eCases

922 N.E.2d 923

.
R.C. 2941.25. Multiple counts
(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.
{¶9} Historically, Ohio courts struggled interpreting the language in R.C. 2941.25.
Likewise, determining the type of conduct by the offender that constituted either separate
offenses or allied offenses of similar import was equally confusing. Starting in 1975, the
Supreme Court of Ohio issued a series of decisions that over the years were met with
mixed reviews on how best to address the constitutional protections against multiple
punishments.   See generally State v. Ikner,

44 Ohio St.2d 132

339 N.E.2d 633

 (1975),
adopting Blockburger v. United States,

284 U.S. 299

52 S.Ct. 180

76 L.Ed. 306

 (1932);
State v. Logan,

60 Ohio St.2d 126

, 128,

397 N.E.2d 1345

 (1979); State v. Blankenship,

38 Ohio St.3d 116

526 N.E.2d 816

 (1988); State v. Rance,

85 Ohio St.3d 632

710 N.E.2d 699

 (1999); State v. Fears,

86 Ohio St.3d 329

715 N.E.2d 136

 (1999); State v. Adams,

103 Ohio St.3d 508

2004-Ohio-5845

817 N.E.2d 29

; State v. Yarborough,

104 Ohio St.3d 1

2004-Ohio-6087

817 N.E.2d 845

; State v. Cooper,

104 Ohio St.3d 293

2004-Ohio-6553

819 N.E.2d 657

; State v. Cabrales,

118 Ohio St.3d 54

2008-Ohio-1625

886 N.E.2d 181

; State v. Brown,

119 Ohio St.3d 447

2008-Ohio-4569

895 N.E.2d 149

;
State v. Winn,

121 Ohio St.3d 413

2009-Ohio-1059

905 N.E.2d 154

; State v. Harris,

122 Ohio St.3d 373

2009-Ohio-3323

911 N.E.2d 882

; State v. Evans,

122 Ohio St.3d 381

2009-Ohio-2974

911 N.E.2d 889

.
{¶10} These cases were followed by a series of decisions that changed the
landscape of the merger analysis. Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

 (a trial court commits plain error when it fails to merge allied offenses of
similar import); State v. Johnson

128 Ohio St.3d 153

942 N.E.2d 1061

(R.C. 2941.25 instructs courts to look at the defendant’s conduct when evaluating whether
his offenses are allied); and State v. Williams,

134 Ohio St.3d 482

2012-Ohio-5699

983 N.E.2d 1245

 (an appellate court should apply a de novo standard of review in reviewing a
trial court’s R.C. 2941.25 merger determination).
The Underwood, Johnson, and Williams Decisions
{¶11} Prior to Underwood, many trial courts simply imposed concurrent sentences
where the merger analysis was too confusing or unworkable. Underwood made it clear that
allied offenses of similar import must be merged at sentencing or the sentence is deemed
contrary to law. Underwood also made clear that even a defendant’s plea to multiple
counts does not affect the court’s duty to merge allied counts at sentencing. The duty is
mandatory, not discretionary.      Underwood at ¶ 26.         Significantly, Underwood
determined that R.C. 2953.08(D) does not bar appellate review of a sentence involving
merger even though it was jointly recommended by the parties and imposed by the court.
Id. at ¶ 33.
{¶12} Johnson then reestablished the focus of the merger analysis on the plain
language in the statute.      “In determining whether offenses merge, we consider
the defendant’s conduct.” Johnson at ¶ 44.     “If the multiple offenses can be committed
by the same conduct, then the court must determine whether the offenses were committed
by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id. at ¶
49, quoting Brown,

119 Ohio St.3d 447

2008-Ohio-4569

895 N.E.2d 149

, at ¶ 50
(Lanzinger, J., dissenting).        If both questions are answered affirmatively, then the
offenses are allied offenses of similar import and will be merged.         Johnson at ¶ 50.
{¶13} In Johnson, then Justice O’Connor, 1 in a separate concurring opinion,
defined the term “allied offenses of similar import”:
In practice, allied offenses of similar import are simply multiple
offenses that arise out of the same criminal conduct and are similar but not
identical in the significance of the criminal wrongs committed and the
resulting harm. R.C. 2941.25 permits a defendant to be charged with, and
tried for, multiple offenses based on the same conduct but permits only one
conviction based on conduct that results in similar criminal wrongs that have
similar consequences.
Id. at ¶ 64 (O’Connor, J., concurring).
{¶14} Justice O’Connor further defined the distinction between the phrases “allied
offenses” and “allied offenses of similar import.”           “[O]ffenses are ‘allied’ when their
elements align to such a degree that commission of one offense would probably result in
the commission of the other offense.             Offenses are of ‘similar import’ when the
underlying conduct involves similar criminal wrongs and similar resulting harm.”              Id. at ¶
66-67.
{¶15} While many focus on the plurality decision in Johnson that abandoned the
Rance test, we note that Justice O’Connor maintained in her concurring opinion in
Johnson that Rance was overruled only “inasmuch as it requires a comparison of the
1
Justice Maureen O’Connor became Chief Justice on January 1, 2011.
elements of the offenses solely in the abstract.”   (Emphasis added.) Johnson,

128 Ohio St.3d 153

942 N.E.2d 1061

, at ¶ 68. See also Rance,

85 Ohio St.3d 632

710 N.E.2d 699

.
{¶16} The Johnson test did not completely eliminate consideration of the legal
elements; it simply made the offender’s conduct the lynchpin of that analysis. Thus, the
court uses the elements of the offenses as guideposts to measure the defendant’s conduct
as it relates to the offenses in determining whether multiple offenses could have been
committed by the same conduct. State v. Hicks, 8th Dist. No. 95169,

2011-Ohio-2780

, ¶
9. This is important in situations, as here, where the legal elements of the offenses
present a facial question of merger.        This initial comparison often establishes or
eliminates the need for subsequent allied offenses of similar import analysis.
{¶17} The Supreme Court revisited the Johnson test and again described its
workings in Williams,

134 Ohio St.3d 482

2012-Ohio-5699

983 N.E.2d 1245

.              The
court again referenced considering the elements of the crimes in citing back to
Blankenship, 38 Ohio St.3d at 117,

526 N.E.2d 816

:
This court established a two-part test for analyzing allied-offense
issues in State v. Blankenship,

