Shootout case may test 'felony murder' sentencing

A highly publicized criminal case from Athens County may be used to test the way Ohio courts sentence criminals who commit felonies during which someone gets killed.

The Athens County Prosecutor's Office has asked the Ohio Supreme Court to review an appellate court's ruling in a case stemming from a 2009 shootout in New Marshfield. A statewide prosecutor's organization has added its support, suggesting that the case of Abdifatah Abdi raises a very important legal issue, which could affect how courts across the state handle felony cases in which someone dies as a predictable result of a violent crime a bank robbery, for example, in which a bank guard is shot to death.

"That's what OPAA believes, and obviously that's what I believe," said Athens County Prosecutor Keller Blackburn Tuesday. The Ohio Prosecuting Attorneys Association (OPAA) has filed an amicus ("friend of the court") brief with the Ohio Supreme Court, urging the high court to accept Blackburn's appeal in the Abdi case for review.

What's at issue in Abdi's case is whether a person charged with so-called "felony murder" can be given a separate sentence for the "underlying felony" that allowed the felony murder charge to be filed in the first place. In Ohio, as in other states, a person who commits a violent felony in which someone gets killed can be charged with murder, regardless of whether the defendant actually killed someone himself.

In Abdi's case, he was one of a group of people who tried to force their way into an alleged drug dealer's home in New Marshfield in February 2009. In the shootout that resulted, an unarmed bystander was killed.

Though only one person could have fired the gun that killed victim Donnie Putnam, four men Abdi, two accomplices, and a man who was shooting back from inside the residence have all been convicted and sent to prison in connection with the death. Abdi and two of his accomplices are all serving terms of 28 years to life, on charges including felony murder, for their part in the gunfight.

The Athens County Prosecutor's office has said repeatedly that it does not know for sure who fired the shot that killed Putnam, but that it does not matter anyone who took part in the attempted robbery was equally guilty of murder. (In fact, however, the OPAA amicus brief states that the fatal shot was fired by John Perry II, a man who was shooting out at Abdi and his comrades from inside the residence.)

"The victim's death was caused by a gun shot fired by Perry, not Abdi," writes attorney Heaven DiMartino for the OPAA.

The biggest question that has been raised in an appeal of Abdi's conviction is whether a judge in Athens County Common Pleas Court was legally allowed to give Abdi separate, consecutive prison sentences for murder and for aggravated robbery, given that the robbery charge was the "underlying" or "predicate" offense that allowed the state to charge Abdi with murder.

A December 2010 ruling by the Ohio Supreme Court, in the case of State v. Johnson, significantly changed the rules on "merging" felony offenses, suggesting that offenses based on the same set of actions and intentions by the criminal can't be sentenced separately. Clarifying the meaning of the Johnson ruling is the main reason why Athens County Prosecutor Blackburn is asking the Supreme Court to review the Abdi decision.

In a decision issued in mid-July in the Abdi appeal, the 4^th District Court of Appeals rejected most of the arguments by defense attorney Russell Bensing on why Abdi should have his conviction overturned. It did find merit, however, in Bensing's claim that Abdi should not have been sentenced separately for the robbery and the murder that resulted from it, because these two charges were essentially based on the same set of actions, and therefore qualified as "allied offenses of similar import."

This is the finding that worries Blackburn and the OPAA. They're concerned that Johnson may be interpreted to mean that any time a person commits an aggravated robbery in which someone gets killed, the robbery and "felony murder" counts will have to be merged for sentencing. What that could mean, Blackburn said, is that a violent robber or someone committing another violent felony such as rape will have no incentive to not kill everyone on the scene.

In the case of the incident involving Abdi, for example, Blackburn said, the appeals court is apparently saying that the killing of Putnam and the attempt to break into the home were based on the same set of actions, and can't be the basis for separate sentences. What this suggests to him, he said, is that additional homicides wouldn't have upped the sentences for Abdi and his criminal colleagues.

"Had they shot somebody else it's still the same action, right?" he asked. "Had they killed everybody in the house, they'd still be serving 28 to life."

Nonsense, according to Bensing. He said that had any of the defendants deliberately killed anyone other than Putnam who was reportedly felled by a stray bullet this would have clearly provided the basis for a separate murder charge against the killer.

"They would always charge that out separately," he suggested.

Bensing suggested that Blackburn and OPAA may be over-reacting to the Abdi and Johnson decisions. By his reading, he said, Johnson says only that a court must look closely at each individual case, to see whether the actions and motives that support, for example, a robbery charge, are essentially identical to those that support a related "felony murder" charge. If they are, he said, the court should, according to Johnson, merge the offenses for sentencing.

"I don't think (Blackburn's) fears are substantiated," Bensing said. "I don't seen any big change of law coming out of this (case)."