State v. Smith, 2020 Ohio 3516

In June 2018 Anthony Smith attacked Hannah Thees while she walked her dog: he knocked her down, repeatedly punched her in the face, and attempted to remove her clothing to rape her; bystanders intervened. The victim was ~36 weeks pregnant and required hospitalization and facial stitches.
Smith was indicted for felonious assault and attempted rape and pleaded guilty to both charges.
At sentencing the trial court refused to merge the offenses, found Smith dangerous, and imposed consecutive terms: 8 years for felonious assault and 7 years for attempted rape.
Smith appealed, arguing (1) the offenses were allied and should have merged for sentencing, and (2) the trial court failed to consider R.C. 2929.11 and 2929.12 and mitigating evidence (including mental-health issues).
The appellate court reviewed merger de novo and applied the statutory and Ohio Supreme Court merger/merits standards for sentencing review under R.C. 2953.08.
The court affirmed: it found separate animus because the force used was greater than necessary to effectuate the attempted rape, and held the record shows the trial court considered the applicable sentencing provisions and mitigation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempted rape and felonious assault merge as allied offenses for sentencing	The offenses are of dissimilar import and were committed with separate animus; so no merger	The offenses arose from a single course of conduct and single animus, so they should merge	No merger: excessive, gratuitous force showed specific intent to harm separate from the intent to commit rape, so separate animus exists
Whether the sentence is contrary to law for failure to consider R.C. 2929.11/2929.12 and mitigation	The trial court considered the PSI, victim impact, mitigation, and statutory factors and imposed lawful, within-range sentences	The court failed to adequately consider purposes/principles of sentencing and mitigation (mental health)	Affirmed: record shows the court reviewed PSI, victim impact, heard mitigation, stated it considered R.C. 2929 factors; sentence not clearly and convincingly contrary to law

State v. Williams, 134 Ohio St.3d 482 (Ohio 2012) (de novo review of allied-offenses/merger issues)
State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (three-part test for merger: dissimilar import, separate conduct, or separate animus)
State v. Logan, 60 Ohio St.2d 126 (Ohio 1979) (animus defined as purpose or immediate motive relevant to merger)
State v. Washington, 137 Ohio St.3d 427 (Ohio 2013) (court must review entire record, including sentencing hearing, when deciding merger)
State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (appellate standard for vacating/modifying felony sentences under R.C. 2953.08)
State v. Kalish, 120 Ohio St.3d 23 (Ohio 2008) (framework for appellate review of felony sentences; sentence not clearly contrary to law if court considered R.C. 2929.11/2929.12)
State v. White, 997 N.E.2d 629 (1st Dist. Ohio 2013) (sentence not clearly and convincingly contrary to law where record shows court considered R.C. 2929.11 and 2929.12)