State v. Smith, 2012 Ohio 1891

In 2004, the Marion Credit Union was robbed; $9,480 was taken from a teller while three employees were on the floor.
Smith was indicted in 2004 on aggravated robbery (Count One) and kidnapping (Counts Two–Four), each count with firearm specifications; all four counts included three-year firearm specs.
A 2005 jury convicted Smith on all counts but acquitted the firearm specifications; he was sentenced in 2005 to 9 years (Count One) and 4 years on each kidnapping count, with Counts Two–Four running consecutively to Count One for a 13-year aggregate.
Smith appealed; after various post-conviction and habeas proceedings, the Sixth Circuit held in 2011 that his sentence violated Blakely because of judicial fact-finding, and ordered resentencing within 180 days without such findings.
At a 2011 resentencing, the trial court held Counts Two and Four kidnapping to be concurrent with each other but consecutive to Count One, and merged Count Three (kidnapping) with Count One as an allied offense, yielding an aggregate 13-year sentence.
Smith appeals, arguing, among other things, that the trial court erred in merging Count Three and that the increased sentence on Count One was improper; the appellate court will vacate and remand for Foster resentencing without merger.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are Counts One and Three allied offenses of similar import requiring merger?	Smith (appellant) contends Counts One and Three are allied offenses and must merge.	State contends merger is appropriate under allied-offense analysis.	Count Three should not be merged with Count One; merger was error; remand for Foster resentencing without merger.
Was the merger and resentencing order consistent with finality and res judicata principles?	Smith argues finality bars re-litigation and that new findings cannot retroactively alter final judgments.	State argues resentencing was proper under Sixth Circuit remand and allied-offense concerns.	Res judicata and finality principles require remand for a Foster resentencing without considering merger.
Did the court properly apply Johnson law-of-the-case and related procedures at resentencing?	Smith asserts Johnson and law-of-the-case considerations do not apply to reopenings.	State relies on Johnson as controlling precedent for resentencing procedure.	The resentencing ruling misapplied Johnson; law-of-the-case does not bar remand for Foster resentencing without merger.

State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (allied offenses finality and post-release resentencing considerations)
State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (finality and post-release control resentencing framework)
State v. Perry, 10 Ohio St.2d 175 (1967) (syllabus on res judicata and final judgments)
State v. Saxon, 109 Ohio St.3d 176 (2006-Ohio-1245) (res judicata and finality; allied-offense doctrine considerations)
State v. Whitfield, 124 Ohio St.3d 319 (2010-Ohio-2) (allied offenses and merger framework in sentencing)
State v. Mangrum, 86 Ohio App.3d 156 (1993) (pre-Foster allied-offense analysis guidance)
State v. Brown, 119 Ohio St.3d 447 (2008-Ohio-4569) (statutory and doctrinal guidance on allied offenses and merger)
State v. Smith, 2006-Ohio-735 (6) (direct-appeal allied-offense determination)
State v. Voories, 119 Ohio St.3d 345 (2008-Ohio-4479) (habeas and appellate-review limits)