Recent Ohio Supreme Court decisions on sentencing for multiple offenses and the pending passage of a law extending the statute of limitations for rape will present challenges for trial court judges, a Cleveland appeals court judge said.

Eighth District Court of Appeals Judge Sean C. Gallagher told a gathering of Ohio common pleas court judges last week that the Supreme Court’s latest ruling on sentencing for allied offenses provides some clarity for trial court judges, but there are still many facts to consider and unanswered questions.

Judge Gallagher noted the irony of his presentation’s title: “Reversal Insurance: Avoiding Sentencing Pitfalls” as he addressed the Ohio Common Pleas Judges Association Summer Conference last week. Two days prior, the Ohio Supreme Court reversed his decision in State v. Rogers dealing with sentencing for allied offenses. The issue with allied offenses is to how to interpret the law requiring merging the offenses which is found in R.C. 2941.25 and determining in what cases must two or more different charges be merged, Judge Gallagher explained.

“Although the entire statute comprises only two sentences, they are two of the most confusing sentences in the Revised Code,” he said.

Judges must listen to conflicting arguments by prosecutors and defense attorneys to determine if the charges against the accused are of “similar import,” “dissimilar import” and if they were attempted with “separate animus.” He noted these are vague terms that often defy interpretation. However, the recent rulings in State v. Ruff in March and the recent Rogers ruling are helpful to the judges. While the decisions did not establish a bright-line rule, it gives judges more information on how to analyze a case before sentencing an offender, Judge Gallagher said.

He provided some recent examples of crimes that merge and those that don’t. A man was recently convicted for trafficking three drugs – heroin, cocaine, and methadone. The Twelfth District Court of Appeals found that a conviction for each type of drug required different proof, and while it was all one person trafficking the drugs at the same time, each drug crime was committed with separate “animus,” sometimes defined as immediate motivation. Because of that, the crimes could not be merged and the offender was sentenced on three separate charges. In contrast, a man was charged with theft of a checkbook and forgery when he tried to cash the checks at the bank. While the two offenses took place in separate locations the harm of both crimes took place at the same time when the check was attempted to be cashed and the offenses were merged into one crime for sentencing purposes.

Another area Judge Gallagher cautioned about is sentencing “cold case” offenders whose crimes are now reaching the courts after two sweeping sentencing reforms by the Ohio General Assembly. The confusion about what sentence applies may come before more judges as lawmakers are nearly certain to increase the statute of limitation for rape from 20 years to 25 years, and old rape kits continue to be tested for DNA matches, he said.

Prior to the “truth-in-sentencing” reforms that took effect in 1996, Ohio law allowed trial judges to impose indefinite sentences. The new law began applying specific years to sentences, and in 2011, House Bill 86 modified sentencing again. Judge Gallagher said this leads to confusion when trying to determine if the offender must be sentenced to the prison time listed in the law now or what the law listed as the sentence at the time the offense was committed. He said prosecutors will be pushing for the longer sentences under the old law and defense attorneys seeking the shorter sentences under the reform.

Sentencing reform was just one of several issues the common pleas judges tackled over the three-day conference. Other issues included dealing with language barriers in the courts, understanding changing marijuana laws, and the appearance of defendants claiming they are sovereign citizens and refusing to recognize the court’s jurisdiction over them.