State v. Hicks, 2011 Ohio 2780

Hicks was convicted of kidnapping and felonious assault with a deadly weapon in Cuyahoga County CP No. CR-533926; co-defendant Blackman was separately tried and convicted of related counts.
The trial court sentenced Hicks and Blackman to four years on each guilty count, to run concurrently, and stated initially that the charges were not allied offenses.
Hicks was convicted on two counts (kidnapping and felonious assault) while the jury acquitted him of other charges; the court later treated the two offenses as non-merged and ordered concurrent sentences.
The court found the kidnapping and felonious assault did not merge, noting separate animus for the two offenses, and included court costs in the sentencing entry without a prior waiver discussion.
Hicks contends the two offenses are allied offenses to be merged under Johnson-based analysis; Hicks also challenges the imposition of court costs without indigency procedures.
This court reverses, vacates the sentences, and remands for merger-based sentencing and for an opportunity to address court costs per indigency rules.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are kidnapping and felonious assault allied offenses requiring merger?	Hicks argues the offenses share the same conduct and lack separate animus.	State contends separate animus exists due to protracted restraint and increased risk.	Yes; the trial court erred by not merging the offenses; restraint was incidental to assault and did not show separate animus.
Was the imposition of court costs proper given Hicks’s indigency?	Hicks did not have a chance to seek waivers due to lack of oral notification.	Costs can be imposed if properly entered; indigency waivers are separate.	Second assignment sustained; remand to allow indigency waiver proceedings at sentencing.

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 (Ohio, 2010) (two-tier allied-offenses framework; conduct as lynchpin of merger analysis; separate animus focus)
State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (Ohio, 1979) (prolonged restraint/secretive confinement as indicators of separate animus)
State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836 (Ohio, 2004) (restraint creating substantial risk of harm can sustain separate convictions)
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923 (Ohio, 2010) (refines Johnson two-tier analysis; case-by-case evaluation)
State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106 (Ohio, 2009) (plain-error standards and allied offenses framework)
State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182 (Ohio, 2010) (requires reversal and remand for proper allied-offenses sentencing)