State v. Whitfield

[Cite as State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2.]

THE STATE OF OHIO, APPELLANT, v. WHITFIELD, APPELLEE.

[Cite as State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2.]

Criminal law — Allied offenses of similar import — Sentencing — R.C.

2941.25(A) — Appellate procedure — State retains right to elect which

offense to pursue on remand to trial court — Court of appeals must

remand for new sentencing hearing upon finding reversible error in

imposition of multiple punishments for allied offenses — Determinations

of guilt for each offense remain intact after merger of allied offenses for

sentencing.

(No. 2008-1669 — Submitted September 15, 2009 — Decided January 5, 2010.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 90244,

2008-Ohio-3150.

__________________

SYLLABUS OF THE COURT

1. The state retains the right to elect which allied offense to pursue on

sentencing on a remand to the trial court after appeal.

2. Upon finding reversible error in the imposition of multiple punishments

for allied offenses, a court of appeals must reverse the judgment of

conviction and remand for a new sentencing hearing at which the state

must elect which allied offense it will pursue against the defendant.

3. 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.

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SUPREME COURT OF OHIO

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, ¶ 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-

1. Inexplicably, the trial judge did not merge the drug-possession and trafficking charges,

however.

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Ohio-1245 [846 N.E.2d 824]; State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-

6087 [817 N.E.2d 845].” (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

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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

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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?

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{¶ 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, 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. See, e.g., State v. Botta (1971), 27

Ohio St.2d 196, 203, 56 O.O.2d 119, 271 N.E.2d 776 (“Where * * * in substance

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January Term, 2010

and effect but one offense has been committed, a verdict of guilty by the jury

under more than one count does not require a retrial but only requires that the

court not impose more than one sentence” [emphasis added]); Weaver v. State

(1906), 74 Ohio St. 53, 77 N.E. 273, paragraph one of the syllabus (when there

are multiple counts of violating liquor statutes, but only one offense, “it is error

for the court, on a verdict of guilty under each count, to inflict the penalties

prescribed by each of the said sections” [emphasis added]); Woodford v. State

(1853), 1 Ohio St. 427, paragraph three of the syllabus (“Where an offence forms

but one transaction, and the indictment containing several counts on which the

jury have returned a verdict of guilty, it is error in the court to sentence on each

count separately” [emphasis added]).

{¶ 18} In cases in which the imposition of multiple punishments is at

issue, R.C. 2941.25(A)’s mandate that a defendant may be “convicted” of only

one allied offense is a protection against multiple sentences rather than multiple

convictions. See, e.g., Ohio v. Johnson (1984), 467 U.S. 493, 498, 104 S.Ct.

2536, 81 L.Ed.2d 425, in which the United States Supreme Court held that the

Double Jeopardy Clause protects against successive prosecutions and against

multiple punishments for the same offense. Thus, to ensure that there are not

improper cumulative punishments for allied offenses, courts must be cognizant

that R.C. 2941.25(A) requires that “the trial court effects the merger at

sentencing.” State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d

1047, ¶ 135. See also State v. Palmer (1997), 80 Ohio St.3d 543, 572, 687 N.E.2d

685; Stewart, 2006-Ohio-3310, ¶ 6.

{¶ 19} 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.” (Emphasis added.)

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SUPREME COURT OF OHIO

{¶ 20} 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. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895

N.E.2d 149, ¶ 16 and 43, citing Geiger, 45 Ohio St.2d at 244, 74 O.O.2d 380, 344

N.E.2d 133; Legislative Service Commission Summary of Am.Sub.H.B. 511, The

New Ohio Criminal Code (June 1973) 69. 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,” (emphasis added), id., thereby

implying that the state has latitude in determining when to decide which offense

to pursue at sentencing.

{¶ 21} In light of the legislative history, we concluded previously that the

statute does not require the state to make its election prior to trial. State v. Weind

(1977), 50 Ohio St.2d 224, 236, 4 O.O.3d 413, 364 N.E.2d 224, vacated on other

grounds (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156. See also State v.

