¶1 concurring in part and dissenting in part.
¶2 I agree with the majority that the issue is barred by principles of res judicata. Double jeopardy claims can be waived by failure to raise the issue. United States v. Vontsteen (C.A.5, 1992), 950 F.2d 1086; United States v. Bascaro (C.A.11, 1984), 742 F.2d 1335. Clearly, this issue could have been raised on direct appeal, but was not. See State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104.
¶3 However, I disagree with the majority’s failure to find error in the imposition of two consecutive life sentences for the killing of one person. This defies common sense. It results in the embrace of the bizarre.
¶4 The entire analysis of this issue has broken down because the majority in this court, as well as the court in Ferguson, failed to properly consider that the legislature passed only one statute defining and prohibiting first degree murder. The essence of the crime of murder is the killing. There was but one killing. There should be one sentence for that killing because the legislature fixed the killing as the allowable unit of prosecution.
¶5 In State v. Best (1975), 42 Ohio St.2d 530, 534, 71 O.O.2d 517, 519, 330 N.E.2d 421, 424, the court, in discussing double jeopardy, quoted the following from Blockburger:
¶6 “ ‘ … * The applicable rule [under the Fifth Amendment] is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. … “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” ’ ” (Emphasis added and footnote deleted.)
¶7 The ruling of the majority in the case at bar is flawed because the majority is busy conducting its examination, not of two statutes, but of two phrases within a single statute that prohibits the killing of another.
¶8 In Sanabria v. United States (1978), 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43, the court held that the crime of engaging in a gambling business was but one offense even though it could be committed in many ways by violating the various state gambling statutes. The court held that Congress determines the allowable unit of prosecution by statutory prescription. Congress could have made each act of gambling a separate federal offense but, by failing to do so, Congress removed that option from the prosecutor.
¶9*593 Arguably, any resourceful prosecutor could examine a criminal statute and find two different methods of committing the same crime. However, the decision to create two crimes should be the legislature’s, not the prosecutor’s. I find nothing in former R.C. 2901.01 that in any way indicates that the legislature intended that a single murder be declared two murders. R.C. 2901.01 clearly prohibits but one crime — murder.