38 Ohio St.3d 116

, 117,

526 N.E.2d 816

(1988).
“In the first step, the elements of the two crimes are compared. If
the elements of the offenses correspond to such a degree that the commission
of one crime will result in the commission of the other, the crimes are allied
offenses of similar import and the court must then proceed to the second
step. In the second step, the defendant’s conduct is reviewed to determine
whether the defendant can be convicted of both offenses. If the court finds
either that the crimes were committed separately or that there was a separate
animus for each crime, the defendant may be convicted of both offenses.”
(Emphasis sic.)
Williams at ¶ 17, quoting Blankenship at 117.
{¶18} Significantly, the decision in Williams stressed how important the facts in the
record were to the merger analysis on appeal:
Appellate courts apply the law to the facts of individual cases to make
a legal determination as to whether R.C. 2941.25 allows multiple
convictions. * * * “[A] review of the evidence is more often than not vital
to the resolution of a question of law. * * * ” O’Day v. Webb,

29 Ohio St.2d 215

, 219,

280 N.E.2d 896

 (1972).
As in cases involving review of motions to suppress, “the appellate
court must * * * independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” State v. Burnside,

100 Ohio St.3d 152

2003-Ohio-5372

797 N.E.2d 71

, ¶ 8.
Williams at ¶ 25-26. Further, “[a]n appellate court should apply a de novo standard of
review in reviewing a trial court’s R.C. 2941.25 merger determination.” Id. at ¶ 28.
The Rogers Case
{¶19} The record before us reveals that no discussion took place in the trial court
about merger of the counts in either of the underlying cases. While we can resolve the
issue of merger in CR-553806 based on a facial review of the convictions, nothing in the
documents that comprise the record in CR-545992 contains sufficient factual information
that would permit an allied offenses of similar import analysis.
Receiving Stolen Property Convictions in CR-553806
{¶20} In CR-553806, the two counts of receiving stolen property in the indictment
revealed property taken from two distinct victims from two
separate houses apparently taken during burglaries that occurred the same day. Rogers
argued on appeal that these acts were identical, so they should have been merged at
sentencing.
{¶21} Even without facts to analyze Rogers’s conduct, we can determine from the
face of these convictions that these offenses were not subject to merger. A review of the
elements of the receiving stolen property charges shows an offender must have
“receive[d], retain[ed], or disposed of property of another, knowing or having reasonable
cause to believe that it has been obtained through commission of a theft offense.”
(Emphasis added.) R.C. 2913.51.
{¶22} Separate victims alone established a separate animus for each offense.
Even if the defendant cannot distinguish one victim’s goods from another’s does not mean
his conduct did not impact multiple victims. Each victim has a specific and identifiable
right to redress against the conduct of the defendant. The defendant’s conduct in
receiving goods he knows to be stolen inherently implies that they may be from multiple
owners or locations. “[M]ultiple sentences for a single act committed against multiple
victims is permissible where the offense is defined in terms of conduct toward ‘another as
such offenses are of dissimilar import; the import being each person affected.’” State v.
Tapscott, 7th Dist. No. 11 MA 26,

2012-Ohio-4213

, quoting State v. Jones,

18 Ohio St.3d 116

, 118,

480 N.E.2d 408

 (1985). See also State v. Franklin,

97 Ohio St.3d 1

2002-Ohio-5304

776 N.E.2d 26

, ¶ 48; State v. Phillips, 8th Dist. No. 98487,

2013-Ohio-1443

, ¶ 8-10.
{¶23} For this reason, we affirm the trial court’s imposition of separate sentences in
CR-553806.
Receiving Stolen Property and Possession of
Criminal Tools Convictions in CR-545992
{¶24} Central to our analysis of the convictions in CR-545992 and the primary
focus of this en banc review is the effect of a trial court’s failure to inquire or address an
allied-offense question where it is clear from a facial review of the charges that the
offenses may be allied, even when facts necessary to determine the conduct of the offender
are missing.
{¶25} In this case, Rogers was convicted of two separate counts of receiving stolen
property. One offense involved a “stolen pickup truck.” The second offense involved
“tires and rims.” The possession of criminal tools offense involved “a tire jack and/or
tow chain and/or lug nut wrenches.” Although the receiving stolen property offenses
involved the same victim and the possession of criminal tools offense occurred on the
same date as the receiving stolen property offenses, we are unable to determine if these
offenses were allied offenses of similar import. It is unclear if the “tires and rims” are
from the same “stolen pickup truck” or from another vehicle. Likewise, it is unclear how
the tools involved were related to either of the receiving stolen property offenses. There
are simply no facts in the record to aid in our mandated de novo review of the issue.
{¶26} At the outset of our analysis, we note that not every case involving multiple
convictions with a silent record will require an allied-offense determination by the trial
court. Even where specific facts of the case are unknown, an appellate court can assess
whether a claim requires a return to the trial court. For example, cases that assert a claim
that the allied-offense issue was not addressed in a silent record may nevertheless fail
where the indictment shows the offenses were committed on separate dates or involved
separate victims or involve statutes that would require completely separate conduct.
Conversely, cases that involve offenses that facially present a question of intertwined
conduct, such as kidnapping and rape, or aggravated robbery and kidnapping, or gross
sexual imposition and rape, create an allied-offense challenge that can result in the finding
of error for failing to address the merger issue.
The Role of the Trial Judge
{¶27} Underwood placed the duty squarely on the trial court judge to address the
merger question. Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

.
Likewise, the merger statute imposes the same duty. R.C. 2941.25. Ultimately, it is the
trial judge who imposes the sentence in a case.         While the judge cannot be an advocate
for either position, the trial court must address the potential allied-offense issue when the
charges facially present a question of merger.          A defendant’s conviction on multiple
counts, regardless of how achieved, does not affect the court’s duty to merge allied
offenses of similar import at sentencing.
{¶28} When a facial review of the charges and the elements of the crimes present a
viable question of merger, the court must apply the Johnson test.
{¶29} Under the first prong, the court determines “whether it is possible to commit
one offense and commit the other with the same conduct, not whether it is possible to
commit one without committing the other.”                 Johnson,

128 Ohio St.3d 153

942 N.E.2d 1061

, at ¶ 48, citing Blankenship, 38 Ohio St.3d at 119,

526 N.E.2d 816

 (Whiteside, J., concurring).      (“It is not necessary that both crimes are always
committed by the same conduct but, rather, it is sufficient if both offenses can be
committed by the same conduct.      It is a matter of possibility, rather than certainty, that the
same conduct will constitute commission of both offenses.”)
{¶30} If the court’s answer in the first prong is yes, then the second prong requires
the trial court to determine if, in fact, the offenses were actually committed by the same
conduct, i.e., “‘a single act, committed with a single state of mind.’” Johnson at ¶ 49,
quoting Brown,

