[Cite as State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982.]




         THE STATE OF OHIO, APPELLANT, v. WASHINGTON, APPELLEE.
      [Cite as State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982.]
Criminal     law—Sentencing—R.C.           2941.25—Multiple          counts—Merger   at
        sentencing—Court must review entire record, including arguments and
        information presented at sentencing hearing, to determine whether
        offenses were committed separately or with separate animus.
    (No. 2012-1070—Submitted May 7, 2013—Decided November 14, 2013.)
     APPEAL from the Court of Appeals for Lorain County, No. 11CA010015,
                                    2012-Ohio-2117.
                                ____________________
                               SYLLABUS OF THE COURT
When deciding whether to merge multiple offenses at sentencing pursuant to R.C.
        2941.25, a court must review the entire record, including arguments and
        information presented at the sentencing hearing, to determine whether the
        offenses were committed separately or with a separate animus.
                                ____________________
        FRENCH, J.
        {¶ 1} In this case, we consider the impact of our syllabus in State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, which instructs
courts that a defendant’s conduct “must be considered” when determining
whether multiple offenses merge at sentencing pursuant to R.C. 2941.25. We hold
that the court of appeals erred by relying on Johnson for the proposition that a
court may consider a defendant’s conduct only as it was described by the state’s
“theory” at trial.
                                      Background
        {¶ 2} In 2009, a jury found defendant-appellee, David Washington,
guilty of several offenses, including one third-degree-felony count of failure to
                              SUPREME COURT OF OHIO




comply with a police officer under R.C. 2921.331(B) and one fifth-degree-felony
count of obstruction of official business under R.C. 2921.31(A).
       {¶ 3} The evidence at trial established that Washington and his brother
attacked a woman in a mall parking lot in Lorain County, stole her SUV, and led
police on a car and foot chase in Lorain and Cuyahoga counties. Immediately
after the carjacking, the victim called 9-1-1, and a police dispatch aired a
description of the SUV. Within minutes, Avon police spotted the SUV heading
east on I-90 toward Cuyahoga County. When police attempted to initiate a traffic
stop, Washington accelerated the SUV and began weaving in and out of traffic,
reaching speeds in excess of 100 miles per hour. Additional units joined the
pursuit, including the Westlake police, who were waiting near the Cuyahoga
County border with stop sticks. Washington drove over the stop sticks, which
deflated two of the SUV’s tires, causing it to lose control and strike the median.
Washington then turned the SUV around and headed the wrong way up an exit
ramp. He drove toward a police officer, who fired two rounds at the SUV.
Washington passed the officer, sideswiped a car stopped at an intersection, and
continued for approximately one mile until the SUV jumped the curb and stopped
in a wooded area. Washington and his brother abandoned the SUV and fled, with
several police officers in pursuit.   Soon thereafter, police found Washington
hiding in a drainage ditch.
       {¶ 4} A jury found Washington guilty of several offenses, including
failure to comply with the order of a police officer and obstruction of official
business. The trial court imposed separate sentences for those two offenses, and
Washington appealed on the ground that they should have merged at sentencing
as allied offenses of similar import under R.C. 2941.25. While his appeal was
pending, this court released Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, which overruled the prior standard for determining whether offenses
merge at sentencing under R.C. 2941.25. The Ninth District remanded the matter



                                        2
                                January Term, 2013




for the trial court to determine whether the offenses were allied offenses under
Johnson.     State v. Washington, 9th Dist. Lorain Nos. 10CA009767 and
10CA009768, 2011-Ohio-1149, ¶ 28.
       {¶ 5} At the resentencing hearing, Washington argued that the offenses
merged under Johnson because his flight from police amounted to one continuous
act, beginning on the highway and ending in the woods. Plaintiff-appellant, the
state of Ohio, countered that each offense was based on separate conduct.
Specifically, the state maintained that Washington’s flight from police in the
motor vehicle established the failure-to-comply offense, whereas his subsequent
flight from police on foot in the woods established the obstruction-of-official-
business offense.    The trial court agreed with the state, determined that the
offenses were not allied offenses of similar import, and imposed separate and
consecutive prison terms for the two offenses.
       {¶ 6} In a divided opinion, the court of appeals reversed, concluding that
Washington’s offenses merged under Johnson because they were based on the
same conduct. State v. Washington, 9th Dist. Lorain No. 11CA010015, 2012-
Ohio-2117, ¶ 17. Although the state argued at resentencing that the car chase and
the foot chase constituted separate criminal acts, the court of appeals held that
Johnson prohibited consideration of that argument because the state did not make
that distinction during trial. Id. at ¶ 15, 16. According to the court of appeals, the
offenses merged because the state’s “theory at trial” was that the car chase formed
the basis for both offenses. Id. at ¶ 16. The dissent countered that the state’s
theory at trial was not dispositive of whether the offenses were based on the same
conduct and that the state was not required to address merger during trial. Id. at
¶ 24 (Carr, J., concurring in part and dissenting in part). According to the dissent,
the offenses did not merge, because the car chase and the foot chase were separate
criminal acts, each supported by the evidence. Id. at ¶ 25.




