Merger: The Subject that Shaves Years Off of Your Client’s Sentence

Figuring out if your client is actually being sentenced twice for the same thing, otherwise known as Double Jeopardy or “merger,” can be daunting. Merger law is always evolving. And because the Ohio Supreme Court has changed the merger test multiple times over the last twenty years, applying it can be brutally complicated.

Still, merger remains a critically important area of law to know. This is not just because of its historical significance, a concept rooted so deeply in our nation’s history that the Framers brought it to you on a Fifth Amendment platter.

But perhaps more importantly, knowing merger law has powerful implications for your client. A well thought out merger argument can mean the difference of years being shaved off of your client’s sentence. Consequently, two recent decisions on the subject are worth noting.

The first is State v. Redden, from the Fifth District. State v. Redden, 2020-Ohio-878 (Mar. 6, 2020). The case reminds us that merger should always be argued in the trial court, not just on appeal. Otherwise, the very difficult to overcome “plain error” standard applies. Thankfully for Redden, he still won even under that ominous standard. Sentenced consecutively, Redden had committed the crimes of both manufacturing methamphetamines, and also assembling or possessing the components to make methamphetamines. If that sounds like the exact same conduct to you, it is. Vacating these sentences, the Fifth District found Redden’s offenses plainly merged, resulting in time being cropped off of Redden’s sentence.

The second is State v. Louis, from the Second District. State v. Redden, 2020-Ohio-878 (Mar. 6, 2020). This case advises us that even if law about merger was created before the Supreme Court of Ohio’s most recent merger test in 2015, that law can still apply. Louis was sentenced consecutively for a sex offense and kidnapping. Employing a 1970’s decision from the Ohio Supreme Court that was right on point, the Second District found that because the kidnapping was part and parcel with the sex offense, those offenses merged. The end result: time being sliced off of Louis’s sentence.