[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Earley, Slip Opinion No. 2015-Ohio-4615.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2015-OHIO-4615

THE STATE OF OHIO, APPELLEE, v. EARLEY, APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Earley, Slip Opinion No. 2015-Ohio-4615.] 

Criminal law—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 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. 

(Nos. 2014-1278 and 2014-1454—Submitted June 10, 2015—Decided November 

10, 2015.) 

APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County, 

No. 100482, 2014-Ohio-2643. 

____________________ 

SYLLABUS OF THE COURT

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 
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under the influence of alcohol or drugs 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. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, applied.) 

__________________ 

LANZINGER, J.

{¶ 1} In this case we are asked to determine whether 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. We hold that it may. 

I. Case Background 

{¶ 2} A Cuyahoga County grand jury indicted appellant, Antonia Earley, on 

two counts of aggravated vehicular assault, one count of endangering children, two 

counts of OVI, and one count of using weapons while intoxicated, all with forfeiture 

specifications. Earley pleaded guilty to 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); 

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 state 

requested a nolle prosequi on the remaining counts, and those were dismissed. The 

trial court sentenced Earley to a term of three years for aggravated vehicular assault, 

36 months for endangering children, and six months for OVI, all concurrently 

imposed. 

{¶ 3} Earley appealed her sentences, claiming that aggravated vehicular 

assault is an allied offense of OVI and that they should have merged. The court of 

appeals affirmed the judgment of the trial court and held that even assuming that 
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3

aggravated vehicular assault and OVI are allied offenses, R.C. 2929.41(B)(3) 

creates an exception that permits a trial court to impose a sentence for both. 2014-

Ohio-2643, 15 N.E.3d 357, ¶ 20-21 (8th Dist.). 

{¶ 4} The appellate court certified that its decision conflicted with State v. 

West, 2d Dist. Montgomery No. 23547, 2010-Ohio-1786; State v. Mendoza, 6th 

Dist. Wood No. WD-10-008, 2012-Ohio-5988; and State v. Phelps, 12th Dist. 

Butler No. CA2009-09-243, 2010-Ohio-3257. In those cases, without addressing 

the possible impact of R.C. 2929.41(B)(3), the appellate courts either held that an 

aggravated-vehicular-assault offense and an OVI offense merged or remanded the 

case to the trial court for further proceedings to determine whether the offenses 

should merge pursuant to R.C. 2941.25. West at ¶ 45; Mendoza at ¶ 10-11; Phelps 

at ¶ 30-32. 

{¶ 5} We accepted the conflict certified to us by the Eighth District Court 

of Appeals: 

When the offense of operating a motor vehicle while under 

the influence in violation of R.C. 4511.19(A)(1) is the predicate 

conduct for aggravated vehicular assault in violation [of] R.C. 

2903.08(A)(1), are the two offenses allied, and if so, does R.C. 

2929.41(B)(3) create an exception that allows a trial court to impose 

a sentence for both offenses? 

140 Ohio St.3d 1450, 2014-Ohio-4414, 17 N.E.3d 597. We also accepted the 

proposition of law raised in Earley’s discretionary appeal: 

When the offense of operating a vehicle while under the 

influence, R.C. 4511.19(A)(1)(a), is the predicate conduct for 

aggravated vehicular assault, R.C. 2903.08(A)(1)(a), Ohio’s allied-
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offense statute, R.C. 2941.25, must be considered before a court 

may determine whether concurrent or consecutive sentences will be 

imposed under [R.C.] 2929.41(B)(3). Fifth and Fourteenth 

Amendments, United States Constitution; Section 10, Article I, 

Ohio Constitution; R.C. 2941.25. 

140 Ohio St.3d 1451, 2014-Ohio-4414, 17 N.E.3d 598. 

II. Analysis 

{¶ 6} The specific language found in R.C. 2941.25 and R.C. 2929.41 guides 

us in deciding whether R.C. 2929.41(B)(3) creates an exception that allows a trial 

court to impose a sentence for both aggravated vehicular assault in violation of R.C. 

