State v. Lavender, 2013 Ohio 2508

Michael Lavender pleaded guilty to felonious assault (R.C. 2903.11(A)(2)), improper discharge of a firearm at/into a habitation (R.C. 2923.161(A)(1)), and voluntary manslaughter, each with firearm specifications, for shooting into J.T.’s residence after being instructed to do so.
The bill of particulars stated Lavender fired three rounds into J.T.’s home after J.T. opened the door; the state relied on that single series of shots to support both the felonious-assault and improper-discharge counts.
The trial court imposed an aggregate 28-year prison term.
Lavender appealed, raising two sentencing errors: (1) excessive sentence on the firearm specification to the improper-discharge count; and (2) error in imposing separate sentences for improper discharge and felonious assault.
The appellate court reviewed allied-offense issues de novo under R.C. 2941.25 and analyzed whether the two counts were the product of the same conduct, committed separately, or committed with separate animus.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether improper discharge and felonious assault are allied offenses under R.C. 2941.25	State relied on single series of shots to prove both offenses, so offenses are distinct because statutes differ	Lavender argued the state relied on the same conduct for both counts, so they are allied and cannot be separately sentenced	The offenses were committed with the same conduct, not separately, and with the same animus; they are allied under R.C. 2941.25, so separate sentences for both were erroneous
Whether the offenses were committed separately (temporal/spatial separation)	State implied multiple harms justified separate convictions	Lavender argued shots were a single, continuous act focused on injuring J.T.	Court found temporal/spatial proximity indicated a single continuous act, not separate acts
Whether there was separate animus for each offense	State contended shooting into an occupied dwelling supports both offenses	Lavender contended his immediate motive was solely to shoot J.T., not to ‘shoot up’ the house	Court concluded animus was the same—aimed at J.T.—so no separate animus existed
Remedy for sentencing error	State urged affirmance or resentencing consistent with its election	Lavender sought vacatur of one sentence and remand for resentencing	Court vacated Lavender’s sentences for improper discharge and felonious assault and remanded for resentencing per the state’s election; other issues not ripe or otherwise affirmed

State v. Johnson, 942 N.E.2d 1061 (Ohio 2010) (same-conduct inquiry for allied-offense analysis)
State v. Williams, 983 N.E.2d 1245 (Ohio 2012) (de novo review of allied-offense sentencing under R.C. 2941.25)
State v. Bickerstaff, 461 N.E.2d 892 (Ohio 1984) (elements of allied-offense framework)
State v. Whitfield, 922 N.E.2d 182 (Ohio 2010) (remedy and election procedure on allied-offense resentencing)