State v. Conner , 2023 Ohio 1220 ( 2023 )

[Cite as State v. Conner,
2023-Ohio-1220.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111889
v. :
KENDLE CONNER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 13, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-661251-B and CR-21-661269-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Marco Tanudra, Assistant Prosecuting
Attorney, for appellee.
Law Office of Timothy Farrell Sweeney and Timothy F.
Sweeney, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant, Kendle Conner, appeals his convictions after he
pled guilty to involuntary manslaughter, felonious assault and having weapons
while under disability in Cuyahoga C.P. No. CR-21-661269-A (“661269”) and having
weapons while under disability in Cuyahoga C.P. No. CR-21-661251-B (“661251”).
He contends that (1) his guilty pleas to the involuntary manslaughter and felonious
assault counts were not entered knowingly, intelligently and voluntarily and that the
trial court erred in accepting his guilty pleas because the trial court did not advise
him, prior to the entry of his guilty pleas, regarding the merger of allied offenses and
(2) the involuntary manslaughter and felonious assault counts should have merged
for sentencing. For the reasons that follow, we affirm.
Procedural History and Factual Background
In 661251, a Cuyahoga County Grand Jury indicted Conner on four
counts: two counts of having weapon while under disability in violation of R.C.
2923.13(A)(2), a third-degree felony, with forfeiture-of-weapon specifications; one
count of tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree
felony; and one count of carrying a concealed weapon in violation of R.C.
2923.12(A)(2), a fourth-degree felony, with forfeiture-of-weapon specifications.
These charges related to a July 1, 2021 incident.
In 661269, a Cuyahoga County Grand Jury indicted Conner on six
counts: one count of aggravated murder in violation of R.C. 2903.01(A), an
unclassified felony (Count 1); one count of murder in violation of R.C. 2903.02(A),
an unclassified felony (Count 2); one count of murder in violation of R.C.
2903.02(B), an unclassified felony (Count 3); one count of felonious assault in
violation of R.C. 2903.11(A)(1), a second-degree felony (Count 4); one count of
felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony (Count
5) and one count of having weapons while under disability in violation of R.C.
2923.13(A)(2), a third-degree felony. The aggravated murder, murder and felonious
assault counts included one-year and three-year firearm specifications. These
charges related to the May 31, 2021 shooting death of Jawun Washington. Conner
allegedly shot Washington in front of his mother and two young siblings at a gas
station in retaliation for an incident several months earlier in which Washington had
shot Conner. Washington was allegedly shot 13 times, including shots to his head,
lungs, heart and chest. Conner initially pled not guilty to all charges.
On July 11, 2022, the day scheduled for trial, the parties reached a
plea agreement involving both cases. In 661269, Conner agreed to plead guilty to
one count of involuntary manslaughter in violation of R.C. 2903.04(A), a first-
degree felony, with a three-year firearm specification (amended Count 1), one count
of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony
(amended Count 4) and one count of having weapons while under disability in
violation of R.C. 2923.13(A)(2), a third-degree felony (Count 6). In 661251, Conner
agreed to plead guilty to one count of having weapons while under disability in
violation of R.C. 2923.13(A)(2), a third-degree felony, with forfeiture-of-weapon
specifications (Count 1). The parties further agreed that (1) that amended Counts 1
and 4 in 661269 would not merge for sentencing and (2) Conner would receive an
aggregate sentence ranging from 20 to 25 years, at the court’s discretion, for the
offenses to which he would be pleading guilty in both cases. In exchange for
Conner’s guilty pleas, the remaining counts would be nolled.
At the change-of-plea hearing, the state set forth the terms of the
parties’ plea agreement on the record. Defense counsel confirmed that the state had
accurately set forth the terms of the plea agreement and stated that Conner was
prepared to withdraw his former not guilty pleas and enter guilty pleas “as outlined
by the State.”
