[Cite as State v. Crockett, 2014-Ohio-4576.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100923



                                       STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                  vs.


                               TAI-RON R. CROCKETT
                                                 DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-13-574520

        BEFORE: Kilbane, J., S. Gallagher, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                       October 16, 2014
ATTORNEY FOR APPELLANT

Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Andrew J. Santoli
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Tai-Ron Crockett (“appellant”), appeals from his

convictions for murder with a firearm specification and felonious assault.

       {¶2} On May 11, 2013, the appellant had a verbal altercation with his mother’s

boyfriend, Orlando Smith. Appellant shot Smith, striking him in the face, shoulder, and

neck. Smith subsequently died of his injuries. Appellant was indicted pursuant to a

six-count indictment.     Count 1 of the indictment charged appellant with aggravated

murder, in violation of R.C. 2903.01(A), with one- and three-year firearm specifications.

Count 2 charged appellant with murder, in violation of R.C. 2903.02(B), with one- and

three-year firearm specifications. Counts 3 and 4 charged him with felonious assault, in

violation of R.C. 2903.11(A)(1), with one- and three-year firearm specifications. Count

5 charged appellant with kidnapping, in violation of R.C. 2905.01(A)(3), with one- and

three-year firearm specifications.    Count 6 charged him with having weapons while

under disability, in violation of R.C. 2923.13(A)(2).

       {¶3} On June 19, 2013, trial counsel filed a motion to refer appellant to the

psychiatric clinic for an evaluation of his sanity at the time of the act and an evaluation of

his competency to stand trial, which was granted on June 24, 2013. On August 28, 2013,

the parties stipulated to the findings by the court psychiatric clinic that the appellant was

found to be sane and competent to stand trial.

       {¶4} On September 25, 2013, the appellant withdrew his previously entered pleas

of not guilty and entered pleas of guilty to two of the following amended counts: murder,
in violation of R.C. 2903.02(A), with a three-year firearm specification; and felonious

assault, in violation of R.C. 2903.11(A)(1). The state nolled the remaining charges.

The record reveals that the plea to the two counts carried with it an agreed sentence of 23

years to life. During the plea hearing, the state outlined the agreement on the record as

follows:

       There’s an agreement amongst the parties that a sentence on the felonious
       assault of count three would run consecutive to the sentence on count two,
       and that the sentence on count three would be a five-year sentence. So that
       [appellant] would not have parole eligibility until after serving 23 years on
       these two counts.

(Tr. 24-25.)

       {¶5} Appellant’s trial counsel then stated:

       [H]e’s desirous this morning of entering a plea of guilty to * * * murder,
       pursuant to 2903.02(A) as amended, with the three-year gun spec, which
       would carry a life sentence, with the eligibility of 15 years, plus three for
       the gun, which he understands has to be served first, before he serves any
       time on the murder.

       He understands, Your Honor, * * * he’ll plead to the felonious assault, with
       an agreed sentence of five years consecutive to what I’ve just stated, as the
       State of Ohio has set out.

 (Tr. 26.)

       {¶6} The parties further agreed that the two counts would not merge for purposes

of sentencing as the record states:

       THE COURT: All right. So, again, I will accept your pleas of guilt and
       make findings of guilt accordingly. I’ll grant the State’s request to dismiss
       the remaining counts in the indictment, also the one-year firearm
       specification in Count Two, the one and three-year firearm specification in
       Count Three. Gentlemen, is it also acknowledged that these two offenses
       would not be allied offenses? [Assistant Prosecutor]?
       [Assistant Prosecutor]: Yes. For purposes of the record, felonious assault
       is not an allied offense of the murder agg. Therefore, it would not merge
       for purposes of sentencing.

       [Defense Counsel]: That’s correct, Your Honor.

 (Tr. 44.)

       {¶7} The trial court also explained the agreed plea and sentence during its

Crim.R. 11 plea colloquy and stated:

       I understand what the end agreement is here, which is to say, the 23-year
       sentence to life, and we’re going to go over that * * * I’m telling you it’s
       my intention to follow that * * *.

(Tr. 36.)

       {¶8} Defendant entered guilty pleas to murder with a three-year firearm

specification and felonious assault. A sentencing hearing was held on October 7, 2013.

At that time, the prosecuting attorney stated, without objection from defense counsel, that

“[t]here are facts to differentiate those two counts and that they are not allied offenses of

similar import.” The prosecuting attorney also stated, without objection, that the fatal

shot was one of the final shots fired.

       {¶9} The trial court imposed the agreed sentence of 15 years to life, plus three

years for the firearm specification as to Count 2, murder; and imposed the agreed

sentence of a consecutive term of five years on Count 3, felonious assault.

