State v. Brenson, 2011 Ohio 1880

Brenson was convicted in Delaware County Court of Common Pleas on multiple counts including aggravated murder, aggravated robbery, and kidnapping.
On remand from the Ohio Supreme Court, this court is reconsidering only Brenson’s Fourteenth Assignment of Error regarding sentencing mergers.
In Brenson I, this court held that two aggravated murder counts with the same victim should merge for sentencing and that aggravated robbery and kidnapping counts should also merge.
The Ohio Supreme Court later overruled Rance and adopted a two-step allied-offense test under R.C. 2941.25 as announced in Johnson.
Under Johnson, offenses are allied if they can be committed by the same conduct and, if so, must be merged unless proven otherwise by a single act with a single state of mind.
On remand, the court concluded it is possible to commit kidnapping under R.C. 2905.01(A)(2) and (A)(3) with the same conduct, and aggravated robbery under R.C. 2911.01(A)(1) and (A)(3) with the same conduct, requiring merger; the two aggravated murder counts involving the same victim are also to be merged.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson requires merger of offenses with same conduct	Brenson	Brenson	Yes; merger required where same conduct under Johnson
Whether kidnapping counts under 2905.01(A)(2) and (A)(3) merge	Brenson	Brenson	Yes; merger required
Whether aggravated robbery counts under 2911.01(A)(1) and (A)(3) merge	Brenson	Brenson	Yes; merger required

State v. Johnson, 128 Ohio St.3d 153 (Ohio 2010) (overruled Rance; adopted two-step allied-offense test under R.C. 2941.25)
State v. Whitfield, 124 Ohio St.3d 319 (Ohio 2010) (remand framework for convictions vs. sentence under Whitfield)
State v. Rance, 85 Ohio St.3d 632 (Ohio 1999) (calibrated allied-offense analysis prior to Johnson)
State v. O'Neal, 87 Ohio St.3d 402 (Ohio 2000) (merger framework for similar offenses)
State v. Huertas, 51 Ohio St.3d 27 (Ohio 1990) (prior related merger jurisprudence)