A Primer on Merger of Convictions in Ohio


Many clients get confused when they are indicted for multiple offenses but they only did one criminal act. In other words, the State can slice and dice a major crime into smaller, lesser crimes in an effort to secure a conviction. An example is rape and kidnapping. In order to commit most rapes, the defendant holds the victim against his/her will during the rape, and those 2 offenses will merge. Otherwise, the defendant would be punished twice for the same offense. However, if the victim was kidnapped and held against her will for a period of time then raped, you would have 2 separate crimes punishable by consecutive sentences.

Ohio's multiple count statute, R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments for the same offense. At the heart of R.C. 2941.25 is the judicial doctrine of merger; merger is

"the penal philosophy that a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime." State v. Botta, 27 Ohio St.2d 196, 201, 271 N.E.2d 776 (1971).

The Ohio Supreme Court has a trilogy of seminal cases construing R.C. 2941.25. State v. Blankenship (1988) had a 2 part test to determine if offenses are allied and sentences should merge. Blankenship required the trial court to first look at the elements of the offenses and then the conduct of the accused. That added a lot of confusion until the Court decided State. Rance in 1999.

Rance required judges to merely look at the elements in the abstract or in a vacuum and not to consider the defendant's conduct to determine if merger should apply. That led to a decade of bizarre results in sentencing. So, the Ohio Supreme Court handed down State v. Cabrales in 2008 that simply instructed judges to only look at the statutes, not the facts of the case, to determine if merger should apply.

Finally, common sense kicked in when the Ohio Supreme Court voted to reverse Rance and require trial judges to look at the conduct of the defendant in context of the criminal statutes alleged to have been violated. State v. Johnson (2010), 2010-Ohio-6314. Now, we are ending our 2nd year of appellate review of sentencings. Merger and allied offenses are still inconsistently applied by trial judges all across Ohio.

Just 3 days ago, December 6, 2012, the Ohio Supreme Court ruled that appellate courts must apply a de novo standard when reviewing lower court's sentencings instead of an abuse of discretion standard. This is a big win for defense attorneys and their clients. Judges should err on the side of merger to avoid the implications of double jeopardy. Now, trial judges will know that exercising their discretion isn't enough – they have to get it right. Erring on the side of the accused ought to be the new norm in Ohio.