State v. Lee

[Cite as State v. Lee, 2018-Ohio-1839.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 105894

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

ALIJAH K. LEE
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-612252-B

BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: May 10, 2018
ATTORNEY FOR APPELLANT

J. Philip Calabrese
Porter Wright Morris & Arthur, L.L.P.
950 Main Avenue, Suite 500
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Timothy R. Troup
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

{¶1} Alijah Lee appeals his 14-year, aggregate sentence that was imposed by the

trial court upon the parties’ recommendation. Lee’s convictions are affirmed.

{¶2} 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 as follows:

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.

In that 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.”).

{¶3} 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.1

1
All references to Underwood refer to State v. Underwood, 124 Ohio St.3d 365,
 {¶4} 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.

{¶5} 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

2010-Ohio-1, 922 N.E.2d 923.
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.

{¶6} 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 occurred).

{¶7} 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. 2941.25.

{¶8} 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.

{¶9} 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 to

consecutively serve multiple sentences includes the defendant’s agreement that the

sentences are separate for the purposes of R.C. 2941.25.

{¶10} In this case, Lee agreed that consecutively serving the minimum prison

terms on all counts was part of his plea agreement. Tr. 19:7-11. Lee necessarily

waived the argument that the underlying offenses were allied ones of similar import

through his agreement to serve all counts consecutively; otherwise, consecutive sentences

would not have been possible. See, e.g., Black at ¶ 17. Since Lee waived the merger

issue, his sentences are authorized by law. Sergent; State v. Johnson, 8th Dist.

Cuyahoga No. 105904, 2018-Ohio-102, ¶ 11. This ends the appellate inquiry in this

case. We have no authority to review the sentence. R.C. 2953.08(D)(1).

{¶11} For the sake of discussion, and in light of the concurring opinion’s

misplaced focus on Rogers, even if Lee had not waived his right to challenge his

sentences under R.C. 2941.25 by agreeing to consecutively serve the separate sentences,

he at the least forfeited the merger argument by failing to object to the imposition of

multiple sentences at the sentencing hearing. The trial court did not consider R.C.

2941.25 at sentencing because Lee failed to object to his sentences. It is only once the

allied-offense issue is raised by the defendant that the mandatory sentencing provision

under R.C. 2941.25 may be implicated, but only in situations in which the trial court

concludes or the parties concede that the offenses are allied ones of similar import.

Williams at ¶ 25-28. Accordingly, the sentences in this case comport with all mandatory
sentencing provisions as contemplated under Underwood and R.C. 2953.08(D)(1), even if

Lee had not negotiated the question of merger out of the sentencing equation.

{¶12} The concurring opinion suggests the existence of a paradox that permits

appellate review of the sentences in this case, that under Rogers the appellate court must

review the validity of the imposed sentences under the plain-error standard of review in

order to determine whether the sentences are “authorized by law” under R.C.

2953.08(D)(1). The existence of plain error, a standard of appellate review, does not

resolve or even impact the threshold question of whether a sentence is “authorized by

law” under R.C. 2953.08(D)(1), a legal determination focusing on the trial court’s

mandatory sentencing obligations. The plain-error standard of review necessarily

assumes that appellate review of a sentence is authorized under R.C. 2953.08. If an

imposed agreed sentence is “authorized by law,” we lack jurisdiction to review for plain

error. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, at ¶ 22. Rogers

does not provide a basis to circumvent the R.C. 2953.08(D)(1) limitation on appellate

jurisdiction.

{¶13} The Ohio Supreme Court has held that when a trial court “finds that

convictions are not allied offenses of similar import, or when it fails to make any finding

regarding whether the offenses are allied,” imposing separate sentences is not contrary to

law and any allegations of error must be asserted through a direct appeal. (Emphasis

added.) Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 26, citing

Rogers. In other words, there is no mandatory duty for a trial court to sua sponte
consider R.C. 2941.25 at sentencing. At one time there could have been. Underwood

expressly recognized that “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.” (Emphasis added.) Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 29.

{¶14} However, that proposition is no longer valid, if it ever was. See generally

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860. In Rogers, it was

determined that the burden to raise R.C. 2941.25 at sentencing falls on the defendant and

only then does the trial court have an obligation under R.C. 2941.25. Rogers at ¶ 21

(“Thus, by failing to seek the merger of his convictions as allied offenses of similar

import in the trial court, Rogers forfeited his allied offenses claim for appellate review.”).

