State v. Miranda

[Cite as State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451.]

THE STATE OF OHIO, APPELLEE, v. MIRANDA, APPELLANT.
[Cite as State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451.]
Criminal law—Sentencing—Allied offenses of similar import—R.C. 2941.25—
Racketeer Influenced and Corrupt Organizations Act—R.C. 2923.32(A)(1)—
RICO offense does not merge with its predicate offenses for purposes of
sentencing.
(No. 2012-1741—Submitted November 5, 2013—Decided February 12, 2014.)
APPEAL from the Court of Appeals for Franklin County,
No. 11AP-788, 2012-Ohio-3971.
____________________
KENNEDY, J.
{¶ 1} In this discretionary appeal from the Tenth District, we determine
whether a trial court can impose separate sentences for engaging in a pattern of
criminal activity under R.C. 2923.32(A)(1) (“RICO”1) and for the underlying
predicate offenses. The appellant, Arnaldo R. Miranda, advances one proposition
of law:

Ohio appellate courts are required to apply the new
standard announced in State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061[,] when deciding whether the
imposition of multiple convictions and sentences for the offense of
engaging in a pattern of corrupt activity and one or more of its
predicate felonies violates R.C. 2941.25 (the Allied Offenses
Statute) and a defendant’s rights under the Double Jeopardy

1. RICO is the acronym for the Racketeer Influenced and Corrupt Organizations Act, which is a
federal law found at 18 U.S.C. 1961 et seq. Because Ohio’s corrupt-activity statute, R.C.
2923.32(A)(1), is in general based on the federal statute, we have referred to it as “Ohio’s RICO
statute.” State v. Schlosser, 79 Ohio St.3d 329, 330, 681 N.E.2d 911 (1997).
 SUPREME COURT OF OHIO

Clauses of [the] Fifth and Fourteenth Amendments to the United
States Constitution and Article I, Section 10 of the Ohio
Constitution.

{¶ 2} Appellee, the state of Ohio, argues that the prohibition against
multiple punishments for allied offenses of similar import is not applicable,
because the General Assembly, as evidenced in the RICO statute, intended that
courts may sentence defendants for both the RICO violation and the predicate
offense.
{¶ 3} We hold that Johnson is not applicable to a RICO violation and
that a RICO offense does not merge with its predicate offenses for purposes of
sentencing. We affirm the judgment of the court of appeals.
I. Facts and Procedural History
{¶ 4} The state’s investigation revealed that Arnaldo Miranda was
involved in a marijuana-trafficking ring. Consequently, the state charged Miranda
with one RICO violation under R.C. 2923.32(A)(1) and six predicate offenses
(three counts of trafficking in marijuana and three counts of possessing
marijuana). Miranda pleaded guilty to the RICO count and one count of
trafficking in marijuana under R.C. 2925.03. The state dismissed the remaining
counts. In addition to other sanctions, the trial court imposed a six-year prison
term for the RICO offense and an eight-year prison term for the trafficking
offense, to be served consecutively, for an aggregate prison term of 14 years.
Miranda did not object to the sentence at the sentencing hearing.
{¶ 5} Miranda appealed, asserting that the trial court’s imposition of
consecutive prison sentences for the RICO offense and the predicate offense of
trafficking in drugs violated the Double Jeopardy Clauses of the United States and
Ohio Constitutions. He contends that the offenses were allied offenses of similar
import and should have been merged for purposes of sentencing under R.C.

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2941.25(A), which protects defendants from multiple punishments for a single
criminal act. The court of appeals held that double jeopardy was not implicated,
because the General Assembly intended that a defendant convicted of a RICO
violation could be sentenced for both the RICO offense and its predicate offenses.
Therefore, the court of appeals affirmed Miranda’s separate sentences.
II. Analysis
A. Double Jeopardy, Multiple Sentences, and RICO
{¶ 6} “The Double Jeopardy Clause of the Fifth Amendment, applicable
to the States through the Fourteenth Amendment, provides: ‘[N]or shall any
person be subject for the same offence to be twice put in jeopardy of life or
limb.’ ” Monge v. California, 524 U.S. 721, 727, 118 S.Ct. 2246, 141 L.Ed.2d
615 (1998). The Double Jeopardy Clause of the Ohio Constitution, Article I,
Section 10, provides the same protection. State v. Martello, 97 Ohio St.3d 398,
2002-Ohio-6661, 780 N.E.2d 250, ¶ 7. Both clauses protect a defendant against a
second prosecution for the same offense after acquittal, a second prosecution for
the same offense after conviction, and multiple punishments for the same offense.
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656
(1969). In this case, Miranda claims that he was punished twice for the same
offense when the trial court sentenced him for both the RICO violation and for the
predicate offense of trafficking in drugs. However, “[w]ith respect to cumulative
sentences imposed in a single trial, the Double Jeopardy Clause does no more
than prevent the sentencing court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74
L.Ed.2d 535 (1983). Therefore, we must determine “whether the General
Assembly intended to permit multiple punishments for the offenses at issue.”
State v. Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).
{¶ 7} “[T]he primary legislative statement on the multiplicity issue is
found in R.C. 2941.25, concerning allied offenses of similar import.” Id. That