Roberts (June 23, 1988), Auglaize App. No. 2-87-18, 1988 WL 68700 (the state

does not lose its right to elect by failing to exercise it before a verdict of guilty has

been returned). We see nothing in the language of R.C. 2941.25(A) that would

deny the state the same right on remand. The state therefore retains the right to

elect which allied offense to pursue on sentencing on a remand to the trial court

after an appeal.

{¶ 22} The court of appeals impermissibly intruded on the state’s right to

elect by directing the trial court to vacate the drug-possession conviction. We

reverse that portion of the court of appeals’ decision in this case and remand the

cause to the trial court for a new sentencing hearing, at which the state must elect

the offense for which Whitfield should be punished.

{¶ 23} When confronted with allied offenses, courts must be guided by

two principles: that R.C. 2941.25(A) prohibits “convictions” for allied offenses

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January Term, 2010

and that the state controls which of the two allied offenses the defendant will be

sentenced on.

{¶ 24} When the state elects which of the two allied offenses to seek

sentencing for, the court must accept the state’s choice and merge the crimes into

a single conviction for sentencing, Brown, 119 Ohio St.3d 447, 2008-Ohio-4569,

895 N.E.2d 149, ¶ 41, and impose a sentence that is appropriate for the merged

offense. Thereafter, a “conviction” consists of a guilty verdict and the imposition

of a sentence or penalty. See, e.g., Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548,

819 N.E.2d 1047, ¶ 135; McGuire, 80 Ohio St.3d at 399, 686 N.E.2d 1112;

Fenwick, 91 Ohio St.3d at 1253, 745 N.E.2d 1046 (Cook, J., concurring). The

defendant is not “convicted” for purposes of R.C. 2941.25(A) until the sentence is

imposed.

{¶ 25} If, upon appeal, a court of appeals finds reversible error in the

imposition of multiple punishments for allied offenses, the court must reverse the

judgment of conviction and remand for a new sentencing hearing at which the

state must elect which allied offense it will pursue against the defendant. On

remand, trial courts must address any double jeopardy protections that benefit the

defendant. However, as this court observed in State v. Calhoun (1985), 18 Ohio

St.3d 373, 376-377, 18 OBR 429, 481 N.E.2d 624, “At least in the absence of an

acquittal or a termination based on a ruling that the prosecution’s case was legally

insufficient, no interest protected by the Double Jeopardy Clause precludes a

retrial when reversal is predicated on trial error alone. * * * The purpose of the

Double Jeopardy Clause is to preserve for the defendant acquittals or favorable

factual determinations but not to shield from appellate review erroneous legal

conclusions not predicated on any factual determinations.” Thus, the state is not

precluded from pursuing any of the allied offenses upon a remand for a new

sentencing hearing.

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{¶ 26} On remand, the trial court should fulfill its duty in merging the

offenses for purposes of sentencing, but remain cognizant that R.C. 2941.25(A)’s

mandate that a “defendant may be convicted of only one” allied offense is a

proscription against sentencing a defendant for more than one allied offense.

Nothing in the plain language of the statute or in its legislative history suggests

that the General Assembly intended to interfere with a determination by a jury or

judge that a defendant is guilty of allied offenses. 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.

{¶ 27} 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. 2 Thus, the trial court should not vacate or dismiss

the guilt determination.

Conclusion

{¶ 28} 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.

Judgment reversed

and cause remanded.

2. {¶ a} The dissent contends that “[in] essence, the offense that the state elects to pursue absorbs

the other offense and nothing remains of the absorbed offense, including the finding of guilt.”

(Dissent at ¶ 36.) In so asserting, the dissent relies on our decision in State v. Saxon, 109 Ohio

St.3d 176, 2006-Ohio-1245, 846 N.E.2d. 824, and on two decisions from the Eighth District Court

of Appeals, Gates Mills v. Yomtovian, 8th Dist. No. 88942, 2007-Ohio-6303, and State v. Waters,

8th Dist. No. 85691, 2005-Ohio-5137.