As a result, there is no mandatory sentencing provision that includes the requirement for

the trial court to consider R.C. 2941.25 of its own volition to implicate Underwood.

{¶15} Notwithstanding, the concurring opinion concludes that “[a]lthough Lee

failed to raise the issue of allied offenses in the trial court, we are required to review his

claim for plain error in order to determine whether or not it is reviewable under R.C.

2953.08(D)(1) * * *.” If we take this analysis to its logical conclusion, all imposed

agreed sentences are subject to the plain-error standard of appellate review because if

plain error exists for any reason, the sentences are not “authorized by law” and are

thereby subject to appellate review under R.C. 2953.08(D)(1). This circular reasoning

unilaterally expands the definition of “authorized by law” and is at the expense of the
Ohio Supreme Court’s admonition — that even if plain error in the sentencing exists, “an

appellate court is not required to correct it” and should only do so with the “utmost

caution.” Rogers at ¶ 23.

{¶16} The resolution of the plain error inquiry does not impact the determination

of whether a sentence is “authorized by law.” A sentence is “authorized by law” if it

comports with all mandatory sentencing provisions because “[a] trial court does not have

the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory

provisions.” Underwood at ¶ 20. R.C. 2941.25 does not include a mandatory

obligation for the trial court to consider the allied offense issue in the absence of an

objection or agreement. Williams at ¶ 26. Thus, although a sentence that is not

“authorized by law” could be considered “plain error” under the right circumstances, the

opposite is not necessarily true — these terms are distinct legal concepts. Appellate

courts may consider the existence of plain error only if appellate review of the sentence is

authorized under R.C. 2953.08(D)(1). We cannot put the proverbial cart before the

horse and review to determine whether reversible error exists in determining whether we

have jurisdiction to review for error.

{¶17} Further, any reliance on R.C. 2953.08(D)(1) as the basis for reviewing the

type of sentences imposed in Underwood has been limited by implication. In Williams,

148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, the Ohio Supreme Court held that

any violation of the mandatory obligation under R.C. 2941.25 through imposing sentences

for allied offenses renders those sentences as being contrary to law, and further, any such
sentence is void as a matter of law. Id. In the proceedings at issue in Underwood, in

its sentencing memorandum, the state had conceded that the some of the offenses were

allied under R.C. 2941.25. Underwood, 2d Dist. Montgomery No. 22454,

2008-Ohio-4748, at ¶ 24. The trial court in that case was advised that only one sentence

could result on two of the theft offenses, but separate sentences were nonetheless imposed

to be served concurrently. Id. at ¶ 27. In Underwood, the Ohio Supreme Court relied

on R.C. 2953.08(D)(1) for its authority to review the sentence, concluding that because

the sentences were not authorized by law, appellate review was permissible.

{¶18} In Williams, the trial court deemed two counts to be allied offenses of

similar import, but nonetheless imposed separate sentences to be served concurrently in

the sentencing entry. Williams at ¶ 7. The Ohio Supreme Court concluded that those

sentences were void and subject to attack irrespective of R.C. 2953.08. A void sentence

is always reviewable. Williams at ¶ 22, citing State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332 (a sentence that is contrary to law may be reviewed at

any time).

{¶19} According to Williams, the Underwood analysis interpreting R.C.

2953.08(D)(1) was unnecessary because appellate review was necessarily permitted

through the inherent power of the court to correct void judgments. In Rogers, on the

other hand, the sentences were not contrary to law or void, and were otherwise authorized

by law. The sentences were voidable under the plain error analysis if the defendant

could demonstrate such error in the direct appeal. Williams at ¶ 29. However, a
defendant’s agreement to the imposed sentences, which subsumes issues that could

ordinarily be challenged on a direct appeal, divests this court of jurisdiction to review the

sentence to determine whether the sentences are voidable under Rogers. R.C.

2953.08(D)(1).

{¶20} In consideration of the foregoing, the only review permitted at this juncture

is to determine whether we have jurisdiction to review the imposed agreed sentence.

Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095. Under R.C.

2953.08(D)(1), we must determine whether the sentences are “authorized by law.” See,

e.g., State v. Daniels, 1st Dist. Hamilton No. C-160203, 2017-Ohio-548, ¶ 12 (forfeiting

the merger issue limits the discussion regarding merger to plain error review for the

purposes of determining whether a sentence is authorized by law); State v. Fleischer, 7th

Dist. Jefferson No. 16 JE 0011, 2017-Ohio-7762, ¶ 23 (asserting the same); see also

Black, 2016-Ohio-383, 58 N.E.3d 561, at ¶ 19 (8th Dist.). A sentence is authorized by

law if it comports with all mandatory sentencing provisions. Underwood at ¶ 23.