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statute provides, “Where the same conduct 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.”
{¶ 8} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, we held that R.C. 2941.25(A) requires the sentencing court to first
determine “whether it is possible to commit one offense and commit the other
with the same conduct.” (Emphasis sic.) Id. at ¶ 48. If the defendant’s conduct
constituting commission of one offense constitutes commission of the other, then
the offenses are of similar import, and the court must then decide whether the
offenses were committed with a single state of mind, i.e., a single animus. Id. at
¶ 48-49. If so, the offenses are allied offenses of similar import that must be
merged, and the defendant can be punished for only one. Id. at ¶ 50.
{¶ 9} Alternatively, if it is not possible to commit the offenses with the
same conduct, or if the offenses were committed separately or with a separate
animus, then the court may sentence the defendant for all the offenses at issue. Id.
at ¶ 51.
{¶ 10} “R.C. 2941.25, however, is not the sole legislative declaration in
Ohio on the multiplicity of indictments.” Childs at 561. “While our two-tiered
test for determining whether offenses constitute allied offenses of similar import
is helpful in construing legislative intent, it is not necessary to resort to that test
when the legislature’s intent is clear from the language of the statute.” State v.
Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 37. R.C.
2941.25 generally provides the appropriate test to determine whether the court
may impose multiple punishments for offenses arising from the same conduct.
However, in this case, we find that the RICO statute evinces the General
Assembly’s intent that a court may sentence a defendant for both the RICO
offense and its predicate offenses.

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{¶ 11} We begin our analysis by examining Ohio’s RICO statute, R.C.
2923.32(A)(1). “The primary goal in construing a statute is to ascertain and give
effect to the intent of the legislature.” State ex rel. Cordray v. Midway Motor
Sales, Inc., 122 Ohio St.3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 15. “A court
must look to the language and purpose of the statute in order to determine
legislative intent.” State v. Cook, 83 Ohio St.3d 404, 416, 700 N.E.2d 570 (1998).
“[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.” State v. Kreischer, 109 Ohio St.3d
391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus.
{¶ 12} R.C. 2923.32(A)(1), Ohio’s RICO statute, provides: “No person
employed by, or associated with, any enterprise shall conduct or participate in,
directly or indirectly, the affairs of the enterprise through a pattern of corrupt
activity or the collection of an unlawful debt.” “Enterprise” is defined as
including “any individual, sole proprietorship, partnership, limited partnership,
corporation, trust, union, government agency, or other legal entity, or any
organization, association, or group of persons associated in fact although not a
legal entity.” R.C. 2923.31(C). “Corrupt activity” is defined as any of the
criminal offenses listed in R.C. 2923.31(I). And finally, a “pattern of corrupt
activity” means “two or more incidents of corrupt activity * * * that are related to
the affairs of the same enterprise, are not isolated, and are not so closely related to
each other and connected in time and place that they constitute a single event.”
R.C. 2923.31(E).
{¶ 13} A RICO offense is dependent upon a defendant committing two or
more predicate offenses listed in R.C. 2923.31(I). However, a RICO offense also
requires a defendant to be “employed by, or associated with” an “enterprise” and
to “conduct or participate in” an “enterprise through a pattern of corrupt activity.”
R.C. 2923.32(A)(1). “Such pattern must include both a relationship and

