Johnson is dead
This should have been an easy one. Antonio Earley had an accident while driving drunk, and pled to one count of aggravated vehicular assault and one count of OVI. The judge sentenced her to three years for the former and six months for the latter, and ran them concurrently. Earley complained that the two offenses merged, but that argument can be easily disposed of: RC 2929.41(B)(3) specifically states that the sentence for a misdemeanor conviction for OVI can be imposed consecutively to a sentence for aggravated vehicular assault if the judge decides to. Whether two offenses are allied is determined by legislative intent, and if the legislature intended that the two sentences could be served consecutively, that's a pretty clear indication that the legislature didn't intend for the two offenses to merge. And that's exactly what three justices of the Ohio Supreme Court decided this week in State v. Earley.
The other four... well, they decided in a different direction. And in so doing, they did a major rewrite of Ohio's law on allied offenses, and pretty much buried the court's 2010 decision in State v. Johnson.
As I explained when Johnson came down, the decision ended the reign of State v. Rance, which had held that in determining whether two offenses were allied, the elements of the two offenses had to be compared in the abstract, without any reference to the facts. Johnson instead focused on the conduct: if the two offenses could be committed with the same conduct, and were in fact committed with the same conduct, they merged. While Johnson was a plurality opinion, the syllabus, joined in by all seven justices, focused on the defendant's conduct, and that's pretty much how courts have been handling the issue since.
Up until State v. Ruff, at least. There, the court decided that Johnson was "incomplete" because it didn't discuss what happened if the offenses were of dissimilar import. As I complained at the time, this was tantamount to saying that the crimes weren't similar if they were dissimilar, which is hardly helpful. The court did go a little further, stating that the offenses were dissimilar if "the harm that results from each offense is separate and identifiable." That would have been more helpful if the court had resolved the question presented by that case - whether rape and aggravated burglary merged - instead of kicking it back to the 1st District, or if the decision offered a clue as to how it should be resolved.
So what happens in Earley? Earley banked on Johnson, for obvious reasons: under Johnson, her conduct in driving drunk was what caused her to crash and injure somebody, so the offenses should've merged. Not so, says the court: Earley's reliance on Johnson is "misplaced," because it was only a plurality decision, and "more recent decisions of this court have rendered the analysis of the Johnson lead opinion largely obsolete," citing Ruff. Ruff said nothing of the sort; all it said about Johnson was that the analysis there was "incomplete" because it didn't consider whether the offenses were dissimilar.
So how does the court conclude that Earley's offenses weren't allied? The entire analysis consists of a single paragraph:
By criminalizing aggravated vehicular assault and classifying it as a third-degree felony with a mandatory prison term, the General Assembly emphasized the necessity of a strong punishment for and deterrent against individuals causing serious physical harm while driving under the influence. This felony offense has a different import and significance than merely driving under the influence, for aggravated vehicular assault necessarily involves causing serious physical harm to another person. A first-degree misdemeanor violation of R.C. 4511.19(A)(1)(a), on the other hand, occurs any time an individual drives under the influence of alcohol or drugs, and one who does so commits this offense regardless of any subsequent consequences that occur due to the impaired driver's actions. There is a legitimate justification for criminalizing each of these offenses separately, and R.C. 2941.25 permits separate convictions for both pursuant to the test set forth in Ruff.
What exactly is that "legitimate justification"? To be sure, hurting someone while driving drunk is more serious than just driving drunk, but that doesn't indicate the legislature intended for people to be punished for both offenses. You could just as easily infer that the legislature intended that people who drive drunk receive one penalty, but people who drive drunk and hurt someone else receive a stiffer penalty, without meaning that they would receive both. Indeed, Earley renders RC 2929.41(B)(3) a nullity; if the legislature really did intend that aggravated vehicular assault and OVI could be punished separately under the allied offense statute, there'd be no need for another section specifically providing for separate punishment.
Johnson, and the pre-Rance cases, had focused on the defendant's conduct. So did the statute: RC 2941.25(A) states that "where the same conduct" can be construed to constitute offenses of allied import, the defendant can be convicted of only one, and RC 2941.25(B) says that "where the defendant's conduct" constitutes two offenses of dissimilar import, or are committed with a separate animus, the defendant can be convicted of both. Yet Earley never even discusses the defendant's conduct; the only thing that's significant is that the two offenses have different punishments.
In fact, if you to apply Earley to the facts in Johnson, you come up with a different result. Johnson had been convicted of felony murder, with child endangering as the predicate offense, for beating his 7-year-old son to death. The Supreme Court unanimously held that he couldn't be punished for both. Yet one could easily conclude that child endangering "occurs any time" a parent harms a child, and that the General Assembly "emphasized the necessity of a strong punishment" by imposing stiffer penalties if the harm results in the child's death. Voila! Two separate offenses.
That's the most troubling aspect of Earley. Johnson may not have been perfect - it's impossible to imagine an allied offense test that is - but it had clarity, and it correctly focused on the defendant's conduct. Earley doesn't, instead focusing on whether different related offenses have different punishments. They usually do. That's why they're different offenses.