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992 N.E.2d 1095

, ¶ 22 (“R.C. 2953.08(D)(1) is another example of a statutory limit on a court of
appeals’ jurisdiction to hear an appeal.”).
{¶3} Lee agreed to serve an aggregate term of 14 years in prison through the
imposition of minimum terms on all counts to be served consecutive to each other. Tr.
19:7-11 (confirming that the defendant’s plea agreement and jointly recommended
sentence included the understanding that all minimum-termed sentences would be
consecutively served). A defendant has no right to appeal his sentences if they are
jointly recommended by the parties, the trial court imposes the agreed sentences, and the
sentences are “authorized by law.”       R.C. 2953.08(D)(1).   State v. Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

, paragraph two of the syllabus.1
1
All references to Underwood refer to State v. Underwood,

124 Ohio St.3d 365

,
{¶4} Lee neither claims, nor even remotely suggests, that his sentences are not
authorized by law. Lee simply discusses the merits of his sentences without regard to his
ability to appeal them under R.C. 2953.08. A defendant’s right to appeal a sentence is
derived from R.C. 2953.08. Underwood at ¶ 10. “[I]f a jointly recommended sentence
imposed by a court is ‘authorized by law,’ then the sentence ‘is not subject to review.’”
State v. Sergent,

148 Ohio St.3d 94

69 N.E.3d 627

, ¶ 15. There is no
dispute from the record that the trial court imposed the sentence that was jointly
recommended. R.C. 2953.08(D)(1). Thus, the only question is whether the sentences
imposed are authorized by law.
{¶5} Underwood stands for the proposition that “[a] sentence is ‘authorized by
law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports
with all mandatory sentencing provisions.” (Emphasis sic.)      Sergent at ¶ 26, quoting
Underwood at paragraph two of the syllabus. One of those mandatory provisions is R.C.
2941.25(A).    Underwood recognized that “when a sentence is imposed on multiple
counts that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C.
2953.08(D) does not bar appellate review of that sentence even though it was jointly
recommended by the parties and imposed by the court.”                (Emphasis added.)
Underwood at ¶ 26.       Thus, that statutory section prohibits sentencing on multiple
offenses only if the trial court determines or the parties concede that the offenses are
allied and subject to merger. State v. Williams,

148 Ohio St.3d 403

, 71

922 N.E.2d 923

.
N.E.3d 234, ¶ 27-28; State v. Rogers,

143 Ohio St.3d 385

2015-Ohio-2459

38 N.E.3d 860

; see also Underwood at ¶ 21.        If a trial court sentences a defendant on separate
counts deemed to be allied offenses, the sentence is both contrary to law and not
authorized by law, and a trial court plainly errs in imposing such sentences. Underwood
at ¶ 21, 31.
{¶6} Often overlooked is the fact that Underwood did not involve an agreement on
the merger issue implicating R.C. 2953.08(D)(1).            State v. Underwood, 2d Dist.
Montgomery No. 22454,

2008-Ohio-4748

, ¶ 24. After the defendant pleaded guilty, the
state prepared a sentencing memorandum conceding that the two counts merged for the
purposes of sentencing.

Id.

 The trial court nonetheless imposed concurrent sentences
on both counts. Id. at ¶ 27.       The error in Underwood was that the court imposed
separate sentences on counts deemed to be allied offenses of similar import at the
sentencing hearing.    No court has authority to impose such sentences, which are void as
a matter of law. Williams at ¶ 28.        Regardless of R.C. 2953.08(D)(1), an appellate
court has authority to review sentences that are void. Id., citing State v. Singleton,

124 Ohio St.3d 173

2009-Ohio-6434

920 N.E.2d 958

, ¶ 25 (when a sentence is contrary to
law, and thus void, it is a nullity — it is as though it never occurred).
{¶7} Underwood nevertheless acknowledged the possibility that an agreed
sentence that involves a discretionary sentencing decision is unreviewable. Sergent at ¶
29, citing State v. Porterfield,

