State v. Penwell, 2012 Ohio 5872

Penwell was convicted by jury of aggravated murder, murder, aggravated robbery, tampering with evidence, and weapon under disability with related firearm specifications.
The offenses stem from the April 22, 2010 robbery and murder of Abdulmahdi Al-Garawi in Summit County, Ohio.
The trial court sentenced Penwell to 50 years to life and ordered solitary confinement on April 22 each year.
On direct appeal, the weight of the evidence claim was affirmed; Penwell later successfully sought a Rule 26(B) reopening alleging ineffective assistance of appellate counsel.
This appeal challenges (1) merger of aggravated murder and aggravated robbery, (2) legality of annual solitary confinement, and (3) effectiveness of prior appellate counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Should aggravated murder and aggravated robbery merge as allied offenses?	Penwell argues merger under R.C. 2941.25 (Johnson).	State concedes remand to apply Johnson; failure to merge previously was error.	Remand to determine whether allied offenses exist; Johnson applies.
Is the annual April 22 solitary-confinement requirement lawful?	Penwell contends the sentence imposes unauthorized punishment.	State concedes the solitary-confinement portion must be vacated.	Vacate the solitary-confinement provision.
Did appellate counsel provide ineffective assistance by not raising these issues earlier?	Penwell asserts failure to raise merger and solitary-confinement issues prejudiced him.	State contends no prejudice or deficient performance proven.	Appellate counsel deficient; prejudice shown; prior judgment vacated; remand.

State v. Underwood, 124 Ohio St.3d 365 (2010-Ohio-1) (plain error in failing to merge allied offenses)
State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (conduct-based allied-offenses analysis; merger when same conduct)
State v. Brown, 119 Ohio St.3d 447 (2008-Ohio-4569) (same conduct test for allied offenses; single act, single state of mind)