In December, a Lorain County judge ruled in State v. Stewart that a provision of Ohio’s firearm specification statute is unconstitutional for violating the double jeopardy clause of the Ohio and U.S. Constitutions. It will almost certainly see review by the Ohio Supreme Court, particularly in light of last month’s U.S. Supreme Court ruling in Barrett v. United States.
In December, Judge Chris Cook of Lorain County Court of Common Pleas held that Ohio Revised Code 2929.14(B)(1)(g) unconstitutionally imposes multiple prison terms for firearm specifications that have been merged, violating the double jeopardy clause, the equal protection clause, and the due process clause under both the Ohio and U.S. Constitutions.
Firearm specifications, colloquially known as gun specs, are sentence enhancements imposed on an offender who committed an underlying offense involving a firearm. Ohio Revised Code 2929.14(B)(1)(g) provides that a trial court must impose multiple gun specs where an offender commits certain violent crimes—such as murder, aggravated robbery, felonious assault, among others—even if all but one of the predicate charges and gun specs have been merged.
The merger doctrine is a principle that is grounded in the constitutional right against double jeopardy—the freedom to not be tried for the same crime twice. Under the merger doctrine, if an offender’s single act gives rise to two different crimes, those crimes are considered allied offenses of similar import. These offenses are then merged so that the offender is not tried twice for the single act.
In the case before Judge Cook, James Stewart was charged with eight criminal offenses: three counts of murder, two counts of felonious assault, illegal possession of a firearm, assault, and using a weapon while intoxicated. Stewart was also charged with a 3-year firearm specification for all counts of murder, both counts of felonious assault, and illegal possession of a firearm. He was found guilty of those crimes.
At sentencing, the trial court agreed to merge the murder and felonious assault charges as allied offenses. But what happens to the accompanying firearm specifications after the allied offenses are merged?
The statute mandates that a trial court imposes multiple gun specs on an offender—even in situations where the underlying offenses are merged. As noted by Judge Cook, an offender “receive[s] multiple prison sentences imposed on multiple firearm specifications where he committed one act, with one animus, and thus, has been placed in jeopardy twice.” In Stewart’s case, that would mean that despite the murder and felonious assault charges merging, the firearm specification for both crimes would still be imposed, and his sentence would increase as a result.
Such a sentencing scheme perpetuates irrationally disparate treatment of offenders. Judge Cook provides an illustrative example. If an offender in one county pulls out a gun and kills a neighbor, he is charged with one count of murder with a firearm specification. He pleads guilty and is sentenced for murder as well as one firearm specification.
Compare that to an offender in another county that commits the same offense in the same manner. However, the offender is charged with two counts of murder and two counts of felonious assault, all of which carry gun specs. He also pleads guilty, and the trial court merges one of the murder charges and both felonious assault charges into the first-degree murder charge. Even though that offender committed the exact same conduct as the first offender, the second offender must also serve four three-year gun specs.
Despite the second offender’s offenses merging, the statute still creates a double jeopardy issue. Moreover, it also violates the equal protection clause and due process clause of the Ohio and U.S. Constitutions. The statute affects a fundamental constitutional right—the double jeopardy right to be free from multiple punishments for the same offense. As Judge Cook posed, “does not the fundamental fairness prong of the substantive due process demand that the deprivation of liberty for a single criminal act result in a single prison sentence, even if that single sentence is enhanced by a firearm specification?”
Furthermore, the statute conflicts with Ohio case law. In State v. Bollar, the Ohio Supreme Court ruled that an offender convicted of certain felony offenses with gun specs must be sentenced to additional gun specs, even when the underlying offense is merged. Even though Judge Cook noted that Bollar is not controlling—because the Court in that case was not asked to review the constitutionality of the statute—the Ohio Supreme Court said otherwise in State v. Logan. In Logan, the Court reasoned that additional gun spec sentences were not intended from the statute.
After reviewing the case law, in the words of Judge Cook: “the obvious question becomes… which is it?”
Ohio Court Watch, in fact, reported on the Ohio Supreme Court’s decision to review another issue relating to gun specs. In August, the Court agreed to resolve the issue of whether the trial court may choose to impose a one-year gun spec on a defendant who had been convicted of both the one-year and three-year gun specs. There, the State of Ohio, in its brief, analogized gun specs as allied offenses—an argument that the Eighth District rejected.
Judge Cook’s reasoning is now strengthened in light of the U.S. Supreme Court’s decision in Barrett v. United States. Writing for a unanimous court, Justice Kentaji Brown Jackson highlighted the same double jeopardy issues identified by Judge Cook. As such, the Court reasoned that absent congressional authorization in the federal statute, the Fifth Amendment bars being “twice put in jeopardy” for the same offense.
After ruling the statute unconstitutional, Judge Cook ordered that, in Stewart’s case, the accompanying firearm specifications of the merged allied offenses are also to be merged. Accordingly, Stewart was sentenced to life in prison for the murder charge and an additional 36 months on the firearm specification. On the illegal possession of a firearm, he was sentenced to 36 months. As a result, only one three-year firearm specification was imposed rather than six three-year firearm specifications.
This case is bound to make its way before the Ohio Supreme Court to evaluate the constitutionality of the statute. Now with the U.S. Supreme Court agreeing with Judge Cook, the Ohio Supreme Court must confront the constitutionality of Ohio Revised Code 2929.14(B)(1)(g) head on once the case comes before the Court. With the Court already set to hear State v. Holliman as well, the Ohio law around gun specs faces is subject to immense change. Ohio Court Watch will continue to monitor this case for further developments.