106 Ohio St.3d 5

2005-Ohio-3095

829 N.E.2d 690

.
Accordingly, defendants can waive application of R.C. 2941.25.          State v. Cunningham,
8th Dist. Cuyahoga No. 104520,

2017-Ohio-4069

, ¶ 8, citing State v. Booker, 8th Dist.
Cuyahoga No. 101886,

2015-Ohio-2515

, ¶ 18-19.         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. Black,

2016-Ohio-383

58 N.E.3d 561

, ¶ 16 (8th Dist.), citing Rogers
at ¶ 20. Black noted that in Rogers, the Ohio Supreme Court indicated that “[i]t is
possible for an accused to expressly waive the protection afforded by R.C. 2941.25, such
as by ‘stipulating in the plea agreement that the offenses were committed with separate
animus.’”    (Emphasis sic.)

Id.,

 quoting Underwood at ¶ 29.           Thus, expressly
stipulating that the offenses were committed with a separate animus is not the exclusive
method of waiving rights under R.C. 2941.25.
{¶8} Agreeing to serve consecutive sentences is equivalent to agreeing that
multiple offenses are separate under R.C. 2941.25.      The result is the same.   The trial
court is authorized to impose separate sentences on each count irrespective of the lack of
R.C. 2929.14(C)(4) findings that ordinarily render the consecutive sentence as being
contrary to law. Sergent,

148 Ohio St.3d 94

69 N.E.3d 627

, at ¶ 29.
{¶9} A defendant cannot agree to consecutively serve sentences without agreeing
that the court has authority to impose the individual sentences on each count. Stated
another way, agreeing to the imposition of multiple sentences is a necessary prerequisite
to agreeing to consecutive service, for it is “[o]nly after the judge has imposed a separate
prison term for each offense may the judge then consider in his discretion whether the
offender should serve those terms concurrently or consecutively.” State v. Saxon,

109 Ohio St.3d 176

2006-Ohio-1245

846 N.E.2d 824

, ¶ 9.               Therefore, agreeing to
consecutively serve multiple sentences includes the defendant’s agreement that the
sentences are separate for the purposes of R.C. 2941.25.
{¶10} In this case, Lee agreed that consecutively serving the minimum prison
terms on all counts was part of his plea agreement.          Tr. 19:7-11.   Lee necessarily
waived the argument that the underlying offenses were allied ones of similar import
through his agreement to serve all counts consecutively; otherwise, consecutive sentences
would not have been possible.    See, e.g., Black at ¶ 17.    Since Lee waived the merger
issue, his sentences are authorized by law.       Sergent; State v. Johnson, 8th Dist.
Cuyahoga No. 105904,

2018-Ohio-102

, ¶ 11. This ends the appellate inquiry in this
case. We have no authority to review the sentence. R.C. 2953.08(D)(1).
{¶11} For the sake of discussion, and in light of the concurring opinion’s
misplaced focus on Rogers, even if Lee had not waived his right to challenge his
sentences under R.C. 2941.25 by agreeing to consecutively serve the separate sentences,
he at the least forfeited the merger argument by failing to object to the imposition of
multiple sentences at the sentencing hearing. The trial court did not consider R.C.
2941.25 at sentencing because Lee failed to object to his sentences. It is only once the
allied-offense issue is raised by the defendant that the mandatory sentencing provision
under R.C. 2941.25 may be implicated, but only in situations in which the trial court
concludes or the parties concede that the offenses are allied ones of similar import.
Williams at ¶ 25-28. Accordingly, the sentences in this case comport with all mandatory
sentencing provisions as contemplated under Underwood and R.C. 2953.08(D)(1), even if
Lee had not negotiated the question of merger out of the sentencing equation.
{¶12} The concurring opinion suggests the existence of a paradox that permits
appellate review of the sentences in this case, that under Rogers the appellate court must
review the validity of the imposed sentences under the plain-error standard of review in
order to determine whether the sentences are “authorized by law” under R.C.
2953.08(D)(1). The existence of plain error, a standard of appellate review, does not
resolve or even impact the threshold question of whether a sentence is “authorized by
law” under R.C. 2953.08(D)(1), a legal determination focusing on the trial court’s
mandatory sentencing obligations. The plain-error standard of review necessarily
assumes that appellate review of a sentence is authorized under R.C. 2953.08. If an
imposed agreed sentence is “authorized by law,” we lack jurisdiction to review for plain
error. Noling,

