Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-612252-B
ATTORNEY FOR APPELLANT J. Philip Calabrese Porter Wright
Morris & Arthur, L.L.P.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Timothy R. Troup Assistant Prosecuting
BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart,
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
Alijah Lee appeals his 14-year, aggregate sentence that was
imposed by the trial court upon the parties'
recommendation. Lee's convictions are affirmed.
The sentences imposed in this case are not ones that can be
reviewed under R.C. 2953.08(D)(1). R.C. 2953.08(D)(1) states
A sentence imposed upon a defendant is not subject to review
under this section if the sentence is authorized by law, has
been recommended jointly by the defendant and the prosecution
in the case, and is imposed by a sentencing judge.
statutory section, the legislature limited appellate
jurisdiction with respect to agreed sentences. State v.
Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 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.").
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, 2010-Ohio-1, 922 N.E.2d
923, paragraph two of the syllabus.
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, 2016-Ohio-2696, 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.
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, 2016-Ohio-7658, 71 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.
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
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.
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, 2016-Ohio-2696,
69 N.E.3d 627, at ¶ 29.
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 ...