State v. Allbaugh, 2013 Ohio 2031

Indictment in 2007 charged felonious assault and two counts of child endangering; defendant pled guilty to lesser offenses of attempted felonious assault and two counts of attempted child endangering.
Counts 2 and 3 were agreed to merge for sentencing; trial court imposed separate sentences on count 1 and the merged counts.
Original sentence: 5 years of community control on count 1 and 2 years on merged counts, run concurrently.
In 2011–2012, violations of community control were found; second-stage sentencing ordered 3 years on count 1, 3 years on count 2, and 1 year on count 3; journal entries stated counts 2 and 3 were to run concurrently to each other but consecutively with count 1, later corrected nunc pro tunc.
Counsel filed supplemental sentencing argument post-hearing arguing all three counts were allied offenses under Johnson; trial court denied.
Court of Appeals reverses in part, remands for proper merging on counts 2 and 3; preserves ruling that count 1 did not have to merge with counts 2 and 3 under pre-Johnson analysis; discusses res judicata and ineffective assistance claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counts 2 and 3 should have merged for sentencing.	Fields cites allied-offense merger; merged at original sentencing.	All three counts are allied offenses under Johnson; should merge.	Plain error found; counts 2 and 3 must be merged on remand.
Whether the felonious assault and child endangering counts are allied offenses requiring merger.	All three counts arise from same conduct; merger required.	Merger should be barred by res judicata; Johnson cannot be applied retroactively.	Res judicata bars merger challenge on appeal from community-control sentence; no merger for count 1.
Whether counsel's performance was ineffective for failing to raise merger.	Failure to raise merger at sentencing constituted ineffective assistance.	Counsel's decision reasonable; Johnson not applicable retroactively; pre-Johnson law.	Affirmed; ineffective-assistance claim rejected; res judicata applies.
Whether the lack of actual merging at the second-stage sentencing constitutes plain error.	Court intended merger; failure to merge after merging-order creates error.	Original merger existed; second-stage error is corrigible; remand.	Plain error found; remand for proper merging and single sentence on chosen offense.
Whether manifest injustice precludes application of res judicata.	Exceptions exist where justice demands; merger error would be unjust.	No manifest injustice shown; exceptions not met.	Not manifest injustice; res judicata remains applicable.

State v. Johnson, 128 Ohio St.3d 153 (2010) (two-step allied-offense merger test)
State v. Whitfield, 124 Ohio St.3d 319 (2010) (requirement to merge allied offenses for sentencing)
State v. Underwood, 2010-Ohio-1 () (RC 2941.25 interpretation; double jeopardy protections)
State v. Journey, 2010-Ohio-2555 () (pre-Johnson analysis of allied offenses)