State v. DeWitt, 2012 Ohio 635

On August 20, 2009, Gulley was killed during a home invasion by Dewitt and two others.
Dewitt admitted involvement; he and Turner/Moore alleged the shooter was Moore; Moore denied involvement.
State and Dewitt reached a plea: no murder charge for Dewitt in exchange for guilty pleas to involuntary manslaughter, aggravated robbery, felonious assault, and a three-year firearm specification, with a 16–20 year aggregate sentence agreed.
Moore later entered a similar plea with a lesser aggregate term (8–12 years), creating a sentencing disparity relevant to Dewitt.
At sentencing, the court denied Dewitt’s request to be sentenced within Moore’s 8–12 year range, and imposed a 16-year aggregate sentence.
Dewitt appealed, challenging (1) consistency of the sentence with co-defendant’s sentence, (2) disapproval of shock incarceration/intensive program, (3) failure to merge allied offenses, (4) jail-time credit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dewitt's agreed sentence is reviewable on appeal.	State contends agreed sentence is not reviewable under R.C. 2953.08(D)(1).	Dewitt argues sentence should be conditioned by parity with Moore’s lesser term.	Agreed sentence not reviewable; within law; affirmed in part.
Whether the trial court erred by disapproving shock/intensive programs at sentencing.	State argues proper discretion supported by record.	Dewitt asserts error in disallowing programs without required findings.	Errors sustained to the extent of disallowing shock/incarceration; harmless for ineligible programs; remand to delete transitional control disapproval.
Whether the trial court erred by not merging allied offenses.	State contends separate offenses do not require merger given statutory framework.	Dewitt argues allied offenses should have merged under R.C. 2941.25.	No merger required; aggravated burglary not merged with others; aggravated robbery not merged; felonious assault and involuntary manslaughter not merged.
Whether Dewitt was credited for jail-time served prior to sentencing.	State argues record supports the awarded jail-time credit.	Dewitt seeks additional credit based on prior case time not in record.	Record insufficient to determine entitlement; court presumes regularity; final assignment overruled.

State v. Turner, 2011-Ohio-6714 (2d Dist. Montgomery 2011) (agreed sentences not reviewable on appeal)
State v. Howard, 190 Ohio App.3d 734 (2d Dist. Ohio 2010) (required findings for program disapproval; premature TAC)
State v. Porcher, 2011-Ohio-5976 (2d Dist. Ohio 2011) (remedies for improper program disapproval; retains harmless error discussion)
State v. Griffie, 2011-Ohio-6704 (2d Dist. Ohio 2011) (allocation of transitional control disapproval; merger analysis context)
State v. Coffey, 2007-Ohio-21 (2d Dist. Ohio 2007) (plain error standard regarding allied offenses)
State v. Brown, 119 Ohio St.3d 447 (2008) (Double Jeopardy and allied offenses; statutory framework governs merging)
State v. Turner (alternative citation), 2d Dist. Montgomery No. 24421 (2011) (see 2011-Ohio-6714 (agreed sentences not reviewable))