After the terms of the plea agreement were stated on the record, the
trial judge proceeded with the plea colloquy. In response to the trial judge’s
preliminary questions, Conner indicated that he was a United States citizen, was 21
years old, had attended school until the 1oth grade and that he had no difficulty
reading or writing.
The trial judge confirmed with Conner that nothing had been “put in
front of [him] in writing with respect to the charges in these cases” that he did not
understand, that he was satisfied with the representation he had received from his
attorneys and that his attorneys had “explained everything” to Conner and answered
all his questions.
The trial judge then advised Conner of his constitutional rights and
confirmed that he understood the rights he would be waiving by entering his guilty
pleas. The trial judge identified each of the offenses to which Conner would be
pleading guilty and the potential penalties associated with each and confirmed that
Conner understood them. The trial judge also confirmed that Conner understood
that by pleading guilty to the offenses in these cases he had agreed to an aggregate
sentence with “a 20 to 25-year range,” which would be determined at the time of
sentencing. The trial judge explained postrelease control and the potential
consequences of violating postrelease control. Conner indicated that he understood.
Conner confirmed that no threats or promises had been made to him to induce him
to change his pleas other than what had been stated on the record at the change-of-
plea hearing.
Conner entered his guilty pleas consistent with the plea agreement.
The trial court found that Conner had entered his guilty pleas “knowingly,
voluntarily, with a full understanding of his rights,” accepted his guilty pleas and
nolled the remaining counts. Defense counsel and the state both indicated that they
were satisfied that the trial court had complied with Crim.R. 11.
The following day, the trial court conducted a sentencing hearing.
After hearing from the victim’s mother, the state, defense counsel and Conner, the
trial court sentenced Conner to an aggregate 25-year prison sentence. In 661269,
the trial court sentenced Conner to 11 years on amended Count 1 (3 years months on
the firearm specification to be served prior to and consecutive to eight years on the
base offense), to eight years on amended Count 4 and to 36 months on Count 6. In
661251, the trial court sentenced Conner to 36 months on Count 1. The sentences
on all counts were ordered to be served consecutively. The trial court also imposed
postrelease control, ordered the forfeiture of the weapons identified in the
forfeiture-of-weapons specifications and ordered Conner to pay costs.
In support of its imposition of consecutive sentences, the trial court
noted that there was an “agreed range” and further found that consecutive sentences
were warranted to “protect the public from future crime and to punish the
Defendant,” that they were “not disproportionate to the seriousness of the
Defendant’s conduct and to the danger the Defendant possesses to the public” and
that “[t]he Defendant committed one or more of the multiple offenses while he was
under community control.” On July 13, 2022, the trial court filed sentencing journal
entries, setting forth its findings and the sentences imposed.
Over the state’s objection, the trial court declined to impose the
“Reagan Tokes tail,” when sentencing Conner, finding the indefinite sentencing
provisions of the Reagan Tokes Law to be unconstitutional.1 Conner raised no
objection to his sentences at the sentencing hearing.
Conner appealed, raising the following two assignments of error for
review:
Assignment of Error 1:
Conner’s guilty plea to the amended charges was not made knowingly,
voluntarily, and intelligently, and, as a result, the court’s acceptance of
that plea was in violation of Conner’s constitutional rights and Criminal
Rule 11.
1 In State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), this court,
sitting en banc, upheld the constitutionality of the indefinite sentencing provisions of the
Reagan Tokes Law. Conner notes in his appellate brief that “[i]f Reagan Tokes did apply,
the trial court’s stated sentences on the two ‘qualifying felonies’ * * * would presumably
be treated as the minimum terms of imprisonment for those offenses under Reagan
Tokes” and that “when the resulting Reagan Tokes maximum terms for those felonies are
calculated, and the trial court’s order of consecutive sentences is applied, the trial court’s
aggregate sentence would be 25-29 years” and “would thus greatly exceed the agreed 20-
25 years range of the plea agreement and would violate that agreement.” (Emphasis
deleted.) Because the state did not file a cross-appeal challenging the trial court’s failure
to apply the Reagan Tokes Law when sentencing Conner, we will not further address the
issue here.