136 Ohio St.3d 163

992 N.E.2d 1095

, at ¶ 22. Rogers
does not provide a basis to circumvent the R.C. 2953.08(D)(1) limitation on appellate
jurisdiction.
{¶13} The Ohio Supreme Court has held that when a trial court “finds that
convictions are not allied offenses of similar import, or when it fails to make any finding
regarding whether the offenses are allied,” imposing separate sentences is not contrary to
law and any allegations of error must be asserted through a direct appeal.      (Emphasis
added.) Williams,

148 Ohio St.3d 403

71 N.E.3d 234

, at ¶ 26, citing
Rogers.    In other words, there is no mandatory duty for a trial court to sua sponte
consider R.C. 2941.25 at sentencing.     At one time there could have been. Underwood
expressly recognized that “when the plea agreement is silent on the issue of allied
offenses of similar import, * * * the trial court is obligated under R.C. 2941.25 to
determine whether the offenses are allied.”     (Emphasis added.) Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

, at ¶ 29.
{¶14} However, that proposition is no longer valid, if it ever was. See generally
Rogers,

143 Ohio St.3d 385

2015-Ohio-2459

38 N.E.3d 860

. In Rogers, it was
determined that the burden to raise R.C. 2941.25 at sentencing falls on the defendant and
only then does the trial court have an obligation under R.C. 2941.25. Rogers at ¶ 21
(“Thus, by failing to seek the merger of his convictions as allied offenses of similar
import in the trial court, Rogers forfeited his allied offenses claim for appellate review.”).
As a result, there is no mandatory sentencing provision that includes the requirement for
the trial court to consider R.C. 2941.25 of its own volition to implicate Underwood.
{¶15} Notwithstanding, the concurring opinion concludes that “[a]lthough Lee
failed to raise the issue of allied offenses in the trial court, we are required to review his
claim for plain error in order to determine whether or not it is reviewable under R.C.
2953.08(D)(1) * * *.” If we take this analysis to its logical conclusion, all imposed
agreed sentences are subject to the plain-error standard of appellate review because if
plain error exists for any reason, the sentences are not “authorized by law” and are
thereby subject to appellate review under R.C. 2953.08(D)(1). This circular reasoning
unilaterally expands the definition of “authorized by law” and is at the expense of the
Ohio Supreme Court’s admonition — that even if plain error in the sentencing exists, “an
appellate court is not required to correct it” and should only do so with the “utmost
caution.” Rogers at ¶ 23.
{¶16} The resolution of the plain error inquiry does not impact the determination
of whether a sentence is “authorized by law.” A sentence is “authorized by law” if it
comports with all mandatory sentencing provisions because “[a] trial court does not have
the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory
provisions.” Underwood at ¶ 20. R.C. 2941.25 does not include a mandatory
obligation for the trial court to consider the allied offense issue in the absence of an
objection or agreement. Williams at ¶ 26. Thus, although a sentence that is not
“authorized by law” could be considered “plain error” under the right circumstances, the
opposite is not necessarily true — these terms are distinct legal concepts. Appellate
courts may consider the existence of plain error only if appellate review of the sentence is
authorized under R.C. 2953.08(D)(1). We cannot put the proverbial cart before the
horse and review to determine whether reversible error exists in determining whether we
have jurisdiction to review for error.
{¶17} Further, any reliance on R.C. 2953.08(D)(1) as the basis for reviewing the
type of sentences imposed in Underwood has been limited by implication. In Williams,

148 Ohio St.3d 403

71 N.E.3d 234

, the Ohio Supreme Court held that
any violation of the mandatory obligation under R.C. 2941.25 through imposing sentences
for allied offenses renders those sentences as being contrary to law, and further, any such
sentence is void as a matter of law.