119 Ohio St.3d 447

2008-Ohio-4569

895 N.E.2d 149

, at ¶ 50 (Lanzinger,
J., dissenting). If the answer to both questions in both prongs is yes, then the offenses are
allied offenses of similar import and they must be merged. Johnson at ¶ 50.
{¶31} “Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed separately, or
if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B),
the offenses will not merge.” Id. at ¶ 51.
{¶32} Where the charges present a facial question of merger, the court must
perform the analysis.   As stated in State v. Baker, 8th Dist. No. 97139,

2012-Ohio-1833

,
¶ 19:
In short, there is no magic cleansing that occurs through the process
of case resolution that satisfies the constitutional prohibition against
imposing individual sentences for counts that constitute allied offenses.
Merger must be addressed and resolved, or it remains outstanding. As
noted in Underwood [

124 Ohio St.3d 365

2012-Ohio-1

922 N.E.2d 923

, at
¶ 20], “[a] trial court does not have the discretion to exercise its jurisdiction
in a manner that ignores mandatory statutory provisions.”

Id.

 Thus, the
constitutional and Ohio statutory prohibition against multiple punishments
for the same conduct must always be addressed in the absence of a
stipulation to a separate animus or separate acts.
{¶33} We therefore hold that a trial court commits error where multiple charges
facially present a question of merger under R.C. 2941.25 and the trial court fails to
conduct an allied offenses of similar import analysis. We will discuss the effect of this
error in more detail below.
{¶34} The distinction between our view and the dissent is we believe plain error
exists in the failure to address a statutory mandate.   The plain error occurs at that point
and need not be premised on the illusive question of whether the multiple offenses would
actually merge.
Defense Counsel and the Failure to Raise Merger
{¶35} Rogers’s trial counsel failed to raise the merger question in the trial court
below.     However, because double jeopardy is implicated, there is a presumption against
waiver of constitutional rights.    Underwood,

124 Ohio St.3d 365

2010-Ohio-1

922 N.E.2d 923

, at ¶ 32, citing State v. Adams,

43 Ohio St.3d 67

, 69,

538 N.E.2d 1025

 (1989).
“‘Waivers of constitutional rights not only must be voluntary, but must be knowing,
intelligent acts done with sufficient awareness of the relevant circumstances and likely
consequences.’” Adams at 69, quoting Brady v. United States,

397 U.S. 742

, 748,

90 S.Ct. 1463

25 L.Ed.2d 747

 (1970). “A waiver of important constitutional rights cannot
be presumed from a silent record * * *.” State v. Stone,

43 Ohio St.2d 163

, 167,

331 N.E.2d 411

 (1975).
{¶36} Furthermore, even if the failure to assert double jeopardy at the trial court
level constituted a forfeiture of that right, the jeopardy claim may be reviewed for plain
error.       See United States v. Ehle,

640 F.3d 689

, 694 (6th Cir.2011). Despite the
dissent’s analysis of the facts in both Underwood and Johnson, those admitted errors were
not deemed “waived” or “forfeited” or reduced to an ineffective assistance of counsel
claim on appeal.
{¶37} Defense counsel’s failure to raise the merger issue does not relieve the trial
court of its duty to determine the merger question when a facial question of merger
presents itself. Ultimately it is the trial court that must apply the statutory requirements in
R.C. 2941.25 and address the possible merger questions.2
{¶38} While defense counsel should raise potential merger questions, it is important
to note that a defendant and his counsel have no role in the charging process, and the
defendant has no burden to prove offenses merge in the guilt phase. Merger is not an
affirmative defense under R.C. 2901.05(D)(1)(a) and (b). Merger occurs just prior to the
entry of conviction and is a function of sentencing that is the exclusive domain of the trial
judge.
2
Even if defense counsel’s failure to raise a merger issue amounts to an ineffective assistance
of counsel claim, as referenced by the dissent, this does not relieve the trial judge of his or her
statutorily mandated duty to address merger.
{¶39} Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed
by an appellate court even though they were not brought to the attention of the trial court.
Thus, Underwood makes clear that a defendant may appeal his sentence even though it
was jointly recommended by the parties and imposed by the court. Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

. As will be discussed later, when the issue of
merger is facially apparent, the failure of the trial court to address the merger issue
amounts to plain error. Therefore, a defendant’s failure to raise an allied offenses of
similar import issue in the trial court is not a bar to appellate review of the issue.
Effect of Guilty Plea
{¶40} In Underwood, the Supreme Court of Ohio held that the issue of allied
offenses under R.C. 2941.25 may be appealed even if the defendant entered separate pleas
to multiple offenses and received a jointly recommended sentence. Id. at ¶ 26. In this
case, there was no discussion about Rogers’s specific conduct at the time of the plea.
Likewise, there was no stipulation or understanding of how the receiving stolen property
counts or the possession of criminal tools count related to each other. In the absence of a
stipulation or an agreement on which offenses are allied, a guilty plea does not negate the
court’s mandatory duty to merge allied offenses of similar import at sentencing.
Underwood at ¶ 26.
{¶41} While facts establishing the conduct of the offender offered at the time of a
plea may be used to establish that offenses are not allied, a guilty plea alone that does not
include a stipulation or a finding that offenses are not allied offenses of similar import
does not conclusively resolve the merger question. Thus, a guilty plea alone does not
constitute a valid waiver of the protections from possible double jeopardy under R.C.
2941.25.
The Role of Prosecutors
{¶42} The statute places no burden of proof on prosecutors to establish that
offenses do not merge. Again, the determination of merger is in the hands of the trial
judge based on the charges and the facts before the court.
{¶43} We are well aware that there are offenders who deserve separate convictions
and punishments for certain conduct. Rather than ignoring the question, prosecutors
should relish the opportunity to make the case for why certain offenders deserve
convictions or punishments based on their conduct.
{¶44} Prosecutors are free to charge in any manner they see fit. They can charge
as many counts as they conceivably feel cover the gamut of a defendant’s conduct. With
that, there are many opportunities to address the allied-offense issue along the path of case
resolution. Prosecutors can put facts into the individual indictment counts distinguishing
conduct; they can indicate in the response to a bill of particulars what offenses are not
allied; at the time of a plea, they can indicate which offenses are not allied and why they
are not allied by stating a factual basis for the plea, even if one is not required under
Crim.R. 11; they can file a sentencing memorandum outlining the merger issues; they can
also appear at sentencing and point out why offenses are not allied; they can also enter into
a stipulation on what offenses are committed with separate conduct or a distinct animus.
Thus, at any point in the process, prosecutors can put facts on the record that would
support a determination that certain offenses are not allied.
{¶45} This does not have to involve long or complicated hearings or witnesses.
Historically, merger of offenses has always been viewed as a part of the sentencing
process. Thus, “the sentencing process is less exacting than the process of establishing
guilt.” State v. Bowser,

