State v. Vannatta, 2011 Ohio 5074

Vannatta was convicted on appeal of trafficking in marijuana (two fifth-degree, two fourth-degree with schoolyard enhancement) plus assault and riot after a negotiated plea in Champaign County, Ohio.
Sentencing: the trial court imposed consecutive terms of 11 months on each fifth-degree offense and 17 months on each fourth-degree offense, with six months on each misdemeanor, all concurrent, for a total aggregate term of 56 months.
Vannatta is a first-time felony offender at the time of sentencing.
Two appellate assignments of error challenge: (1) the 56-month aggregate sentence for low-level marijuana trafficking was arbitrary, excessive, and an abuse of discretion; (2) counts of trafficking in marijuana (counts Two, Three, Five) were not merged under allied offenses and potentially violated double jeopardy.
The appellate court denied both assignments and affirmed the trial court’s judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 56-month sentence was an abuse of discretion	Vannatta argues the sentence is too harsh for a first-time felon and for low-level offenses.	Vannatta asserts the court failed to properly apply sentencing statutes and issued excessive, consecutive terms.	Sentence within statutory range; no abuse of discretion.
Whether counts 2, 3, and 5 merged as allied offenses	Counts 2, 3, and 5 were allied offenses of similar import and should have merged.	The offenses were committed separately or with separate animus; merger not required.	Counts did not require merger; merger not warranted; plain error waived.

State v. Barker, Unknown official reporter; 2009-Ohio-3511 (Ohio Court of Appeals (Montgomery) 2009) (discretion in imposing maximum/consecutive sentences within statutory range)
State v. Foster, 2006-Ohio-856 (Ohio Supreme Court 2006) (describes sentencing framework and no need for explicit reasons for maximum terms)
State v. Mathis, 109 Ohio St.3d 54 (Ohio Supreme Court 2006) (recognizes statutory policies in sentencing; analysis of 2929.11 and 2929.12)
State v. Kalish, 120 Ohio St.3d 23 (Ohio Supreme Court 2008) (affects standard for review of felony sentences)
State v. Miller, 2010-Ohio-2138 (Ohio Court of Appeals 2010) (presumes proper consideration of 2929.11/2929.12 even if not cited at hearing)
State v. Coffey, 2007-Ohio-21 (Ohio Court of Appeals 2007) (plain error standard for allied offenses can be invoked for failure to raise merger issue)
State v. Johnson, 128 Ohio St.3d 153 (Ohio Supreme Court 2010) (new test for allied offenses: consider conduct, same conduct, and whether merger applies)
State v. Brown, 119 Ohio St.3d 447 (Ohio Supreme Court 2008) (two-tier analysis for allied offenses and whether single or separate animus exists)