State v. Fairman, 2011 Ohio 6489

Fairman was convicted of Felonious Assault with a firearm specification and Having Weapons Under Disability based on a 2010 incident where he shot Tremayne Arnold in a van orbiting around an argument at a home in Dayton, Ohio.
Arnold testified that Fairman shot him after asking for a gun and obtaining one from co-defendant Pruitt; Arnold suffered serious injuries and required hospital care.
Fairman was unsuccessfully denied a one-day continuance to secure a potentially exculpatory witness’s testimony; his motion for a material witness warrant for that witness was denied due to non-personal service of the subpoena.
The trial court sentenced Fairman to an aggregate term of fourteen years and ordered court costs in the termination entry.
Fairman challenged compulsory-process rights, the continuance denial, trial counsel effectiveness, the merger of allied offenses, sufficiency/weight of the evidence, and the court-cost order.
The appellate court reversed the conviction and remanded for further proceedings on multiple grounds, including the improper failure to merge allied offenses and the court-cost issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Compulsory process denial	Fairman argues the court failed to compel attendance of a material witness.	Fairman asserts the failure to issue a material witness warrant violated Crim.R. 17(D) and RC 2317.21.	Court held no compulsory-process denial; warrant not issued due to non-personal service of subpoena.
Continuance denial	Fairman contends denial of a one-day continuance prevented securing Pruitt's testimony.	State contends denial was within the trial court’s discretion given Unger factors.	Second assignment sustained; the court went beyond its discretion in denying a one-day continuance to secure the witness.
Effective assistance of counsel	Fairman argues trial counsel failed to adequately represent him.	State contends no deficient performance or prejudice established.	Assignments moot or overruled; no reversible error shown on the record.
Merger of allied offenses	Having Weapons Under Disability and Felonious Assault should merge as allied offenses.	Offenses are distinct in animus and conduct.	Felonious Assault and Having Weapons Under Disability are allied offenses; merger required; this affects sentencing.
Cost assessment and sentencing	Court costs improperly imposed without addressing indigence at sentencing.	Costs typically assessed; failure to address indigence is error but remandable.	Seventh assignment sustained; costs issue remanded for proper consideration.

Washington v. Brown, 388 U.S. 14 (1967) (compulsory process applies to states through Fourteenth Amendment)
State v. Brown, 64 Ohio St.3d 649 (1992-Ohio-19) (standards for right to compel attendance and witness issues)
Crim.R. 17(D), — (—) (subpoena service requirements for witnesses)
State v. Kvasne, 169 Ohio App.3d 167 (2006-Ohio-5235) (material witness warrant requires personal service of subpoena)
State v. Unger, 67 Ohio St.2d 65 (1981) (continuance requires Unger factors balancing interests)
State v. Landrum, 53 Ohio St.3d 107 (1990) (continuance factors and balancing considerations)
State v. Thompkins, 78 Ohio St.3d 380 (1997-Ohio-52) (sufficiency of the evidence standard (Jenks))