State v. Grose

[Cite as State v. Grose, 2013-Ohio-4387.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 12CA109
:
ALLANDO BAKARI GROSE :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 2012 CR
0049 H

JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED

DATE OF JUDGMENT ENTRY: September 27, 2013

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JAMES J. MAYER, JR. ROBERT GOLDBERGER
RICHLAND CO. PROSECUTOR 10 West Newlon Place
JOHN C. NIEFT Mansfield, OH 44902
38 South Park St.
Mansfield, OH 44902
Richland County, Case No. 12CA109 2

Delaney, J.

{¶1} Appellant Allando Bakari Grose appeals from the judgment entries of the

Richland County Court of Common Pleas overruling his motion to suppress, and

convicting and sentencing him upon a number of criminal offenses. Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following evidence is adduced from the testimony of a single officer

called by appellee at the hearing on appellant’s motions to suppress.

Testimony at the Suppression Hearing

{¶3} This case arose on January 1, 2012, around 8:18 a.m. when Officer Allen

Edwards of the Mansfield Police Department responded to a residence on Blymyer

Avenue regarding an assault. He met the victim of the assault, Cory Patton, on the

sidewalk in front of the residence.

{¶4} Patton explained the residence belonged to his cousin and Patton was

there for a New Year’s Eve party the night before. In the early morning hours, he was

assaulted by someone else at the party: appellant. Patton said he was punched,

kicked, put on the floor, robbed, held down, and burned. Patton told Edwards he was

afraid and didn’t move; he didn’t try to get away because he was threatened. He also

said the assault was filmed by a woman with a black Droid cell phone and appellant was

still inside the house, asleep on a couch. Patton explained he crawled out a bedroom

window that morning and called police.

{¶5} Patton went back inside the house through the window and unlocked the

front door for Edwards. Edwards entered the foyer and directly on his right was an end
Richland County, Case No. 12CA109 3

table and couch; asleep on the couch were appellant and a woman, 10 to 15 feet from

the front door. Edwards and another officer immediately made contact with appellant

and the woman, detaining them both and advising a complaint had been made and they

would be brought to the police department for questioning.

{¶6} A black Droid cell phone was on the coffee table directly above the

couple’s heads; Edwards seized it because he was “originally told it belonged to

[appellant].” The phone was placed on a table outside the interview rooms as each

subject was interviewed. Both parties denied ownership of the phone. Edwards

returned to the Blymyer residence to find out whom the phone belonged to, but no one

would open the door. He tagged the phone as evidence.

{¶7} Although Edwards never personally reviewed its contents, he testified a

search warrant was subsequently obtained for the contents of the black Droid cell

phone.

Criminal Charges and Motion for Bond Review

{¶8} Appellant was first charged in municipal court by criminal complaint with

one count of robbery, a felony of the second degree. Appellant waived his preliminary

hearing scheduled for January 12, 2012.

{¶9} On February 3, 2012, appellant filed a Motion for Bond Review asking the

trial court to reduce his bond, stating in pertinent part, “his bond was established in the

municipal court in Case No. 2012-CRA-00136 as being $50,000 cash and personal

recognizance and no contact with the victim or victim’s family. [Appellant] asks the

court to lower his bond so that he can get out of the Richland County Jail, where he is
Richland County, Case No. 12CA109 4

being held solely on the pending charge, for the following reason: [employment and to

enroll in college].”

{¶10} On February 10, 2012, appellant was charged by indictment with one

count of kidnapping [R.C. 2905.01(A)(3), F1], one count of abduction [R.C.

2905.02(A)(2), F3], one count of extortion [2905.11(A), F3], one count of aggravated

robbery [R.C. 2911.01(A)(3), F1], one count of robbery [R.C. 2911.02(A)(2), F2], and

one count of tampering with evidence [R.C. 2921.12(A)(1), F3].