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continuous activity, as well as proof of the existence of an enterprise. Thus, the
conduct required to commit a RICO violation is independent of the conduct
required to commit [the underlying predicate offenses].” (Emphasis added.)
State v. Dudas, 11th Dist. Lake Nos. 2008-L-109 and 2008-L-110, 2009-Ohio-
1001, ¶ 46. See also State v. Moulton, 8th Dist. Cuyahoga No. 93726, 2010-Ohio-
4484, ¶ 36; State v. Caudill, 3d Dist. Hancock No. 05-97-35, 1998 WL 833729,
*9 (Dec. 2, 1998). The intent of RICO is “ ‘to criminalize the pattern of criminal
activity, not the underlying predicate acts.’ ” State v. Thomas, 3d Dist. Allen Nos.
1-11-25 and 1-11-26, 2012-Ohio-5577, ¶ 61, quoting State v. Dodson, 12th Dist.
Butler No. 2009-07-1147, 2011-Ohio-6222, ¶ 68. See also Dudas at ¶ 47.
{¶ 14} Moreover, one of the purposes of the RICO statute is to provide “
‘enhanced sanctions * * * to deal with the unlawful activities of those engaged in
organized crime.’ ” (Emphasis added.) State v. Schlosser, 79 Ohio St.3d 329,
332, 681 N.E.2d 911 (1997), quoting the Organized Crime Control Act of 1970,
Statement of Findings and Purpose, 84 Stat. 922, reprinted in 1970 U.S.Code
Cong. & Adm.News at 1073. “The RICO statute was designed to impose
cumulative liability for the criminal enterprise.” Id. at 335. In State v. Thomas,
2012-Ohio-5577, ¶ 61, the court stated that “[i]f the purpose of [RICO] is to
provide enhanced sanctions, this purpose is furthered by not merging [the
predicate offenses with the RICO offense].” See also Dudas, 2009-Ohio-1001,
¶ 47; Moulton, 2010-Ohio-4484, ¶ 37.
{¶ 15} Construing the similarly worded federal RICO statute, 18 U.S.C.
1962(c), federal circuit courts have similarly concluded that the purpose of RICO
in providing enhanced sanctions indicates an intent to permit cumulative
punishments for the RICO offense and its underlying predicate offenses. See
United States v. Sutton, 700 F.2d 1078, 1081 (6th Cir.1983); United States v.
Greenleaf, 692 F.2d 182, 189 (1st Cir.1982); United States v. Boylan, 620 F.2d
359, 361 (2d Cir.1980); United States v. Grayson, 795 F.2d 278, 282-284 (3d

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Cir.1986); United States v. Truglio, 731 F.2d 1123, 1128-1130 (4th Cir.1984),
overruled on other grounds, United States v. Burgos, 94 F.3d 849 (4th Cir.1996);
United States v. Phillips, 664 F.2d 971, 1015 (5th Cir.1981); United States v.
Morgano, 39 F.3d 1358, 1367 (7th Cir.1994); United States v. Kragness, 830 F.2d
842, 864 (8th Cir.1987); United States v. Beale, 921 F.2d 1412, 1437 (11th
Cir.1991).
B. 2006 Sub.H.B. No. 241
{¶ 16} Despite this wealth of authority indicating otherwise, Miranda
claims that the RICO statute no longer permits cumulative punishments because
of a 2006 amendment.
{¶ 17} In 2006, Sub.H.B. No. 241 (“H.B. 241”) amended the former RICO
statute by removing division (D). 151 Ohio Laws, Part V, 9092, 9133. That
division stated:

Criminal penalties under this section are not mutually
exclusive, unless otherwise provided, and do not preclude the
application of any other criminal or civil remedy under this or any
other section of the Revised Code. A disposition of criminal
forfeiture ordered pursuant to division (B)(3) of this section in
relation to a child who was adjudicated delinquent by reason of a
violation of this section does not preclude the application of any
other order of disposition under Chapter 2152. of the Revised
Code or any other civil remedy under this or any other section of
the Revised Code.

148 Ohio Laws, Part IV, 9447, 9646.
{¶ 18} Miranda argues that by removing the language “[c]riminal
penalties under this section are not mutually exclusive, unless otherwise

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provided,” the General Assembly expressed an intent that courts could merge
RICO offenses and their predicate offenses for purposes of sentencing. A
thorough examination of H.B. 241 reveals otherwise.
{¶ 19} H.B. 241 created R.C. Chapter 2981, which addresses civil and
criminal forfeitures. 151 Ohio Laws, Part V, 9092, 9217-9243. Much of the
remainder of H.B. 241 repealed former forfeiture provisions in various sections of
the Revised Code, removed references to those provisions, and replaced them
with language from the new provisions. H.B. 241 also repealed R.C.
2923.32(B)(4)(a) through (G), all of which dealt with forfeiture. We will not
presume that in the midst of this broad repeal, the single sentence stressed by
Miranda was deleted for a different reason, and we certainly will not presume that
the deletion was intended to overturn the universal reading of R.C. 2923.32(A)(1)
as permitting cumulative punishment. The purpose of the RICO statute—to
provide enhanced sanctions for patterns of corrupt activity—remains the same.
That purpose has always been found in division (A)(1) of the statute, which
specifies that it is the pattern that constitutes the offense. Thus, a violation of
R.C. 2923.32(A)(1) may be punished separately from the underlying offenses.
Accordingly, we hold that the repeal of former division (D) of R.C. 2923.32 does
not affect the availability of cumulative punishments for violations of RICO and
its predicate offenses.
III. Conclusion
{¶ 20} We hold that Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, is not applicable to a RICO violation, and a RICO offense does not
merge with its predicate offenses for purposes of sentencing. In this case, the trial
court sentenced Miranda for both RICO and the predicate offense of trafficking in
marijuana. Therefore, the trial court did not err in sentencing Miranda.
Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.

