State v. Marlow
2013 Ohio 778
Ohio Ct. App.2013Background
- Marlow pled guilty to voyeurism and illegal use of a minor in nudity-oriented material, both fifth-degree felonies, after concealing a pen camera to record his minor sister-in-law nude for sexual gratification.
- The recording was initially described as stored on a laptop or SD card; later proceedings clarified the image resided on the SD card with no evidence of transfer or viewing on the computer.
- At sentencing, the court classified Marlow as a Tier I sex offender, explained registration duties, and imposed three years of community control, with threats of concurrent prison terms for violations.
- The court ordered destruction of the flash drive and pen camera used by Marlow; the computer was not destroyed.
- On appeal, Marlow argued (1) plain error in not merging allied offenses and (2) ineffective assistance of counsel; the court addressed the issues in reverse order and ultimately remanded for resentencing, holding the offenses were allied and should have been merged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the offenses were allied and required merger | Marlow contends voyeurism and illegal use are allied offenses of similar import | State contends no merger was required? (implicit) | Allied offenses; plain error; merger required; remand for resentencing with state's election |
| Effectiveness of counsel for merger/Double Jeopardy issues | Counsel failed to raise merger and double jeopardy concerns | Counsel’s performance deficient; but no prejudice shown | Moot due to plain-error merger ruling; no reversal on Double Jeopardy grounds at this stage |
Key Cases Cited
- State v. Underwood, 124 Ohio St.3d 365 (2010-Ohio-1) (plain-error framework for allied offenses—merger required when same conduct and same state of mind)
- State v. Luong, 2012-Ohio-4519 (2012-Ohio-4519) (recognition of allied offenses under Johnson test)
- State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (two-step test for allied offenses: same conduct; same act and state of mind)
- State v. Raber, 2012-Ohio-5636 (2012-Ohio-5636) (double-jeopardy considerations with SB 10 classifications; classification as Tier I within sentencing does not always violate DJ)
- State v. Williams, 129 Ohio St.3d 344 (2011-Ohio-3374) (SB 10 punitive implications for sex-offender classifications)
- Pollis v. State, 2009-Ohio-5058 (11th Dist.) (double-jeopardy considerations in sex-offender classifications)