Ohio "Allied Offenses" law

The Supreme Court of Ohio reversed itself today, overruling its 1999 holding in State v. Rance, and now holding that when determining whether two criminal offenses arising out the same conduct are "allied offenses of similar import" that must be merged for sentencing, the state's trial courts must consider the conduct of the accused in each case separately, and not merely compare the elements of the two crimes in the abstract. [ State v. Johnson, slip opinion 2010-Ohio-6314 ]

"Looking back at a line of decisions in which the Court has attempted to apply the Rance "abstract comparison of the elements" test over the past 11 years, Chief Justice Eric Brown cited multiple cases in which that standard has had to be modified, reinterpreted and limited by exceptions in order to avoid absurd results," the Court's summary said.

"In State v. Logan in 1979, Chief Justice Eric Brown noted, the Court set forth what he characterized as a 'cohesive standard' for trial courts to apply in determining whether multiple crimes are subject to merger as allied offenses….The then-familiar Logan two-step approach to R.C. 2941.25 was summarized in State v. Blankenship (1988)… Then in State v. Rance (1999), Chief Justice Brown said the Court tried to clear up confusion about whether, in comparing the elements of two crimes, trial courts “‘should contrast the statutory elements in the abstract or consider the particular facts of the case,’ and determined that it should 'settle this issue for Ohio courts, and we believe[d] that comparison of the statutory elements in the abstract is the more functional test, producing “clear legal lines capable of application in particular cases.'"

"As a result of the Court's need to repeatedly reinterpret and create exceptions to the Rance 'abstract comparison of the elements' test, the Chief Justice wrote, "(t)he current allied-offenses standard is so subjective and divorced from the language of R.C. 2941.25 that it provides virtually no guidance to trial courts and requires constant ad hoc review by this court. It is time to return our focus to the plain language and purposes of the merger statute."

"As guidance to trial courts in future cases where merger of multiple counts for sentencing is at issue," the Chief Justice wrote: "'Under R.C. 2941.25, the court must determine prior to sentencing whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger. In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. … If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.''"