186 Ohio App.3d 162

2010-Ohio-951

926 N.E.2d 714

, ¶ 14 (2d
Dist.), citing Nichols v. United States,

511 U.S. 738

, 747,

114 S.Ct. 1921

128 L.Ed.2d 745

(1994).    Therefore, this process can easily be satisfied by a brief recitation of facts or
circumstances by the prosecutor to aid the trial court in its determination.            Nothing more
should be required.3
3
In one of the more insightful decisions on this issue released more than 30 years ago, former
Judge Alvin Krenzler noted:
When there is a probability that the allied offense issue may arise in a case, the
prosecutor and defense counsel would be well advised to squarely confront the issue in
any plea bargaining that takes place. By resolving this question at the plea bargaining
stage and incorporating the resolution of the allied offense issue in the plea bargain to
be placed on the record, the prosecutor and defense counsel will act to avoid later
problems in the validity of the plea bargain, in the entering of the plea, in the
acceptance of the plea, in the judgment of conviction, and any appeal of the case.
State v. Kent,

68 Ohio App.2d 151

, 155,

428 N.E.2d 453

 (8th Dist.1980), fn.1.
The Application of Plain Error
{¶46} If the facts necessary to determine whether offenses are allied offenses of
similar import are not in the record and the trial court does not inquire, then plain error
exists when the issue is raised on appeal.        See State v. Barrett, 8th Dist. No. 97614,

974 N.E.2d 185

, (S. Gallagher, J., dissenting.)
{¶47} Pursuant to the terms of Crim.R. 52(B), plain errors or defects that affect
substantial rights may be grounds for reversal even though they were not brought to the
attention of the trial court.    “Notice of plain error under Crim.R. 52(B) is to be taken with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.”        State v. Long,

53 Ohio St.2d 91

372 N.E.2d 804

 (1978),
paragraph three of the syllabus.
{¶48} Plain error requires:
(1) “there must be an error, i.e., a deviation from a legal rule,” (2) “the error
must be plain,” which means that it “must be an ‘obvious’ defect in the trial
proceedings,” and (3) “the error must have affected ‘substantial rights,’”
which means that “the trial court’s error must have affected the outcome of
the trial.
State v. Gross,

97 Ohio St.3d 121

2002-Ohio-5524

776 N.E.2d 1061

, ¶ 45, quoting State
v. Barnes,

94 Ohio St.3d 21

, 27,

759 N.E.2d 1240

 (2002).
{¶49} We find that in failing to address a merger issue, there is a deviation from a
legal rule.   Thus, as here, when a trial court fails to determine whether offenses are allied
offenses of similar import, the first prong of the plain error test is satisfied.          The
legislative requirement under R.C. 2941.25 to determine allied offenses is also mandated
by the Supreme Court of Ohio in Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

. “R.C. 2941.25 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 prohibits multiple punishments for the same offense.” Id. at ¶ 23.
“[W]hen a sentence fails to include a mandatory provision, it may be appealed because
such a sentence is ‘contrary to law’ and is also not ‘authorized by law.’” Id. at ¶ 21.
{¶50} The second prong requires that the error must be “plain” or “obvious.”
Where it is clear from a facial review of the convictions that the allied offenses of similar
import analysis should have been conducted but was not, the error is plain and obvious.
Here the trial court should have realized from the face of the charges in CR-545992 that a
merger analysis of the receiving stolen property and possession of criminal tools offenses
was necessary.    When the legislature statutorily mandates a procedural duty under R.C.
2941.25 to protect an established constitutional right, a violation of that duty constitutes
error.
{¶51} Lastly, the third prong of plain error requires that the error must have
affected the “substantial rights” of the accused.    Clearly, the prospect of being subjected
to multiple punishments for offenses that may be allied affects a defendant’s substantial
rights. In our view, the unresolved nature of double jeopardy so undermines the integrity
of the proceedings that it constitutes plain error and satisfies this prong.
{¶52} To find otherwise would undermine the Underwood decision and the
legislative mandate of R.C. 2941.25. Further, a defendant would be left with the limited
remedy of an ineffective assistance of counsel claim on appeal.           That claim, like the
allied offenses of similar import claim, would contain no more facts in support of it than
the initial allied offenses of similar import claim. In the end, a postconviction relief
petition would be all that remained as a remedy after the case is over.         The unresolved
nature of the double jeopardy issue affects the outcome of the case and prejudices the
offender.
Distinguishing Forms of Plain Error
{¶53} We are cognizant that other panels of this court have declined to find plain
error when the record does not contain facts from which an allied-offense error might be
determined.    They take issue with the approach that finds plain error when it is uncertain
if the outcome of the case would have been otherwise.         This view is outlined in State v.
Snuffer, 8th Dist. Nos. 96480, 96481, 96482, and 96483,

, ¶ 9; State v.
Lindsey, 8th Dist. No. 96601,

2012-Ohio-804

, ¶ 13; State v. Barrett, 8th Dist. No. 97614,

974 N.E.2d 185

; and in the original panel decision in this case released
as State v. Rogers, 8th Dist. Nos. 98292, 98584, 98585, 98586, 98587, 98588, 98589, and
98590,

2013-Ohio-1027

.
{¶54} These cases accept the principle that it is plain error not to merge allied
offenses, but rationalize that since there are no facts to find plain error, plain error does not
exist. This is a self-fulfilling prophecy that defeats the constitutional protection outlined
in Underwood.     In our view, it is the absence of facts, or at least an inquiry into those
facts, that makes the question ripe for review and creates plain error.
{¶55} The duty to merge implies a duty to inquire and determine whether multiple
charges are allied offenses of similar import.   Without the duty to inquire and determine,
the duty to merge would be empty. An essential step in the merger process is applying
the requirements of R.C. 2941.25, and hence the Johnson test, to the multiple charges. In
our view, the failure to take this step where a facial review of the charges reveals it is
necessary establishes prejudice and affects the outcome of the case.            This is the
fundamental distinction between our view and that of the dissent.
{¶56} In State v. Corrao, 8th Dist. No. 95167,

