State v. Davis, 2013 Ohio 2637

Davis was indicted in Butler County on trafficking in heroin, importuning, and compelling prostitution; he pled guilty to trafficking and importuning, and to a reduced charge of attempted compelling prostitution.
At the September 14, 2012 hearing, the state presented facts: trafficking occurred in the vicinity of a school/juvenile (CJ, b. 1996); importuning involved text solicitation of a minor for vaginal intercourse; count three involved the minor for hire.
Defense and state requested allied-offense analysis under R.C. 2941.25; the court determined trafficking and attempted compelling prostitution merged, but trafficking and importuning did not.
The court explained counts 1 and 3 (trafficking and compelling prostitution) could be allied under Johnson criteria, while counts 1 and 2 (trafficking and importuning) were not allied offenses due to separate conduct and separate animus.
Davis was sentenced to 18 months for trafficking, 12 months for importuning, consecutive, for an aggregate of 2 years and 6 months, and Davis was classified as a Tier II sex offender based on the guilty plea to attempted compelling prostitution.
Davis appeals, arguing the trafficking and importuning should have merged and that the Tier II classification was improper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are trafficking in heroin and importuning allied offenses under R.C. 2941.25?	Davis—same conduct; offenses allied.	Davis—no same conduct (he asserts they were committed separately).	No merger; offenses not allied; separate conduct and animus.
Was Davis properly classified as a Tier II sex offender given merger of allied offenses?	Classification based on guilty plea to compelled prostitution remains.	Merged offense nullifies Tier II basis.	Tier II classification upheld; guilty plea to attempted compelling prostitution supports Tier II.

State v. Williams, 134 Ohio St.3d 482 (2012-Ohio-5699) (Johnson-based allied-offense framework applied de novo on merger)
State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (test for allied offenses focuses on same conduct and single state of mind)
State v. McCullough, 2011-Ohio-992 (12th Dist. 2011) (clarifies Johnson framework for same-conduct inquiry)
State v. Craycraft, 2011-Ohio-413 (12th Dist. 2011) (applies Johnson in CJ-related merger analysis)
State v. Standifer, 2012-Ohio-3132 (12th Dist. 2012) (distinguishes dissimilar import vs. allied offenses under Johnson)
State v. Brown, 119 Ohio St.3d 447 (2008-Ohio-4569) (single act vs. separate acts; single state of mind)
State v. Lewis, 2012-Ohio-885 (12th Dist. 2012) (burden on defendant to prove merger and allied offenses)
State v. Whitfield, 2010-Ohio-2 (2010-Ohio-2) (allied-offense determination does not require dismissal of guilt findings)