State v. Phillips, 2013 Ohio 1443

Appellant Kenny Phillips was convicted after a jury trial of multiple counts including four counts of attempted murder, several counts of felonious and attempted felonious assault, felonious assault of a police officer, attempted felonious assault of a police officer, and inducing panic; multiple firearm specifications were also charged.
Initial sentence totaled 92 years plus 5 years postrelease control; restitution unresolved on direct appeal.
On direct appeal, this court remanded for merger of allied offenses and for resentencing consistent with the State’s elections, leaving most convictions intact.
On remand, trial court resentenced Phillips to 65 years, plus 5 years postrelease control, with the prior verdicts preserved.
Phillips challenges (1) whether four attempted-murder convictions should have merged as allied offenses, and (2) whether the 65-year total sentence is grossly disproportionate or inconsistent with a codefendant’s sentence.
This appeal concerns the propriety of the resentencing order and the court’s application of allied-offense doctrine and sentencing standards.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether four attempted murder convictions merged as allied offenses.	Phillips	Phillips contends multiple attempts against different victims were the same act with a single animus	Not-merger affirmed: separate animus per victim; not allied offenses.
Whether the sentence is grossly disproportionate or inconsistent with codefendant.	Phillips	Phillips argues unequal, excessive sentence given similar conduct to Sutton	Sentence affirmed: consistent with statutory guidelines and not clearly and convincingly contrary to law.

State v. Collins, 8th Dist. No. 97496, 2012-Ohio-3687 (2012) (res judicata barred allied-offense challenge on direct appeal)
State v. Allen, 8th Dist. No. 97552, 2012-Ohio-3364 (2012) (allied-offense issues require direct appeal; res judicata applies)
State v. Chaney, 8th Dist. No. 97872, 2012-Ohio-4933 (2012) (same act against multiple victims permits separate punishment per victim)
State v. Dix, 8th Dist. No. 94791, 2011-Ohio-472 (2011) (dissimilar import for each person harmed; separate animus)
State v. Jordan, 8th Dist. No. 91869, 2009-Ohio-3078 (2009) (multiple victims with separate animus may avoid allied-offense merger)
State v. Sutton, 8th Dist. No. 90172, 2011-Ohio-2249 (2011) (issues of merger and animus discussed with codefendant, not directly controlling here)
State v. Dahms, 8th Dist. No. S-11-028, 2012-Ohio-3181 (2012) (consistency in sentencing under guidelines; no exact-codefendant parity required)
State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228 (2008) (consistency in weighing factors for similar offenders)
State v. Georgakopoulos, 8th Dist. No. 81934, 2003-Ohio-4341 (2003) (consistency aids rational sentencing outcomes)