State v. McConnell

[Cite as State v. McConnell, 2022-Ohio-2902.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
JAMARR A. MCCONNELL : Case No. CT 2021-0063
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2021-0154
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 17, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR P. BENNINGTON JAMES S. SWEENEY
27 North Fifth Street 285 South Liberty Street
P.O. Box 189 Powell, OH 43065
Zanesville, OH 43702-0189
Muskingum County, Case No. CT 2021-0063 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant, Jamarr A. McConnell, appeals his July 15, 2021
sentence by the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-Appellee
is state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 17, 2021, the Muskingum County Grand Jury indicted appellant
on one count of attempted murder in violation of R.C. 2903.02, twenty-three counts of
felonious assault in violation of R.C. 2903.11, twenty-three counts of discharging a
weapon at or into a habitation in violation of R.C. 2923.161, twenty-three counts of
discharging a firearm over a roadway in violation of R.C. 2923.162, one count of
tampering with evidence in violation of R.C. 2921.12, and one count of having a weapon
while under disability in violation of R.C. 2923.13. Each count carried firearm
specifications. Said charges arose from the shooting of Robert Gladden following an
argument between Mr. Gladden and appellant's brother. Police officers recovered
twenty-three spent shell casings from the scene.
{¶ 3} On June 3, 2021, appellant pled guilty to the attempted murder and
tampering counts, and one of the counts for discharging a weapon at or into a habitation.
The parties agreed to a joint recommendation of twenty years in prison, stipulated to
findings necessary for consecutive sentences, and stipulated the counts did not merge
for sentencing purposes. The specifications to the counts and the remaining counts were
dismissed. A sentencing hearing was held on July 12, 2021. By entry filed July 15, 2021,
the trial court sentenced appellant to an aggregate minimum term of twenty years in
Muskingum County, Case No. CT 2021-0063 3
prison, with nineteen years being a mandatory term and an aggregate indefinite maximum
term of twenty-five and one-half years.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
PROPERLY MERGE TWO ALLIED OFFENSES OF SIMILAR IMPORT AT
SENTENCING PURSUANT TO R.C. 2941.25."
I
{¶ 6} In his sole assignment of error, appellant claims the trial court committed
plain error in failing to merge two allied offenses. We disagree.
{¶ 7} R.C. 2941.25 governs multiple counts and states the following:
(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.
Muskingum County, Case No. CT 2021-0063 4
{¶ 8} In his appellate brief at 5, appellant argues the offenses of attempted
murder and discharging a weapon at or into a habitation were "conducted with the same
act and with the same animus" and therefore, the trial court should have merged the two
offenses at sentencing. However, as argued by appellee in its appellate brief at 4, "[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.' " State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20,
quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 29.
{¶ 9} In his plea of guilty form filed June 3, 2021, appellant specifically stipulated
"to findings necessary for the imposition of consecutive sentences" and "the counts herein
do not merge." During the change of plea hearing, the prosecutor informed the trial court
of the plea agreement with the merger stipulation and defense counsel and appellant
each agreed to their understanding of the agreement. June 3, 2021 T. at 4. Appellant
understood he was pleading guilty to three separate counts. Id. at 4-6. He understood
"when there are multiple offenses that don't merge the Court could order the sentences
to be served consecutively, which means one after the other." Id. at 6. He understood
appellee was recommending a twenty-year sentence and "there's a stipulation as to the
findings necessary for the imposition of consecutive sentences." Id. at 13. During the
sentencing hearing, both the prosecutor and defense counsel requested that the trial
court follow the joint recommendation of twenty years. July 12, 2021 T. at 3-4. The trial
court did so. Id. at 9-10. In exchange, the specifications to the counts as well as the
remaining sixty-nine counts were dismissed.
Muskingum County, Case No. CT 2021-0063 5
{¶ 10} In State v. Haser, 5th Dist. Muskingum No. CT2020-0029, 2021-Ohio-460,
¶ 24, 29, this court found the issue of allied offenses is waived when the plea agreement
contains a stipulation that the offenses do not merge. Several other districts have found
the same. State v. Hamilton, 6th Dist. Wood No. WD-20-089, 2022-Ohio-967; State v.
Reeder, 3d Dist. Allen Nos. 1-21-08, 1-21-09, 1-21-10, 2021-Ohio-4558; State v. Pagan,
10th Dist. Franklin No. 19AP-216, 2019-Ohio-4954; State v. Welsh, 12th Dist. Butler No.
CA2018-11-219, 2019-Ohio-4128; State v. Booker, 8th Dist. Cuyahoga No. 101886,
2015-Ohio-2515. We find appellant waived the issue of allied offenses by stipulating that
the offenses do not merge in his plea agreement and during the change of plea hearing.
Appellant received what he bargained for.
{¶ 11} Upon review, we find the trial court did not err in following the recommended
plea agreement.
{¶ 12} The sole assignment of error is denied.
{¶ 13} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Wise, Earle, P.J.
Hoffman, J. and
Delaney, J. concur.
EEW/db