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PFEIFER, O’DONNELL, and O’NEILL, JJ., concur.
O’CONNOR, C.J., and LANZINGER and PIPER, JJ., concur in judgment.
ROBIN N. PIPER III, J., of the Twelfth Appellate District, sitting for
FRENCH, J.
____________________
LANZINGER, J., concurring in judgment.
{¶ 21} I would hold simply that because a RICO offense and its
underlying predicate offenses are offenses of dissimilar import, they do not
merge. R.C. 2941.25(B) states:

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.

(Emphasis added.)
{¶ 22} In reviewing whether multiple crimes constitute allied offenses that
merge, heretofore we have mainly discussed the concept of offenses of the same
or similar import that result in offenses committed separately or with a separate
animus. We have not often discussed situations in which offenses are of
dissimilar import. Yet if the defendant’s conduct does not constitute two or more
offenses of similar import (i.e., of similar nature or character), a defendant may be
convicted and sentenced consecutively or concurrently for each conviction.
{¶ 23} It is helpful in the merger analysis to remember that R.C.
2941.25(B) distinguishes between offenses that are dissimilar in import from
offenses similar in import but committed separately or with a separate animus. If

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the conduct of the offender has led to charges of dissimilar import, the offenses do
not merge, and there is no need to consider the animus with which they were
committed or whether they were committed separately.
{¶ 24} Miranda’s case provides a prime example of offenses of dissimilar
import. He was charged with trafficking in marijuana and possession of
marijuana, felonies involving the sale and possession of a specific drug. He was
also charged with a RICO violation, specifically, with “engag[ing] in violations of
law, to wit: [R.C.] 2925.11 and 2925.03” while “associat[ing] with an enterprise”
and “conduct[ing] or participat[ing] in * * * the affairs of the enterprise.” As the
majority explains, RICO is a felony offense that was designed to punish
participation in an enterprise that engages in a pattern of corrupt activity. R.C.
2923.32(A)(1). The predicate offense of trafficking in marijuana provides one of
the elements needed for a RICO conviction. Miranda’s marijuana offense differs
from the RICO offense, and the convictions are not the same in their nature or
character. The predicate offense here involves the sale of drugs while, as the
majority explains, RICO was promulgated to “ ‘deal with the unlawful activities
of those engaged in organized crime.’ ˮ State v. Schlosser, 79 Ohio St.3d 329,
332, 681 N.E.2d 911 (1997), quoting the Organized Crime Control Act of 1970,
Statement of Findings and Purpose, 84 Stat. 922, reprinted in 1970 U.S.Code
Cong. & Adm.News at 1073.
{¶ 25} Miranda argues that his sentences for the same conduct in these
offenses violate the rule expressed in State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061. While it is true that the syllabus in Johnson says
that “[w]hen determining whether two offenses are allied offenses of similar
import subject to merger under R.C. 2941.25, the conduct of the accused must be
considered,” this language does not offer the complete analysis necessary to
determine whether offenses are subject to merger rather than multiple convictions
and cumulative punishment. Consideration of the defendant’s conduct is but the

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first step in determining whether multiple offenses are allied offenses of similar
import pursuant to R.C. 2941.25(B). As a justice in Johnson succinctly stated
about allied offenses of similar import: “In practice, allied offenses of similar
import are simply multiple offenses that arise out of the same criminal conduct
and are similar but not identical in the significance of the criminal wrongs
committed and the resulting harm.” (Emphasis added.) Id. at ¶ 64 (O’Connor, J.,
concurring in judgment). In other words, offenses are dissimilar if they are not
alike in their significance and their resulting harm.
{¶ 26} In enacting the RICO statute, the General Assembly has shown its
intention to create a new offense that will punish more severely certain specified
conduct in which individuals participate in a pattern of corrupt activity within a
criminal enterprise. As a result, RICO is dissimilar from any underlying offenses
upon which a defendant is convicted, for the offenses do not involve similar
criminal wrongs and similar resulting harm.
{¶ 27} For these reasons, I concur in judgment, emphasizing that RICO
and its underlying predicate offenses are of dissimilar import and will therefore
never merge.
O’CONNOR, C.J., and PIPER, J., concur in the foregoing opinion.
____________________
Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert,
Assistant Prosecuting Attorney, for appellee.
David P. Rieser and David J. Graeff, for appellant.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel
T. Van, Assistant Prosecuting Attorney, urging affirmance for amicus curiae,
Cuyahoga County Prosecutor’s Office.
________________________

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