State v. Barnard, 2016 Ohio 7842

Jason C. Barnard was charged in two indictments: a Nov. 30, 2014 charge for possession/assembly of chemicals to manufacture meth (Case No. 2014 CR 741) and four counts from Apr. 30, 2015 including illegal manufacture of meth, aggravated possession, tampering with evidence, and possession of criminal tools (Case No. 2015 CR 253).
The cases were consolidated for plea and sentencing; Barnard pled guilty to all counts and received concurrent sentences that produced a total five-year prison term.
Barnard did not raise a merger/allied-offenses objection in the trial court and now argues on appeal that illegal manufacture, aggravated possession, and possession of criminal tools in the second case are allied offenses of similar import and should have merged.
At the plea hearing the court elicited a brief factual basis: Barnard had a backpack containing meth, tools (scale, tubing, etc.), and he discarded the bag when fleeing (basis for tampering charge).
The state concedes a reasonable probability exists that the three counts may be allied but contends the record lacks sufficient factual detail to resolve merger; it asks for remand so the trial court can inquire and decide.
The appellate court finds the record insufficient to determine whether the offenses were committed by the same conduct, holds the trial court’s failure to inquire was plain error, reverses, and remands for re-sentencing with a merger inquiry.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether illegal manufacture, aggravated possession, and possession of criminal tools are allied offenses under R.C. 2941.25	State: trial court should determine merger on remand; record insufficient now	Barnard: facts show reasonable probability offenses are allied and trial court plain-erred by not merging	Court: Barnard showed reasonable probability of alliance; trial court’s failure to inquire was plain error; reverse and remand for merger inquiry and re-sentencing
Effect of failing to raise merger at trial	State: forfeiture limits review to plain error	Barnard: plain error review applies and is met because reasonable probability of merger exists	Court: applies Rogers plain-error standard; defendant must show reasonable probability of alliance; Barnard met that threshold
Proper test for allied offenses	State: merger requires inquiry into conduct, animus, and import per Ruff	Barnard: same-conduct evidence from plea colloquy supports merger	Court: follows Johnson/Ruff — evaluate conduct, animus, and import; must determine whether offenses caused separate identifiable harm or were committed with separate animus
Remedy when record insufficient to resolve merger on appeal	State: remand for trial court to take facts and decide merger at re-sentencing	Barnard: asks for merger and resentencing	Court: remands for re-sentencing where trial court shall establish underlying facts and determine merger (no automatic merger ordered)

State v. Johnson, 128 Ohio St.3d 153 (establishes conduct-focused test; ask whether one offense can be committed with same conduct and single state of mind)
State v. Rogers, 143 Ohio St.3d 385 (plain-error review applies to forfeited allied-offense claims; defendant must show reasonable probability of alliance)
State v. Ruff, 143 Ohio St.3d 114 (refines Johnson: courts must evaluate conduct, animus, and import; separate, identifiable harm or separate animus allows multiple convictions)
State v. Biondo, 11th Dist. Portage No. 2012-P-0043 (illustrates that manufacture and possession-of-tools can be allied; remand required when record lacks facts)
State v. Miller, 11th Dist. Portage No. 2009-P-0090 (emphasizes need for specific conduct details to assess merger)
State v. Devai, 11th Dist. Ashtabula No. 2012-A-0054 (trial-court merger inquiry may be satisfied by prosecutor’s on-the-record factual recitation; formal hearing not required)