State v. Hurst, 2013 Ohio 4016

Defendant Michael Hurst was convicted on eleven counts of illegal use of a minor in nudity-oriented material or performance under R.C. 2907.323(A)(1), eleven counts under R.C. 2907.323(A)(3), and tampering with evidence (R.C. 2921.12(A)(2).
He received a combined prison term of twenty-six and one-half years across these counts.
This court previously affirmed his convictions and sentences, then reopened the direct appeal to address whether the trial court erred by imposing separate sentences for allied offenses.
The Johnson decision announced a new allied-offenses test; the trial court did not apply that test at sentencing because the decision had not yet been released.
The record shows the sentencing discussion barely addressed allied offenses, with only a request for concurrent sentences among possession/transfer counts.
The appellate court vacated the consecutive sentences on the eleven transfer and eleven possession counts and remanded for reconsideration under Johnson.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the transfer and possession offenses allied offenses of similar import?	Hurst argues they arose from the same conduct and should merge.	Hurst asserts merger under Johnson test applies to these offenses.	Remand to apply Johnson; merger determined on remand.

State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (set forth allied offenses test; require pre-sentencing assessment)
State v. Grube, 2013-Ohio-692 (Ohio Ct. App.3d) (remand for allied-offenses determination when Johnson applies)
State v. Delawder, 2012-Ohio-1923 (4th Dist.) (remand guidance on allied offenses considerations)