Assignment of Error 2:
Conner’s convictions for involuntary manslaughter and its sole
predicate of (A)(1) felonious assault, in amended Counts 1 and 4,
should have been merged, respectively, into a single conviction of
involuntary manslaughter. The trial court’s failure to do so, and its
imposition of consecutive sentences for Counts 1 and 4, violated Ohio
merger law, Conner’s right to due process, and his protection from
double jeopardy against cumulative punishments for the same offense.
Law and Analysis
Knowing, Intelligent and Voluntary Guilty Pleas
In his first assignment of error, Conner challenges the validity of his
guilty pleas, arguing that his guilty pleas were not entered knowingly, intelligently
and voluntarily and should not have been accepted by the trial court because
“[m]erger was not discussed with Conner or explained to him by the court at all” and
the trial court “failed to ensure that Conner understood” that (1) the plea agreement
would “bar any merger of amended Counts 1 and 4,” (2) Conner would “be sentenced
separately and consecutively on those counts” and (3) “well-settled law * * * requires
such offenses to be merged because they are not, and were not, committed with
separate animus.” We disagree.
“Due process requires that a defendant’s plea be made knowingly,
intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.” State v.
Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10, citing State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; see also State v.
Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996) (“When a defendant enters a
plea in a criminal case, the plea must be made knowingly, intelligently, and
voluntarily. Failure on any of those points renders enforcement of the plea
unconstitutional under both the United States Constitution and the Ohio
Constitution.”).
Crim.R. 11(C)(2) “prescribes the process” a trial court must follow
before accepting a guilty plea to a felony. Bishop at ¶ 11, citing State v. Veney, 120
Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. “[T]he rule ‘ensures an
adequate record on review by requiring the trial court to personally inform the
defendant of his rights and the consequences of his plea and determine if the plea is
understandingly and voluntarily made.’” State v. Dangler, 162 Ohio St.3d 1, 2020-
Ohio-2765, 164 N.E.3d 286, ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168, 331
N.E.2d 411 (1975). The purpose of Crim.R. 11(C)(2) is ‘“to convey to the defendant
certain information so that he [or she] can make a voluntary and intelligent decision
whether to plead guilty.”’ State v. Woodall, 8th Dist. Cuyahoga No. 102823, 2016-
Ohio-294, ¶ 12, quoting State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d
115 (1981).
Under Crim.R. 11(C)(2), a trial court shall not accept a guilty plea in a
felony case without first personally addressing the defendant and doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and, if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty * * *, and that the court, upon
acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury
trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require
the state to prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify against
himself or herself.
We conduct a de novo review to determine whether the trial court
accepted a guilty plea in compliance with Crim.R. 11(C). State v. Meadows, 8th
Dist. Cuyahoga No. 111489, 2022-Ohio-4513, ¶ 18, citing State v. Cardwell, 8th Dist.
Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26. The focus in reviewing pleas is not “on
whether the trial judge has ‘[incanted] the precise verbiage’ of the rule, * * * but on
whether the dialogue between the court and the defendant demonstrates that the
defendant understood the consequences of his plea.” Dangler at ¶ 12, quoting State
v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). When evaluating whether
a trial court has complied with Crim.R. 11(C), we must ask
(1) has the trial court complied with the relevant provision of the rule?
(2) if the court has not complied fully with the rule, is the purported
failure of a type that excuses a defendant from the burden of
demonstrating prejudice? and (3) if a showing of prejudice is required,
has the defendant met that burden?
Dangler at ¶ 17. A defendant seeking to vacate a guilty plea must demonstrate that
he or she was prejudiced by a failure of the trial court to comply with Crim.R. 11(C)
unless (1) the trial court failed to explain the constitutional rights set forth in Crim.R.
