State v. Lung
2015 Ohio 3833
Ohio Ct. App.2015Background
- Defendant Travis R. Lung was indicted on two counts of rape alleged to have occurred between Dec. 25, 2012 and May 13, 2013 involving a four‑year‑old victim. The indictment originally included a life‑specification on one count.
- Lung entered a plea agreement and pled guilty to two counts of rape under R.C. 2907.02(A)(2); the State removed the life specification and agreed to a joint recommended cap of 15 years.
- As part of the plea, the parties (and defense counsel) expressly agreed the two offenses were separate incidents and would not be challenged as allied offenses of similar import.
- At sentencing the trial court found the statutory criteria for consecutive sentences under R.C. 2929.14(C)(4) and imposed two consecutive seven‑year terms (aggregate 14 years).
- The trial court made the necessary findings orally at the hearing but the written judgment entry failed to incorporate those R.C. 2929.14(C)(4) findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the two rape convictions are allied offenses of similar import requiring merger | State: Offenses occurred on separate days; plea waived allied‑offense challenge | Lung: The counts are multiplicious and violate double‑jeopardy; should merge | Court: Overruled — plea and record show separate occasions and Lung waived the allied‑offense challenge |
| Whether imposition of consecutive sentences was contrary to law | State: Trial court made required findings at hearing and consecutive terms were proper | Lung: Consecutive sentences improper because record doesn’t support multiple offenses and the judgment entry omitted the statutory findings | Court: Affirms imposition of consecutive terms on the merits but reverses in part and remands to correct the written entry by nunc pro tunc to include the R.C. 2929.14(C)(4) findings |
Key Cases Cited
- State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995 (sets the three‑factor allied‑offenses Ruff test: conduct, animus, import)
- State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177 (oral findings at sentencing suffice if reflected in the record; clerical omission in entry may be corrected nunc pro tunc)
- State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636 (double jeopardy and allied‑offense principles)
- State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1 (defendant may waive allied‑offense protections by plea stipulation)
- State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415 (guilty plea admits the factual allegations and substantive crimes)