2011-Ohio-2517

, ¶ 10, this court
extended Underwood and held that “the trial court’s failure to make the necessary inquiry
[into the allied-offense issue post-Johnson] constitutes plain error necessitating a remand.”
There is historical support for this proposition. In State v. Kent,

68 Ohio App.2d 151

428 N.E.2d 453

 (8th Dist.1980), this court held that the trial court has “an affirmative duty
to make inquiry as to whether the allied offense statute would be applicable” prior to
sentencing the defendant. Id. at 156; see also State v. Latson,

133 Ohio App.3d 475

728 N.E.2d 465

 (8th Dist.1999). Kent was implicitly overruled by State v. Comen,

50 Ohio St.3d 206

, 211,

553 N.E.2d 640

 (1990), which overruled the defendant’s challenge on an
allied-offense issue for not being raised at the trial court level during the plea and
sentencing hearings.   Of course, Comen itself has since been contradicted by Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

, at ¶ 29.             See Baker, 8th Dist.
No. 97139,

2012-Ohio-1833

.
{¶57} Most traditional plain error deals with issues involving the guilt phase. See
State v. Davis,

127 Ohio St.3d 268

2010-Ohio-5706

939 N.E.2d 147

. Unlike plain error
claims in the guilt phase, procedural plain error in sentencing does not affect the
determination of guilt or innocence.       The effect of finding plain error in the sentencing
phase is minimal on the overall case and requires a return to the trial court solely to
determine if any of the convictions merge.            See State v. Biondo, 11th Dist. No.
2012-P-0043,

2013-Ohio-876

.         We also note that as trial courts become more aware of
their duty to inquire and address merger questions, this problem will largely disappear.
Even when trial courts fail to address the issue, there are often facts in the record that
allow for resolution of the issue by de novo review on appeal. Thus, very few of these
cases will result in a return to the trial court.
{¶58} If a trial court failed to advise a defendant under Crim.R. 11 of the right to
subpoena witnesses, we would automatically find plain error. We would not contemplate
or hedge our finding on whether the record is silent on the question of whether the
defendant would have actually subpoenaed witnesses. It is enough that the advisement
was not made to demonstrate the plain error.
{¶59} The failure to address the allied-offense issue, in our view, is no different.
The plain error goes to the failure to address the required allied-offense analysis, not the
plain error that exists when a record clearly demonstrates the offenses should have
merged.
Other Issues
{¶60} Rogers also raised issues regarding jail-time credit and postrelease control.
{¶61} Rogers argued that the court erred by failing to compute his jail-time credit as
mandated by R.C. 2967.191 and that trial counsel was ineffective for failing to request an
accurate calculation of the jail-time credit.    This assignment of error is moot because the
court granted Rogers’s pro se motion for jail-time credit on April 16, 2012.
{¶62} Lastly, Rogers complains that the court erred by failing to advise him of the
consequences of violating postrelease control. This assignment is overruled because the
court did apprise Rogers during sentencing of the consequences of violating postrelease
control.     See tr. 69-70.
Conclusion
{¶63} We therefore hold the following:
(a)     Where a facial question of allied offenses of similar import presents itself, a
trial court judge has a duty to inquire and determine under R.C. 2941.25 whether those
offenses should merge.        A trial court commits plain error in failing to inquire and
determine whether such offenses are allied offenses of similar import.
(b)     A defendant’s failure to raise an allied offenses of similar import issue in the
trial court is not a bar to appellate review of the issue.
(c)     While facts establishing the conduct of the offender offered at the time of a
plea may be used to establish that offenses are not allied, a guilty plea alone that does not
include a stipulation or a finding that offenses are not allied offenses of similar import
does not conclusively resolve the merger question. Thus, a guilty plea does not constitute
a valid waiver of the protections from possible double jeopardy under R.C. 2941.25.
{¶64} We overrule the prior decisions of this court to the extent they are in conflict
with this decision. See, e.g., Snuffer, 8th Dist. Nos. 96480, 96481, 96482, and 96483,

; Lindsey, 8th Dist. No. 96601,

2012-Ohio-804

; Barrett, 8th Dist. No.
97614,

.      In this case, we sustain the first assignment of error to the
extent a remand is necessary to establish the underlying facts of Rogers’s conduct in
CR-545992 and for the trial court to determine whether the subject crimes should merge
for sentencing purposes.
{¶65} By separate entry, we certify a conflict between this decision and the Sixth
District’s decision in State v. Wallace, 6th Dist. No. WD-11-031,

2012-Ohio-2675

.4
{¶66} Judgment affirmed in part, reversed in part, and cause remanded.
It is ordered that appellant recover of said appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
4
The parties are advised that in order to institute a certified-conflict case in
the Supreme Court of Ohio, a party must file a notice of certified conflict in the
Supreme Court within 30 days of this court’s order certifying the conflict.
S.Ct.Prac.R. 4.1.
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, J.,
MARY J. BOYLE, J.,
FRANK D. CELEBREZZE, JR., J.,
EILEEN A. GALLAGHER, J.,
EILEEN T. GALLAGHER, J.,
MARY EILEEN KILBANE, J.,
KATHLEEN ANN KEOUGH, J.,
LARRY A. JONES, SR., J.,
TIM McCORMACK, J., and
KENNETH A. ROCCO, J., CONCUR
KENNETH A. ROCCO, J., CONCURS WITH SEPARATE OPINION in which Patricia
Ann Blackmon, Mary J. Boyle, Eileen A. Gallagher, Eileen T. Gallagher, Sean C.
Gallagher, Larry A. Jones, Sr., Kathleen Ann Keough, Mary Eileen Kilbane, and Tim
McCormack, JJ., CONCUR
LARRY A. JONES, SR., J., CONCURS WITH SEPARATE OPINION in which Patricia
Ann Blackmon, Mary J. Boyle, Eileen A. Gallagher, Eileen T. Gallagher, Sean C.
Gallagher, Kathleen Ann Keough, Mary Eileen Kilbane, Tim McCormack, and Kenneth
A. Rocco, JJ., CONCUR
MELODY J. STEWART, A.J., DISSENTS WITH SEPARATE OPINION
KENNETH A. ROCCO, J., CONCURRING WITH MAJORITY OPINION:
{¶67} While I concur with the reasoning of the majority opinion, I write separately
to express my concern that the dissenting opinion may become the law in this state.
Should that occur, the trial judge will be relegated to a passive role at a time when his or
her role rightfully is paramount. Moreover, I do not share the dissenting opinion’s trust
that a postconviction petition will afford relief to a defendant who is unaware when he or
she enters into a plea agreement of the nuances existing between the legal concepts of
“forfeiture” and “waiver”; arguably, that issue “could have been raised” in a direct appeal.
{¶68} In addition, I wish to point out that because an analysis with a solution to the
dilemma presented in this case was proposed in State v. Kent,

