State v. Kelley, 2013 Ohio 1899

Kelley pled guilty to six counts: two counts of aggravated vehicular homicide, three counts of aggravated vehicular assault, and one count of driving while under the influence (DUI).
The trial court imposed a total of 31 years in prison, consecutive on each count, plus a life license suspension and postrelease control.
An earlier appeal was dismissed for lack of a final appealable order because Count 13 DUI was not properly sentenced.
A resentencing hearing on Count 13 DUI resulted in a six-month sentence to be served concurrent with prior sentences, plus a mandatory fine; final judgment followed.
The State conceded that DUI was allied with the AGH and A vehicular assault convictions, though AGH and A vehicular assault were not allied offenses with DUI.
The court vacated Kelley’s sentence and remanded for a new sentencing hearing, requiring the State to elect which offenses to pursue for sentencing, and for the trial court to merge offenses as appropriate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Do the allied offenses require merger and a new sentencing hearing?	State elects to pursue AGH/AVA; seeks adjusted sentence without remand.	Kelley’s DUI is allied; merger required; fairness in sentencing.	Yes; all convictions affected; remand for new sentencing with State election and proper merger.
Was the 31-year sentence for proportionate and legally proper?	Sentence consistent with offender and offenses; HB 86 not retroactive for pre-enactment sentencing.	Sentence excessive relative to similar offenders; ineffective assistance claim.	No; no explicit Kalish/Foster findings; on remand, proportionality concerns can be revisited.
Did Kelley receive ineffective assistance of counsel regarding proportionality?	Counsel should have argued proportionality at sentencing.	No prejudice shown; no proof sentence was disproportionately long.	Overruled; no demonstrated prejudice; ineffective-assistance claim fails.
What is the proper remedy on remand when allied offenses are involved?	State may select offenses; court should merge remaining offenses per Whitfield.	Not applicable; focus on appropriate sentence for chosen offenses.	Remand for new sentencing; State to elect offenses; merge as required and impose appropriate sentence.

State v. Wilson, 129 Ohio St.3d 214 (2011-Ohio-2669) (remand for new sentencing after allied-offenses error; state elects offenses)
State v. Saxon, 109 Ohio St.3d 176 (2006-Ohio-1245) (distinguishes de novo review scope in Fasson-type errors)
State v. Whitfield, 124 Ohio St.3d 319 (2010-Ohio-2) (trial court must accept state’s selection and merge offenses for sentencing)
State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (two-prong review of sentencing: legality and abuse of discretion)
State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (judicial discretion in sentencing within statutory bounds)
State v. Beard, 8th Dist. Nos. 84779 and 84780, 2005-Ohio-3417 (2005-Ohio-3417) (contrast in proportionality considerations for similar offenses)
State v. Moore, 8th Dist. No. 85451, 2005-Ohio-4699 (2005-Ohio-4699) (reversal for improper consecutive-sentence findings; remand for proper sentencing)