State v. Gray, 2018 Ohio 3326

Kevin Gray was indicted on multiple felonies arising from a May 8, 2017 assault on Carl Kuntz: aggravated robbery (with firearm specification), felonious assault counts, multiple theft/grand theft counts, and theft of prescription drugs. Remaining counts were dismissed after plea bargaining.
On September 6, 2017 Gray pleaded guilty to aggravated robbery (R.C. 2911.01(A)(1)) with a one-year firearm specification, one felonious assault count (Count 5), grand theft of a Remington 12-gauge shotgun (Count 8), and theft of Valium pills (Count 14). The court accepted the plea and ordered a PSI.
Sentencing (Oct. 18, 2017): court imposed 8 years on aggravated robbery, concurrent 6 years on felonious assault, consecutive 24 months for Count 8 and consecutive 12 months on Count 14, plus one year mandatory for the firearm specification to be served prior and consecutively — aggregate 12 years, plus 162 days credit, restitution $1,310, and a no-contact order with the victim. Post-release control of five years was notified.
Gray appealed claiming the court committed plain error by failing to merge allied offenses (aggravated robbery, grand theft, and theft of drugs) in violation of double jeopardy protections under R.C. 2941.25 and the U.S./Ohio Constitutions.
The Court of Appeals reviewed for plain error, evaluated whether the offenses were allied (using Ruff three-part analysis), and also sua sponte reviewed the legality of the no-contact order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether aggravated robbery, grand theft, and theft of drugs are allied offenses requiring merger at sentencing	State: offenses resulted from distinct conduct/harm and were separate in time; thus dissimilar and may result in multiple convictions	Gray: all offenses arose from one continuous transaction — he struck the victim with a bat to steal multiple items — so offenses are allied and must merge	Court: No plain error. Facts show robbery completed when gun taken; subsequent separate taking of other firearms and pills completed distinct thefts; harms were separate and identifiable — convictions may stand separately
Legality of trial court’s no-contact order as part of sentence	State: did not contest in appellate briefing	Gray: did not raise on appeal	Court (sua sponte): No-contact order is a community-control type sanction and cannot be imposed in addition to prison for felony counts; vacated the no-contact order and affirmed sentence as modified

State v. Whitfield, 124 Ohio St.3d 319 (2010) (R.C. 2941.25 incorporates double jeopardy protections and restricts multiple punishments)
State v. Williams, 148 Ohio St.3d 403 (2016) (allied-offenses analysis depends on defendant’s conduct; Ruff framework applies)
State v. Ruff, 143 Ohio St.3d 114 (2015) (three-part test for allied offenses of similar import: dissimilar import, separate commission, or separate animus)
State v. Underwood, 124 Ohio St.3d 365 (2010) (trial court must merge allied offenses at sentencing; plea does not waive duty to merge)
State v. Rogers, 143 Ohio St.3d 385 (2015) (plain-error standard for failure to merge when not raised at trial)
State v. Anderson, 143 Ohio St.3d 173 (2015) (no-contact orders constitute community-control sanctions and cannot be imposed in addition to prison terms)
State v. Moss, 69 Ohio St.2d 515 (1982) (harm-based approach to whether offenses are of dissimilar import)
Barnes v. State, 94 Ohio St.3d 21 (2002) (plain-error framework requiring obvious error that affected substantial rights)
United States v. Benitez, 542 U.S. 74 (2004) (plain-error review requires reasonable probability of prejudice)