{¶ b} Saxon, which held that the sentencing-packaging doctrine is not applicable in Ohio law,

is inapposite here and does not support the proposition for which it is cited by the dissent. Waters

and the cases upon which it relies, State v. Garner, Trumbull App. No. 2002-T-0025, 2003-Ohio-

5222, citing State v. Collins (October 18, 2003), Cuyahoga App. No. 79064, 2001 WL 1243943,

are also inapposite because they are not allied-offense cases. Rather, in those cases, each judge

failed to impose a sentence in cases in which there were multiple counts or specifications.

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January Term, 2010

MOYER, C.J., and LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ.,

concur.

PFEIFER and LANZINGER, JJ., dissent.

__________________

LANZINGER, J., dissenting.

{¶ 29} I respectfully dissent because the majority’s analysis impairs the

finality of the judgment and may ultimately lead to a violation of a defendant’s

right to be free from double jeopardy.

{¶ 30} The majority states that “[t]his 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?” The

majority concludes that “conviction” includes both the guilt determination and the

imposition of a sentence or penalty, citing precedent from mostly death-penalty

cases that offer little analysis. Two cases that were decided shortly after the

effective date of R.C. 2941.25 offer better insight. In Maumee v. Geiger (1976),

45 Ohio St.2d 238, 74 O.O.2d 380, 344 N.E.2d 133, the issue was whether a

person who admitted to the theft of property could be convicted of receiving

stolen property. There we stated that “the intent of the General Assembly controls

in this case, and that intent is plainly expressed in R.C. 2941.25, supra, and the

accompanying committee comment. Although receiving is technically not an

included offense of theft, it is, under R.C. 2941.25, an ‘allied offense of similar

import.’ An accused may be tried for both but may be convicted and sentenced

for only one. The choice is given to the prosecution to pursue one offense or the

other, and it is plainly the intent of the General Assembly that the election may be

of either offense.” (Emphasis added.) Id. at 244, 74 O.O.2d 380, 344 N.E.2d 133.

{¶ 31} In State v. Henderson (1979), 58 Ohio St.2d 171, 12 O.O.3d 177,

389 N.E.2d 494, we were asked to determine the intent of the General Assembly

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in enacting the phrase “previously been convicted of a theft offense” as used in

former R.C. 2913.02(B), which elevated a misdemeanor theft offense to grand

theft, a fourth-degree felony. Henderson had been separately indicted on one

count of receiving stolen property and one count of grand theft. Although he had

pleaded guilty to receiving stolen property, and the court had accepted that plea,

he had not yet been sentenced when he was indicted for grand theft. The trial

court determined that a plea of guilty was sufficient to satisfy the prior-conviction

element. The court of appeals reversed, holding that a judgment entry of

conviction was necessary to constitute a “conviction.” In affirming the appellate

court, we noted two important considerations: (1) a prior conviction was an

integral element of the offense of grand theft, and (2) R.C. 2901.04(A) requires

that we construe the meaning of “convicted” strictly against the state and liberally

in favor of the defendant. Id. at 174, 12 O.O.3d 177, 389 N.E.2d 494. This court

determined that the statute required “a more final adjudication of the defendant’s

guilt,” i.e., the pronouncement of a sentence. Id. at 178, 12 O.O.3d 177, 389

N.E.2d 494.

{¶ 32} In Whitfield’s case, however, defining the term “convicted” to

mean both a finding of guilt and a sentence works to the defendant’s detriment,

thereby raising constitutional issues relating to a defendant’s rights. By leaving

the separate finding of guilt pending, the majority prevents the defendant from

having a final judgment on all charged offenses.