2903.08(A)(1)(a) and OVI in violation of R.C. 4511.19(A)(1)(a) when the OVI 

offense is the predicate conduct for aggravated vehicular assault. 

Statutory Provisions

{¶ 7} R.C. 2941.25 sets forth when a defendant may be convicted of 

multiple offenses. It 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 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. 
January Term, 2015 

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{¶ 8} While R.C. 2941.25 focuses on multiple convictions, R.C. 2929.41 

addresses sentencing, providing instruction to the trial court on whether prison 

terms shall be served consecutively or concurrently. R.C. 2929.41(A) provides, 

“Except as provided in division (B)(3) of this section, a jail term or sentence of 

imprisonment for misdemeanor shall be served concurrently with a prison term or 

sentence of imprisonment for felony.” And R.C. 2929.41(B)(3) states: 

A jail term or sentence of imprisonment imposed for a 

misdemeanor violation of section 4510.11, 4510.14, 4510.16, 

4510.21, or 4511.19 of the Revised Code shall be served 

consecutively to a prison term that is imposed for a felony violation 

of section 2903.06, 2903.07, 2903.08, or 4511.19 of the Revised 

Code or a felony violation of section 2903.04 of the Revised Code 

involving the operation of a motor vehicle by the offender and that 

is served in a state correctional institution when the trial court 

specifies that it is to be served consecutively. 

The Parties’ Arguments

{¶ 9} Earley argues that her aggravated-vehicular-assault and OVI offenses 

are allied offenses of similar import pursuant to State v. Johnson, 128 Ohio St.3d 

153, 2010-Ohio-6314, 942 N.E.2d 1061, and that the trial court committed plain 

error when it sentenced her for both. 

{¶ 10} The state responds that the trial court properly sentenced Earley for 

both aggravated vehicular assault and OVI. It argues that the plain language of 

R.C. 2929.41(B)(3) demonstrates the General Assembly’s intent to allow 

cumulative punishments for those offenses, and it suggests that our analysis for 

determining whether offenses merge pursuant to R.C. 2941.25 does not apply. 

 
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The Offenses Are Not Allied Offenses of Similar Import

{¶ 11} We conclude that the trial court did not err in sentencing Earley for 

both OVI in violation of R.C. 4511.19(A)(1)(a) and aggravated vehicular assault in 

violation of R.C. 2903.08(A)(1)(a), because we hold that the two offenses are not 

allied offenses of similar import. In so concluding, we note that Earley’s reliance 

upon Johnson is misplaced. The lead opinion in Johnson did not receive the support 

of a majority of this court, and more recent decisions of this court have rendered 

the analysis of the Johnson lead opinion largely obsolete. See State v. Ruff, 143 

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16 (recognizing that although 

Johnson included a syllabus paragraph, our decision in that case “was incomplete”). 

{¶ 12} We have applied a three-part test under R.C. 2941.25 to determine 

whether a defendant can be convicted of multiple offenses: 

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. 

Ruff at ¶ 31; see also id. at paragraphs one, two, and three of the syllabus. 

{¶ 13} The two particular offenses at issue here—felony aggravatedvehicular- assault under R.C. 2903.08(A)(1)(a) and misdemeanor OVI under R.C. 

4511.19(A)(1)(a)—are offenses of dissimilar import and significance. R.C. 

2903.08 states: 
January Term, 2015 

7

(A) No person, while operating or participating in the 

operation of a motor vehicle, * * * shall cause serious physical harm 

to another person or another’s unborn in any of the following ways: 

(1)(a) As the proximate result of committing a violation of 

division (A) of section 4511.19 of the Revised Code or of a 

substantially equivalent municipal ordinance. 

Aggravated vehicular assault as defined in R.C. 2903.08(A)(1)(a) is a felony of the 

third degree unless one of the enumerated exceptions applies to make it a felony of 

the second degree, R.C. 2903.08(B)(1), and always carries a mandatory prison term, 

R.C. 2903.08(D)(1). 