                                          3
                              SUPREME COURT OF OHIO




        {¶ 7} We accepted the state’s discretionary appeal to consider the
following proposition of law: “The Johnson allied offense analysis is only
triggered subsequent to findings of guilt as to criminal offenses by a judge or
jury[;] thus the trial court may base its allied offense decision on any grounds
supported by the evidence.”
                                  Motion to Dismiss
        {¶ 8} At the outset, we will address the motion to dismiss filed by
Washington on July 12, 2013. On August 31, 2012, after the state filed its notice
of appeal in the present case, the trial court resentenced Washington in response
to the court of appeals’ remand, merging the two counts at issue. Washington
asks this court to dismiss the instant appeal, alleging that the trial court’s
resentencing renders the appeal moot. The state responded, arguing that the trial
court lost jurisdiction to act when the state filed its notice of appeal to this court.


                An appeal is perfected upon the filing of a written notice of
        appeal. R.C. 2505.04. Once a case has been appealed, the trial
        court loses jurisdiction except to take action in aid of the appeal.
        State ex rel. Special Prosecutors v. Judges, Court of Common
        Pleas (1978), 55 Ohio St.2d 94, 97, 9 O.O.3d 88, 378 N.E.2d 162.


In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9. Thus, the
trial court in this case had no jurisdiction to resentence the defendant once the
state had filed its notice of appeal. The motion to dismiss is denied.
                                       Analysis
        {¶ 9} The state asks us to clarify the effect of Johnson on the standard
for determining whether “the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import” under R.C. 2941.25(A).
We hold that while Johnson abandoned a portion of the test for determining



                                            4
                               January Term, 2013




whether offenses share a “similar import,” it did not change the test for
determining whether those offenses resulted from the “same conduct.”
           Multiple Punishments, Legislative Intent, and R.C. 2941.25
       {¶ 10} The Fifth Amendment’s Double Jeopardy Clause “protects only
against the imposition of multiple criminal punishments for the same offense,
* * * and then only when such occurs in successive proceedings.” (Emphasis
deleted.) Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d
450 (1997); State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d
684, ¶ 24. Whether multiple punishments imposed in the same proceeding are
permissible is a question of legislative intent. Missouri v. Hunter, 459 U.S. 359,
365, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
       {¶ 11} Absent a more specific legislative statement, R.C. 2941.25 is the
primary indication of the General Assembly’s intent to prohibit or allow multiple
punishments for two or more offenses resulting from the same conduct. State v.
Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000). We have described the
statute as an attempt to codify the judicial doctrine of merger, State v. Logan, 60
Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), the penal philosophy that “ ‘where
one crime necessarily involves another, * * * the offense so involved is merged in
the offense of which it is a part,’ ” State v. Botta, 27 Ohio St.2d 196, 201, 271
N.E.2d 776 (1971), fn. 1, quoting 21 American Jurisprudence 2d 90 (1965). In its
entirety, R.C. 2941.25 provides:


               (A) Where the same conduct by defendant can be construed
       to constitute two or more allied offenses of similar import, the
       indictment or information may contain counts for all such offenses,
       but the defendant may be convicted of only one.
               (B) Where the defendant's conduct constitutes two or more
       offenses of dissimilar import, or where his conduct results in two



                                        5
                             SUPREME COURT OF OHIO




       or more offenses of the same or similar kind committed separately
       or with a separate animus as to each, the indictment or information
       may contain counts for all such offenses, and the defendant may be
       convicted of all of them.


       {¶ 12} R.C. 2941.25(A) identifies two conditions necessary for merger:
the offenses must (1) result from the “same conduct” and (2) share a “similar
import.” R.C. 2941.25(A); see also Logan at 128 (“In addition to the requirement
of similar import * * *, the defendant, in order to obtain the protection of R.C.
2941.25(A), must show that the prosecution has relied upon the same conduct to
support both offenses charged”). Restated in the negative, offenses do not merge
if they were “committed separately” or if the offenses have a “dissimilar import.”
R.C. 2941.25(B). In addition to these restrictions, R.C. 2941.25(B) identifies
another bar to merger for offenses committed “with a separate animus as to each.”
See State v. Bickerstaff, 10 Ohio St.3d 62, 66, 461 N.E.2d 892 (1984) (describing
the three bars to merger as “disjunctive in nature”).
                     The Two-Prong Test, Rance, and Johnson
       {¶ 13} For decades, Ohio courts have used a two-prong test to assess the
import, conduct, and animus components in R.C. 2941.25 when a defendant is
guilty of multiple offenses. The first prong looks to the import of the offenses and
requires a comparison of their elements. State v. Mitchell, 6 Ohio St.3d 416, 418,
453 N.E.2d 593 (1983). If the elements “correspond to such a degree that the
commission of one offense will result in the commission of the other,” the
offenses share a similar import. Id., citing Logan, 60 Ohio St.2d 126, 397 N.E.2d
1345. Only then can the merger analysis proceed to the second prong. State v.
Blankenship, 38 Ohio St.3d 116, 117, 526 N.E.2d 816 (1988). The second prong
looks to the defendant’s conduct and requires a determination whether the
offenses were committed separately or with a separate animus. Mitchell at 418;