Id.

    In the proceedings at issue in Underwood, in
its sentencing memorandum, the state had conceded that the some of the offenses were
allied under R.C. 2941.25.         Underwood, 2d Dist. Montgomery No. 22454,

2008-Ohio-4748

, at ¶ 24.   The trial court in that case was advised that only one sentence
could result on two of the theft offenses, but separate sentences were nonetheless imposed
to be served concurrently. Id. at ¶ 27.    In Underwood, the Ohio Supreme Court relied
on R.C. 2953.08(D)(1) for its authority to review the sentence, concluding that because
the sentences were not authorized by law, appellate review was permissible.
{¶18} In Williams, the trial court deemed two counts to be allied offenses of
similar import, but nonetheless imposed separate sentences to be served concurrently in
the sentencing entry. Williams at ¶ 7.     The Ohio Supreme Court concluded that those
sentences were void and subject to attack irrespective of R.C. 2953.08.   A void sentence
is always reviewable.   Williams at ¶ 22, citing State v. Fischer,

128 Ohio St.3d 92

2010-Ohio-6238

942 N.E.2d 332

 (a sentence that is contrary to law may be reviewed at
any time).
{¶19} According to Williams, the Underwood analysis interpreting R.C.
2953.08(D)(1) was unnecessary because appellate review was necessarily permitted
through the inherent power of the court to correct void judgments. In Rogers, on the
other hand, the sentences were not contrary to law or void, and were otherwise authorized
by law. The sentences were voidable under the plain error analysis if the defendant
could demonstrate such error in the direct appeal. Williams at ¶ 29.          However, a
defendant’s agreement to the imposed sentences, which subsumes issues that could
ordinarily be challenged on a direct appeal, divests this court of jurisdiction to review the
sentence to determine whether the sentences are voidable under Rogers.                  R.C.
2953.08(D)(1).
{¶20} In consideration of the foregoing, the only review permitted at this juncture
is to determine whether we have jurisdiction to review the imposed agreed sentence.
Noling,

136 Ohio St.3d 163

992 N.E.2d 1095

.                   Under R.C.
2953.08(D)(1), we must determine whether the sentences are “authorized by law.”         See,
e.g., State v. Daniels, 1st Dist. Hamilton No. C-160203,

2017-Ohio-548

, ¶ 12 (forfeiting
the merger issue limits the discussion regarding merger to plain error review for the
purposes of determining whether a sentence is authorized by law); State v. Fleischer, 7th
Dist. Jefferson No. 16 JE 0011,

2017-Ohio-7762

, ¶ 23 (asserting the same); see also
Black,

2016-Ohio-383

58 N.E.3d 561

, at ¶ 19 (8th Dist.). A sentence is authorized by
law if it comports with all mandatory sentencing provisions. Underwood at ¶ 23.
{¶21} Lee advanced a single claim that permeated every appellate argument —
that the imposition of multiple sentences was plain error under R.C. 2941.25 because the
crimes were committed with the same conduct.         According to Lee, however, the trial
court failed to consider R.C. 2941.25 at sentencing. R.C. 2941.25 does not contain a
mandatory provision for the court to sua sponte consider the merger issue at sentencing.
Williams at ¶ 26, citing Mosely v. Echols,

