State v. Demirci, 2013 Ohio 2399

Demirci pleaded guilty to Aggravated Vehicular Assault (Count One) amended to include both victims and Operating a Vehicle Under the Influence of Alcohol (Count Five); remaining counts were nolle prossed.
Two victims, Joseph Jukiewicz and Melissa Fife, suffered serious injuries with long-term physical and economic consequences; victim impact statements were presented at sentencing.
At sentencing (Feb. 3, 2011), Demirci received a four-year prison term for AVA, a nine-year license suspension, and concurrent 180 days in jail for OVI, plus substantial restitution orders totaling about $139,928.69.
On appeal, Demirci challenged (1) the sentence’s reasonableness under statutory factors, (2) the restitution amount and ability to pay, and (3) whether AVA and OVI must merge as allied offenses.
This court initially affirmed in part, reversed in part, and remanded; after reconsideration, the court concluded the trial court did not err in not merging AVA and OVI; a dissent argued merger was required.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence and license suspension were proper	State contends court properly weighed factors and harms; sentence within discretion.	Demirci argues lack of factors enhancing seriousness and recidivism; sentence excessive.	Sentence upheld; not an abuse of discretion.
Whether the restitution amount and ability to pay were properly determined	State asserts restitution reflects victims’ economic losses and insurance credits may apply.	Demirci argues the amount and payability were mischaracterized.	Restitution affirmed; not an abuse of discretion.
Whether AVA and OVI merge as allied offenses	State relies on R.C. 2929.41(B)(3) and Bayer to permit separate convictions and sentencing.	Demirci argues merger under R.C. 2941.25 is required because offenses share a single conduct.	Convictions may stand without merger; no error in not merging.

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912 (2008) (two-step method for reviewing felony sentences)
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855 (2006) (full discretion to impose within statutory range)
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856 (2006) (consequences for sentencing discretion and remedies)
State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478 (2009) (recognition of broad discretion in felony sentencing)
State v. Bayer, 2012-Ohio-5469 (2012) (whether OVI and AVA may be separately sentenced under R.C. 2929.41(B)(3))
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314 (2010) (merger analysis under R.C. 2941.25 prior to sentencing)
State v. Moss, 69 Ohio St.2d 515, 433 N.E.2d 181 (1982) (R.C. 2929.41 and multiple sentencing within a single proceeding)
State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997) (allied offenses merge prior to sentencing; verdict and sentence distinction)
State v. Green, 2012-Ohio-2355 (2012) (application of merger timing to concurrent sentences)
State v. West, 2010-Ohio-1786 (2010) (allied offenses analysis under R.C. 2941.25)