{¶21} Lee advanced a single claim that permeated every appellate argument —

that the imposition of multiple sentences was plain error under R.C. 2941.25 because the

crimes were committed with the same conduct. According to Lee, however, the trial

court failed to consider R.C. 2941.25 at sentencing. R.C. 2941.25 does not contain a

mandatory provision for the court to sua sponte consider the merger issue at sentencing.

Williams at ¶ 26, citing Mosely v. Echols, 62 Ohio St.3d 75, 76, 578 N.E.2d 454 (1991);

State v. Holdcraft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8; Rogers at ¶
21. The statutory section only contains an inapplicable, mandatory provision prohibiting

the imposition of multiple sentences for offenses that are allied ones of similar import.

Id. at ¶ 28.

{¶22} Lee’s sentence is not contrary to law as contemplated in Underwood,

through the lens of Williams — the aggregate sentence is not comprised of sentences for

offenses the trial court determined or the parties conceded to be allied ones of similar

import. And his sentences comport with all mandatory sentencing provisions — when

the plea agreement is silent on the issue of allied offenses of similar import, the trial court

is not obligated under R.C. 2941.25 to determine whether the offenses are allied.

Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 25-26; see also

Rogers at ¶ 21 (the defendant bears the burden of raising R.C. 2941.25 at sentencing).

Further, by agreeing to consecutively serve the sentences imposed on all counts, his

sentences are “authorized by law” irrespective of the findings under R.C. 2929.14(C)(4)

that the trial court made in the abundance of caution. See generally Sergent, 148 Ohio

St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627. Whether we consider Lee to have waived or

forfeited his rights under R.C. 2941.25, the same conclusion is reached — we lack the

statutory authority to review the sentences imposed.

{¶23} It would be simple to consider the merits of Lee’s sentencing arguments in

this case. Under Rogers, we review the failure to consider R.C. 2941.25 at sentencing

for plain error. Plain error exists if the defendant can demonstrate the reasonable

probability that he has been convicted of allied offenses from within the appellate record.
 Rogers at ¶ 25. Lee concedes there are no facts underlying the criminal conduct in the

record. Instead, additional information describing the underlying criminal conduct was

appended for our consideration. The defendant bears the burden of demonstrating plain

error from the record. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at

¶ 22, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶

16. We could not decide the appeal on, let alone consider, facts outside the record.

State v. Wittine, 8th Dist. Cuyahoga No. 90747, 2008-Ohio-5745, ¶ 4, citing State v.

Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus; and

State v. Hill, 90 Ohio St.3d 571, 573, 2001-Ohio-20, 740 N.E.2d 282. And even if we

could determine that plain error existed, the Ohio Supreme Court has admonished

appellate courts for freely invoking the plain error doctrine. Rogers at ¶ 22. If plain

error is demonstrated, the doctrine should only be invoked in the “utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

(Emphasis sic.) Rogers at ¶ 23. This is an extremely high burden.

{¶24} The practice of reviewing sentences such as the underlying ones in this case,

would condone the review of an otherwise unreviewable sentence, nullifying the statutory

limitation on appellate jurisdiction to review sentences. Noling, 136 Ohio St.3d 163,

2013-Ohio-1764, 992 N.E.2d 1095, at ¶ 22. The concern is not necessarily this case, but

the long-term impact of such a holding. Freely reviewing sentences in such cases would

only serve to undermine the state’s incentive to entertain plea bargains in the first place.

As has been recognized,
 [A] plea bargain is, after all, a bargain. In the bargain, the prosecutor

achieves certain benefits: a foregoing of the risk that the defendant will be

found not guilty, relief from the burden of trying the case and a concomitant

ability to devote prosecutorial resources to other cases, and limitations on

the defendant’s right to appeal an agreed sentence, see R.C. 2953.08(D)(1).

In return, the prosecutor is able to offer the defendant certain sentencing

considerations. Both sides exchange risk about the outcome for an

enhanced degree of certainty.

(Emphasis added.) State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d

431, ¶ 17.

{¶25} Finally, Lee argues that his plea was invalid because his trial counsel’s

assistance fell below the objective standards of reasonableness in rendering advice

regarding the sentencing agreement. Generally the validity of the plea is separate from

the sentencing review precluded under R.C. 2953.08(D)(1). State v. Billiter, 4th Dist.