11(C)(2)(c) that the defendant waived by pleading guilty or (2) the trial court
“completely fail[ed]” to “comply with a portion of Crim.R. 11(C).” Id. at ¶ 13-17, 23.
“Prejudice must be established ‘“on the face of the record.’”” Id. at ¶ 24, quoting
Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-
Ohio-1913, 11 N.E.3d 243, ¶ 26, quoting Wagner v. Roche Laboratories, 85 Ohio
St.3d 457, 462, 709 N.E.2d 162 (1999). The “test for prejudice” is “‘whether the plea
would have otherwise been made.’” Dangler at ¶ 16, quoting State v. Nero, 56 Ohio
St.3d 106, 108, 564 N.E.2d 474 (1990).
In this case, Conner does not dispute that the trial court complied
with Crim.R. 11(C)(2) with respect to its advisements regarding constitutional
rights. Rather, Conner contends that the trial court “did not comply with the
requirements of Rule 11” because “[t]here was no discussion of the allied nature of
the offenses in amended Counts 1 and 4 or the concept of merger” and Conner was
“not asked about, and did not express any agreement, that the offenses were
committed with the same animus or were not part of the same act or transaction.”
Conner maintains that the trial court should not have accepted his guilty pleas
without ensuring that he understood “the merger of allied offenses and the
consequences of his guilty pleas as it related to the merger doctrine.” In support of
his argument, Conner cites State v. Taylor, 4th Dist. Washington No. 07CA29,
2008-Ohio-484.
In Taylor, the defendant, Taylor, claimed that the trial court had
erred when it concluded, before Taylor entered his guilty pleas, that the kidnapping
and gross sexual imposition offenses with which Taylor had been charged were not
allied offenses of similar import. Id. at ¶ 14-16. In that case, the trial court, not the
parties, raised the issue of allied offenses at the change-of-plea hearing before Taylor
entered his guilty pleas. Id. at ¶ 6-7, 23. The state told then told the trial court that
it believed the offenses were not allied offenses, and the trial court agreed. Id. at ¶ 7,
23. On appeal, the Fourth District disagreed with the trial court and found that the
kidnapping and gross sexual imposition offenses were allied offenses of similar
import under R.C. 2941.25(A). Id. at ¶ 1, 20-21.
Taylor did not object to the trial court’s finding that the offenses were
not allied offenses at the time he entered his guilty pleas, but did object at the
sentencing before the trial court sentenced him. Id. at ¶ 9-10, 22-23. The court
found that Taylor, therefore, did not waive the issue for appeal. Id. at ¶ 1, 23.
In Taylor — unlike in this case — the plea agreement between the
state and Taylor did not resolve the allied offense issue and did not include an agreed
or recommended sentence. Id. at ¶ 6, 23, 29. Under those circumstances, the Fourth
District held that a trial court
cannot properly explain the nature of the offenses and the maximum
penalties involved until it resolves the issue of allied offenses of similar
import. Stated differently, until the allied offense issue is resolved, a
defendant cannot subjectively understand the implications of his plea.
Id. at ¶ 29. The court found that the trial court “did not substantially comply with
Crim.R. 11 when it accepted Taylor’s guilty pleas without making a proper finding
under R.C. 2941.25(A)” and that Taylor, therefore, did not knowingly, voluntarily
and intelligently enter his guilty plea to gross sexual imposition. Id. at ¶ 1, 29. The
court held that the trial court’s error “affected Taylor’s substantial rights” because it
“convicted and sentenced him for both the kidnapping and the gross sexual
imposition offenses” and vacated the conviction and sentence for the gross sexual
imposition offense. Id. at ¶ 29, 32. This case is different.
First, this court has repeatedly held that there is “no requirement that
a trial court advise a defendant regarding the possible merger of offenses for
sentencing or ensure that a defendant understands the merger of offenses before
accepting the defendant’s guilty pleas.” See, e.g., State v. Knight, 8th Dist. Cuyahoga
No. 109302, 2021-Ohio-3674, ¶ 22; State v. Albright, 8th Dist. Cuyahoga No.