62 Ohio St.3d 75

, 76,

578 N.E.2d 454

 (1991);
State v. Holdcraft,

137 Ohio St.3d 526

2013-Ohio-5014

1 N.E.3d 382

, ¶ 8; Rogers at ¶
21. The statutory section only contains an inapplicable, mandatory provision prohibiting
the imposition of multiple sentences for offenses that are allied ones of similar import.
Id. at ¶ 28.
{¶22} Lee’s sentence is not contrary to law as contemplated in Underwood,
through the lens of Williams — the aggregate sentence is not comprised of sentences for
offenses the trial court determined or the parties conceded to be allied ones of similar
import. And his sentences comport with all mandatory sentencing provisions — when
the plea agreement is silent on the issue of allied offenses of similar import, the trial court
is not obligated under R.C. 2941.25 to determine whether the offenses are allied.
Williams,

148 Ohio St.3d 403

71 N.E.3d 234

, at ¶ 25-26; see also
Rogers at ¶ 21 (the defendant bears the burden of raising R.C. 2941.25 at sentencing).
Further, by agreeing to consecutively serve the sentences imposed on all counts, his
sentences are “authorized by law” irrespective of the findings under R.C. 2929.14(C)(4)
that the trial court made in the abundance of caution. See generally Sergent,

148 Ohio St.3d 94

69 N.E.3d 627

. Whether we consider Lee to have waived or
forfeited his rights under R.C. 2941.25, the same conclusion is reached — we lack the
statutory authority to review the sentences imposed.
{¶23} It would be simple to consider the merits of Lee’s sentencing arguments in
this case.     Under Rogers, we review the failure to consider R.C. 2941.25 at sentencing
for plain error.     Plain error exists if the defendant can demonstrate the reasonable
probability that he has been convicted of allied offenses from within the appellate record.
Rogers at ¶ 25.    Lee concedes there are no facts underlying the criminal conduct in the
record. Instead, additional information describing the underlying criminal conduct was
appended for our consideration.      The defendant bears the burden of demonstrating plain
error from the record. Rogers,

143 Ohio St.3d 385

2015-Ohio-2459

38 N.E.3d 860

, at
¶ 22, citing State v. Quarterman,

140 Ohio St.3d 464

2014-Ohio-4034

19 N.E.3d 900

, ¶
16.   We could not decide the appeal on, let alone consider, facts outside the record.
State v. Wittine, 8th Dist. Cuyahoga No. 90747,

2008-Ohio-5745

, ¶ 4, citing State v.
Ishmail,

54 Ohio St.2d 402

377 N.E.2d 500

 (1978), paragraph one of the syllabus; and
State v. Hill,

90 Ohio St.3d 571

, 573,

2001-Ohio-20

740 N.E.2d 282

. And even if we
could determine that plain error existed, the Ohio Supreme Court has admonished
appellate courts for freely invoking the plain error doctrine. Rogers at ¶ 22.      If plain
error is demonstrated, the doctrine should only be invoked in the “utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.”
(Emphasis sic.)    Rogers at ¶ 23.   This is an extremely high burden.
{¶24} The practice of reviewing sentences such as the underlying ones in this case,
would condone the review of an otherwise unreviewable sentence, nullifying the statutory
limitation on appellate jurisdiction to review sentences. Noling,

136 Ohio St.3d 163

992 N.E.2d 1095

, at ¶ 22. The concern is not necessarily this case, but
the long-term impact of such a holding.     Freely reviewing sentences in such cases would
only serve to undermine the state’s incentive to entertain plea bargains in the first place.
As has been recognized,
[A] plea bargain is, after all, a bargain.      In the bargain, the prosecutor
achieves certain benefits: a foregoing of the risk that the defendant will be
found not guilty, relief from the burden of trying the case and a concomitant
ability to devote prosecutorial resources to other cases, and limitations on
the defendant’s right to appeal an agreed sentence, see R.C. 2953.08(D)(1).
In return, the prosecutor is able to offer the defendant certain sentencing
considerations.   Both sides exchange risk about the outcome for an
enhanced degree of certainty.
(Emphasis added.) State v. Rahab,

