Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-623056-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Daniel A Cleary, Assistant Prosecuting
Attorney, for appellee.
Burr, for appellant.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.
1} Defendant-appellant, Deondre Bonner, appeals his
convictions for rape and aggravated robbery. For the
following reasons, we affirm his convictions.
2} In November 2017, Bonner was named in a 13-count
indictment charging him with six counts of rape, three counts
of kidnapping, three counts of aggravated robbery, and one
count of gross sexual imposition. The charges stemmed from
Bonner's multiple acts of rape involving three different
victims. In November 2018, Bonner pleaded guilty to Counts 1
and 2, rape (vaginal and oral; victim 1); Count 4, aggravated
robbery; Count 5, rape (vaginal; victim 2); and Counts 8 and
9, rape (oral and digital; victim 3). At the time of the
plea, the parties agreed that the offenses would not merge
for sentencing. Bonner was sentenced to a total prison term
of 55 years.
3} Bonner now appeals, contending in his sole
assignment of error that the trial court committed plain
error by failing to merge the rape offenses charged in Counts
1 and 2 pertaining to victim 1, and by failing to merge the
rape offenses charged in Counts 8 and 9 pertaining to victim
4} R.C. 2941.25(A) prohibits multiple punishments
for two or more offenses resulting from the same conduct. It
is possible, however, 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. This court has repeatedly held that where the
transcript demonstrates that the state and defense counsel
agreed that offenses were not allied, the issue of allied
offenses is waived. See, e.g., State v. Albright,
8th Dist. Cuyahoga No. 107632, 2019-Ohio-1998, ¶ 34;
State v. Black, 2016-Ohio-383, 58 N.E.3d 561 (8th
Dist.); State v. Booker, 8th Dist. Cuyahoga No.
5} In this case, the state and defense agreed that
the offenses would not merge. (Tr. 15, 31.) Accordingly,
Bonner has waived this issue on appeal.
¶6} Notwithstanding waiver, each rape offense
for each victim represented different acts of rape. Offenses
are not allied when they are dissimilar in import or
significance, or when the offenses are committed separately.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, ¶ 25. This court has consistently held that
rape involving different types of sexual activity, such as
vaginal intercourse, digital penetration, and oral
intercourse, arise from distinct conduct and are not
considered allied offenses, even when committed during the
same sexual assault. See, e.g., State v. Nunez, 8th
Dist. Cuyahoga No. 102946, 2016-Ohio-812, ¶ 20;
State v. Ferrell, 8th Dist. Cuyahoga No. 100659,
2014-Ohio-4377, ¶ 33.
7} In this case, Bonner pleaded guilty to rape
offenses involving three different victims. Regarding the
argument raised on appeal, the rape charges in Counts 1 and 2
pertaining to victim 1 involved distinct acts of sexual
conduct; thus, those counts are not allied and do not merge.
Similarly, the rape charges in Counts 8 and 9 pertaining to
victim 3 also involved distinct acts of sexual conduct; thus,
those counts are not allied and do not merge.
8} The assignment of error is wholly without merit
and is overruled.