107632, 2019-Ohio-1998, ¶ 18; see also State v. Simmons, 8th Dist. Cuyahoga No.
107144, 2019-Ohio-459, ¶ 6 (“Crim.R. 11 does not embrace consideration of
merger.”); State v. Reed, 8th Dist. Cuyahoga No. 105862, 2018-Ohio-3040, ¶ 26
(“[T]here is no requirement in Crim.R. 11 that the trial court must ensure a
defendant understands the merger of offenses for purposes of sentencing before
accepting his plea.”); see also State v. Shannon, 11th Dist. Trumbull No. 2017-T-
0012, 2017-Ohio-9344, ¶ 28 (“Crim.R. 11(C) does not require the defendant to be
advised of possible merger of the offenses at sentencing.”).
It is clear from the record that Conner knew, and understood, that as
part of the plea agreement, there would be no merger of amended Counts 1 and 4 in
661269 and that Conner would receive an aggregate sentence in the range of 20
years and 25 years for the offenses to which he pled guilty in both cases. At the outset
of the change-of-plea hearing, it was clearly stated on the record: “[P]art and parcel
of this plea agreement in this case, Counts 1 and — amended Count 1 and Count 4
will not merge for purposes of sentencing. * * * Part and parcel of this plea
agreement * * * is an agreed sentencing range of 20 to 25 years, [at] the Court’s
discretion.” Defense counsel confirmed that these were negotiated terms of the plea
agreement.
Prior to accepting Conner’s guilty pleas, the trial court carefully
reviewed with Conner each of offenses to which Conner would be pleading guilty,
identifying the potential prison sentences he could receive on each count — i.e., in
661269, (1) 3 years for the firearm specification and 3, 4, 5, 6, 7, 8, 9, 10 or 11 years
on the base offense on amended Count 1, (2) 2, 3, 4, 5, 6, 7 or 8 years on amended
Count 4 and (3) 6, 9, 12, 18, 24, 30 or 36 months on Count 6, and in 661251, 9, 12,
18, 24, 30 or 36 months on Count 1 — and confirmed that Conner understood the
sentences he could receive on each. The trial court also, once again, specifically
advised Conner that “by pleading in these two cases, * * * you’ve agreed to a 20 to
25-year range which will be determined when you’re sentenced at the time of
sentencing.” Conner confirmed that he understood this. The only way a sentence
could be imposed within the agreed sentencing range — other than the minimum
aggregate 20-year sentence — was if amended Counts 1 and 4 did not merge for
sentencing.
Even if the trial court had not fully complied with Crim.R. 11(C)(2)(a)-
(b), Conner has made no showing of prejudice. There is nothing in the record that
shows Conner would not have proceeded with the plea agreement and entered his
guilty pleas if the trial court had specifically discussed the concepts of allied offenses
and the merger doctrine with Conner. With his guilty pleas, Conner avoided a
possible conviction for aggravated murder (as well as additional convictions on
numerous other charges). Based on the limited information in the record, it appears
that there were both eyewitnesses and video evidence of Conner’s role in the
shooting death of Washington. Conner told the trial court that his attorneys had
“explained everything” to him and answered all his questions before he entered his
guilty pleas. Conner has not raised a claim of ineffective assistance of counsel.
Following a thorough review of the record, we find that the trial court
complied with Crim.R. 11(C)(2), that Conner’s guilty pleas were entered knowingly,
intelligently and voluntarily and that the trial court did not err in accepting Conner’s
guilty pleas. Conner’s first assignment of error is overruled.
