State v. Devai
2013 Ohio 5264
Ohio Ct. App.2013Background
- Appellant pled guilty to six counts of gross sexual imposition involving his four-year-old granddaughter.
- Indictment included one count of rape and six counts of gross sexual imposition; rape count was nolle pros’d.
- Sentencing occurred after a pre-sentence investigation; prosecutor detailed victim’s account and acts.
- Judge accepted guilty pleas and imposed consecutive sentences for five counts, with one count concurrent.
- Appellant did not raise a merger issue at plea or sentencing; record later developed facts supporting non-alliance.
- Appellant argued plain error for failure to conduct a merger analysis after Johnson; court affirmed anyway.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court committed plain error by not meriting merger analysis | Devai argues failure to merger-analyze was plain error | State contends record shows offenses not allied; no plain error | No plain error; offenses not allied; record supports non-merger; judgment affirmed |
Key Cases Cited
- State v. Barnes, 94 Ohio St.3d 21 (2002) (limits of plain-error review in sentencing)
- State v. Comen, 50 Ohio St.3d 206 (1990) (objection required to avoid waiver; plain error narrow)
- State v. Hunter, 2011-Ohio-6524 (2011) (forfeiture of consecutive sentences; plain-error standard)
- State v. Gotel, 2009-Ohio-5423 (2009) (Gotel on allied-offense analysis post- Johnson context)
- State v. Johnson, 128 Ohio St.3d 153 (2010) (establishes current allied-offenses test; conduct-focused)
- State v. Underwood, 124 Ohio St.3d 365 (2010) (plain-error rule for allied offenses; multiple sentences)
- State v. May, 2011-Ohio-5233 (2011) (remand considerations for Johnson standard pre/post)
- State v. Kouns, 2012-Ohio-5331 (2012) (distinguishes May; record showing non-alliance precludes prejudice)
- State v. Swank, 2008-Ohio-6059 (2008) (guilty plea with non-merged offenses permissible)
- State v. Corrao, 2011-Ohio-2517 (2011) (Eighth Dist. on merger analysis necessity)
- State v. Rogers, 2013-Ohio-3235 (2013) (en banc Rogers II: facially apparent merger = plain error; prosecutor’s factual record matters)