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2007-0595 and 2007-0651. State v. Cabrales, Slip Opinion No. 2008-Ohio-1625.
Hamilton App. No. C-050682, 2007-Ohio-857. Certified question answered in the affirmative and judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Fain, J., concurs in judgment.
Mike Fain, J., of the Second Appellate District, sitting for Lanzinger, J.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1625.pdf
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(April 9, 2008) The Supreme Court of Ohio ruled today that, in determining whether criminal offenses are “allied offenses of similar import” that must be merged for sentencing purposes, state courts are not required to find an exact alignment of the statutory elements of those crimes, but rather should compare the elements in the abstract and determine “whether the elements are so similar that the commission of one offense will necessarily result in commission of the other.”
Applying that test to three Ohio criminal drug statutes, the Court held that: (1) the offenses of drug possession under R.C. 2925.11(A) and drug trafficking by means of shipment or preparation of drugs for shipment under R.C. 2925.03(2) are allied offenses that must be merged; (2) drug possession under R.C. 2925.11(A) is not an allied offense of drug trafficking under R.C. 2925.03(1) (trafficking by means of selling a controlled substance or offering it for sale); and (3) trafficking by selling or offering drugs for sale and trafficking by means of shipping or preparing drugs for shipment are not allied offenses of each other.
The Court’s 7-0 decision, which affirmed rulings by the 1st District Court of Appeals, was authored by Justice Evelyn Lundberg Stratton.
The case involved a shipment of more than 300 pounds of marijuana that was intercepted by Ohio law enforcement officers in a traffic stop near Cincinnati. Fernando Cabrales was charged with one count of conspiracy, one count of possession of marijuana in violation of R.C. 2925.11(A) and two counts of trafficking in marijuana. One of the trafficking counts alleged a violation of R.C. 2925.03(A)(1), which prohibits “selling or offering to sell a controlled substance.” The second trafficking count charged Cabrales with violating R.C. 2925.03(A)(2), which prohibits a person from “preparing for shipment, shipping, transporting, delivering, preparing for distribution, or distributing a controlled substance.” The trial court convicted Cabrales on all four counts and imposed a separate sentence for each conviction.
Cabrales appealed, arguing that the possession charge and both trafficking charges were “allied offenses of similar import” that must be merged into a single conviction subject to a single sentence. On review, the 1st District Court of Appeals ruled that the trial court acted correctly in imposing separate convictions and sentences for the conspiracy and trafficking-by-sale charges, but that the possession charge and trafficking count based on preparation of drugs for shipment must be merged because those two charges were “allied offenses of similar import.” The 1st District remanded the case to the trial court for resentencing based on its ruling, but also certified that its decision was in conflict with rulings by two other Ohio courts of appeals, which held that none of the criminal charges at issue in Cabrales’ case are allied offenses of similar import. The Supreme Court agreed to hear arguments to resolve the conflict among appellate districts.
In today’s decision, the Supreme Court affirmed the 1st District’s application of the test for determining whether criminal charges are “allied offenses” set forth in this Court’s 1999 decision in State v. Rance. In doing so, however, Justice Stratton wrote that because appellate districts across the state have interpreted the Rance guidelines differently, “we find it necessary to clarify Rance’s test under R.C. 2941.25(A).”
Noting that a number of appellate districts have understood Rance to require “a strict textual comparison” of the statutory elements of different charges brought against a defendant under which “only where the offenses exactly overlap are they allied offenses of similar import,” Justice Stratton wrote: “We disagree. Rance affirmed that the test under R.C. 2941.25(A) is ‘[i]f the elements of the crimes “correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import.”’ ... Rance then required that the elements be compared in the abstract, i.e., without consideration of the evidence in a particular case. However, nowhere does Rance mandate that the elements of compared offenses must exactly align in order to be allied offenses of similar import under R.C. 2941.25(A). ... Other than identical offenses, we cannot envision any two offenses whose elements align exactly. We find this to be an overly narrow interpretation of Rance’s comparison test.”
Quoting from notes of the legislative service commission at the time R.C. 2941.25 was enacted, Justice Stratton wrote: “‘The basic thrust of [R.C. 2941.25(A)] is to prevent “shotgun” convictions. For example, a thief theoretically is guilty not only of theft but of receiving stolen goods, insofar as he receives, retains, or disposes of the property he steals. Under this section, he may be charged with both offenses but he may be convicted of only one, and the prosecution sooner or later must elect as to which offense it wishes to pursue.’ If Rance imposed a strict textual comparison, even theft and receiving stolen property would not be allied offenses of similar import because their elements do not exactly coincide.”
Justice Stratton pointed to three separate cases decided since Rance in which the Supreme Court has held that theft and receiving stolen property, rape and kidnapping, and aggravated robbery and kidnapping are allied offenses because it is essentially impossible to commit one of the paired offenses without committing the other. “In these cases, we did not overrule or modify Rance, but we did not apply a strict textual comparison in determining whether the offenses were allied under R.C. 2941.25(A),” wrote Justice Stratton. “It is clear that interpreting Rance to require a strict textual comparison under R.C. 2941.25(A) conflicts with legislative intent and causes inconsistent and absurd results. Accordingly, we clarify that in determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), Rance requires courts to compare the elements of offenses in the abstract, i.e., without considering the evidence in the case, but does not require an exact alignment of elements.”
Applying the clarified Rance standard to the charges brought against Cabrales in this case, Justice Stratton affirmed the ruling of the 1st District that the charges of possession of marijuana and trafficking in marijuana under R.C. 2925.03(A)(1) by selling or offering the drug for sale are not allied offenses, because a defendant can offer a drug for sale without actually possessing it and can possess a drug without offering to sell it. She also affirmed the court of appeals’ holding that possession of a drug and trafficking by transporting or preparing the same drug for shipment under R.C. 2925.03(A)(2) are allied offenses that must be merged because “(i)n order to ship a controlled substance, deliver it, distribute it, or prepare it for shipping, etc., the offender must ‘hav[e] control over’ it.’”
Finally, the Court affirmed the 1st District’s judgment that the different drug trafficking offenses defined by R.C. 2925.03(A)(1) and R.C. 2925.03(A)(2) are not allied offenses and are therefore not required to be merged because each type of unlawful conduct can be committed without necessarily committing the other.
Justice Stratton’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.Judge Mike Fain of the 2nd District Court of Appeals, who sat in place of Justice Judith Ann Lanzinger, entered a separate opinion in which he concurred with the majority’s judgment, but wrote to state his view that State v. Palmer, a decision cited by the majority as wrongly requiring that two crimes must have identical or near-identical statutory elements for crimes to be allied offenses, should not have been read to impose such a rigid standard and therefore was not in need of “clarification” by the Court because it was consistent with Rance.
Contacts
Scott M. Heenan, 513.946.3227, for the state and Hamilton County prosecutor’s office.
Elizabeth E. Agar, 513.241.5670, for Fernando Cabrales.