       {¶10} Appellant now appeals and assigns the following errors for our review:

                                 Assignment of Error One
      The appellant’s convictions for murder, as charged in Count 2 of the
      amended indictment, and felonious assault, as charged in Count 3 of the
      amended indictment, are improper.

                                Assignment of Error Two

      The trial court committed prejudicial error by accepting the recommended

      sentence which is contrary to law and is not authorized by law.

      {¶11} Defendant asserts that the trial court had an independent duty to conduct an

allied offense analysis prior to imposing sentence, and that the offenses are part of the

same transaction, and therefore, must be merged. The state counters that, in accordance

with R.C. 2953.08(D), the sentence cannot be challenged since it was imposed following

an agreement by the parties.

      {¶12} R.C. 2953.08(D) 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.

      {¶13} In State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,

¶ 16, the Ohio Supreme Court noted that in accordance with this statute, a sentence that is

“contrary to law” is appealable by a defendant; however, “an agreed-upon sentence may

not be if (1) both the defendant and the state agree to the sentence, (2) the trial court

imposes the agreed sentence, and (3) the sentence is authorized by law. R.C.

2953.08(D)(1).    If all three conditions are met, the defendant may not appeal the

sentence.” Id.
       {¶14} The Underwood court held, however, that R.C. 2953.08(D) does not bar

appellate review of a sentence imposed on multiple counts that are claimed allied offenses

of similar import in violation of R.C. 2941.25(A), even where the sentence was jointly

recommended by the parties and imposed by the court. The Underwood court explained:

       R.C. 2941.25(A) clearly provides that there may be only one conviction for
       allied offenses of similar import. Because a defendant may be convicted of
       only one offense for such conduct, the defendant may be sentenced for only
       one offense. This court has previously said that allied offenses of similar
       import are to be merged at sentencing. See State v. Brown, 119 Ohio St.3d
       447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 43; State v. McGuire (1997), 80
       Ohio St. 3d 390, 399, 1997-Ohio-335, 686 N.E.2d 1112. Thus, a trial court
       is prohibited from imposing individual sentences for counts that constitute
       allied offenses of similar import. A defendant’s plea to multiple counts
       does not affect the court’s duty to merge those allied counts at sentencing.
       This duty is mandatory, not discretionary. Therefore, we conclude 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.

Id.

       {¶15} The Underwood court noted, however, that “nothing in this decision

precludes the state and a defendant from 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. Where, however, the record is silent on

this issue, and the trial court fails to merge allied offenses of similar import, the defendant

has the right to appeal the sentence. Id.

       {¶16} In this instance, the record is not silent.       The agreed plea specifically

provided that the offenses were not allied for purposes of sentencing. The defense raised
no objection to the prosecuting attorney’s statement, prior to imposition of sentence, that

“[t]here are facts to differentiate those two counts and that they are not allied offenses of

similar import.” Therefore, in light of the specific agreement that the offenses were not

allied, and as to the total duration of the sentence, the trial court had no duty to merge the

sentences. Moreover the agreed sentence imposed herein is authorized by law, because

the sentence did not exceed the maximum terms prescribed by statute for the offenses,

that is, life in prison with parole eligibility after serving 15 years under R.C. 2903.02(A),

three years for the firearm specification under R.C. 2941.145, and a two- to eight-year

sentence for felonious assault under R.C. 2903.11(A)(1).

       {¶17} The assignments of error therefore lack merit.

       {¶18} Judgment is affirmed.

       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.

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS (SEE SEPARATE OPINION)

SEAN C. GALLAGHER, P.J., CONCURRING:

       {¶19} I concur fully with the judgment and analysis of the majority, but write

separately to address what I perceive as the underlying claim raised by appellant’s

counsel.

       {¶20} In my view, counsel is seeking to require that the record demonstrate a

factual basis for the stipulation or plea agreement involving the purported separate

animus. His argument is that without such a basis, the agreement is essentially contrary

to law. He would not uphold stipulations reached in plea scenarios involving allied

offenses unless it is clear that the offenses would not merge.

       {¶21} Although having a factual basis for the underlying agreement makes sense,

the Supreme Court of Ohio has not definitely limited such agreements to date. Further,

although many courts have determined that shots fired in rapid succession at one victim

are generally merged, this is not absolute. The conduct of the offender, a case-by-case

inquiry, is always controlling on the merger analysis, and the Supreme Court recognizes

that inconsistencies between cases can and will exist. State v. Underwood, 124 Ohio

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

       {¶22} Crockett’s conduct in this case could arguably be broken down into the

minutia between the fatal shot(s) and the non-fatal shot(s), but this was not addressed

below. Crockett chose to stipulate to the conduct constituting a separate animus, and

thus, as the majority clearly outlines, he has no grounds for appeal.