{¶11} On February 23, 2012, a bond review hearing was held before a

magistrate per appellant’s motion of February 3 and a written decision was journalized

on February 24, 2012. The decision noted appellee called two witnesses, Officer

Edwards and a detective, and two exhibits were admitted without objection. The

magistrate made the following findings of fact which are relevant to this appeal:

1. * * *. [Appellant’s] bond is currently set in the amount of $50,000

cash and personal recognizance, the court’s electronic monitoring

program and that he have no contact with the victim or the victim’s

family.

2. The alleged facts are summarized as follows: On January 1,

2012 [appellant] and Corie Patton were at the 125 Blymyer Avenue

residence of Doug Windsor and Chelsea Smith. Chelsea Smith

was present when [appellant] assaulted and robbed Mr. Patton. A

cell phone video captured the entire incident—over 15 minutes and

20 seconds in length. Seventeen year old [T.S.] operated the cell

phone. The cell phone video shows [appellant] slapping Mr. Patton
Richland County, Case No. 12CA109 5

in the back of his head, taking off Mr. Patton’s earring and ring,

stripping him of his clothing, setting his shirt on fire and rubbing it

on Mr. Patton’s back, sticking his finger onto the back of the victim’s

head, going through his pants, sitting on his lower back spread-

eagled, putting a lighter on his back, shoulder and arm and choking

and strangling him. [T.S.] asked to quit recording the video and

[appellant] told her to keep it going. [Appellant] kept taunting Mr.

Patton, telling him “Where’s my money, bro?” “Why you robbing

people, bro?” “Who will you rob next, bro?” etc.

3. [Appellant] is a 20 year old male. He has prior convictions for

felonious assault (2006), intimidation of an attorney, victim, or

witness (2007), receiving stolen property (2007), misdemeanor

assault (2009), resisting arrest (2010) and disorderly conduct and

underage consumption (2011). Before he went to jail he was

employed by Gabriel Brothers and the Mountain Drive Thru. He

has been in custody since January 7, 2012. [Appellant] gave a

taped statement denying all of these acts.

4. Defense counsel made no specific bond request. [Appellee]

requested [appellant’s] bond be increased.

* * * *.

{¶12} The magistrate concluded appellant’s bond should be raised to $250,000

cash and personal recognizance, plus electronically monitored house arrest and no
Richland County, Case No. 12CA109 6

contact with the victim, witnesses, or their families. On March 19, 2012, the trial court

adopted the magistrate’s decision by judgment entry.

{¶13} A jury trial was scheduled for April 9, 2012. On that date, the trial court

journalized an “Order of Trial Continuance” stating “It is hereby ordered that the jury trial

of this case is continued from April 9, 2012 because the case of Carol S. Miller v. Dana

H. Andrews, Case No. 10-CV-116 proceeded to trial. Time is tolled for speedy trial

purposes until this matter can be tried.”

{¶14} On April 30, 2012, appellant filed a Motion to Dismiss arguing his right to a

speedy trial was violated by the trial court’s continuance. Defense trial counsel also

filed a Motion to Withdraw accompanied by an affidavit by appellant acknowledging any

resulting delay would be chargeable against appellant. Appellee responded on May 1,

2012. On May 11, 2012, parties argued the motions before the trial court. On May 14,

2012, by judgment entry, the trial court permitted defense trial counsel (Attorney David

Homer) to withdraw and appointed new trial counsel (Attorney Roeliff Harper). On May

21, 2012, the trial court issued a Judgment Entry Overruling Defendant’s Motion to

Dismiss.

{¶15} On June 7, 2012, appellant filed a Motion to Suppress Video Recording on

Cell Phone and a separate Motion to Suppress for Illegal Search and Seizure. Appellee

responded with motions in opposition. A suppression hearing was held on July 31,

2012 and the suppression motions were overruled on October 3, 2012.

{¶16} On October 8, 2012, appellant entered pleas of no contest to Count I,

kidnapping, Count III, extortion, Count IV, aggravated robbery, and Count VI, tampering
Richland County, Case No. 12CA109 7

with evidence. Appellee dismissed Count II, abduction, and Count V, robbery. The trial

court sentenced appellant to an aggregate prison term of 12 years.