150 Ohio St.3d 152

2017-Ohio-1401

80 N.E.3d 431

, ¶ 17.
{¶25} Finally, Lee argues that his plea was invalid because his trial counsel’s
assistance fell below the objective standards of reasonableness in rendering advice
regarding the sentencing agreement.     Generally the validity of the plea is separate from
the sentencing review precluded under R.C. 2953.08(D)(1). State v. Billiter, 4th Dist.
Scioto No. 15CA3720,

2018-Ohio-733

, ¶ 14, citing State v. Royles, 1st Dist. Hamilton
Nos. C060875 and C060876,

2007-Ohio-5348

, ¶ 10.               However, Lee’s argument is
entirely based on the sentencing aspect of his case.    The merger of allied offenses occurs
at sentencing, a subsequent stage of the proceedings. Rogers at ¶ 19, citing State v.
Whitfield,

124 Ohio St.3d 319

2010-Ohio-2

922 N.E.2d 182

, ¶ 8.
{¶26} According to Lee, he would not have pleaded guilty to such a long sentence
had he been advised that the various offenses “constitute allied offenses under Ohio
Law.” Setting aside his circular logic, it is not entirely clear how that knowledge would
have altered Lee’s decision-making process.      His appellate argument fails to elaborate
on that point. There is no dispute that the trial court notified Lee of the maximum
sentences he faced on the individual offenses during the plea colloquy (14 years alone on
the aggravated robbery that included a mandatory consecutive three-year firearm
specification on top of the maximum 11-year sentence for the first-degree felony) and that
no promises had been given in exchange for the plea agreement.      Without providing any
analytical framework, he summarily states that the plea was not knowingly, voluntarily, or
intelligently entered because it was plain error to impose sentences on allied offenses,
citing State v. Cook, 8th Dist. Cuyahoga No. 95987,

2011-Ohio-5156

, ¶ 23.
{¶27} Lee cannot challenge his attorney’s failure to object to aspects of the
sentences to which Lee agreed.     See, e.g., State v. Anthony,

2015-Ohio-2267

37 N.E.3d 751

, ¶ 66 (8th Dist.) (attorney cannot be deemed ineffective for failing to object to an
agreed sentence). Without any demonstration that his sentences are not authorized by
law or are contrary to law, his ineffective assistance of counsel argument is disregarded
pursuant to R.C. 2953.08(D)(1). If Lee cannot appeal his sentence based on his
agreement to serve the sentences imposed, he cannot challenge his attorney’s failure to
object to those sentences or to advise Lee of the possibility that the sentences could merge
either.
{¶28} Lee’s sentences are authorized by law and are ones that were both jointly
recommended by the parties and imposed by the trial court. There was no mandatory
duty for the court to address R.C. 2941.25, and thus, the sentences were authorized by law
as contemplated in Underwood. The sentences are also not contrary to law. Lee
confirmed his understanding of the agreement included aggregating the minimum terms
on all counts through consecutive sentencing and, thereby, waived any merger arguments
his counsel could have raised at sentencing. We cannot review the assignments of error
as presented, and thus, we affirm.
It is ordered that appellee recover from appellant 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 common
pleas court 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.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, J., CONCURS;
EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH
SEPARATE OPINION
EILEEN T. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:
{¶29} I concur with the majority’s conclusion that Lee’s sentence is not
reviewable. However, in contrast to the majority’s view, I believe we must review Lee’s
sentence in order to determine that it is, in fact, not reviewable.
{¶30} R.C. 2953.08(D)(1) provides, in relevant part, that a sentence is not
reviewable if (1) it was jointly recommended by the defendant and the state, (2) it is
authorized by law, and (3) imposed by the court. This is a paradox. How can we
determine whether a sentence is illegal or authorized by law without reviewing it?
{¶31} A sentence is “authorized by law” and not appealable within the meaning of
R.C. 2953.08(D)(1) “only if it comports with all mandatory sentencing provisions.”
State v. Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

, ¶ 20. R.C.
2941.25, which governs the sentencing of allied offenses, is a mandatory sentencing
provision. That is, a sentencing court’s duty to merge allied offenses is “‘mandatory, not
discretionary.’” State v. Williams,