{¶ 33} Furthermore, the use of the term “convicted” throughout the

Revised Code, while not defined, clearly implies only the finding of guilt. See,

e.g., R.C. 2929.01(EE) (“ ‘Sentence’ means the sanction or combination of

sanctions imposed by the sentencing court on an offender who is convicted of or

pleads guilty to an offense”) (emphasis added); R.C. 2929.19(A) (“The court shall

hold a sentencing hearing before imposing a sentence under this chapter upon an

offender who was convicted of or pleaded guilty to a felony * * *”) (emphasis

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added); R.C. 2929.16(E) (“If a person who has been convicted of or pleaded

guilty to a felony is sentenced to community residential sanction”) (emphasis

added); R.C. 2930.19 (C) (“The failure of any person or entity to provide a right,

privilege, or notice to a victim under this chapter does not constitute grounds for

declaring a mistrial or new trial, for setting aside a conviction, sentence,

adjudication, or disposition, or for granting postconviction release to a defendant

or alleged juvenile offender”) (emphasis added).

{¶ 34} In Henderson, 58 Ohio St.2d at 178, 12 O.O.3d 177, 389 N.E.2d

494, a case involving the enhanced penalty provisions of former R.C. 2913.02(B),

we acknowledged that the General Assembly used the term “conviction” to mean

simply the finding of guilt in several statutes, but concluded that “the distinction

between conviction and sentencing in these few provisions exists solely for the

purpose of depicting various procedures to be followed during the interval after a

defendant’s guilt is legally adjudicated and before an appropriate penalty or

treatment is determined. It is unreasonable to assume that the General Assembly

intended an intermediate stage in a criminal proceeding, evidenced by the entry of

a plea of guilty, to invoke the enhanced penalty provisions of R.C. 2913.02(B).”

But for purposes of R.C. 2941.25, it makes sense that the General Assembly

intended to confine the term “convicted” to the finding of guilt, because allied

offenses are to be merged before sentencing. See State v. Harris, 122 Ohio St.3d

373, 2009-Ohio-3323, 911 N.E.2d 882, ¶ 23 (“Geiger requires the prosecution to

elect which offense it will pursue after a finding of guilt but prior to sentencing”).

{¶ 35} Even if I were to accept that “conviction” includes sentencing as

well as a finding of guilt in this case, I cannot agree with the majority’s remedy.

In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 42,

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

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component elements, in legal effect, are merged in the major crime.’ ” Id.,

quoting State v. Botta (1971), 27 Ohio St.2d 196, 201, 56 O.O.2d 119, 271 N.E.2d

776. See also State v. Rice (1982), 69 Ohio St.2d 422, 424, 23 O.O.3d 374, 433

N.E.2d 175; State v. Roberts (1980), 62 Ohio St.2d 170, 172, 16 O.O.3d 201, 405

N.E.2d 247; State v. Logan (1979), 60 Ohio St.2d 126, 131, 14 O.O.3d 373, 397

N.E.2d 1345. 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.

{¶ 36} This holding contradicts the concept of merger. The allied

offenses combine into one pursuant to R.C. 2941.25(A). In essence, the offense

that the state elects to pursue absorbs the other offense, and nothing remains of

the absorbed offense, including the finding of guilt. See Gates Mills v.

Yomtovian, 8th Dist. No. 88942, 2007-Ohio-6303, ¶ 23 (“ ‘merge’ in criminal law

is defined as, ‘[t]he absorption of a lesser included offense into a more serious

offense when a person is charged with both crimes, so that the person is not

subject to double jeopardy.’ Black's Law Dictionary (8 Ed. Rev.2004) 1009”).

To say that a determination of guilt on the merged offense survives means it

remains pending in limbo and prevents a final judgment from being entered. See

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 8 (a trial

court must separately assign a particular sentence to each offense); State v.

Waters, 8th Dist. No. 85691, 2005-Ohio-5137 (an order that fails to impose

sentence for an offense for which the offender was found guilty not only violates

this rule but renders the resultant order nonfinal and not immediately appealable).

{¶ 37} 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,

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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.

PFEIFER, J., concurs in the foregoing opinion.

__________________

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.

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