68 Ohio App.2d 151

428 N.E.2d 453

 (8th Dist.1980), that case deserves more than what the majority opinion
affords it.
{¶69} Crim.R. 11(C) vests the trial court with the responsibility to ensure that a
defendant is not unknowingly, involuntarily, or unintelligently surrendering his
constitutional rights at a plea hearing. Obviously, the right conferred under the Double
Jeopardy Clause qualifies as one.
{¶70} Thus, although the rule does not specifically require it, prior to making a
finding of guilt, the trial court should make an inquiry concerning the facts underlying the
defendant’s change of plea. This court may not “have the authority to impose” such an
action on the trial court, as the dissenting opinion notes, but the rule certainly encompasses
it and provides the trial court with the jurisdiction to do so.
{¶71} As stated in Kent,

68 Ohio App.2d 151

428 N.E.2d 453

, after the defendant
enters his change of plea to all of the offenses, and the trial court has otherwise complied
with its duties under Crim.R. 11(C), a determination can then be made with respect to any
potential allied-offense issue. The Kent court noted:
This can occur in one of several situations.
First, if either the prosecutor, the defense counsel, or a defendant
advises the court that the defendant is pleading guilty to multiple offenses
and that in entering the plea consideration was given to the allied offense
statute, the court can then accept the guilty plea and enter a judgment of
conviction for all of the offenses to which the party has pled guilty.
[Footnote omitted.]
In the event that a statement similar to that given above is not made,
but a defendant affirmatively raises the issue of allied offenses and indicates
that he is entering a plea of guilty to multiple offenses that are allied offenses
of similar import and that a judgment of conviction can only be entered for
one, the court will proceed to accept the guilty plea to all of the offenses.
The court will then conduct a voir dire hearing to determine whether they are
allied offenses of similar import with a single animus which would require a
judgment of conviction for only one offense. If, after conducting such a
hearing on the record, the cou[r]t determines that the offenses are allied
offenses of similar import with a single animus, a judgment of conviction for
only one offense may be entered. If the court, after conducting a hearing on
the record, determines that there were multiple offenses of dissimilar import
or offenses committed separately or with a separate animus as to each, the
court will then enter a judgment of conviction for each of the offenses. R.C.
2941.25(A) and (B).
* * * If nothing is said by either the prosecutor or the defendant in regard to allied
offenses and the court has accepted the guilty plea to all of the offenses, the court has an
affirmative duty to make inquiry as to whether the allied offense statute would be
applicable. Under these circumstances, the court would explain that in Ohio there is an
allied offense statute [that protects the constitutional right against double jeopardy], and
thus, depending upon the evidence, a judgment of conviction may only be entered for one
offense; and a hearing would be held to determine if there are such allied offenses.
We recognize that Crim.R. 11 does not contain a requirement that the court conduct
such a hearing after accepting the guilty plea. Nevertheless, the allied offense statute is
mandatory in that when there are allied offenses of similar import, there can only be one
judgment of conviction.
Therefore, two significant alternatives present themselves. First, the trial court
could accept the guilty plea to the multiple offenses of similar import, make no further
inquiry, and sentence the defendant for each offense. Then, if an appeal is taken, a
defendant who has pled guilty to multiple offenses of similar import may raise the issue
that there were allied offenses of similar import with a single animus and that the judgment
of conviction for the multiple offenses should not have been entered. He would argue
that he did not make a knowing, intelligent and voluntary plea because he was not advised
of the allied offense statute.
On the other hand, a trial court could conduct an allied offense hearing on the
record for multiple offenses of similar import. After that, the trial judge would determine
whether sentence could be imposed for only one offense, or if the offenses were allied
offenses, impose separate sentences as to each one shown to have an animus separate
from the others. This process would have an additional advantage: it would provide the
record necessary for an appellate court to review the determination below.
We believe the better practice would be for the court to conduct the allied offense
hearing when a defendant has pled guilty to multiple offenses of similar import. In this
way, the defendant’s rights are protected and the defendant is then precluded from
successfully raising the allied offense issue on appeal. Thus, in the interests of judicial
economy and protection of the rights of the defendant, it is the better practice to have the
trial court conduct the allied offense hearing after accepting a guilty plea to offenses
which may be construed to be allied offenses of similar import.
Further, in the event that the trial court erred in its determination of allied offenses,
the entire guilty plea is not vacated. It is only the judgment of conviction relating to the
allied offenses.
(Emphasis added.)
{¶72} The foregoing procedure makes eminent sense. In advising the defendant during the
colloquy at the plea hearing of this additional constitutional right, putting the prosecutor to his proof,
requiring defense counsel to advocate for his client, and making a final determination of whether there
exists a factual basis prior to making a finding of guilt, the trial court is not acting as an advocate for
anything but the law itself. This is the judge’s sole responsibility, after all.
{¶73} Despite the implicit directive Crim.R. 11(C) contains, the merger issue has
been declared in some instances as one that can “only occur at sentencing.” See State v.
Snuffer, 8th Dist. Nos. 96480, 96481, 96482, and 96483,

, ¶ 10.
Therefore, the trial court may, in addition, require the parties to submit sentencing
memoranda on the issue prior to conducting the sentencing hearing. The prosecutor at the
same time could be advised to be prepared to elect, should the trial court make the
determination that merger must occur. This would serve several beneficial purposes.
{¶74} It would lend further support for the trial court’s determinations with respect
to guilt, merger, and, incidentally, proportionality. It would provide more material for
purposes of appellate review.       It would also address the concerns set forth by the
dissenting opinion. See also State v. Barrett, 8th Dist. No. 97614,

