incorporates the constitutional protections against double jeopardy. These protections generally forbid successive prosecutions and multiple punishments for the same offense.

{¶ 8} In the case of multiple punishments, a defendant is protected only from multiple punishments that were not intended by the legislature. Legislatures are empowered to either permit or prohibit multiple punishments for the same offense. State v. Childs (2000), 88 Ohio St.3d 558, 561, 728 N.E.2d 379. By its enactment of R.C. 2941.25(A), the General Assembly has clearly expressed its intention to prohibit multiple punishments for allied offenses of similar import. State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, paragraph three of the syllabus. See also Maumee v. Geiger (1976), 45 Ohio St.2d 238, 242-243, 74 O.O.2d 380, 344 N.E.2d 133 (the statute is designed to prevent "shotgun convictions" and "double punishment" for the same offense); State v. Stewart, Franklin App. No. 05AP-1073, 2006-Ohio-3310, 2006 WL 1781412, ¶ 6, citing Rance, 85 Ohio St.3d at 635, 710 N.E.2d 699 ("Ohio's General Assembly has indicated its intent to permit or prohibit cumulative punishments for the commission of certain offenses through the multiple-count statute set forth in R.C. 2941.25"). This case involves the latter protection—the prohibition against multiple punishments for the same offense.

{¶ 9} By contrast, the General Assembly exercised its power to permit multiple punishments by enacting R.C. 2941.25(B). State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 17; Rance, 85 Ohio St.3d at 635, 710 N.E.2d 699, citing Albernaz v. United States (1981), 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275. Here, however, we are not presented with such a case.

{¶ 10} Rather, the parties agree that R.C. 2941.25(A) forbids multiple punishments for drug possession and drug trafficking, which are allied offenses of similar import. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, paragraph two of the syllabus. The court of appeals properly recognized that on the facts of this case, the trial court committed reversible error and that Whitfield's convictions for the allied possession and trafficking offenses must be merged on remand.

{¶ 11} 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?

{¶ 12} 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. State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 135; State v. McGuire (1997), 80 Ohio St.3d 390, 399, 686 N.E.2d 1112 ("a conviction consists of a verdict and sentence"). See also State v. Fenwick (2001), 91 Ohio St.3d 1252, 1253, 745 N.E.2d 1046 (Cook, J., concurring), citing McGuire ("[f]or purposes of R.C. 2941.25, this court has already determined that a `conviction' consists of both `verdict and sentence'" [emphasis sic]); State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568 ("as there is only one order of execution, there can be only one conviction. See R.C. 2941.25(A) and State v. Henderson (1979), 58 Ohio St.2d 171, 12 O.O.3d 177, 389 N.E.2d 494, wherein `conviction' includes both the guilt determination and the penalty imposition" [emphasis sic]).

{¶ 13} We recognize that certain decisions from this court might be read to suggest that a conviction does not necessarily require a sentence. For example, in State v. Cash (1988), 40 Ohio St.3d 116, 118, 532 N.E.2d 111, we held that a prior plea of guilty, without a sentence, was a "conviction" for purposes of Evid.R. 609(A) and could be used for impeachment of a witness. See also State ex rel. Watkins v. Fiorenzo (1994), 71 Ohio St.3d 259, 260, 643 N.E.2d 521 (holding for purposes of R.C. 2921.42(C)(1) that a guilty finding alone is sufficient to constitute a conviction). But those decisions are expressly limited to the discrete issues presented in them. See Cash at 118, 532 N.E.2d 111 (acknowledging precedent requiring both a finding of guilt and a sentence and limiting its own holding to impeachment under Evid.R. 609(A)); Watkins at 260, 643 N.E.2d 521 (recognizing that "the term `conviction' normally includes both the finding of guilt and the sentence" and justifying its departure from that rule by the language of R.C. 2921.41(C)(1)). Thus, these cases do not conflict with our holding today that for purposes of R.C. 2941.25(A), a conviction is a determination of guilt and the ensuing sentence.

{¶ 14} 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?

{¶ 15} The state contends that when a court correctly applies R.C. 2941.25(A) and merges convictions for allied offenses, only the sentences should be merged, i.e., both underlying determinations of guilt should be left intact. The state urges this court to revisit State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, in which this court, upon finding that the defendant had been improperly convicted and sentenced for two allied offenses of similar import, merged the convictions and dismissed one of the two counts. Id. at ¶ 103. The state asks us to clarify the law, contending that confusion has resulted from Yarbrough and our seemingly conflicting subsequent decisions in State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, and Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181. In the latter two cases, we affirmed appellate court decisions vacating only the sentence for one of the allied offenses and leaving both convictions intact, without reference to Yarbrough.

{¶ 16} Although Yarbrough, Cabrales, and Winn addressed important aspects of allied-offense jurisprudence, none of them address the narrow argument advanced by the state. Rather, in answering the question, we start with our understanding that R.C. 2941.25(A) codifies the judicial doctrine of merger. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 42; State v. Logan (1979), 60 Ohio St.2d 126, 131, 14 O.O.3d 373, 397 N.E.2d 1345. That doctrine operates to merge allied offenses of similar import into a single conviction. Brown at ¶ 42.

{¶ 17} A defendant may be indicted and tried for allied offenses of similar import, but may be sentenced on only one of the allied offenses. Id., citing Geiger, 45 Ohio St.2d at 244, 74 O.O.2d 380, 344 N.E.2d 133. In fact, our precedent,...