Agreed Sentence and Allied Offenses
In his second assignment of error, Conner argues that the trial court
erred in sentencing him on both the involuntary manslaughter and felonious assault
offenses in 661269 because they are allied offenses of similar import. He contends
that the trial court’s failure to merge the offenses and to require the state to select
the offense on which it wanted to proceed to sentence was “a violation of Ohio
merger law, Conner’s right to due process, and his protection from double jeopardy
against cumulative punishments for the same offense.” The state responds that R.C.
2953.08(D)(1) “precludes appellate review” of Conner’s sentences.
“A defendant’s right to appeal a sentence is generally derived from
R.C. 2953.08.” State v. Brabson, 8th Dist. Cuyahoga No. 111542, 2023-Ohio-449,
¶ 6, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,
¶ 10. R.C. 2953.08(D)(1) states, “A sentence imposed upon a defendant is not
subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is
imposed by a sentencing judge.” See also State v. Noling, 136 Ohio St.3d 163, 2013-
Ohio-1764, 992 N.E.2d 1095, ¶ 22 (R.C. 2953.08(D)(1) is “a statutory limit on a court
of appeals’ jurisdiction to hear an appeal.”). But see State v. Patrick, 164 Ohio St.3d
309, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 1-2, 22 (constitutional challenge to
sentence could be maintained despite prohibition against appellate review in R.C.
2953.08(D)(3)).2 R.C. 2953.08(D)(1)’s limitation on a defendant’s ability to
challenge a jointly recommended sentence on appeal applies to sentences imposed
pursuant to plea agreements involving an agreed specific term, plea agreements
involving a jointly recommended sentencing range and plea agreements involving
pleas to multiple offenses with a jointly recommended aggregate sentencing range.
See, e.g., State v. Williams, 8th Dist. Cuyahoga No. 109091, 2020-Ohio-4467, ¶ 32;
State v. Grant, 2018-Ohio-1759, 111 N.E.3d 791, ¶ 11-20, 23 (8th Dist.). In this case,
2 In their appellate briefs, the parties do not address Patrick. They simply argue
whether or not Conner has a right to appeal his sentences under R.C. 2953.08(D)(1).
Accordingly, that is our focus here. However, even if Conner’s challenge to his sentences
were considered to be a constitutional challenge that could be maintained despite the
limitation on appellate review set forth in R.C. 2953.08(D)(1), we would reach the same
result, i.e., Conner waived the allied-offense issue by agreeing, as part of his plea
agreement, that the offenses did not merge for sentencing.
the trial court imposed sentences pursuant to the parties’ plea agreement that
included an agreement regarding an aggregate sentencing range.
Relying on the Ohio Supreme Court’s decision in Underwood, 124
Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, Conner argues that his sentences
were “not authorized by law” and that appellate review of his sentences is, therefore,
“not barred by R.C. 2953.08(D)(1)” because the involuntary manslaughter and
felonious assault counts to which he pled guilty were allied offenses of similar import
and should have been merged for sentencing pursuant to R.C. 2941.25.
In Underwood, the Ohio Supreme Court held that a defendant had
the right to appeal a sentence, even though it was jointly recommended by the
parties and imposed by the trial court, when the sentence was “imposed for multiple
convictions on offenses that are allied offenses of similar import in violation of R.C.
2941.25(A).” Underwood at paragraph one of the syllabus. The court stated that a
sentence is “authorized by law” under R.C. 2953.08(D)(1) “only if it comports with
all mandatory sentencing provisions.” Id. at paragraph two of the syllabus. One such
mandatory sentencing provision is R.C. 2941.25(A). Id. at ¶ 26. R.C. 2941.25, Ohio’s
allied-offenses statute, “codifies the protections of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and Section 10, Article I of
the Ohio Constitution, which prohibit[] multiple punishments for the same offense.”
Id. at ¶ 23. It states:
(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.
R.C. 2941.25.
