State v. Linde
2012 Ohio 2885
Ohio Ct. App.2012Background
- Linde was indicted in June 2011 for aggravated robbery, aggravated burglary, and possessing criminal tools; he pled guilty to the first two counts, the tools count was dismissed.
- The trial court imposed an aggregate 15-year prison term.
- Linde appealed asserting three errors; the second assignment is dispositive.
- Ohio Supreme Court in Johnson announced a new test for allied offenses; Johnson was decided before sentencing.
- The panel remanded for the trial court to apply Johnson and determine allied-offense merger, and to allow the State to elect the sentence if merged.
- The court declined to rule on the remaining assignments until the allied-offense issue is resolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not holding a hearing on allied offenses | Linde on allied-offense merger | State preserved no explicit position in opinion, but argued for proper consideration | Remand to apply Johnson for allied-offense determination |
| Whether consecutive sentences were proper under HB 86 | Linde argues improper consecutive sentencing | State argues HB 86 constraints applied | Moot if offenses merge; no ruling on merit |
| Whether sentencing considered proportionality for similarly situated first-time offenders | Linde contends lack of proportionality | State argues standard sentencing factors apply | Moot if merger renders assignment moot |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314 (Ohio Supreme Court, 2010) (new test for allied offenses)
- State v. Edwards, 9th Dist. No. 25679, 2012-Ohio-901 (Ninth Dist. Ohio App., 2012) (requires Johnson analysis on allied offenses)
- Louthan v. Akron, No. 23351, 2007-Ohio-241 (Ninth Dist., 2007) (avoids advisory opinions; relevance to appellate rulings)