         [Cite as State v. Daniels, 2017-Ohio-548.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                         :   APPEAL NO. C-160203
                                                          TRIAL NO. B-1405711
        Plaintiff-Appellee,                           :

  vs.                                                 :
                                                             O P I N I O N.
JABRIEL DANIELS,                                      :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 17, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Ravert J. Clark, for Defendant-Appellant.
                   OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Judge.

          {¶1}   Jabriel Daniels appeals from the judgment of the Hamilton County

Court of Common Pleas convicting him, after guilty pleas, of robbery and

kidnapping. He argues that he was convicted of allied offenses of similar import and,

therefore, the trial court committed plain error by failing to merge the convictions as

required by R.C. 2941.25. Because Daniels failed to demonstrate plain error, we

affirm.

                        Background Facts and Procedure

          {¶2}   Daniels was originally indicted for aggravated robbery, robbery,

aggravated burglary, and four counts of kidnapping, all with accompanying firearm

specifications.    He pleaded guilty to one reduced charge of robbery under R.C.

2911.02(A)(2), with a three-year firearm specification, and one count of kidnapping

under R.C. 2905.01(A)(2), with a one-year firearm specification.

          {¶3}   The parties agreed that Daniels would be sentenced to two years’

imprisonment on the robbery count, plus three years for the firearm specification,

and three years’ imprisonment on the kidnapping count, plus one year for the

firearm specification, all to be served consecutively, for an aggregate term of nine

years.

          {¶4}   At sentencing, the court asked Daniels if there was any reason why he

should not be sentenced in accordance with the plea agreement. His counsel replied,

“No.” The court then asked Daniels if he wanted to address the court, and Daniels

said, “No.” Subsequently, the trial court imposed the agreed sentence. Daniels now

appeals. In his sole assignment of error, he contends that the trial court committed

plain error by failing to merge his convictions for robbery and kidnapping.




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                                 Merger Analysis

       {¶5}    R.C. 2941.25 governs the merger of allied offenses.      R.C. 2941.25

provides:

       (A) Where the same conduct of the 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 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.

       {¶6}    Merger is an issue that arises at sentencing and that the defendant

bears the burden on; it is not “an additional burden of proof shouldered by the state”

in obtaining a determination of guilt. State v. Washington, 137 Ohio St.3d 427,

2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67,

514 N.E.2d 870 (1987).

       {¶7}    When reviewing the defendant’s claim that there are allied offenses of

similar import that merge into a single conviction under R.C. 2941.25, the trial court

and the reviewing court on appeal

       must first take into account the conduct of the defendant. In other

       words, how were the offenses committed? If any of the following is

       true, the offenses cannot merge and the defendant may be convicted

       and sentenced for multiple offenses: (1) the offenses are dissimilar in

       import or significance—in other words, each offense caused separate,




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       identifiable harm, (2) the offenses were committed separately, or (3)

       the offenses were committed with separate animus or motivation.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. In summary,

the defendant must show that the conduct the state relied upon resulted in offenses

of similar import, committed neither separately nor with a separate animus. See

Washington at ¶ 18; Ruff at ¶ 25.

       {¶8}   This court ordinarily reviews the trial court’s R.C. 2941.25

determination de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983

N.E.2d 1245, ¶ 1. But in this case, the trial court did not make a R.C. 2941.25

determination, as the issue was not raised.

                                       Waiver

       {¶9}   Before addressing the merits of the assigned error, we must first

review the state’s argument that Daniels waived appellate review of his sentence on

the merger issue because the sentence imposed by the trial court was jointly

recommended. It is well settled that under R.C. 2953.08(D), a sentence that has

been recommended jointly by the defendant and the prosecution and imposed by a

sentencing judge is not subject to appellate review if it is authorized by law. State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16, cited in State v.

Williams, 1st Dist. Hamilton No. C-150320, 2016-Ohio-376, ¶ 4.

       {¶10} But in Underwood, the Ohio Supreme Court rejected the argument
now presented by the state on the issue of waiver and jointly recommended

sentences, explaining that a sentence that does not comport with all mandatory

sentencing provisions, including R.C. 2941.25, the allied-offenses statute, is not

authorized by law. Underwood at ¶ 21 and 26. Thus, absent a defendant’s waiver of

the protection afforded by R.C. 2941.25, a defendant has merely forfeited the allied-

offenses claim for appellate review, allowing for review under a plain-error standard.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



See id. at ¶ 31; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,

¶ 20-21.