148 Ohio St.3d 403

71 N.E.3d 234

,
¶ 27, quoting Underwood at ¶ 26.
{¶32} Lee’s first assignment of error states: “The trial court erred by accepting and
imposing a sentence for allied offenses that merge for purposes of sentencing.” Within
this assigned error, Lee argues his aggravated robbery and kidnapping convictions “are
allied offenses that constitute a single offense for sentencing purposes.” (Appellant’s
brief p. 8.) He also asserts that “these offenses were not committed separately” and that
“they were not committed with a separate animus or motivation.” Thus, Lee argues he
was illegally subjected to multiple punishments for the same conduct in violation of R.C.
2941.25. He contends his jointly agreed sentence is not authorized by law.
{¶33} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio
Constitution, which prohibit multiple punishments for the same offense. The majority
acknowledges that Lee never expressly stipulated that the offenses were committed with a
separate animus, but asserts that his agreement to serve consecutive prison sentences is
equivalent to agreeing that his multiple convictions are dissimilar in import and not
subject to merger under R.C. 2941.25. (Majority opinion at ¶ 8.) Indeed, the agreed
14-year sentence cannot be reached without imposing separate sentences on multiple
counts and running the sentences consecutively to one another since the maximum prison
term on each individual offense is less than 14 years. Thus, the majority believes Lee
waived any claim of error with regard to allied offenses and that his sentence is not
reviewable because it was an agreed consecutive sentence. I respectfully disagree.
{¶34} The dissenting justices in Underwood made arguments similar to that put
forth by the majority. Justice O’Donnell argued that Underwood’s sentence was not
reviewable because it was jointly recommended, and Underwood received the benefit of
his plea bargain. Id. at ¶ 60. Justice Cupp argued that Underwood’s agreement to the
sentence “should be characterized as a specific waiver of the ability to challenge the
sentence.” Id. at ¶ 73. However, the majority in Underwood rejected these arguments,
explaining that a defendant is prejudiced by having more convictions than are authorized
by law regardless of his plea bargain. Id. at ¶ 31.
{¶35} The majority in Underwood also observed that courts indulge every
reasonable presumption against the waiver of fundamental constitutional rights and that
they do not presume acquiescence in the loss of fundamental rights. Id. ¶ 32.
Moreover, “‘[a] waiver is ordinarily an intentional relinquishment or abandonment of a
known right or privilege.’” Id., quoting State v. Adams,

43 Ohio St.3d 67

, 69,

538 N.E.2d 1025

 (1989). Thus, the majority in Underwood suggested that a defendant could
waive the issue of allied offenses by “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. Lee neither stipulated that his offenses were
committed with a separate animus nor did he indicate a specific intent to relinquish his
right to be free from Double Jeopardy.
{¶36} Nevertheless, the majority maintains, citing State v. Rogers,

143 Ohio St.3d 385

2015-Ohio-2459

38 N.E.3d 860

, that Lee forfeited his allied offenses claim by
failing to raise the issue in the trial court. But a forfeited error is not unreviewable; it is
reviewable for plain error. Rogers at ¶ 22. Moreover, the “imposition of multiple
sentences for allied offenses of similar import is plain error.” Underwood at ¶ 31, citing
Yarbrough,

104 Ohio St.3d 1

2004-Ohio-6087

817 N.E.2d 845

, ¶ 96-102. Although
Lee failed to raise the issue of allied offenses in the trial court, we are required to review
his claim for plain error in order to determine whether or not it is reviewable under R.C.
2953.08(D)(1) because, again, “‘a trial court is prohibited from imposing individual
sentences for counts that constitute allied offenses of similar import.’” State v. Williams,

148 Ohio St.3d 403

71 N.E.3d 234

, at ¶ 27, quoting Underwood at
¶ 26.
{¶37} The majority further asserts, citing State v. Sergeant,

148 Ohio St.3d 94