State v. Johnson, 2014 Ohio 4253

Johnson was convicted in Youngstown Municipal Court of two misdemeanor assault counts, obstructing official business, and resisting arrest arising from a March 30, 2011 traffic stop.
State re-filed three charges on March 15, 2012, duplicating two assault counts (misdemeanor) and resisting arrest; Johnson waived speedy trial and demanded a jury trial.
Johnson and Weston jointly challenged prosecutorial vindictiveness and alleged improper prosecutorial conduct at trial.
The trial court admitted evidence of Johnson’s prior conduct and civial actions against officers; there were contested cross-examination questions and closing arguments.
The appellate court affirmed convictions, reversed the resisting arrest conviction for sentencing merger, remanded for resentencing, and affirmed the obstructing official business conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vindictive prosecution presumption invoked?	Johnson argues re-filing after jury demand shows vindictive motive.	Johnson contends the re-filing was retaliatory for protected rights.	No presumption of vindictiveness; overruled.
Plain error in cross-examination and closing?	Johnson asserts improper cross-exam and inflammatory closing.	State asserts improper but not plain error; evidence supports convictions.	No plain error; no reversal for those issues.
Effective assistance of counsel?	Johnson claims counsel failed to object to cross and closing and speedy-trial motions.	Counsel's performance was adequate; no prejudice shown.	No ineffective assistance; convictions upheld.
Speedy-trial violation?	Johnson contends delays violated R.C. 2945.71.	Delays tolled by motions and waivers; time calculations favor State.	No speedy-trial violation; not reversible.
Allied offenses and merger for sentencing?	Resisting arrest and one assault should merge with the other assault.	Offenses were committed with separate animus; may be separate sentences.	Allied offenses must merge; remand for merger and resentencing.

Thigpen v. Roberts, 468 U.S. 27 (U.S. 1984) (presumption of vindictiveness applies pretrial in some contexts)
Blackledge v. Perry, 417 U.S. 21 (U.S. 1974) (presumption of vindictiveness after appeal limited to post-appeal context)
United States v. Goodwin, 457 U.S. 368 (U.S. 1982) (pretrial discretion; no presumption of vindictiveness before trial)
State v. Semenchuk, _ (2011) (discusses pretrial refiling and vindictiveness considerations (paper cites 8th Dist case))
State v. Johnson, 128 Ohio St.3d 153 (2010) (two-part merger test for allied offenses (similar import))
State v. Freeman, 7th Dist. No. 12 MA 112, 2014-Ohio-1013 (2014) (applies Johnson two-part test for allied offenses)
State v. Logan, 60 Ohio St.2d 126 (1979) (animus concept for merger under R.C. 2941.25)
State v. Williams, 134 Ohio St.3d 482 (2012) (de novo review of merger determinations)
State v. Agee, 7th Dist. No. 12 MA 100, 2013-Ohio-5382 (2013) (illustrates merger considerations in sentencing)
State v. Bickerstaff, 7th Dist. No. 09 JE 33, 2011-Ohio-1345 (2011) (merger principles applied in sentencing context)
State v. Adams, 43 Ohio St.3d 67 (1989) (speedy-trial waiver effect on subsequent charges)
State v. Clark, 11th Dist. No. 2007-L-139, 2008-Ohio-2760 (2008) (speedy trial clock on lesser offenses begins anew on service of lesser-charge summons)
State v. Canty, 7th Dist. No. 08-MA-156, 2009-Ohio-6161 (2009) (speedy-trial clock in subsequent charges)