concurring in part and dissenting in part.
{¶ 30} I must respectfully dissent in part. The majority correctly resolves the second and third issues that were certified as being in conflict in this case. A defendant’s failure to request merger forfeits the issue rather than waiving it, and State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, correctly resolved whether allied offenses against multiple victims represent offenses of dissimilar import. I therefore join the majority’s resolution of these issues.
{¶ 31} I respectfully dissent, however, from the majority opinion’s holding on the first certified-conflict issue regarding whether it is plain error for a trial court to fail to consider merger in certain circumstances. The majority correctly states the standard for plain-error review and then misapplies that very standard. Citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), the majority correctly holds that an appellant must show only a reasonable probability that the error complained of resulted in prejudice.
{¶ 32} There is a reasonable probability of prejudicial error when “the probability of a different result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” Dominguez Benitez at 83, quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Like the en banc panel of the Court of Appeals for Cuyahoga County, I believe that this standard is satisfied by the record in the case involving the truck and tires, case No. CR-545992.
{¶ 33} The majority goes to great pains to characterize Rogers’s case as one that can prevail only if he shows plain error within the subtleties of the indictments and hearing transcripts. But it is not the absence of facts in the record that gives rise to plain error in this case. The trial court’s glaring failure to even consider merging the receiving-stolen-property (“RSP”) offenses was plain error standing all alone. The reality that these offenses were allied jumps *395out from the record. R.C. 2941.25(A) limits a court’s sentencing authority by imposing a duty to merge offenses when a defendant’s actions “can be construed to constitute two or more allied offenses of similar import.” (Emphasis added.) R.C. 2941.25(A). We have already determined that this duty “is mandatory, not discretionary.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26. We are required to interpret R.C. 2941.25 liberally in favor of Rogers and strictly against the state. R.C. 2901.04. Therefore, the duty to merge must arise when it is merely possible that offenses are allied offenses of similar import. Otherwise, the words “can be construed” in R.C. 2941.25(A) have no meaning. Accordingly, I must agree with the en banc panel of the court of appeals that we should look for obvious error in the trial court’s actions rather than search for something in Rogers’s conduct to justify overturning well-reasoned case law. It is important to note that one RSP count in this case involves a truck and another RSP count involves the tires from that very same truck. How are these not allied offenses?
{¶ 34} Imagine the following scenario for the sake of argument: John Doe has been charged with 24 counts of petty theft of a can of beer and one count of possessing criminal tools for using a cardboard box to carry the cans. The criminal complaint shows the same date for each theft and lists the local Mickey Mart gas station as the only victim. Doe enters a guilty plea. The parties agree that Doe will pay restitution of $17.99, roughly the cost of a 24-pack of beer. And at the sentencing hearing, the prosecutor represents that Doe had been apprehended near the Mickey Mart using the box to carry the 24 cans of beer. The municipal court imposes 25 consecutive 180-day sentences. The trial court does not consider that the offenses may be allied offenses of similar import. Inexplicably and without excuse, Doe fails to object.
{¶ 35} Admittedly, those limited facts do not conclusively establish that Doe’s offenses were allied offenses of similar import. A court could infer that he walked into the Mickey Mart 24 separate times to steal a single can of beer, hiding them each time in a cardboard box behind the store. It is obvious, though, that Doe’s conduct “can be construed” as allied offenses of similar import arising out of a single act — stealing a 24-pack of beer. R.C. 2941.25(A). I believe that a trial court plainly deviates from the requirements of R.C. 2941.25 when it fails to address the issue of allied offenses — even if the issue is not raised by a party— when the record clearly shows a possibility that some offenses may be allied offenses of similar import.
{¶ 36} The United States Supreme Court was careful to advise courts not to confuse the reasonable-probability standard with “a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333, 159 L.Ed.2d *396157, fn. 9. The majority loses its way by focusing on the fact that “[Rogers] has failed to demonstrate that he has, in fact, been sentenced for allied offenses of similar import.” Majority opinion at ¶ 5. The most that the majority can say to support its holding on this issue is that “[i]t is entirely reasonable for a court to infer * * * that Rogers * * * commit[ed] separate and distinct acts resulting in two separate and distinct counts of RSP * * *.” Id. at ¶ 26. That point is unhelpful. When the record supports only mere inferences that justify sentencing an offender to multiple prison terms for multiple allied offenses, alternative inferences are not automatically unreasonable. There can be very little confidence in a sentencing order that fails to address merger despite a record that indicates that some of the offenses might be allied offenses.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Adam M. Chaloupka, Assistant Prosecuting Attorney, for appellant and cross-appellee. Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellee and cross-appellant.{¶ 37} Also, Rogers need not strain to establish the fact of prejudice and manifest injustice. If his RSP offenses should have merged, he suffered prejudice by “having more convictions than are authorized by law.” Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 31. And if he should be sentenced for only one count of RSP, his consecutive sentences for each of the RSP offenses represent a manifest injustice.
{¶ 38} Rogers has shown a reasonable probability that the trial court’s failure to consider merging the RSP offenses relating to the truck and its tires resulted in more punishment than the legislature authorized by R.C. 2941.25. He merely needed to show that the record indicates a possibility that the trial court should have considered merging his offenses. He did so, and that possibility is enough to undermine confidence that his sentence was lawful.
{¶ 39} Therefore, I dissent from the majority opinion’s holding regarding the first certified-conflict issue.