State v. Simmons, 2014 Ohio 582

In 2005 Simmons was indicted for rape (Count 1) and gross sexual imposition (Count 2); in 2009 the State amended Count 1 to sexual battery and agreed to a joint recommended sentence of 3 years (sexual battery) plus 6 months (gross sexual imposition) consecutive; Simmons pleaded guilty and was sentenced accordingly.
Simmons did not file a direct appeal within 30 days; two years later he sought and was granted leave for a delayed appeal.
The record is limited: indictments show both offenses occurred the same date against the same 16-year-old victim; sentencing hearing includes the victim’s mother describing force used.
Simmons raised two issues on appeal: (1) that sexual battery and gross sexual imposition are allied offenses requiring merger, and (2) that his Tier III sex-offender classification under 2007 Am. Sub. S.B. 10 (S.B. 10) was an unconstitutional retroactive application.
The State conceded the S.B. 10 classification was erroneous; the court affirmed the sentence but reversed the Tier III classification and remanded for classification under the law in effect when the offenses occurred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sexual battery and gross sexual imposition are allied offenses requiring merger	The offenses are of dissimilar import and sentencing on both is permissible	The offenses are allied offenses of similar import and should merge; no separate animus	Court found Simmons waived the allied-offense claim by entering a plea with a jointly recommended sentence; alternatively, on the merits the offenses are not allied and separate sentences were proper
Whether applying S.B. 10 to classify Simmons as a Tier III sex offender was unconstitutional retroactive application	S.B. 10 properly applied and classification was appropriate	Application of S.B. 10 to offenses committed before its enactment violates Ohio Constitution §28, Article II (retroactive law)	Court (with State concession) held S.B. 10 application was unconstitutional as applied; reversed Tier III classification and remanded for classification under pre-S.B. 10 law

Brown v. Ohio, 432 U.S. 161 (Double jeopardy protects against multiple punishments)
North Carolina v. Pearce, 395 U.S. 711 (Double jeopardy principles and sentencing protections)
State v. Rance, 85 Ohio St.3d 632 (prior two-step allied-offenses test comparing elements in the abstract)
State v. Cabrales, 118 Ohio St.3d 54 (modification of element comparison approach)
State v. Johnson, 128 Ohio St.3d 153 (syllabus: defendant’s conduct must be considered for allied-offenses analysis)
State v. Evans, 122 Ohio St.3d 381 (analysis finding rape and GSI allied in that context)
State v. Underwood, 124 Ohio St.3d 365 (appellate review allowed when convictions for allied offenses were improperly sentenced despite joint recommendation)
State v. Williams, 129 Ohio St.3d 344 (S.B. 10 held punitive and retroactive as applied to pre-enactment offenders)
State v. Cook, 83 Ohio St.3d 404 (discussion of prior registration scheme characterization)
State v. Ferguson, 120 Ohio St.3d 7 (prior discussion of remedial nature of pre-S.B. 10 scheme)