State v. Mowery, 2011 Ohio 1709

Defendant Brandon Mowery was indicted on August 7, 2009 on multiple counts including two counts of aggravated arson, arson, retaliation, intimidation, trafficking, and aggravated menacing in Fairfield County, Ohio.
At arraignment, Mowery pleaded not guilty to the indictment.
On March 23, 2010, Mowery withdrew his not guilty plea and pleaded guilty to one count of complicity to commit arson, one count of retaliation, and one count of menacing; remaining counts were dismissed.
A judgment entry dated April 22, 2010 imposed sentences of 18 months (arson), five years (retaliation), and six months (aggravated menacing), all to run consecutively to each other and to a prior sentence in another matter, with restitution ordered.
Mowery was placed on three years of mandatory post-release control for retaliation, a third-degree felony.
On appeal, the judgment was challenged on the admissibility of consecutive sentences and the merger of allied offenses, leading to a remand for Johnson-based analysis on merger.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Consecutive sentences—were the findings proper?	Mowery argues the court failed to make required findings for consecutive sentencing or those findings were unsupported.	Mowery contends findings were insufficient or not properly supported in the record.	Sentence affirmed; no violation of law in imposition of consecutive terms.
Allied offenses—are retaliation and aggravated menacing allied offenses requiring merger?	State contends plea and record waive merger concerns; Johnson later overruled prior Rance framework.	Mowery maintains the two offenses may be allied and should merge at sentencing.	Remanded for new sentencing to analyze conduct under Johnson and potential merger.

Kalish, 120 Ohio St.3d 23 (Ohio 2008) (post-Foster discretion to impose within range; not require findings for max/consecutive sentences)
State v. Foster, 109 Ohio St.3d 1 (Ohio 2006) (court found unconstitutional judicial-fact findings for sentencing; replacements in Kalish framework)
State v. Payne, 114 Ohio St.3d 502 (Ohio 2007) (limitations after Foster on sentencing review)
State v. Mathis, 109 Ohio St.3d 54 (Ohio 2006) (reaffirmed statutory factors guiding sentencing post-Foster)
State v. Hodge, 2010-Ohio-6320 (Ohio 2010) (Oregon v. Ice does not revive former consecutive-sentencing provisions)
State v. Johnson, --- N.E.2d ---- (Ohio 2010) (overruled Rance on allied offenses; conduct-based merger analysis required)
State v. Cabrales, 118 Ohio St.3d 54 (Ohio 2008) (elements-based abstract comparison for allied offenses of similar import)
State v. Rance, 85 Ohio St.3d 632 (Ohio 1999) (defined allied offenses of similar import via abstract element comparison)
State v. Blankenship, 38 Ohio St.3d 116 (Ohio 1988) (two-tiered fusion test for allied offenses (animus and separate conduct))