                                          6
                                   January Term, 2013




Blankenship at 117. If the offenses were committed by the same conduct and
with a single animus, the offenses merge. Mitchell at 418; Blankenship at 117.
        {¶ 14} Over the years, confusion surrounded application of the first prong,
“similar import.” While it was clear that the prong required a comparison of the
elements to determine whether the commission of one offense will result in the
commission of the other (or equivalent language),1 courts became divided as to
whether the elements should be viewed in the abstract or in light of the particular
facts of each case. We resolved this question in State v. Rance, 85 Ohio St.3d
632, 710 N.E.2d 699 (1999), and clarified that courts should compare the
statutory elements of the offenses “in the abstract” when determining whether the
offenses share a similar import under the first prong. (Emphasis deleted.) Id. at
638. We based our preference for an abstract analysis, in large part, on the
similar-elements comparison established in Blockburger v. United States, 284
U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Rance at 636; see also United States
v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (whether
offenses are the “same” for double jeopardy purposes depends on the Blockburger
“same elements” test, not a “same conduct” test).
        {¶ 15} In Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, we revisited Rance and addressed a certified conflict over the question
whether felony murder and child endangering shared a similar import under the
first prong of the R.C. 2941.25 analysis. Id. at ¶ 1. In a unanimous syllabus, we
overruled Rance and held that “the conduct of the accused must be considered”
when determining whether two offenses are allied offenses of similar import
subject to merger under R.C. 2941.25. Id. at syllabus. Beyond the syllabus,
however, we were divided as to how to consider a defendant’s conduct in the first
prong’s “similar import” analysis.

1. See State v. Preston, 23 Ohio St.3d 64, 65, 491 N.E.2d 685 (1986) (“automatically result”);
Newark v. Vazirani, 48 Ohio St.3d 81, 83, 549 N.E.2d 520 (1990) (“necessarily results”).




                                              7
                            SUPREME COURT OF OHIO




          Johnson Did Not Change the Conduct Portion of the Analysis
       {¶ 16} Although Johnson abandoned the abstract component of the first
prong (similar import), it did not change the second prong (conduct), which has
always required courts to determine whether the offenses were committed
separately or with a separate animus. As we have explained since Johnson, “[t]he
consideration of a defendant’s conduct in an R.C. 2941.25 analysis is nothing new
* * *.” State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d
1245, ¶ 21. Our approach for addressing the questions of conduct and animus has
been “to analyze the particular facts of each case before us.” State v. Jones, 78
Ohio St.3d 12, 14, 676 N.E.2d 80 (1997); see also State v. Cooper, 104 Ohio
St.3d 293, 2004-Ohio-6553, 819 N.E.2d 657, ¶ 19. “This court has generally not
found the presence or absence of any specific factors to be dispositive * * *.”
Jones at 14.
       {¶ 17} Contrary to the court of appeals’ view, nothing in Johnson requires
courts to consider only the evidence and arguments presented by the state at trial.
For one thing, the binding portion of Johnson, contained in the unanimous
syllabus, states only that a defendant’s conduct “must be considered” in an R.C.
2941.25 analysis.    Johnson at syllabus.    As for the divided opinions within
Johnson, none espoused the view that a court is limited to the state’s theory of the
case when determining whether the same conduct supported multiple offenses.
       {¶ 18} Merger is a sentencing question, not an additional burden of proof
shouldered by the state at trial. We have consistently recognized that “[t]he
defendant bears the burden of establishing his entitlement to the protection,
provided by R.C. 2941.25, against multiple punishments for a single criminal
act.” State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987); see also
Logan, 60 Ohio St.2d at 128, 397 N.E.2d 1345 (“the defendant * * * must show
that the prosecution has relied upon the same conduct to support both offenses
charged”); Cooper at ¶ 20 (“an offender must demonstrate the state’s reliance on



                                         8
                                January Term, 2013




the same conduct to prove multiple charges before gaining the protection of R.C.
2941.25”). As aptly put by the dissenting judge in the court of appeals, Johnson
did not “shift the burden to the State to neatly frame at the time of trial all issues
which arise, if at all, only at a sentencing.” 2012-Ohio-2117, at ¶ 24 (Carr, J.,
concurring in part and dissenting in part).
       {¶ 19} Granted, the state’s theory at trial may, in some cases, definitively
support a finding that the offenses at issue arose from the same conduct. But it
may be unhelpful in others. For instance, if the evidence establishes multiple
criminal offenses, but the state does not attempt to assign separate conduct to each
offense, it may be unclear whether the same or separate conduct supported each
offense. And in the vast majority of cases—that is, cases resolved by entry of a
guilty plea—there is no evidence, no opening statement, no closing argument, and
little upon which a court can rely to discern the state’s theory of the case. See
Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012)
(“Ninety-seven percent of federal convictions and ninety-four percent of state
convictions are the result of guilty pleas”). In those cases, the sentencing hearing
may be the only source of information relating to merger.
       {¶ 20} Nothing in Ohio’s felony-sentencing statutes prohibits the
litigation of merger at sentencing. To the contrary, R.C. 2929.19(B)(1) states that
the trial court “shall consider * * * any information presented” by the defense or
the prosecution at the sentencing hearing. (Emphasis added.) Further, R.C.
2929.19(A) allows the state and the defendant to “present information relevant to
the imposition of sentence in the case.” On appeal from a felony sentence, the
reviewing court “shall review the record,” R.C. 2953.08(G)(2), which includes
more than the evidence and arguments presented at trial. R.C. 2953.08(F)(3)
provides that the record to be reviewed shall include “[a]ny oral or written
statements made to or by the court at the sentencing hearing.” See also App.R.
9(A) (defining what constitutes the “record on appeal in all cases”).



                                          9
                             SUPREME COURT OF OHIO




       {¶ 21} Washington does not defend the rationale supporting the court of
appeals’ refusal to consider the merger information presented by the state at the
resentencing hearing—and for good reason. It would be equally unfair to bind a
defendant to the theories presented at trial without allowing the defendant to
present merger arguments at sentencing. For example, if the evidence presented
at trial established two separate criminal acts, but it is unclear whether the
prosecution relied on the same conduct to prove both, the defendant could never
satisfy his or her burden of “show[ing] that the prosecution has relied upon the
same conduct to support both offenses charged.” Logan, 60 Ohio St.2d at 128,
397 N.E.2d 1345.
       {¶ 22} Without disputing the state’s right to argue against merger at
sentencing generally, Washington asserts that the doctrine of judicial estoppel
prohibited the state from arguing against merger in this case. However, for that
doctrine to prohibit a party from raising an argument, the argument in question
must be inconsistent with one successfully and “unequivocally” asserted by the
same party earlier. State ex rel. Motor Carrier Serv., Inc. v. Rankin, 135 Ohio
St.3d 395, 2013-Ohio-1505, 987 N.E.2d 670, ¶ 33. At trial, the state never argued
that the car chase was the basis for both the failure-to-comply and obstructing-
official-business offenses. The state presented evidence of both the car chase and
the foot chase, and it repeatedly referred to both chases during opening statement
and closing argument. In fact, the foot chase could not have established the
failure-to-comply offense, because that offense requires proof that the defendant
was “operat[ing] a motor vehicle.” R.C. 2921.331(B). At best, it is unclear
whether the state relied on the foot chase to support the obstructing-official-
business count. It cannot be said that the state’s argument at trial was inconsistent
with its argument at the resentencing hearing.
       {¶ 23} Nor are we persuaded by Washington’s argument that we must
summarily affirm the court of appeals’ judgment in light of Williams, 134 Ohio



                                         10
                                 January Term, 2013




St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245.                Williams stands for the
proposition that “a reviewing court should review the trial court's R.C. 2941.25
determination de novo,” id. at ¶ 1, not that a reviewing court should—as the court
of appeals did here—review only the state’s theory at trial.        By refusing to
consider the state’s arguments at the resentencing hearing, the court of appeals
misconstrued Johnson and violated its statutory duty to consider the information
presented at the sentencing hearing. See R.C. 2953.08(F)(3) and (G)(2).
                                     Conclusion
       {¶ 24} We hold that when deciding whether to merge multiple offenses at
sentencing pursuant to R.C. 2941.25, a court must review the entire record,
including arguments and information presented at the sentencing hearing, to
determine whether the offenses were committed separately or with a separate
animus. The court of appeals erred by looking solely to what it perceived as the
state’s theory of the case at trial and by refusing to consider the information
presented at the sentencing hearing. Accordingly, we reverse the judgment of the
court of appeals and remand to the court of appeals for further proceedings
consistent with this opinion.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
O’NEILL, JJ., concur.
                                ____________________
       Dennis P. Will, Lorain County Prosecuting Attorney, and Mary R.
Slanczka, Assistant Prosecuting Attorney, for appellant.
       Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellee.
                           ________________________




                                           11