In Underwood, the state and defendant had entered into a plea
agreement with an agreed sentence, but the agreement was silent as to whether the
offenses that were the subject of the plea agreement would merge. Underwood at
¶ 4. The state conceded that the offenses at issue were allied offenses of similar
import but the trial court, nevertheless, imposed concurrent sentences on both
offenses. Id. at ¶ 4-6, 30. Observing that the allied-offense statute prohibits a trial
court from “imposing individual sentences for counts that constitute allied offenses
of similar import” and that this duty is “mandatory, not discretionary,” the court
found that a trial court’s failure to merge allied offenses of similar import at
sentencing could result in a sentence that is not “authorized by law.” Id. at ¶ 26. In
Underwood, unlike in this case, the trial court imposed separate sentences on
counts that had been deemed to be allied offenses. Id. at ¶ 30. Under such
circumstances, the court held that appellate review would not be barred by R.C.
2953.08(D)(1) even if the sentences had been jointly recommended and imposed by
the trial court. Id. at ¶ 26.
The court also recognized, however, that a defendant could waive the
application of R.C. 2941.25(A). The court explained:
[N]othing 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.
Id. at ¶ 29; see also State v. Torres, 8th Dist. Cuyahoga No. 100106, 2014-Ohio-
1622, ¶ 11 (where parties stipulated that offenses to which defendant was pleading
guilty were not allied offenses, trial court was not obligated to determine whether
the offenses were allied offenses).
In such a case, the defendant waives the protection afforded by R.C.
2941.25, intentionally relinquishing the opportunity to argue that he or she
committed the offenses with the same conduct and the same animus. See, e.g., State
v. Black, 2016-Ohio-383, 58 N.E.3d 561, ¶ 16 (8th Dist.), citing State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20; State v. Pagan, 10th Dist.
Franklin No. 19AP-216, 2019-Ohio-4954, ¶ 23-24 (defendant waived any merger
argument by stipulating in his plea agreement that “counts do not merge”).
Conner contends that the trial court’s sentences on the involuntary
manslaughter and felonious assault counts were not “authorized by law” because
there was “no acknowledgement by Conner himself during the plea hearing or at
sentencing that the offenses were committed with separate animus” and “a knowing,
voluntary, and intelligent waiver of the benefits of that merger law was not sought
or obtained from Conner.”
However, an express acknowledgement or stipulation by the
defendant that multiple offenses were “committed with separate animus” is not the
exclusive means by which a defendant may “waive the protection afforded by R.C.
2941.25.” Black at ¶ 16-18 (“[S]pecifically ‘stipulating in the plea agreement that the
offenses were committed with separate animus,’” is “simply one means by which a
defendant may ‘waive the protection afforded by R.C. 2941.25.’”), quoting Rogers at
¶ 20. “Waiving rights under R.C. 2941.25 arises in a variety of ways and is not
limited to an agreement expressly referencing R.C. 2941.25.” State v. Lee, 2018-
Ohio-1839, 112 N.E.3d 65 (8th Dist.), ¶ 7.
It is well established that where the transcript demonstrates that the
state and defense counsel agreed that offenses were not allied, the issue of allied
offenses is waived. See, e.g., State v. T.B., 8th Dist. Cuyahoga No. 109949, 2021-
Ohio-2104, ¶ 25; Black at ¶ 18 (citing cases). In this case, the transcript from the
change-of-plea hearing clearly shows that defense counsel agreed that the
involuntary manslaughter and felonious assault counts in 661269 would not merge.
The record further reflects that Conner agreed that he would receive an aggregate
prison sentence of between 20 and 25 years on the offenses in 661269 and 661251.
Because Conner agreed that the offenses at issue would not merge for sentencing —
i.e., “negotiat[ing]” the merger issue “out of the sentencing equation” as part of his
plea agreement — he has waived the allied-offense issue. Lee at ¶ 11; T.B. at ¶ 26
(where parties agreed that none of the offenses to which defendant pled guilty were
allied offenses of similar import, defendant waived the allied-offense issue).
Conner’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
The defendant’s convictions having been affirmed, any bail pending appeal is
terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR