Opinion
NO. 2013-1255
2013-10-23
State v. Rogers
MOTION AND PROCEDURAL RULINGS
Cuyahoga App. Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, and 98590, 2013-Ohio-3235. On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issues stated at page 1 of the court of appeals' entry filed July 25, 2013:
“(1) Whether a trial court commits plain error where multiple offenses present a facial question of allied offenses of similar import, yet the trial court fails to determine whether those offenses should merge under R.C. 2941.25 at sentencing; and
(2) Whether the failure of a defendant to raise an allied-offense issue or to object in the trial court can constitute an effective waiver or forfeiture of a defendant's constitutional rights against double jeopardy and a bar to appellate review of the issue when the record is silent on the defendant's conduct.”
French, J., dissents and would order briefing of the first issue only.
O'Neill, J., dissents.
The conflict case is State v. Wallace, 6th Dist. Wood No. WD–11–031, 2012-Ohio-2675.
The parties shall also brief the issue stated at page 1 of the court of appeals' entry filed September 6, 2013, as follows:
“Whether an offender who receives, retains, or disposes of the property of two or more other persons in a single transaction may be convicted and sentenced for more than one count of receiving stolen property?”
It is further ordered by the court, sua sponte, that this cause is consolidated with Supreme Court case No. 2013–1501, State v. Rogers, and that the briefing in this case and in case No. 2013–1501 shall be consolidated. This case shall proceed pursuant to S.Ct.Prac.R. 16.05. The state is designated as appellant/cross-appellee and Frank Rogers Jr. is designated as appellee/cross-appellant. The parties shall file two originals of each of the briefs permitted under S.Ct.Prac.R. 16.05 and include both case numbers on the cover page of the briefs.