{¶ 14} R.C. 4511.19 provides: 

(A)(1) No person shall operate any vehicle * * * within this 

state, if, at the time of the operation, any of the following apply: 

(a) The person is under the influence of alcohol, a drug of 

abuse, or a combination of them. 

OVI in violation of R.C. 4511.19(A)(1)(a) is a misdemeanor of the first degree 

unless an exception applies. R.C. 4511.19(G)(1)(a). 

{¶ 15} By criminalizing aggravated vehicular assault under R.C. 

2903.08(A)(1)(a) and classifying it as a third-degree felony with a mandatory 

prison term, the General Assembly emphasized the necessity of a strong 

punishment for and deterrent against individuals causing serious physical harm 

while driving under the influence. This felony offense has a different import and 

significance than merely driving under the influence, for aggravated vehicular 

assault necessarily involves causing serious physical harm to another person. A 
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first-degree misdemeanor violation of R.C. 4511.19(A)(1)(a), on the other hand, 

occurs any time an individual drives under the influence of alcohol or drugs, and 

one who does so commits this offense regardless of any subsequent consequences 

that occur due to the impaired driver’s actions. There is a legitimate justification 

for criminalizing each of these offenses separately, and R.C. 2941.25 permits 

separate convictions for both pursuant to the test set forth in Ruff. 

{¶ 16} 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. 

R.C. 2941.25 and 2929.41(B)(3) Have Independent Effect 

{¶ 17} We further hold that R.C. 2929.41(B)(3) does not create an 

exception to R.C. 2941.25. Instead, the two statutes are independent and work 

together. 

{¶ 18} The allied-offense statute, R.C. 2941.25, concerns the merger of 

convictions. By applying R.C. 2941.25, courts determine whether a defendant can 

be convicted of multiple offenses. If a court concludes that particular multiple 

offenses are not allied offenses of similar import pursuant to R.C. 2941.25, the 

defendant may be convicted of all of them. And if that occurs, the court then 

proceeds to sentence the defendant on all the offenses. 

{¶ 19} R.C. 2929.41 addresses sentencing, providing instruction to the trial 

court on whether prison terms shall be served consecutively or concurrently. We 

accordingly conclude that because R.C. 2929.41 does not become relevant until 

valid convictions have already been obtained, it cannot be said that R.C. 2929.41 

creates an exception to R.C. 2941.25. 

{¶ 20} By explicitly providing that a sentence for a violation of R.C. 

4511.19 can be served either consecutively or concurrently to a sentence for a 

violation of R.C. 2903.08, the language of R.C. 2929.41(B)(3) bolsters the view 

that a first-degree-misdemeanor OVI and a third-degree-felony aggravated 
January Term, 2015 

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vehicular assault are offenses of dissimilar import and significance that are to be 

punished cumulatively. R.C. 2929.41(B)(3) authorized the trial court to impose 

multiple sentences on Early for those offenses by providing that the requirement 

for concurrent sentences stated in R.C. 2929.41(A) does not necessarily apply in 

this specific situation. Although this language is fully consistent with our 

conclusion that the two offenses at issue in this case are not allied offenses of 

similar import, it is not dispositive of that concern because either sentencing option 

available to the trial court under R.C. 2929.41 here was based on the presence of 

two valid separate convictions. 

III. Conclusion 

{¶ 21} We accordingly hold 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 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. 

Furthermore, R.C. 2941.25 and 2929.41(B)(3) have independent effect, and it 

cannot be said that R.C. 2929.41(B)(3) provides an exception to the allied-offense 

statute. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur. 

O’DONNELL, KENNEDY, and FRENCH, JJ., concur in judgment. 

_________________ 

O’DONNELL, J., separately concurring. 

