2012 Ohio 4922
Ohio Ct. App.2012Background
- Defendant Lisa Davis was indicted for trafficking in crack cocaine on multiple counts and possession of cocaine, with a pattern-of-corrupt-activity charge in Muskingum County.
- Davis pled not guilty, then pleaded guilty to Counts Two, Three (amended to a fourth-degree felony), and Five; Counts Four and Six were dismissed.
- The trial court sentenced Davis to 18 months on Count Two, 18 months on Count Three, and 12 months on Count Five, with all sentences to run consecutively for an aggregate 4-year term.
- Davis challenged the sentence, arguing Crim.R. 32(B) requirements were not satisfied and that counts Two and Three were allied offenses and should have merged.
- The appellate court held Davis had not shown prejudice for Crim.R. 32(B) notice, and concluded Counts Two and Three were not allied offenses of similar import under the Johnson framework; the sentence was affirmed.
- The court noted Davis had waived certain appellate rights by plea and that HB 86 did not apply retroactively to her sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Crim.R. 32(B) notice compliance | State argues lack of prejudice from missing notice. | Davis contends Crim.R. 32(B) notice was required and violated. | No reversible error; prejudice not shown; rule satisfied in effect by appeal. |
| Merger of Counts Two and Three as allied offenses | Counts Two and Three were not allied offenses under Johnson and may remain separate. | Counts Two and Three should have merged as allied offenses of similar import. | Counts Two and Three were not allied offenses; no merger required. |
| Failure to conduct merger inquiry | Court should have inquired about merger of Counts Two and Three. | No merger inquiry required where not allied offenses. | Court not required to merge; no error. |
| Consecutive maximum sentences | Maximum consecutive sentences were proper given the offenses and history. | Sentence was unreasonable and disproportionate, violating HB 86 and Eighth Amendment. | No abuse of discretion; negotiated plea limits review; HB 86 not retroactive; affirmed. |
| Maximum on possession charge (F5 cocaine) | Discretionary maximum on possession was proper within the negotiated plea. | Sentence on possession was excessive and unconstitutional. | Waived rights; sentence within plea agreement; not reversible. |
Key Cases Cited
- State v. Underwood, 124 Ohio St.3d 365 (2010) (plea does not bar review of failure to merge allied offenses)
- State v. Cabrales, 118 Ohio St.3d 54 (2008) (compare elements to determine allied offenses in the abstract)
- State v. Johnson, 128 Ohio St.3d 153 (2010) (overruled Rance; consider conduct to determine allied offenses)
- State v. Rance, 85 Ohio St.3d 632 (1999) (allocates allied offenses by similarity of import under 2941.25(A))
- State v. Blankenship, 38 Ohio St.3d 116 (1988) (two-tiered test for allied offenses; determine merger after whether allied offenses exist)