State v. Biondo
2013 Ohio 876
Ohio Ct. App.2013Background
- Appellant Russell J. Biondo appeals a Portage County Court of Common Pleas sentence for allied offenses with potential merger.
- Appellant pled guilty to one count of illegal manufacture of drugs (methamphetamine) and one count of possessing criminal tools; a nolle prosequi extinguished the remaining charge.
- The court imposed consecutive sentences: three years for illegal manufacture of drugs and six months for possessing criminal tools.
- The State concedes a remand is necessary to develop facts underlying the charges and determine whether merger is appropriate.
- The trial court’s merger analysis under Johnson remained incomplete due to insufficient record facts, requiring remand.
- The court reversed and remanded for a limited fact-finding remand to determine merger under Johnson before resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should the offenses merge under Johnson after fact development? | State argues remand is necessary to establish conduct facts. | Biondo contends the trial court must consider specifics of the conduct. | Remand required to establish facts and determine merger. |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (analysis requires considering conduct and whether same act/state of mind)
- State v. Miller, 11th Dist. No. 2009-P-0090, 2011-Ohio-1161 (2011- Ohio-1161) (requires factual record to determine merger under Johnson)
- State v. Underwood, 2010-Ohio-1 (2010-Ohio-1) (even joint sentencing must comply with law; remand possible)
- Donaldson, 2012-Ohio-5792 (2012-Ohio-5792) (record must show separate animus or conduct to avoid improper merger)