The Ohio Supreme Court holds that "a trial court may impose cumulative sentences for both aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a) and operating a motor vehicle under the influence of alcohol or drugs ("OVI") in violation of R.C. 4511.19(A)(1)(a) when the offense of operating a vehicle while under the influence is the predicate conduct for aggravated vehicular assault."

State v. Earley, 2015 Ohio 4615 (2015)

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-4615.pdf

November 10, 2015

Earley pleaded guilty to

A.one count of aggravated vehicular assault, a felony of the third degree, in violation of R.C. 2903.08(A)(1)(a);
one count of endangering children, a felony of the third degree, in violation of R.C. 2919.22(A); and
one count of OVI, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(a); and the accompanying forfeiture specifications.

The trial court imposed concurrent sentences of three years for aggravated vehicular assault, 36 months for endangering children, and six months for OVI. Early appealed, arguing that aggravated vehicular assault was an allied offense of OVI and they should have merged.

The Supreme Court criticized its own analysis in a previous decision of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and instead applied the following test from State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892:

As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant's conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.

The Court reasoned that the felony offense has a different import and significance than merely driving under the influence because aggravated vehicular assault necessarily involves serious physical harm to another person. The Court concluded, "Thus, because the affirmative answer to the first Ruff question allows Earley to be separately convicted of each offense, the trial court did not commit plain error—and did not err at all—in not merging the convictions."

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