State v. Howard-Ross
2016 Ohio 1438
Ohio Ct. App.2016Background
- Derrick Howard-Ross fired multiple shots through a house window, striking a male victim; the female occupant and her toddler daughter were also present.
- He was convicted of discharging a firearm into a habitation (R.C. 2923.161) and felonious assault (R.C. 2903.11) plus two firearm specifications; sentences were ordered consecutively for an aggregate 19 years.
- On direct appeal, this court affirmed his convictions and sentence.
- Howard-Ross filed a timely App.R. 26(B) application arguing ineffective assistance of appellate counsel for failing to raise that the improper-discharge and felonious-assault counts are allied offenses that should merge.
- The trial court had found separate victims for the offenses (male victim for felonious assault; female and daughter for discharge), and the state relied on the Ohio Supreme Court’s decision in Ruff to argue offenses against multiple victims are not allied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not arguing merger of improper discharge and felonious assault as allied offenses | State: Offenses involved multiple victims, so harms are separate and offenses are not allied under Ruff | Howard-Ross: Both convictions arose from the same conduct (shots fired) and same intent toward the male victim, so offenses should merge under Johnson | Denied — counsel not deficient; offenses not allied because conduct victimized multiple persons per Ruff |
Key Cases Cited
- State v. Ruff, 34 N.E.3d 392 (Ohio 2015) (when conduct victimizes multiple persons, the harm to each is separate and offenses do not merge)
- State v. Johnson, 942 N.E.2d 1061 (Ohio 2010) (prior merger test considering whether offenses can be committed by the same conduct and were part of same act)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)