Scioto No. 15CA3720, 2018-Ohio-733, ¶ 14, citing State v. Royles, 1st Dist. Hamilton

Nos. C060875 and C060876, 2007-Ohio-5348, ¶ 10. However, Lee’s argument is

entirely based on the sentencing aspect of his case. The merger of allied offenses occurs

at sentencing, a subsequent stage of the proceedings. Rogers at ¶ 19, citing State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 8.

{¶26} According to Lee, he would not have pleaded guilty to such a long sentence

had he been advised that the various offenses “constitute allied offenses under Ohio
Law.” Setting aside his circular logic, it is not entirely clear how that knowledge would

have altered Lee’s decision-making process. His appellate argument fails to elaborate

on that point. There is no dispute that the trial court notified Lee of the maximum

sentences he faced on the individual offenses during the plea colloquy (14 years alone on

the aggravated robbery that included a mandatory consecutive three-year firearm

specification on top of the maximum 11-year sentence for the first-degree felony) and that

no promises had been given in exchange for the plea agreement. Without providing any

analytical framework, he summarily states that the plea was not knowingly, voluntarily, or

intelligently entered because it was plain error to impose sentences on allied offenses,

citing State v. Cook, 8th Dist. Cuyahoga No. 95987, 2011-Ohio-5156, ¶ 23.

{¶27} Lee cannot challenge his attorney’s failure to object to aspects of the

sentences to which Lee agreed. See, e.g., State v. Anthony, 2015-Ohio-2267, 37 N.E.3d

751, ¶ 66 (8th Dist.) (attorney cannot be deemed ineffective for failing to object to an

agreed sentence). Without any demonstration that his sentences are not authorized by

law or are contrary to law, his ineffective assistance of counsel argument is disregarded

pursuant to R.C. 2953.08(D)(1). If Lee cannot appeal his sentence based on his

agreement to serve the sentences imposed, he cannot challenge his attorney’s failure to

object to those sentences or to advise Lee of the possibility that the sentences could merge

either.

{¶28} Lee’s sentences are authorized by law and are ones that were both jointly

recommended by the parties and imposed by the trial court. There was no mandatory
duty for the court to address R.C. 2941.25, and thus, the sentences were authorized by law

as contemplated in Underwood. The sentences are also not contrary to law. Lee

confirmed his understanding of the agreement included aggregating the minimum terms

on all counts through consecutive sentencing and, thereby, waived any merger arguments

his counsel could have raised at sentencing. We cannot review the assignments of error

as presented, and thus, we affirm.

It is ordered that appellee recover from appellant 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, J., CONCURS;
EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH
SEPARATE OPINION

EILEEN T. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:
 {¶29} I concur with the majority’s conclusion that Lee’s sentence is not

reviewable. However, in contrast to the majority’s view, I believe we must review Lee’s

sentence in order to determine that it is, in fact, not reviewable.

{¶30} R.C. 2953.08(D)(1) provides, in relevant part, that a sentence is not

reviewable if (1) it was jointly recommended by the defendant and the state, (2) it is

authorized by law, and (3) imposed by the court. This is a paradox. How can we

determine whether a sentence is illegal or authorized by law without reviewing it?

{¶31} A sentence is “authorized by law” and not appealable within the meaning of

R.C. 2953.08(D)(1) “only if it comports with all mandatory sentencing provisions.”

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 20. R.C.

2941.25, which governs the sentencing of allied offenses, is a mandatory sentencing

provision. That is, a sentencing court’s duty to merge allied offenses is “‘mandatory, not

discretionary.’” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234,

¶ 27, quoting Underwood at ¶ 26.

{¶32} Lee’s first assignment of error states: “The trial court erred by accepting and

imposing a sentence for allied offenses that merge for purposes of sentencing.” Within

this assigned error, Lee argues his aggravated robbery and kidnapping convictions “are

allied offenses that constitute a single offense for sentencing purposes.” (Appellant’s

brief p. 8.) He also asserts that “these offenses were not committed separately” and that

“they were not committed with a separate animus or motivation.” Thus, Lee argues he
was illegally subjected to multiple punishments for the same conduct in violation of R.C.

2941.25. He contends his jointly agreed sentence is not authorized by law.

{¶33} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio

Constitution, which prohibit multiple punishments for the same offense. The majority

acknowledges that Lee never expressly stipulated that the offenses were committed with a

separate animus, but asserts that his agreement to serve consecutive prison sentences is

equivalent to agreeing that his multiple convictions are dissimilar in import and not

subject to merger under R.C. 2941.25. (Majority opinion at ¶ 8.) Indeed, the agreed

14-year sentence cannot be reached without imposing separate sentences on multiple

counts and running the sentences consecutively to one another since the maximum prison

term on each individual offense is less than 14 years. Thus, the majority believes Lee

waived any claim of error with regard to allied offenses and that his sentence is not

reviewable because it was an agreed consecutive sentence. I respectfully disagree.

{¶34} The dissenting justices in Underwood made arguments similar to that put

forth by the majority. Justice O’Donnell argued that Underwood’s sentence was not

reviewable because it was jointly recommended, and Underwood received the benefit of

his plea bargain. Id. at ¶ 60. Justice Cupp argued that Underwood’s agreement to the

sentence “should be characterized as a specific waiver of the ability to challenge the

sentence.” Id. at ¶ 73. However, the majority in Underwood rejected these arguments,
explaining that a defendant is prejudiced by having more convictions than are authorized

by law regardless of his plea bargain. Id. at ¶ 31.

{¶35} The majority in Underwood also observed that courts indulge every

reasonable presumption against the waiver of fundamental constitutional rights and that

they do not presume acquiescence in the loss of fundamental rights. Id. ¶ 32.

Moreover, “‘[a] waiver is ordinarily an intentional relinquishment or abandonment of a

known right or privilege.’” Id., quoting State v. Adams, 43 Ohio St.3d 67, 69, 538

N.E.2d 1025 (1989). Thus, the majority in Underwood suggested that a defendant could

waive the issue of allied offenses by “stipulating in the plea agreement that the offenses

were committed with separate animus, thus subjecting the defendant to more than one

conviction and sentence.” Id. at ¶ 29. Lee neither stipulated that his offenses were

committed with a separate animus nor did he indicate a specific intent to relinquish his

right to be free from Double Jeopardy.

{¶36} Nevertheless, the majority maintains, citing State v. Rogers, 143 Ohio St.3d

385, 2015-Ohio-2459, 38 N.E.3d 860, that Lee forfeited his allied offenses claim by

failing to raise the issue in the trial court. But a forfeited error is not unreviewable; it is

reviewable for plain error. Rogers at ¶ 22. Moreover, the “imposition of multiple

sentences for allied offenses of similar import is plain error.” Underwood at ¶ 31, citing

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

Lee failed to raise the issue of allied offenses in the trial court, we are required to review

his claim for plain error in order to determine whether or not it is reviewable under R.C.
2953.08(D)(1) because, again, “‘a trial court is prohibited from imposing individual

sentences for counts that constitute allied offenses of similar import.’” State v. Williams,

148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 27, quoting Underwood at

¶ 26.

{¶37} The majority further asserts, citing State v. Sergeant, 148 Ohio St.3d 94,

2016-Ohio-2696, 69 N.E.3d 627, that “by agreeing to consecutively serve the sentences

imposed on all counts, his sentences are ‘authorized by law’ irrespective of the finding

under R.C. 2929.14(C)(4) * * *.” (Majority opinion at ¶ 22.) However, in Sergeant, the

trial court’s failure to make statutory findings for the imposition of an agreed consecutive

sentence was not reviewable because the consecutive sentence statute, R.C. 2929.14(C),

is a discretionary sentencing provision. Id. at ¶ 26-29. By contrast, the merger of allied

offenses of similar import is constitutionally mandated. Underwood at ¶ 26-27; Williams

at ¶ 27; Sergeant at ¶ 27. Therefore, I believe Sergeant is inapplicable to the allied

offenses argument raised in Lee’s appeal.

{¶38} Finally, the majority maintains that the practice of reviewing sentences such

as the one at issue in this case “would condone the review of an otherwise unreviewable

sentence” and thereby “nullify[] the statutory limitation on appellate jurisdiction to review

sentences.” (Majority opinion at ¶ 21.) But that is the paradox set forth in R.C.

2953.08(D)(1): we have to review a claimed error in order to determine that it is not

reviewable.
 {¶39} I share the majority’s sentiment that an agreed sentence should constitute a

waiver of sentencing errors, including the alleged failure to merge allied offenses.

Unfortunately instead of providing such a waiver, R.C. 2953.08(D)(1) directs us to

examine jointly recommended sentences for violations of mandatory sentencing

provisions. Having examined Lee’s sentence for plain error and concluded that Lee’s

sentence is authorized by law, I agree with the majority’s conclusion that his sentence is

not reviewable.