State v. Wilson

2011 Ohio 2669, 129 Ohio St. 3d 214
CourtOhio Supreme Court
DecidedJune 8, 2011
Docket2010-0897
StatusPublished
Cited by349 cases

This text of 2011 Ohio 2669 (State v. Wilson) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wilson, 2011 Ohio 2669, 129 Ohio St. 3d 214 (Ohio 2011).

Opinions

McGee Brown, J.

{¶ 1} This is an appeal from a judgment entered by the Eighth District Court of Appeals that vacated a defendant’s sentences and remanded the cause with instructions to conduct a new sentencing hearing at which the state would elect which of the offenses to pursue for sentencing. We affirm the judgment of the court of appeals and hold that on a remand for resentencing based on an allied-offenses error, the trial court is not limited to merely accepting the prosecution’s election among allied offenses. Instead, once the prosecutor makes his selection, the trial court is required to hold a new sentencing hearing to impose sentences for the remaining offenses.

[215]*215Background

{¶ 2} Appellee, Joseph Wilson, was tried before a jury and found guilty on three counts: aggravated robbery, felonious assault, and kidnapping. The offenses arose from an incident in which Wilson and five or six other people robbed and beat a man.

{¶ 3} The trial court imposed a sentence of ten years for the aggravated-robbery conviction, eight years for the assault conviction, and seven years for the kidnapping conviction. The trial court ordered that the sentences be served consecutively, for a total of 25 years.

{¶ 4} On appeal, Wilson argued to the Eighth District Court of Appeals that the three offenses for which he was convicted were allied offenses of similar import and thus should have been merged into one offense for sentencing. Wilson also argued that his sentence was inconsistent with the sentences imposed upon his codefendants and that the trial judge’s statements during his sentencing hearing indicated judicial bias.

{¶ 5} Pursuant to R.C. 2941.25 and related jurisprudence from this court, the court of appeals held that kidnapping and felonious assault were allied offenses of similar import, that kidnapping and aggravated robbery were allied offenses of similar import, and that the facts developed at trial indicated that Wilson did not have a separate animus for committing the kidnapping. The court of appeals also held that felonious assault and aggravated robbery were not allied offenses of similar import and concluded that those two offenses were not subject to merger.

{¶ 6} Relying on this court’s decision in State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, the court of appeals vacated Wilson’s sentence and remanded the matter for a new sentencing hearing at which the prosecutor would have the opportunity to elect which of the allied offenses he wanted to pursue for sentencing. The appellate court dismissed Wilson’s assignments of error regarding judicial bias and sentencing disparity as moot, given its decision to vacate the sentences imposed for all three of Wilson’s convictions and remand the matter for a new sentencing hearing. The appellate court noted that judicial bias and proportionality of sentencing were issues that could be raised in the trial court during resentencing.

{¶ 7} We accepted discretionary review of the state’s appeal, 126 Ohio St.3d 1544, 2010-Ohio-3855, 932 N.E.2d 338. The state interprets Whitfield to hold that the scope of a resentencing judge’s authority upon a remand to correct an allied-offenses sentencing error is limited to accepting the state’s election among allied offenses, and it argues that res judicata precludes Wilson from requesting the judge’s disqualification and from objecting to the resulting sentence as disproportionate. We reject the state’s interpretation of Whitfield and its res judicata argument. When a cause is remanded to a trial court to correct an allied-[216]*216offenses sentencing error, the trial court must hold a new sentencing hearing for the offenses that remain after the state selects which allied offense or offenses to pursue. A defendant is not barred by res judicata from raising objections to issues that arise in a resentencing hearing, even if similar issues arose and were not objected to at the original sentencing hearing.

Analysis

Scope of a Resentencing Hearing After a Remand for an Allied-Offenses Sentencing Error

{¶ 8} Ohio’s multiple-count statute, R.C. 2941.25, provides the following:

{¶ 9} “(A) 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.

{¶ 10} “(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”

{¶ 11} The General Assembly enacted R.C. 2941.25 to limit when multiple punishments may be imposed for offenses arising from the same conduct. The state concedes that the limitations provided by R.C. 2941.25 apply in this case, that kidnapping and felonious assault, as well as kidnapping and aggravated robbery, are allied offenses of similar import, and that there was no proof of separate animus. The state thus concedes that the sentencing decision included an allied-offenses error. The primary issue before this court is whether on a remand for an allied-offenses sentencing error, the trial court’s authority is limited to accepting the state’s merger selection, or whether the court can hold a new sentencing hearing after the merger is performed. The state contends that a trial court has limited authority on remand, pursuant to Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182.

{¶ 12} In Whitfield, one of the questions before this court was the proper procedure for an appellate court to follow upon finding a violation of R.C. 2941.25 in the trial court’s judgment entry of sentence. The trial court had imposed separate sentences for drug-possession and for drug-trafficking offenses, and the appellate court found reversible error in the court’s failure to merge the two allied offenses. Whitfield at ¶ 2-3. As a remedy, the appellate court reversed only the portion of the judgment related to the drug-possession charge, and instructed the trial court to vacate the drug-possession conviction on remand. Id. at ¶ 4. On appeal to this court, we noted that “for purposes of R.C. 2941.25, a [217]*217‘conviction’ consists of a guilty verdict and the imposition of a sentence” (emphasis sic), id. at ¶ 12, and we explained that the proper remedy for an allied-offenses sentencing error was for the appellate court to “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,” id. at paragraph two of the syllabus.

{¶ 13} Whitfield makes clear that it is the state that determines which offense to pursue at sentencing and that there is nothing indicating that the General Assembly intended to remove the state’s discretionary power upon reversal for an allied-offenses sentencing error. Id. at ¶ 20-21. Since the remedy for an allied-offenses sentencing error requires that the state exercise its discretion, Whitfield held, a reviewing court may not unilaterally correct the error by modifying the sentence. Id. at ¶ 22. Although Whitfield

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Bluebook (online)
2011 Ohio 2669, 129 Ohio St. 3d 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-ohio-2011.