State v. Vitt, 2012 Ohio 4438

Defendant Vitt pleaded guilty to kidnapping with a sexual-motivation specification and two counts of rape after the State amended the indictment to age the victim at under thirteen (removing life-without-parole option).
The trial court scheduled sentencing, initially merging allied offenses but denied the merge and imposed consecutive terms totaling 29 years.
On appeal, the court recognized Johnson requires consideration of defendant’s conduct, but the record relied on a PSI not supplied on appeal.
The court found the PSI supported not merging, then upheld rape sentences but found the kidnapping sentence compliant with law was improper (nine years vs. ten-to-life minimum).
The majority remanded for resentence on the kidnapping offense to comply with sentencing guidelines; rapes’ sentences were upheld.
The dissent argues Vitt’s plea may be invalid and urges vacating the sentence and plea and remanding for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the kidnapping and rape counts should be merged	Vitt argues they are allied offenses	State contends no merger after Johnson analysis	Not merged on appeal (as to contemporaneous sentencing) per Johnson-based analysis
Whether the consecutive maximum terms violate sentencing law	Vitt contends guidelines require different treatment given lack of prior record	Court can impose maximum within guidelines post-Foster	Consecutive rape terms within guidelines upheld; kidnapping term defective per statute remanded for resentence
Whether the sentence is cruel/unusual under Eighth Amendment	Sentence disproportionality due to no physical harm, remorse, and similar offenders’ lower sentences	Term length within statutory range and reflects offenses	Remanded for kidnapping term owing to statutory defect; other terms upheld; not cruel/unusual punishment as to rapes (and remand for kidnapping)

State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (requires trial court to consider defendant’s conduct in allied-offense determinations)
State v. Hairston, 118 Ohio St.3d 289 (2008-Ohio-2338) (disproportionality review; aggregate terms within range not per se cruel/unusual)
State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (no longer requires findings for maximum or consecutive sentences; consider general sentencing factors)
State v. Saxon, 109 Ohio St.3d 176 (2006-Ohio-1245) (remand for resentencing when sentence contrary to law; mechanics of partial remand)
State v. Engle, 74 Ohio St.3d 525 (1996) (plea validity requires knowing, intelligent, voluntary waiver; plain-error review available)
State v. McPherson, 2012-Ohio-859 (9th Dist. No. 11CA0024-M) (sua sponte plain-error recognition in plea and sentencing)
State v. Kalish, State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (authority on legality of noncompliant sentencing)