State v. Adams , 2014 Ohio 3496 ( 2014 )

[Cite as State v. Adams, 2014-Ohio-3496.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100500
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVID JAMES ADAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573529
BEFORE: Blackmon, J., S. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: August 14, 2014
-i-
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristin Karkutt
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant David James Adams (“Adams”) appeals his sentence and sets
forth the following assigned error for our review:
The trial court committed error and imposed a sentence contrary to law
when it failed to merge the offenses of involuntary manslaughter and
felonious assault as they are allied offenses of similar import pursuant to
R.C. 2941.25(A).
{¶2} Having reviewed the record and pertinent law, we affirm Adams’s sentence.
The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury indicted Adams for two counts of
murder, two counts of felonious assault, and one count of reckless homicide, all of
which had one and three-year firearm specifications attached. Additionally, Adams was
charged with one count of tampering with evidence and one count of grand theft.
{¶4} Pursuant to a plea agreement, Adams pled guilty to an amended count of
involuntary manslaughter with a three-year firearm specification and one count of
felonious assault. He also pled guilty to tampering with evidence and grand theft. The
remaining counts were nolled.
{¶5} Adams and the state further agreed to a definite term of incarceration of at
least 15 years, not to exceed 25 years. They also stipulated that the involuntary
manslaughter and felonious assault counts would not merge. The trial court accepted the
plea deal as presented, and sentenced Adams to 11 years for involuntary manslaughter
along with three years for the firearm specification, eight years for felonious assault, three
years for tampering with evidence, and 18 months for grand theft. The court ordered the
involuntary manslaughter, felonious assault, tampering with evidence, and the firearm
specification be served consecutively, and the grand theft sentence be served
concurrently. The total sentence imposed by the trial court was 25 years in prison.
Allied Offenses
{¶6} In his sole assigned error, Adams argues that the trial court committed plain
error by failing to merge the involuntary manslaughter and felonious assault counts.
{¶7} We conclude Adams’s assigned error has no merit. At the guilty plea
hearing, the prosecutor addressed the agreement regarding not merging the counts as
follows:
As part and parcel of this plea agreement, Your Honor, the State of Ohio
and defense have an agreement that the felonious assault, Count 3, does not
merge with the amended Count 2, involuntary manslaughter and that we are
proposing a range of sentence, for this court to consider, of flat time,
minimum fifteen years, maximum of twenty-five years.
Tr. 5.
{¶8} The court and defense counsel then further discussed as follows:
Attorney: We understand, again, felonious assault and involuntary
manslaughter will probably merge. But, for the sake of the plea
bargain, we’re willing to waive.
Court: Okay. So, we’re going to agree that these are not allied offenses. Also
agree that the court, in order to reach the negotiated result here, must
issue consecutive sentences, although I will place findings on the
record. The defendant is waiving error with regard to the
consecutive sentences described?
Attorney: Yes, Judge.
Tr. 7.
{¶9} The trial court then had the following discussion with Adams prior to
accepting his plea:
Court: You also agree, I want to make this clear for the record that as far as
sentencing that you just pled to, Counts 2 and 3 will not merge for
sentencing. Do you understand that?
Adams: Yes, sir.
Court: Does that in any way affect the plea you just made?
Adams: No, sir.
Tr. 21.
{¶10} This court has held that when the transcript demonstrates the state and
defense counsel specifically agreed that the offenses were not allied, the issue of allied
offenses is waived. State v. Yokings, 8th Dist. Cuyahoga No. 98632, 2013-Ohio-1890;
State v. Carmen, 8th Dist. Cuyahoga No. 99463, 2013-Ohio-4910; State v. Ward, 8th
Dist. Cuyahoga No. 97219, 2012-Ohio-1199.
{¶11} In spite of the above precedent, Adams relies on the Ohio Supreme Court’s
decision in State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 93, to
argue that it was plain error for the trial court to fail to consider merging the sentences
even if the sentence was agreed to. Underwood does state:
When a sentence is imposed for multiple convictions on offenses that are
allied offenses of similar import in violation of R.C. 2941.25(A), R.C.
2953.08(D)(1) does not bar appellate review of that sentence even though it
was jointly recommended by the parties and imposed by the court.
{¶12} However, this court in Yokings, Carmen, and Ward distinguished
Underwood based on the fact that merger was not discussed as part of the agreed sentence
in Underwood. In fact, Underwood explicitly states:
[W]e note that nothing in this decision precludes the state and a defendant
from stipulating in the plea agreement that the offenses were committed
with separate animus, thus subjecting the defendant to more than one
conviction and sentence. When the plea agreement is silent on the issue of
allied offenses of similar import, however, the trial court is obligated under
R.C. 2941.25 to determine whether the offenses are allied, and if they are,
to convict the defendant of only one offense.
Id. at ¶ 29.
{¶13} The discussion that occurred in the instant case satisfies the requirements of
Underwood. The prosecutor and defense counsel discussed the fact that they agreed the
offenses would not merge as part of the plea bargain. The trial court explained to Adams
the agreement to not merge the counts, and Adams indicated that he understood that they
would not merge. Thus, the parties had an agreement the offenses would not merge and
Adams got the benefit of the bargain by not having a life-tail imposed at the end of his
sentence. Underwood does not require the trial court to determine whether the offenses
actually merge before accepting the plea when the parties have specifically entered into
an agreement that they do not merge. It is when the parties fail to discuss the merger that
the trial court is obligated to determine if the offenses are allied offenses. Based on the
terms of the plea in the instant case, the issue of allied offenses is waived. Accordingly,
Adams’s assigned error is overruled.
{¶14} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga Court of Common
Pleas to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR