State v. Holloway, 2013 Ohio 4400

Holloway was convicted in two cases in 2004: trafficking and possession of crack cocaine, plus heroin in one case and weapons charges plus heroin and crack cocaine in another.
Sentences in 2004-CR-527 included prison terms for trafficking (4 years), possession (7 years), heroin (18 months); 04-CR-586 terms included weapon and related counts with various concurrent/consecutive terms; all cases ran consecutively overall.
On appeal, this court previously reversed some convictions and remanded for resentencing under Foster v. Ohio, then later entertained further appellate proceedings after new counsel was appointed.
At remand in 2010, Holloway’s trial counsel admitted unfamiliarity with the case; Holloway spoke at the hearing, requesting sentence reductions corresponding to prior reversals.
The trial court resentenced by reducing total time for reversed convictions and ordering remaining sentences to run consecutively to a separate 17-month term from a different case; post-release-control language was added in 2010.
The State conceded merger error for the crack cocaine counts in 2004-CR-527; the appellate court later addressed merger, consecutive-sentence issues, and the ineffective-assistance claim on remand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Trafficking and Possession of Crack Cocaine merged for sentencing	Holloway argues no merger; the counts charged with identical crack cocaine should merge.	Holloway contends no merger or improper sentencing structure.	Merger required; counts should be merged for sentencing.
Whether the consecutive sentences were appropriate	The State contends consecutive terms were proper given sentencing statutes and factors.	Holloway argues errors in imposing or reasoning for consecutive sentences.	Not an abuse of discretion; consecutive sentences upheld absent merger.
Whether Holloway was denied effective assistance of counsel at re-sentencing	Holloway claims lack of counsel familiarity denied right to counsel and affected outcome.	State contends counsel’s lack of familiarity did not likely affect the outcome.	First assignment overruled; lack of familiarity did not likely affect outcome.
Remand procedure and State’s election after merger	Remand should amend sentence without requiring State to elect; maintain challenged structure.	State should be allowed to elect which conviction survives merger.	Remanded for State to elect which conviction survives merger and for resentencing.

State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (remand for resentencing under Foster framework; no required trial-court findings for consecutive sentences)
State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (structure for reviewing felony sentences; determine lawful versus contrary-to-law)
State v. Mathis, 109 Ohio St.3d 54 (2006-Ohio-855) (requires consideration of sentencing policies; informs consecutive-sentence analysis)
Strickland v. Washington, 466 U.S. 668 (1984) (ineffective-assistance standard requiring deficient performance and prejudice)
Hufman v. Hair Surgeon, Inc., 19 Ohio St.3d 83 (1985) (definition of abuse of discretion and standard of review)