{¶17} Appellant now appeals from the judgment entry overruling the motion to

suppress and the judgment entry of conviction and sentence.

{¶18} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶19} “I. THE COURT ERRED IN OVERRULING THE MOTION TO DISMISS

BECAUSE THE APPELLANT WAS NOT TRIED WITHIN THE TIME LIMITS

MANDATED BY REVISED CODE SECTIONS 2945.71, 2945.72, AND 2945.73.”

{¶20} “II. THE COURT ERRED IN OVERRULING THE MOTION TO

SUPPRESS EVIDENCE OBTAINED BY THE SEARCH OF THE PREMISES

OCCUPIED BY APPELLANT ON JANUARY 1, 2012, IN VIOLATION OF

APPELLANT’S FOURTH AMENDMENT RIGHTS AGAINST ILLEGAL SEARCHES OR

SEIZURES.”

{¶21} “III. THE COURT ERRED IN CONVICTING APPELLANT TO (sic) ALLIED

OFFENSES OF SIMILAR IMPORT IN VIOLATION OF THE CONSTITUTIONAL RIGHT

AGAINST DOUBLE JEOPARDY.”

{¶22} “IV. THE COURT ERRED IN FAILING TO HOLD A HEARING ON

WHETHER IT WAS SENTENCING APPELLANT TO MULTIPLE SENTENCES FOR

ALLIED OFFENSES OF SIMILAR IMPORT.”
Richland County, Case No. 12CA109 8

ANALYSIS

I.

{¶23} In his first assignment of error, appellant argues the trial court violated his

right to a speedy trial. We disagree.

{¶24} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availability of a speedy trial to

a person accused of a crime is a fundamental right made obligatory on the states

through the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 383 N.E.2d

579 (1978); State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980).

{¶25} Our review of the trial court's decision regarding a motion to dismiss

based upon a violation of the speedy trial provisions involves a mixed question of law

and fact. State v. Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122, ¶ 11.

Due deference must be given to the trial court's findings of fact if supported by

competent, credible evidence. Id. However, we must independently review whether

the trial court properly applied the law to the facts of the case. Id. Furthermore, when

reviewing the legal issues presented in a speedy trial claim, an appellate court must

strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio

St.3d 53, 57, 1996-Ohio-171, 661 N.E.2d 706.

{¶26} A person charged with a felony must be brought to trial within 270 days

unless they waived that right to a speedy trial. If a person is held in jail in lieu of bond,

then each day that the suspect is in custody counts as three days. R.C. 2945.71(E).

This “triple count” provision is applied only when the defendant is being held in jail

solely on the pending charge. State v. MacDonald, 48 Ohio St.2d 66, 357 N.E.2d 40
Richland County, Case No. 12CA109 9

(1976), paragraph one of the syllabus. Pursuant to R.C. 2945.73, a person who is not

brought to trial within the proscribed time periods found in R.C. 2945.71 and R.C.

2945.72 “shall be discharged” and further criminal proceedings based on the same

conduct are barred.

{¶27} “When reviewing a speedy-trial issue, an appellate court must calculate

the number of days chargeable to either party and determine whether the appellant

was properly brought to trial within the time limits set forth in R.C. 2945.71.” State v.

Riley, 162 Ohio App.3d 730, 2005–Ohio–4337, 834 N.E.2d 887, ¶ 19 (12th Dist.).

{¶28} Appellant was arrested on January 1, 2012 and argues his try-by date

was March 30, 2012; appellee responds the motion for bond review filed by appellant

on February 3, 2012 tolled the speedy time calculation for 21 days. Appellant’s first

trial date was April 9, 2012. For the following reasons, we find the trial date of April 9,

2012 was within speedy-trial time.

{¶29} In State v. Rouse, we held a defendant’s motion for bond reduction did in

fact toll the speedy trial time while the motion was pending. 5th Dist. Tuscarawas No.

