Background

• Defendant shot David Driscoll five times in the early morning hours of February 7, 2009 at a Dayton Marathon gas station; Driscoll died at the scene from multiple gunshot wounds.
• Defendant was convicted after a jury trial of purposeful murder (R.C. 2903.02(A)), felony murder (R.C. 2903.02(B)), felonious assault - deadly weapon (R.C. 2903.11(A)(2)), felonious assault - serious physical harm (R.C. 2903.11(A)(1)), improper handling of a firearm in a motor vehicle (R.C. 2923.16(B)), and multiple firearm specifications (R.C. 2941.145).
• At sentencing, the trial court merged the two murder counts, merged the two felonious assaults, and merged all five firearm specifications, imposing total prison terms of 26 years to life, but did not merge felony murder with felonious assault - deadly weapon.
• On direct appeal, this court affirmed in part and reversed in part, vacating the sentences for felony murder and felonious assault - deadly weapon and remanding to merge those offenses and resentence accordingly.
• The Ohio Supreme Court later vacated our judgment concerning the second assignment of error and remanded for application of State v. Johnson.
• This court now decides the allied offenses issue under Johnson, determining that felony murder and felonious assault - deadly weapon are allied offenses and must merge; the case is remanded for a new sentencing hearing after the State selects the remaining allied offense.

Issues

Key Cases Cited

• State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (test for allied offenses based on same conduct and single act/single state of mind)
• State v. Wilson, 129 Ohio St.3d 214 (2011-Ohio-2669) (remand on allied-offense merger following Johnson)