State v. Williams, 2012 Ohio 3384

Williams pled guilty to felonious assault and a protection-order violation as part of a plea; domestic-violence and protection-order charges were originally indicted.
Felonious assault alleged hitting ex-girlfriend's car with Williams's vehicle; protection-order violation occurred while a protection order was in place.
The protection-order violation was charged as a third-degree felony because it occurred while Williams committed a felony (felonious assault).
The trial court sentenced Williams to consecutive four-year terms for the two offenses.
On appeal, Williams argues the offenses are allied and must merge; the State argues the offenses were due to distinct conduct.
The court adopts the Johnson framework, finding the offenses were committed by the same conduct and are allied, requiring reversal and remand for a single elected allied offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are felonious assault and protection-order violation allied offenses?	Williams argues same conduct; Johnson test supports merger.	State contends conduct was separate (following then striking car).	Yes; allied offenses must merge; reversal and remand for new sentencing.
Does failure to merge require reversal of the sentence?	Merger was required; sentence error.	Consecutive terms may be upheld if no merger occurred.	Yes; judgment reversed and remanded for re-sentencing (state must elect one allied offense).

State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (conduct-focused test for allied offenses under 2941.25)
State v. Whitfield, 124 Ohio St.3d 319 (2010-Ohio-2) (plain-error review for failure to merge allied offenses)
State v. Weathers, 2011-Ohio-6793 (12th Dist. Butler App. No. CA2011-01-013) (allied offenses merge when the state relies on the felonious conduct for each offense)
State v. Fairman, 2011-Ohio-6489 (2d Dist. Montgomery No. 24299) (dissenting view on merger of certain allied offenses)