2007 AP 12 0078, 2008-Ohio-5891, ¶ 22, appeal not allowed, 121 Ohio St.3d 1440,

2009-Ohio-1638, 903 N.E.2d 1223. Both parties acknowledge Rouse, but appellant

asks us to instead follow the rationale of the Second District Court of Appeals in State

v. Hardy, 2nd Dist. Greene No. 2012 CA 20, 2012-Ohio-3498, in which the Court

found a motion for bond reduction did not toll the time to bring the accused to trial. We

find Hardy to be distinguishable from the case sub judice. As appellee points out, the

Second District found the motion for bond reduction did not interfere with speedy trial

time, in part, because no hearing was held, the state didn’t bother to respond to the
Richland County, Case No. 12CA109 10

motion, and the trial court filed a brief, standardized entry; therefore, it was reasonable

to conclude the motion for bond review had not burdened the trial court to any degree

and could not be said to have delayed trial. Id., 2012-Ohio-3498 at ¶ 20. We note

that Hardy was a case of criminal non-support. In the case sub judice, however, the

bond issue involved significant allegations of violence against the victim, necessitating

a hearing and the taking of evidence. The magistrate’s entry includes findings of fact

and conclusions of law. The facts are distinguishable in Hardy and we therefore follow

our precedent in Rouse, supra.

{¶30} We find, therefore, the trial date of April 9 was properly within time

because the speedy trial time was tolled during the time in which appellant’s motion

for bond review was pending. Further, the trial court properly continued the April 9

trial date sua sponte.

{¶31} Courts may sua sponte continue a trial beyond the statutory speedy-trial

limit, but only when reasonable and only when the continuances are made by journal

entry prior to the expiration of the time limit. State v. King, 70 Ohio St.3d 158, 162,

1994-Ohio-412, 637 N.E.2d 903. A continuance must be reasonable in both purpose

and length. State v. Martin, 56 Ohio St.2d 289, 293, 384 N.E.2d 239 (1978). The trial

court’s continuance due to an ongoing civil trial, as noted in its journal entry, is

reasonable pursuant to R.C. 2945.72(H). State v. Foster, 5th Dist. Richland No.

07CA31, 2007-Ohio-6626, ¶18.

{¶32} Moreover, we note appellant has not made any showing of presumptive

prejudice. When determining whether an accused was denied the right to a speedy

trial as guaranteed by the Sixth Amendment, the court must consider four factors: (1)
Richland County, Case No. 12CA109 11

length of delay, (2) reason for the delay, (3) the accused's assertion of his right, and

(4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33

L.Ed.2d 101 (1972); State v. Davis, 46 Ohio St.2d 444, 446, 349 N.E.2d 315 (1976).

No one factor is controlling. Rather, the court must balance these factors under a

totality of the circumstances framework. Barker at 533. The first of the Barker factors,

the length of delay, “is to some extent a triggering mechanism.” Id. at 530. “Until there

is some delay which is presumptively prejudicial, there is no necessity for inquiry into

the other factors that go into the balance.” Id. If the defendant makes the initial

threshold showing of presumptive prejudice, we must then consider the length of the

delay with the other Barker factors. Doggett v. United States, 505 U.S. 647, 652, 112

S.Ct. 2686, 120 L.Ed.2d 520 (1992), citing Barker at 553–534. In this case, we have

only summary allegations of prejudice.

{¶33} For the foregoing reasons, we find appellant’s right to a speedy trial was

not violated and his first assignment of error is therefore overruled.

II.

{¶34} In his second assignment of error, appellant argues the trial court erred

in overruling his motion to suppress. We disagree.

{¶35} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes

the role of trier of fact and, as such, is in the best position to resolve questions of fact

and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661

N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court’s findings of
Richland County, Case No. 12CA109 12

fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio

App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the

appellate court must independently determine as a matter of law, without deference to

the trial court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

{¶36} There are three methods of challenging a trial court’s ruling on a motion

to suppress on appeal. First, an appellant may challenge the trial court’s finding of

fact. In reviewing a challenge of this nature, an appellate court must determine

whether the trial court’s findings of fact are against the manifest weight of the

evidence. See, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v.

Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991). Second, an appellant

may argue the trial court failed to apply the appropriate test or correct law to the

findings of fact. In that case, an appellate court can reverse the trial court for

committing an error of law. See, Williams, supra. Finally, an appellant may argue the

trial court has incorrectly decided the ultimate or final issues raised in a motion to

suppress. When reviewing this type of claim, an appellate court must independently

determine, without deference to the trial court’s conclusion, whether the facts meet the

appropriate legal standard in any given case. State v. Curry, 95 Ohio App.3d 93,

96,620 N.E.2d 906 (8th Dist.1994).

{¶37} Appellant challenges the trial court’s decision overruling his motion to

suppress the seizure of the black Android cell phone containing the video of appellant

beating the victim, arguing that Patton, as an “overnight guest,” did not have authority
Richland County, Case No. 12CA109 13

to allow officers into the house. The threshold question, however, is whether appellant

had a reasonable expectation of privacy.

{¶38} The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures, rendering them per se unreasonable unless an

exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 19 L.Ed.2d

576 (1967). In determining whether the Fourth Amendment protects against a search,

“the rule that has emerged * * * is that there is a twofold requirement, first that a

person have exhibited an actual (subjective) expectation of privacy and, second, that

the expectation be one that society is prepared to recognize as ‘reasonable.’” Katz,

389 U.S. at 361 (Harlan, J., concurring). See Rakas v. Illinois, 439 U.S. 128, 143–144,

99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Williams, 73 Ohio St.3d 153, 166–167,

652 N.E.2d 721(1995).

{¶39} Fourth Amendment rights are personal rights that may not be vicariously

asserted. Rakas v. Illinois, 439 U.S. 128, 133–134, 99 S.Ct. 421, 58 L.Ed.2d 387

(1978). “A person who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third person's premises or

property has not had any of his Fourth Amendment rights infringed.” (Emphasis sic.)

Id. at 134. The exclusionary rule is “an attempt to effectuate the guarantees of the

Fourth Amendment,” and only defendants whose Fourth Amendment rights have been

violated may benefit from its protections. (Emphasis sic.) Id. Standing to claim the

protection of the Fourth Amendment depends on whether the person involved has a

legitimate expectation of privacy. A subjective expectation of privacy is legitimate if it

is one that society is prepared to recognize as reasonable. Minnesota v. Olson, 495
Richland County, Case No. 12CA109 14

U.S. 91, 95–96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); State v. Williams, 73 Ohio

St.3d 153, 166, 652 N.E.2d 721 (1995).

{¶40} Appellant has overlooked his burden to establish his status at the

Blymyer residence. The defendant bears the burden to prove that he had a

reasonable expectation of privacy in the searched area. Rakas at 131; Williams at

166. In this case, however, appellant has not established his standing to assert any

violation of his Fourth Amendment rights. Both parties have, at various times, referred

to both Patton and appellant as “overnight guests” in their arguments, but in fact there

is no evidence in the record to demonstrate to us appellant met his burden of proving

he had a reasonable expectation of privacy in the Blymyer residence.

{¶41} An overnight guest in a home has an expectation of privacy that society

is prepared to recognize as reasonable. Olson at 98; Williams at 166. But in

Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), the

United State Supreme Court further stated that “an overnight guest in a home may

claim the protection of the Fourth Amendment, but one who is merely present with the

consent of the householder may not.”

{¶42} Only one witness testified at the suppression hearing: Officer Edwards.

His testimony regarding appellant’s presence at the house was that he was told

appellant came to the New Year’s Eve party, assaulted Patton in the early morning

hours, and at some point fell asleep on the couch. We find from this limited evidence

appellant was not at the Blymyer residence as an “overnight guest” as contemplated

by Olson. As the Second District Court of Appeals succinctly stated in a similar case,

“The fact that he may have ‘passed out’ on the floor or couch following these activities
Richland County, Case No. 12CA109 15

does not change his status to an overnight guest.” State v. Glover, 2nd Dist.

Montgomery No. 20692, 2005-Ohio-4509, ¶ 14; see, State v. Brown, 1st Dist.

