State v. Kolvek, 2017 Ohio 9137

Background

In April 2015 police searched two houses (Archwood Ave. and Stanley Rd.) and seized materials used to manufacture methamphetamine; days later Kolvek was arrested attempting to buy Sudafed and was indicted on additional related charges.
Kolvek was indicted on counts including illegal manufacture of drugs, illegal assembly/possession of chemicals for manufacture, aggravated possession, and violations of community control from prior cases; the indictments were consolidated and tried together.
A jury found Kolvek guilty on the consolidated counts; the trial court revoked judicial release on prior cases and reimposed those prior sentences, then sentenced Kolvek to 12 years on the new convictions to run consecutively to prior terms.
Kolvek appealed raising five assignments of error: duplicitous indictment, allied-offenses/merger at sentencing, improper joinder of indictments for trial, discrepancy between oral sentence and journal entries on community-control revocation, and vague restitution order/no hearing.
The Court of Appeals affirmed on all assignments (majority), finding no reversible error under the applicable standards (and Kolvek conceded/failed to preserve some issues); one concurring/dissenting judge would reverse as to a sentencing concurrency/ordering issue in the prior 2010 cases.

Issues

Issue	Kolvek's Argument	State's Argument	Held
1. Indictment duplicitous / inadequate notice	Indictment tied counts to Archwood only; did not inform him charges also arose from Stanley Rd., creating duplicity and notice problems	Indictment contained elements and listed Summit County; not required to specify precise locations; Kolvek did not request bill of particulars or timely raise duplicity	Overruled. Indictment met constitutional requirements; duplicity claim forfeited and no plain-error showing; no dismissal required
2. Sentencing — allied offenses / merger	Counts for illegal assembly (spanning both houses) should merge with illegal manufacturing (Archwood) because jury may have relied on same conduct	Evidence supported separate illegal-assembly conduct at Stanley Rd.; therefore dissimilar/separate conduct under R.C. 2941.25(B) so no merger	Overruled. No reasonable probability convictions arose from same conduct without separate animus; plain-error review fails
3. Joinder of April and May indictments for trial	Consolidation prejudiced him because circumstantial evidence tied him to labs while May arrest had Sudafed near him increasing jury prejudice	Law favors joinder; evidence for each incident was simple, direct, and separable; State could have used evidence as other-acts; Kolvek did not move to sever (plain-error review)	Overruled. No obvious prejudice; no plain error shown
4. Sentence discrepancy — oral pronouncement vs journal entries on reimposed prior terms	Court orally stated he would serve "whatever may remain" (time left); journal entries reimposed full original terms (appears longer) causing due-process problem	When judicial release is revoked the court may reimpose original sentences; journal entries consistent with reimposition and credit for time served applies; not inconsistent	Overruled by majority. Trial court properly reimposed original sentences under R.C. 2929.20(K). (Concurring judge would remand on concurrency ordering issue)
5. Restitution vagueness / no hearing	Trial court imposed vague restitution without determining amount or ability to pay	Kolvek conceded this issue is foreclosed by controlling Ninth District precedent	Overruled. Issue conceded and foreclosed by precedent

Key Cases Cited

State v. Jackson, 134 Ohio St.3d 184 (indictment must contain elements and fairly inform defendant)
State v. Childs, 88 Ohio St.3d 558 (same: indictment notice requirements)
State v. Ruff, 143 Ohio St.3d 114 (interpretation of R.C. 2941.25(B) — dissimilar import/separate animus rules)
State v. Washington, 137 Ohio St.3d 427 (R.C. 2941.25 as codification of merger doctrine)
State v. Rogers, 143 Ohio St.3d 385 (plain-error standard for allied-offense sentencing issues)
State v. Schaim, 65 Ohio St.3d 51 (three-part burden to show prejudice from joinder)
State v. Roberts, 62 Ohio St.2d 170 (jury capable of segregating proof where evidence is simple and direct)
State v. Johnson, 46 Ohio St.3d 96 (unanimity instruction as remedy for duplicity)
State v. Thompson, (Ohio App. citation in opinion) (discussing reimposition after revocation under R.C. 2929.20(K))
State v. Moreland, (Ohio App. citation in opinion) (Ninth District precedent on restitution issues)