, ¶
24-25 (which set forth the belief that the trial judge should not be placed in the position of
“advocating” for the defendant but acknowledged that, at the plea hearing, “the court has
an affirmative duty to advise a defendant of the consequences of waiving constitutional
rights”).
{¶75} Finally, it would also have the advantage of cutting short the process
currently in use, i.e., several appeals, as the issue comes from the trial court to this court, is
reviewed with or without an adequate record, and is remanded for the trial court to make
another decision for this court to review again. Adding the necessity for the filing of a
petition for postconviction relief as a method of redressing the issue merely compounds
the problem. Judicial economy is clearly lacking in this area, and it is this court’s duty to
provide some guidance to the trial courts. The procedure outlined in Kent,

68 Ohio App.2d 151

428 N.E.2d 453

, serves both ends.
{¶76} The vexing problem this case presents easily could be solved by the Ohio
Supreme Court. That court could either embrace the procedure proposed in Kent, or
amend Crim.R. 11(C) to require the trial judge, prior to accepting the change of plea, to
make an inquiry into the underlying facts.
LARRY A. JONES, SR., J., CONCURRING WITH MAJORITY OPINION:
{¶77} I concur in judgment with the reasoning of both the majority opinion and
Judge Rocco’s concurring opinion, but write separately to provide simple and
straightforward instructions for the trial court.
{¶78} As highlighted by the majority, it is a fundamental principle that an offender
can be punished only once for a crime; otherwise, the offender’s constitutional right to be
protected from double jeopardy has been violated.
{¶79} When an offender is convicted of more than one offense, R.C. 2941.25
obligates the trial court to determine whether the offenses are allied. This obligation is
the same whether the conviction is the result of a plea of guilty, a plea of no contest, or a
verdict after a trial.
{¶80} Therefore, if an offender is convicted of more than one offense and the
parties do not expressly agree, i.e. stipulate, that the offenses are not allied offenses of
similar import, the trial court must make the inquiry and this inquiry must take place on the
record before the offender is sentenced (but this inquiry may take place at the sentencing
hearing).
{¶81} The trial court is obligated to do an allied-offenses analysis, on the record
each time there is a conviction of more than one offense. While, in some cases, it may
seem tedious, in the long run it will save the state’s and court’s resources by streamlining
multiple appeals and, most importantly, ensure the constitutional rights of the defendant
against double jeopardy.
MELODY J. STEWART, A.J., DISSENTING:
{¶82} I believe that the majority’s decision misinterprets the holding in State v.
Underwood,

124 Ohio St.3d 365

922 N.E.2d 923

, that “allied offenses of
similar import must be merged at sentencing or the sentence is contrary to law.” I agree
that it is plain error for the court to sentence an offender to serve multiple terms of
imprisonment for allied offenses of similar import — when an allied offenses error is
obvious on the record, we must find the error rises to the level of plain error. The
question presented en banc is what to do when a defendant pleads guilty to an indictment,
fails to offer any evidence at sentencing to show why the offenses are allied, and the
appellate record contains no facts to show why multiple offenses should merge for
sentencing.
{¶83} Consistent with established principles of appellate review, I would find that
the defendant who pleads guilty to multiple offenses and fails to raise an allied offenses
issue at sentencing forfeits the right to argue all but plain error on appeal. And since a
plain error analysis is always predicated on there being an “obvious” error in failing to
merge allied offenses, the claimed error must fail if the record contains no facts proving
that a merger error occurred.
{¶84} The majority of this court decides differently, reversing and remanding a
conviction not because an error occurred, but because it cannot tell if an error occurred.
Rather than rely on the established application of the plain error rule, the majority
circumvents the rule by holding that plain error occurs simply because the court failed to
conduct a “facial” inquiry of the offenses at sentencing to determine whether multiple
offenses are allied. Underwood does not explicitly place a duty on the court to make this
inquiry nor can that duty be inferred. What is more, in creating this new duty for the court
(and the prosecuting attorney), the majority relieves defense counsel of any duty to protect a
client’s rights — it essentially finds that any issue of ineffective assistance of counsel
resulting from counsel’s failure to raise the merger issue at sentencing is superseded by the
court’s per se error in failing to raise the issue sua sponte.
{¶85} This holding is a misapplication of the plain error rule, a misreading of
Supreme Court precedent, and a clear departure from our traditional adversary process. I
respectfully dissent.
I
{¶86} The plain error doctrine set forth in Crim.R. 52(B) states that “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” This rule is identical to Fed.R.Crim.P. 52(b) and Ohio courts have
resorted to federal precedent when construing the state version of the rule. See, e.g., State
v. Wamsley,

117 Ohio St.3d 388

2008-Ohio-1195

884 N.E.2d 45

, ¶ 18.
{¶87} To prevail on a showing of plain error, a defendant must prove three things:
(1) an error, (2) that is plain, and (3) that affects substantial rights. See Jones v. United
States,

527 U.S. 373

, 389,

119 S.Ct. 2090

144 L.Ed.2d 370

 (1999); State v. Gross,

97 Ohio St.3d 121

2002-Ohio-5524

776 N.E.2d 1061

, ¶ 45. A reviewing court will take notice of
plain error only with the utmost caution, and only then to prevent a manifest miscarriage of
justice. State v. Long,

53 Ohio St.2d 91

372 N.E.2d 804

 (1978), syllabus.
{¶88} As the majority concedes, “[t]here are simply no facts in the record to aid in
our mandated de novo review” of the merger issue. Ante at ¶ 25. Without facts showing
why offenses should merge, this court cannot say that any sentencing error occurred, much
less that an error occurred that was so “obvious” that it rose to the level of “plain” error. It
is the appellant’s responsibility under App.R. 16(A)(7) to make an argument with citations
to the parts of the record on which the appellant relies.
{¶89} Rogers pleaded guilty to a bare bones indictment. By doing so, he admitted
the facts alleged in the indictment. See Crim.R. 11(B)(1); State v. Wilson,

58 Ohio St.2d 52

388 N.E.2d 745

 (1979), paragraph one of the syllabus. He did not argue at sentencing
that the offenses he pleaded guilty to were allied and should merge for sentencing, so he
forfeited the right to raise anything but plain error relating to merger of sentences. Under
any plausible application of the plain error rule, Rogers has failed to show an error, the
existence of which we must recognize in order to prevent a miscarriage of justice. On this
basis alone, we should reject Rogers’s argument that the court committed plain error by
failing to merge for sentencing allied offenses of similar import. See State v. Snuffer, 8th
Dist. Nos. 96480, 96481, 96482, and 96483,