{¶ 22} R.C. 2929.41(B)(3) carves out an exception to the allied offense 

statute and permits a court to impose consecutive sentences for felony aggravated 

vehicular assault in violation of R.C. 2903.08(A)(1)(a) and its predicate 

misdemeanor offense of operating a motor vehicle under the influence of alcohol 
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or drugs (“OVI”) in violation of R.C. 4511.19(A)(1)(a), regardless of whether they 

are allied offenses of similar import.

{¶ 23} We have considered the allied offense statute, R.C. 2941.25, on 

many occasions and have recognized it as a legislative prohibition against multiple 

punishments for two or more offenses resulting from the same conduct. See State 

v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 11. 

{¶ 24} It 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 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. 

{¶ 25} R.C. 2929.41(B)(3) specifically authorizes a trial court to exercise 

its discretion to impose consecutive sentences for misdemeanor OVI violations: 

A jail term or sentence of imprisonment imposed for a 

misdemeanor violation of section * * * 4511.19 of the Revised Code

shall be served consecutively to a prison term that is imposed for a 

felony violation of section * * * 2903.08 * * * when the trial court 

specifies that it is to be served consecutively. 
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(Emphasis added.) 

{¶ 26} By using this language, the General Assembly expressed its intent to 

vest a sentencing court with discretion to impose consecutive sentences for the 

felony of aggravated vehicular assault and a misdemeanor OVI offense whenever 

the court exercises its discretion to impose sentence in that fashion. In State v. 

Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, this court stated: 

“[W]hen the General Assembly has plainly and unambiguously conveyed its 

legislative intent, there is nothing for a court to interpret or construe, and therefore, 

the court applies the law as written.” Id. at syllabus. 

{¶ 27} The majority concludes that R.C. 2941.25 is independent from R.C. 

2929.41(B)(3) because R.C. 2941.25 focuses on multiple convictions while R.C. 

2929.41 addresses sentencing. According to the majority, “R.C. 2929.41 does not 

become relevant until valid convictions have already been obtained.” (Emphasis 

sic.) Majority opinion at ¶ 19. However, we recently concluded that “ ‘for purposes 

of R.C. 2941.25(A), a conviction is a determination of guilt and the ensuing 

sentence,’ ” thus, a defendant “ ‘is not “convicted” for purposes of R.C. 2941.25(A) 

until the sentence is imposed.’ ” (Emphasis added.) State v. Rogers, 143 Ohio 

St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 18, quoting State v. Whitfield, 124 

Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 13, 24. Therefore, “merger of 

allied offenses occurs at sentencing.” Id., citing Whitfield at ¶ 18.

{¶ 28} The allied offense statute provides general rules on whether multiple 

sentences may be imposed, whereas R.C. 2929.41(B)(3) expressly refers to the two 

offenses at issue in this case and permits a trial court to exercise its discretion to 

impose consecutive sentences if it chooses to do so. 

{¶ 29} Accordingly, regardless of whether the felony offense of aggravated 

vehicular assault and the misdemeanor offense of OVI qualify as allied offenses of 

similar import for purposes of R.C. 2941.25, the specific directory language of R.C. 
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2929.41(B)(3) permits a trial court to impose cumulative sentences for those 

offenses independent of and without regard to the allied offense statute. 

{¶ 30} For this reason, I concur with the judgment entered in this case. 

KENNEDY and FRENCH, JJ., concur in the foregoing opinion. 

_________________ 

 Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brett 

Hammond and T. Allan Regas, Assistant Prosecuting Attorneys, for appellee. 

 Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, 

Assistant Public Defender, for appellant. 

 Kitrick, Lewis & Harris Co., L.P.A., Mark Kitrick, and Elizabeth Mote, 

urging affirmance for amicus curiae Mothers Against Drunk Driving. 

 Ron O’Brien, Franklin County Prosecuting Attorney, and Michael P. 

Walton, Assistant Prosecuting Attorney, urging affirmance for amicus curiae 

Franklin County Prosecuting Attorney Ron O’Brien. 

_________________