In 2009, a jury found David Washington guilty of several offenses, including a third-degree-felony of failure to comply with a police officer and a fifth-degree-felony of obstruction of official business.
The charges stemmed from the day Washington and his brother attacked a woman in a mall parking lot in Lorain County, stole her SUV, and led police on a car and foot chase through two counties.
After the victim called 9-1-1, police spotted the SUV heading east on I-90. When police tried to stop him, Washington accelerated and began weaving in and out of traffic at around 100 miles per hour. Police were waiting near the Cuyahoga County line with stop sticks; Washington drove over them, deflated two tires, lost control and struck the median.
He then headed the wrong way up an exit ramp and drove toward a police officer who fired two rounds. Washington passed the officer, sideswiped a car stopped at an intersection, continued another mile until the SUV jumped the curb and stopped in a wooded area.
Washington and his brother jumped out and fled on foot, with police in pursuit. Soon after, they found Washington hiding in a drainage ditch.
After the jury found Washington guilty, the trial court imposed separate sentences for the failure to comply with the order of a police officer offense, and the obstruction of official business offense. But Washington appealed, arguing that the charges should have merged at sentencing as allied offenses of similar import.
What did he mean by “allied offenses of similar import?” There’s an Ohio law that says, “Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment…may contain counts for all such offenses, but the defendant may be convicted of only one.”
It so happened that while Washington’s appeal was pending, our court released an opinion in a case called State v. Johnson that overruled the prior standard for determining whether offenses merge at sentencing. So the court of appeals sent Washington’s case back to the trial court to determine whether the offenses were allied offenses under the new ruling in Johnson.
At the resentencing hearing, Washington argued that the offenses merged under Johnson because his flight from police amounted to one continuous act, beginning on the highway and ending in the woods. The state of Ohio countered that each offense was based on separate conduct – Washington’s flight from police in the SUV established the failure-to-comply offense, whereas his subsequent flight on foot established the obstruction-of-official business offense.
The trial court agreed with the state, determined that the offenses were not allied offenses of similar import, and imposed separate and consecutive prison terms for the two offenses.
But the court of appeals reversed his sentences, concluding that Washington’s offenses merged under Johnson because they were based on the same conduct. After that, his case came before us – the Ohio Supreme Court.
The law in question identifies two conditions necessary for merger: first, the offenses must result from the “same conduct,” and second, share a “similar import.” Or, put another way, offenses do not merge if they were “committed separately” or if the offenses have a “dissimilar import.”
For decades, Ohio courts have used a two-prong test to assess the import, conduct, and animus components in the law when a defendant is guilty of multiple offenses. The first prong considers the import of the offenses and requires a comparison of their elements. If the elements “correspond to such a degree that the commission of one offense will result in the commission of the other,” the offenses share a similar import.
The second prong looks to the defendant’s conduct and requires a determination whether the offenses were committed separately or with a separate animus. If the offenses were committed by the same conduct and with a single animus, the offenses merge.
In writing our majority opinion, Justice Judith L. French explained, “Over the years, confusion surrounded application of the first prong, ‘similar import.’ While it was clear that the prong required a comparison of the elements to determine whether the commission of one offense will result in the commission of the other, courts became divided as to whether the elements should be viewed in the abstract or in light of the particular facts of each case.”
Our court resolved that question in 1999. We established that courts should compare the legal elements of the offenses “in the abstract” when determining whether the offenses share a similar import under the first prong. But in the Johnson decision, we concluded that the “conduct of the accused must be considered” when determining whether two offenses are allied offenses of similar import subject to merger.
Although Johnson abandoned the abstract component of the first prong, it didn’t change the second prong – conduct – which has always required courts to determine whether the offenses were committed separately or with a separate animus. Contrary to the opinion of the court of appeals, nothing in Johnson requires courts to consider only the evidence and arguments presented by the state at trial.
Merger is a sentencing question, not an additional burden of proof shouldered by the state at trial. Our court has consistently recognized that the defendant bears the burden of establishing his entitlement to the protection provided by the merger law against multiple punishments for a single criminal act.
Therefore, by a seven-to-zero vote, we concluded that when deciding whether to merge multiple offenses at sentencing, a court must review the entire record, including arguments and information presented at the sentencing hearing, to determine whether the offenses were committed separately or with a separate animus.
The court of appeals erred by looking solely to what it perceived as the state’s theory of the case at trial and by refusing to consider the information presented at the sentencing hearing. Accordingly, we reversed the judgment of the court of appeals and sent the case back to the court of appeals for further proceedings consistent with our opinion.
Paul E. Pfeifer is an American jurist. He served in both houses of the Ohio General Assembly as a member of the Ohio Republican party and is currently an Associate Justice of the Supreme Court of Ohio