State v. VanValkenburg, 2012 Ohio 1213

Appellant Paul VanValkenburg was indicted on February 18, 2011 in the Licking County Court of Common Pleas for breaking and entering and possession of criminal tools, both fifth-degree felonies.
Appellant pled no contest to the charges on September 2, 2011; the State’s evidence described a January 1–3, 2011 break-in at Sherman’s Iron & Metal in Newark, with property valued over $500.
Three individuals, including VanValkenburg, admitted to jointly breaking in and using a crowbar to steal items; some property was later sold as scrap metal.
At sentencing, the court refused to merge the two counts; VanValkenburg received consecutive eleven-month sentences for breaking and entering and possession of criminal tools.
Appellant assigns error claiming the trial court erred by not running the sentences concurrently, arguing the offenses are allied offenses of similar import.
The appellate court agrees that the two offenses are allied and should have merged, reverses the sentence, and remands for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the offenses allied and subject to merger?	VanValkenburg: offenses are allied imports; must merge.	State: offenses are not merged; separately punishable.	Yes; offenses are allied and must merge; remanded for resentencing.

State v. Johnson, 128 Ohio St.3d 153 (2010) (overrules Rance for determining allied offenses by conduct)
State v. Rance, 85 Ohio St.3d 632 (1999) (overruled in light of Johnson; elements-based approach discarded)
State v. Logan, 60 Ohio St.2d 126 (1979) (merger doctrine codified in R.C. 2941.25)
State v. Whitfield, 124 Ohio St.3d 319 (2010) (state elects sentencing for allied offenses and merge required)
State v. Underwood, 2010-Ohio-1 (2010) (plain error for sentencing allied offenses without merger)
Westfield v. Galatis, 100 Ohio St.3d 216 (2003) (procedure for determining allied offenses under 2941.25)