State v. Hess, 2023 Ohio 3658

Urbana police executed a search warrant at 333 E. Court St.; appellant Jimie A. Hess met officers at the door and pointed them to a basement bedroom.
In the basement bedroom officers found prescription bottles and mail in Hess’s name, a metal pipe on a nightstand, a glass “bubbler” pipe in a cubby, and a plastic baggie containing 1.63 grams of methamphetamine.
Hess was indicted on three counts of aggravated possession of drugs (one for each item) and the parties stipulated those items contained methamphetamine.
A jury convicted Hess on all three counts. The trial court imposed 12 months on each count, with two counts concurrent and the third consecutive, for an aggregate 24‑month prison term.
On appeal Hess argued (1) the three convictions were allied offenses that should have merged, and (2) his aggregate sentence was excessive and the consecutive term was improper.
The appellate court affirmed, rejecting Hess’s plain‑error merger claim and finding the trial court lawfully imposed consecutive sentences based on Hess’s criminal history and statutory findings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the three aggravated‑possession counts are allied offenses requiring merger	State: offenses need not merge because conduct could be separate or show separate animus	Hess: all charges arose from the same drug, same date, same room and should merge	Court: under plain‑error review, error not obvious; could not rule offenses were not separate—no merger reversed
Whether the 24‑month aggregate sentence (including one consecutive 12‑month term) was improper or excessive	State: sentence within statutory range; trial court considered R.C. 2929.11/2929.12 and properly found consecutive sentences warranted by criminal history	Hess: R.C. 2929.12 seriousness/recidivism factors do not support prison or consecutive term; sentence is excessive	Court: sentence not contrary to law; consecutive term permissible under R.C. 2929.14(C)(4) and supported by defendant’s prior convictions; affirmed

State v. Ruff, 34 N.E.3d 892 (Ohio 2015) (articulates allied‑offenses/merger test and conduct/animus/import analysis)
State v. Williams, 983 N.E.2d 1245 (Ohio 2012) (standard of review for merger determinations)
State v. Marcum, 59 N.E.3d 1231 (Ohio 2016) (R.C. 2953.08(G) standard for appellate review of felony sentences)
State v. Rogers, 38 N.E.3d 860 (Ohio 2015) (plain‑error framework discussed in merger context)
State v. Jones, 169 N.E.3d 649 (Ohio 2020) (limits appellate reweighing under R.C. 2953.08(G) for sentences based on 2929.11/2929.12)
State v. Barnes, 759 N.E.2d 1240 (Ohio 2002) (elements of plain‑error doctrine are conjunctive)