State v. McDowell, 2014 Ohio 3900

On May 16, 2012, Dwight Fish was assaulted outside a CVS, suffered injuries, and had $43 taken; he identified Durell McDowell from a photo array.
McDowell was indicted on aggravated robbery (R.C. 2911.01), robbery (R.C. 2911.02), intimidation (R.C. 2921.04(B)), and firearm specifications (R.C. 2941.145); a jury convicted him of aggravated robbery, robbery, and intimidation but acquitted him of the gun specification.
The trial court merged robbery counts for sentencing, imposed seven years for the underlying offenses, and added a consecutive one-year term for violating post-release control.
McDowell appealed, raising six assignments of error challenging the aggravated-robbery verdict consistency with the gun specification acquittal, restitution procedure, post-release-control sentencing, and counsel effectiveness.
The Court of Appeals affirmed in part, reversed in part (ordering correction of restitution procedure), and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether aggravated-robbery conviction must be vacated because jury acquitted on firearm specification	McDowell: jury inconsistency requires acquittal of aggravated robbery	State: principal offense and specification are independent; inconsistency not reversible	Court: Rejected McDowell; inconsistency between count and specification is not grounds for reversal
Whether court erred by ordering restitution without announcing it in open court	McDowell: restitution ordered in written sentencing but not announced at sentencing hearing	State: restitution was authorized and imposed properly	Court: Sustained McDowell; statute requires restitution be ordered in open court
Whether imposition of one-year post-release-control prison term required jury finding beyond reasonable doubt	McDowell: fact of post-release-control status must be found by jury under Apprendi/Blakely	State: R.C. 2929.141 authorizes separate sanction; fact is like prior conviction and procedural notice suffices	Court: Overruled McDowell; post-release-control sanction lawful and not subject to jury finding requirement
Whether counsel was ineffective for not objecting to post-release-control sentencing	McDowell: counsel deficient for not objecting	State: no meritorious objection existed because sentence was lawful	Court: Overruled McDowell; no deficient performance because no error occurred

State v. Brown, 12 Ohio St.3d 147 (1984) (inconsistent verdicts across separate counts do not necessarily require reversal)
U.S. v. Powell, 469 U.S. 57 (1984) (jury verdicts can be inconsistent; appellate reversal not required solely for inconsistency)
State v. Gardner, 118 Ohio St.3d 420 (2008) (guilty of offense but acquitted of predicate offense does not alone mandate reversal)
State v. Perryman, 49 Ohio St.2d 14 (1976) (specifications considered after and in addition to principal offense)
State v. Kalish, 120 Ohio St.3d 23 (2008) (two-step appellate review of felony sentences)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing maximum punishment must be found by a jury except prior convictions)
Blakely v. Washington, 542 U.S. 296 (2004) (limitations on judge-found facts increasing sentences)
State v. Foster, 109 Ohio St.3d 1 (2006) (Ohio sentencing statutes and post-Apprendi analysis)
State v. Jordan, 104 Ohio St.3d 21 (2004) (procedural protections re: post-release control consequences at original sentencing)
State v. Hunter, 123 Ohio St.3d 164 (2009) (prior convictions and recidivism as traditional bases for increased sentence)
State v. Hill, 92 Ohio St.3d 191 (2001) (plain-error analysis starting point)
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980) (appellate record omissions lead to presumption of regularity)