; State v. Lindsey, 8th Dist.
No. 96601,

2012-Ohio-804

; State v. Barrett, 8th Dist. No. 97614,

; State
v. Rogers, 8th Dist. Nos. 97093 and 97094,

2012-Ohio-2496

.
II
{¶90} The majority circumvents a conventional plain error analysis by taking the
Underwood holding out of context and relieving the defendant of the onus of objecting
and otherwise preserving any claimed error. It does so on the following premises: (1)
allied offenses issues invoke the sentencing component of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and constitutional errors cannot be
waived unless the waiver is knowing or intelligent; (2) the “imposition of multiple
sentences for allied offenses of similar import is plain error”; and (3) under R.C. 2941.25,
the court must determine prior to sentencing whether the offenses were committed by the
same conduct. From these premises the majority concludes that the trial judge not only
has a duty to merge allied offenses of similar import, but that the trial judge also has the
obligation to raise the issue of allied offenses at sentencing even if the defendant fails to
do so. This conclusion is not valid.
A
1
{¶91} Although the majority correctly concludes that Rogers’s failure to raise the
merger issue at sentencing did not constitute a waiver of his double jeopardy rights, ante at
¶ 35, it reaches that conclusion for the wrong reasons because it confuses the concepts of
“waiver” and “forfeiture.” By failing to raise the issue of merger, Rogers did not waive
his double jeopardy rights, but he did forfeit the right to argue anything but plain error on
appeal. This distinction is important: nuanced or not.
{¶92} A “waiver” is the intentional relinquishment or abandonment of a right, while
a “forfeiture” is the failure to preserve an objection. State v. Payne,

114 Ohio St.3d 502

2007-Ohio-4642

873 N.E.2d 306

, ¶ 23. The waiver of a right is not subject to plain error
review under Crim.R. 52(B), but a forfeiture of an objection is subject to plain error
review under Crim.R. 52(B).

Id.

 Rogers did not intentionally relinquish his double
jeopardy rights when he failed to object at sentencing that he was separately sentenced on
allied offenses of similar import — he merely forfeited the right to complain of anything
but plain error on appeal by not timely raising it. In fact, Underwood addressed this very
point, rejecting the argument that a guilty plea to a jointly recommended sentence
constituted a waiver of the right to raise an allied offense issue on appeal. Underwood,
supra, at ¶ 32.
2
{¶93} There really is no doubt that a defendant who pleads guilty and does not raise
the issue of allied offenses at the time of sentencing forfeits all but plain error on appeal.
In State v. Comen,

50 Ohio St.3d 206

, 211,

553 N.E.2d 640

 (1990), the Supreme Court
found an allied offenses argument forfeited on appeal because the defendant did not raise
the issue in the trial court. Implicit in the idea of issue forfeiture in the context of allied
offenses is that a party who fails to object waives all but plain error. See State v. Foust,

105 Ohio St.3d 137

2004-Ohio-7006

823 N.E.2d 836

, ¶ 139 (argument that state failed to
prove separate animus for separate offenses was not raised at trial and defendant “thus
waived all but plain error”). Rogers did not waive his right to not be held twice in
jeopardy for the same conduct, but by failing to raise the issue in the trial court, he did
forfeit the right to object to this aspect of his sentence.
{¶94} Comen should end any discussion concerning the application of the plain
error rule in this case, yet the majority gives short shrift to that case with the statement that
it is “contradicted” by Underwood. Ante at ¶ 56. This comment is not correct because
Underwood is entirely consistent with Comen — the Supreme Court recognized that
Underwood’s guilty plea did not waive error; it simply forfeited all but plain error for
purposes of appeal. With the state having conceded that Underwood’s offenses were
allied and should have merged for sentencing, Underwood at ¶ 8, the Supreme Court found
that the court’s failure to merge those sentences rose to the level of plain error.
{¶95} Given the concession of plain error in Underwood, the Supreme Court had no
reason to cite Comen for the legal proposition that a failure to raise an allied offenses
objection at sentencing forfeits all but plain error. With plain error established, Comen’s
forfeiture of the right to argue allied offenses was immaterial.
{¶96} In fact, the rule that a defendant who fails to raise the issue of allied offenses
at sentencing forfeits the right to argue that issue on appeal is so well established that it is
axiomatic. For example, in State v. Antenori, 8th Dist. No. 90580,

2008-Ohio-5987

, we
held, consistent with the principles announced in Comen, that by voluntarily entering
guilty pleas to two separate offenses, a “defendant waive[s] any argument that the same
constituted allied offenses of similar import.” Id. at ¶ 6.
{¶97} And in State v. Wulff, 8th Dist. No. 94087,

2011-Ohio-700

, we distinguished
Antenori from Underwood by noting that Underwood involved a jointly recommended
sentence as opposed to the guilty plea entered into in Antenori. Id. at ¶ 25. Wulff thus
concluded that a defendant who voluntarily enters guilty pleas and allows himself to be
sentenced at the court’s discretion forfeited any argument that his offenses constituted
allied offenses of similar import. Id. at ¶ 26.
{¶98} Any argument the majority makes that Underwood somehow undercut the
principles announced in Comen should have been dispensed with in State v. Clementson,
8th Dist. No. 94230,

2011-Ohio-1798

, where the author of the present en banc decision not
only agreed with the Antenori–Wulff analysis, but explained his agreement by citing with
approval the passage from Antenori explaining why Underwood was distinguishable. Id.
at ¶ 11. Clementson thus denied an application to reopen an appeal on grounds that
appellate counsel was ineffective for failing to raise an assignment of error relating to the
court’s failure to merge allied offenses of similar import for sentencing because that issue
arose in the context of a guilty plea and was essentially unreviewable on direct appeal. Id.
at ¶ 13.
B
{¶99} The majority cites Underwood for the proposition that it is error to fail to
merge allied offenses and from this proposition concludes that a sentence must be reversed
if the record on appeal does not contain enough information to prove that offenses are not
allied. In its view, holding otherwise might result in the defendant actually being ordered
to serve separate sentences for allied offenses, and that would violate Underwood. This
conclusion disregards Comen and miscomprehends Underwood’s holding. It is important
to understand that in both Underwood and State v. Johnson,

128 Ohio St.3d 153