State v. Washington, 2013 Ohio 4982

State v. Washington addresses whether multiple offenses sentenced under R.C. 2941.25 merge when the same conduct could support multiple offenses.
The Ohio Supreme Court analyzes Johnson’s teaching that a defendant’s conduct must be considered in the first-prong similarity analysis.
Washington was convicted in 2009 of multiple offenses including failure to comply with a police officer and obstruction of official business following a carjacking and police pursuit.
At resentencing, the trial court held the offenses were not allied offenses of similar import and imposed separate sentences.
The court of appeals reversed, holding merger was required under Johnson because the same conduct supported both offenses.
The Supreme Court overruled the court of appeals, holding merger requires reviewing the entire sentencing record, not only the trial-state theory.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson changes how conduct is considered in merger analysis	State argues Johnson requires considering same conduct regardless of trial theory	Washington argues Johnson limits consideration to trial theory	No; conduct must be considered, but not limited to trial theory.
Whether sentencing record must be reviewed for merger, beyond trial evidence	State contends sentencing record relevant and should be reviewed	Washington contends only trial theory relevant	Yes; the entire sentencing record must be reviewed.
Whether the appellate court properly dismissed consideration of sentencing information	State asserts information at resentencing supports merger analysis	Washington argues estoppel and limited record	Court of appeals erred by not considering sentencing information.
Whether the merger doctrine is constrained by per se same-conduct theory when factual circumstances show separate acts	State argues separate acts (car chase vs. foot chase) justify separate animus	Washington argues same conduct and single animus	Not dispositive; depends on record, but sentencing record governs.

State v. Johnson, 128 Ohio St.3d 153 (2010) (conduct of the accused must be considered in R.C. 2941.25 analysis)
State v. Rance, 85 Ohio St.3d 632 (1999) (abstract first-prong similarity analysis)
State v. Logan, 60 Ohio St.2d 126 (1979) (merger requires same conduct and similar import)
State v. Blankenship, 38 Ohio St.3d 116 (1988) (two-prong test for merger; conduct and animus)
State v. Williams, 134 Ohio St.3d 482 (2012) (conduct analyzed in context; sentencing record relevant)