Hamilton No. C-120327, 2013-Ohio-2720; State v. Gulley, 5th Dist. Stark No.

2006CA00114, 2008-Ohio-887.

{¶43} For the foregoing reasons, we find the trial court properly overruled

appellant’s motions to suppress and appellant’s second assignment of error is

overruled.

III, IV.

{¶44} In his third and fourth assignments of error, appellant argues the

offenses of kidnapping and aggravated robbery should have merged for purposes of

sentencing, or, alternatively, the extortion and aggravated robbery offenses should

have merged, and the trial court should have held an allied-offenses hearing. We

agree in part and therefore sustain appellant’s third assignment of error.

{¶45} R.C. 2941.25 states as follows:

(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
Richland County, Case No. 12CA109 16

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.

{¶46} In State v. Johnson, the Ohio Supreme Court modified the test for

determining whether offenses are allied offenses of similar import. 128 Ohio St.3d 1405,

2010–Ohio–6314. The Court directed us to look at the elements of the offenses in

question and determine whether or not it is possible to commit one offense and commit

the other with the same conduct. If the answer to such question is in the affirmative, the

court must then determine whether or not the offenses were committed by the same

conduct. If the answer to the above two questions is yes, then the offenses are allied

offenses of similar import and will be merged. If, however, the court determines that

commission of one offense will never result in the commission of the other, or if there is

a separate animus for each offense, then the offenses will not merge according to

Johnson, supra.

{¶47} Appellant did not object to the trial court's imposition of multiple sentences

and has therefore waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” The Ohio Supreme Court has expressly held that the imposition

of multiple sentences for allied offenses of similar import is plain error. State v.

Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922 N.E.2d 923, ¶ 31; State v.

Yarbrough, 104 Ohio St.3d 1, 2004–Ohio–6087, 817 N.E.2d 845, ¶ 96–102.

{¶48} Appellant was indicted upon, convicted of, and sentenced upon, e.g., one

count of kidnapping pursuant to R.C. 2905.01(A)(3) and one count of aggravated
Richland County, Case No. 12CA109 17

robbery pursuant to R.C. 2911.01(A)(3). The record is silent as to the facts underlying

each separate offense; it is therefore impossible for us to determine whether these are

allied offense of similar import. 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, and if they are, to convict the defendant of only one

offense. State v. Underwood, 124 Ohio St.3d 365, 371, 2010-Ohio-1, 922 N.E.2d 923.

{¶49} Appellee urges us to look to facts elsewhere in the record, including the

bond review hearing, but as the magistrate’s ruling makes clear, those claims were

still “allegations.” We find there are insufficient facts in the record for this court to

make an allied-offense determination in the instant case. In Underwood, the Supreme

Court explained that the trial court's duty to merge allied offenses “is mandatory, not

discretionary.” Underwood at ¶ 26. The trial court should have inquired into the facts to

determine whether any of the offenses were allied and failure to make the necessary

inquiry constitutes plain error.

{¶50} Accordingly, we sustain appellant’s third assignment of error and remand

the case to the trial court for an allied-offense hearing and, if appropriate, allow

appellee to elect which allied offenses to pursue at resentencing. State v. Whitfield,

124 Ohio St.3d 319, 2010–Ohio–2, 922 N.E.2d 182, paragraph one of the syllabus. In

light of our decision on this assignment of error, appellant’s argument regarding

merger of the offense of extortion and aggravated robbery, and his fourth assignment

of error regarding an allied-offenses hearing, are moot.

{¶51} Appellant’s third assignment of error is therefore sustained and his fourth

assignment of error is overruled.
Richland County, Case No. 12CA109 18

CONCLUSION

{¶52} Appellant’s first, second, and fourth assignments of error are overruled

and his third assignment of error is sustained. The judgment of the Richland County

Court of Common Pleas is affirmed in part, reversed in part, and remanded for an allied-

offenses hearing in accord with this opinion.

By: Delaney, J. and

Farmer, P.J.

Wise, J., concur.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE