Lead Opinion
{¶ 1} In this discretionary appeal from the Tenth District, we determine whether a trial court can impose separate sentences for engaging in a pattern of criminal activity under R.C. 2923.32(A)(1) (“RICO”
Ohio appellate courts are required to apply the new standard announced in State v. Johnson,128 Ohio St.3d 153 ,2010-Ohio-6314 ,942 N.E.2d 1061 [,] when deciding whether the imposition of multiple convictions and sentences for the offense of engaging in a pattern of corrupt activity and one or more of its predicate felonies violates R.C. 2941.25 (the Allied Offenses Statute) and a defendant’s rights under the Double Jeopardy Clauses of [the] Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
{¶ 2} Appellee, the state of Ohio, argues that the prohibition against multiple punishments for allied offenses of similar import is not applicable, because the General Assembly, as evidenced in the RICO statute, intended that courts may sentence defendants for both the RICO violation and the predicate offense.
{¶ 3} We hold that Johnson is not applicable to a RICO violation and that a RICO offense does not merge with its predicate offenses for purposes of sentencing. We affirm the judgment of the court of appeals.
I. Facts and Procedural History
{¶ 4} The state’s investigation revealed that Arnaldo Miranda was involved in a marijuana-trafficking ring. Consequently, the state charged Miranda with one RICO violation under R.C. 2923.32(A)(1) and six predicate offenses (three counts of trafficking in marijuana and three counts of possessing marijuana). Miranda pleaded guilty to the RICO count and one count of trafficking in marijuana under R.C. 2925.03. The state dismissed the remaining counts. In addition to other sanctions, the trial court imposed a six-year prison term for the RICO offense and an eight-year prison term for the trafficking offense, to be served consecutively, for an aggregate prison term of 14 years. Miranda did not object to the sentence at the sentencing hearing.
II. Analysis
A. Double Jeopardy, Multiple Sentences, and RICO
{¶ 6} “The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: ‘[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.’ ” Monge v. California,
{¶ 7} “[T]he primary legislative statement on the multiplicity issue is found in R.C. 2941.25, concerning allied offenses of similar import.” Id. That statute provides, “Where the same conduct can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.”
{¶ 8} In State v. Johnson,
{¶ 9} Alternatively, if it is not possible to commit the offenses with the same conduct, or if the offenses were committed separately or with a separate animus, then the court may sentence the defendant for all the offenses at issue. Id. at ¶ 51.
{¶ 10} “R.C. 2941.25, however, is not the sole legislative declaration in Ohio on the multiplicity of indictments.” Childs at 561. “While our two-tiered test for determining whether offenses constitute allied offenses of similar import is helpful in construing legislative intent, it is not necessary to resort to that test when the legislature’s intent is clear from the language of the statute.” State v. Brown,
{¶ 11} We begin our analysis by examining Ohio’s RICO statute, R.C. 2923.32(A)(1). “The primary goal in construing a statute is to ascertain and give effect to the intent of the legislature.” State ex rel. Cordray v. Midway Motor Sales, Inc.,
{¶ 12} R.C. 2923.32(A)(1), Ohio’s RICO statute, provides: “No person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt.” “Enterprise” is defined as including “any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity.” R.C. 2923.31(C). “Corrupt activity” is defined as any of the criminal offenses listed in R.C. 2923.31(1). And finally, a “pattern of corrupt
{¶ 13} A RICO offense is dependent upon a defendant committing two or more predicate offenses listed in R.C. 2923.31(1). However, a RICO offense also requires a defendant to be “employed by, or associated with” an “enterprise” and to “conduct or participate in” an “enterprise through a pattern of corrupt activity.” R.C. 2923.32(A)(1). “Such pattern must include both a relationship and continuous activity, as well as proof of the existence of an enterprise. Thus, the conduct required to commit a RICO violation is independent of the conduct required to commit [the underlying predicate offenses].” (Emphasis added.) State v. Dudas, 11th Dist. Lake Nos. 2008-L-109 and 2008-L-110,
{¶ 14} Moreover, one of the purposes of the RICO statute is to provide “ ‘enhanced sanctions * * * to deal with the unlawful activities of those engaged in organized crime.’ ” (Emphasis added.) State v. Schlosser,
{¶ 15} Construing the similarly worded federal RICO statute, 18 U.S.C. 1962(c), federal circuit courts have similarly concluded that the purpose of RICO in providing enhanced sanctions indicates an intent to permit cumulative punishments for the RICO offense and its underlying predicate offenses. See United States v. Sutton,
B. 2006 Sub.H.B. No. 241
{¶ 16} Despite this wealth of authority indicating otherwise, Miranda claims that the RICO statute no longer permits cumulative punishments because of a 2006 amendment.
{¶ 17} In 2006, Sub.H.B. No. 241 (“H.B. 241”) amended the former RICO statute by removing division (D). 151 Ohio Laws, Part V, 9092, 9133. That division stated:
Criminal penalties under this section are not mutually exclusive, unless otherwise provided, and do not preclude the application of any other criminal or civil remedy under this or any other section of the Revised Code. A disposition of criminal forfeiture ordered pursuant to division (B)(3) of this section in relation to a child who was adjudicated delinquent by reason of a violation of this section does not preclude the application of any other order of disposition under Chapter 2152. of the Revised Code or any other civil remedy under this or any other section of the Revised Code.
148 Ohio Laws, Part IV, 9447, 9646.
{¶ 18} Miranda argues that by removing the language “[cjriminal penalties under this section are not mutually exclusive, unless otherwise provided,” the General Assembly expressed an intent that courts could merge RICO offenses and their predicate offenses for purposes of sentencing. A thorough examination of H.B. 241 reveals otherwise.
{¶ 19} H.B. 241 created R.C. Chapter 2981, which addresses civil and criminal forfeitures. 151 Ohio Laws, Part V, 9092, 9217-9243. Much of the remainder of H.B. 241 repealed former forfeiture provisions in various sections of the Revised Code, removed references to those provisions, and replaced them with language from the new provisions. H.B. 241 also repealed R.C. 2923.32(B)(4)(a) through (G), all of which dealt with forfeiture. We will not presume that in the midst of this broad repeal, the single sentence stressed by Miranda was deleted for a different reason, and we certainly will not presume that the deletion was intended to overturn the universal reading of R.C. 2923.32(A)(1) as permitting cumulative punishment. The purpose of the RICO statute — to provide enhanced sanctions for patterns of corrupt activity — remains the same. That purpose has always
III. Conclusion
{¶ 20} We hold that Johnson,
Judgment affirmed.
Notes
. RICO is the acronym for the Racketeer Influenced and Corrupt Organizations Act, which is a federal law found at 18 U.S.C. 1961 et seq. Because Ohio’s corrupt-activity statute, R.C. 2923.32(A)(1), is in general based on the federal statute, we have referred to it as “Ohio’s RICO statute.” State v. Schlosser,
Concurrence Opinion
concurring in judgment.
{¶ 21} I would hold simply that because a RICO offense and its underlying predicate offenses are offenses of dissimilar import, they do not merge. R.C. 2941.25(B) states:
Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
(Emphasis added.)
{¶22} In reviewing whether multiple crimes constitute allied offenses that merge, heretofore we have mainly discussed the concept of offenses of the same or similar import that result in offenses committed separately or with a separate animus. We have not often discussed situations in which offenses are of dissimilar import. Yet if the defendant’s conduct does not constitute two or more offenses of similar import (i.e., of similar nature or character), a defendant may be convicted and sentenced consecutively or concurrently for each conviction.
{¶ 24} Miranda’s case provides a prime example of offenses of dissimilar import. He was charged with trafficking in marijuana and possession of marijuana, felonies involving the sale and possession of a specific drug. He was also charged with a RICO violation, specifically, with “engaging] in violations of law, to wit: [R.C.] 2925.11 and 2925.03” while “associating] with an enterprise” and “conducting] or participating] in * * * the affairs of the enterprise.” As the majority explains, RICO is a felony offense that was designed to punish participation in an enterprise that engages in a pattern of corrupt activity. R.C. 2923.32(A)(1). The predicate offense of trafficking in marijuana provides one of the elements needed for a RICO conviction. Miranda’s marijuana offense differs from the RICO offense, and the convictions are not the same in their nature or character. The predicate offense here involves the sale of drugs while, as the majority explains, RICO was promulgated to “ ‘deal with the unlawful activities of those engaged in organized crime.’ ” State v. Schlosser,
{¶ 25} Miranda argues that his sentences for the same conduct in these offenses violate the rule expressed in State v. Johnson,
{¶ 26} In enacting the RICO statute, the General Assembly has shown its intention to create a new offense that will punish more severely certain specified conduct in which individuals participate in a pattern of corrupt activity within a criminal enterprise. As a result, RICO is dissimilar from any underlying offenses upon which a defendant is convicted, for the offenses do not involve similar criminal wrongs and similar resulting harm.
{¶ 27} For these reasons, I concur in judgment, emphasizing that RICO and its underlying predicate offenses are of dissimilar import and will therefore never merge.