       {¶11} The state argues this case is distinguishable from Underwood because
in Underwood, unlike in this case, the state had taken the position in a sentencing

brief that the offenses were allied. But the state’s acknowledgment in Underwood

that the trial court was required to merge offenses went to the issue of whether there

was error, and not the issue of waiver. Underwood at ¶ 30. Moreover, the Supreme

Court continues to emphasize, as it did in Underwood, that for a defendant to be

deemed to have waived the merger issue for appellate review, the waiver must be

characterized as intentional and knowing, even when the defendant enters into a plea

agreement. See Rogers at ¶ 20.

       {¶12} Accordingly, the state’s argument in support of waiver is not
persuasive and we reject it. However, because Daniels failed to raise the issue in the

trial court, he has forfeited all but plain error. See Crim.R. 52(B); Underwood at ¶

31; Rogers at ¶ 21.

                                     Plain Error

       {¶13} Under the authority of Crim.R. 52(B), this court has “discretion to
correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding the

accused’s failure to meet his obligation to bring those errors to the attention of the

trial court.” Rogers at ¶ 22, quoting Crim.R. 52(B). The appellant has the burden to

show plain error on the record. Id., citing Quarterman, 140 Ohio St.3d 464, 2014-

Ohio-4034, 19 N.E.3d 900, at ¶ 16.

       {¶14} In the context of allied offenses, the Ohio Supreme Court has held that
an appellant does not demonstrate plain error by showing only that the trial court

failed to determine at sentencing whether offenses should merge under R.C. 2941.25,

even though multiple offenses presented a facial question of merger. See Rogers at ¶

1 and 3; State v. Santiago, 8th Dist. Cuyahoga No. 102280, 2015-Ohio-4073, ¶ 3.



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                   OHIO FIRST DISTRICT COURT OF APPEALS



Instead, to prevail on a claim of plain error under these circumstances, the appellant

must demonstrate a prejudicial effect—a “reasonable probability” that “he has, in

fact, been convicted of allied offenses of similar import committed with the same

conduct and with the same animus.” Rogers at ¶ 3 and 25; see State v. May, 8th Dist.

Cuyahoga No. 103785, 2016-Ohio-7481, ¶ 14; State v. English, 8th Dist. Cuyahoga

No. 101883, 2015-Ohio-3227, ¶ 10.

       {¶15} According to Daniels, the application of the Ruff test to the facts in the
instant case results in the conclusion that the robbery and kidnapping to which he

admitted his guilt were allied offenses of similar import as contemplated by R.C.

2941.25(A). He contends that the guidelines for determining whether kidnapping

and another offense of the same or similar kind must merge are set forth in State v.

Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), and mirror the Ruff test. In

Logan, the court stated:

       (a) Where the restraint or movement of the victim is merely incidental

       to a separate underlying crime, there exists no separate animus

       sufficient to sustain separate convictions; however, where the restraint

       is prolonged, the confinement is secretive, or the movement is

       substantial so as to demonstrate a significance independent of the

       other offense, there exists a separate animus as to each offense

       sufficient to support separate convictions;

       (b) Where the asportation or restraint of the victim subjects the victim

       to a substantial increase in risk of harm separate and apart from that

       involved in the underlying crime, there exists a separate animus as to

       each offense sufficient to support separate convictions.

Id. at syllabus.

       {¶16} He directs this court to several portions of the record to support his
claim that his convictions involved offenses that were committed with the same



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                 OHIO FIRST DISTRICT COURT OF APPEALS



animus. This includes the language of the amended indictment, to which he pleaded

guilty as part of the plea agreement. With respect to the robbery, Daniels agreed that

he had “in committing or attempting to commit a theft offense, to wit; knowingly

obtained or attempted to obtain United States currency belonging to McDonald’s, or

fleeing immediately thereafter, inflicted or attempted to inflict physical harm [] or

threatened to inflict physical harm on Tiffany Chamblin,” in violation of R.C.

2911.02(A)(2).

       {¶17} With respect to the kidnapping, Daniels agreed that he had “purposely,
by force, threat or deception, removed Tiffany Chamblin from the place where she

was found, or restrained her of her liberty, for the purpose of facilitating the

commission of a felony, to wit; aggravated robbery or in flight thereafter,” in

violation of R.C. 2905.01(A)(2).

       {¶18} Daniels also cites the bill of particulars, which provides:
              On or about the 6th day of October 2014 in the vicinity of 3738

       Warsaw Avenue, Hamilton County Ohio, the defendant and co-

       defendant * * * entered into a restricted area, not open to the public, of

       the McDonald’s restaurant at that address, through a drive-thru

       window, with a firearm, with the purpose of committing a robbery

       offense. Their conduct caused multiple McDonald’s employees on duty

       and inside the restaurant to flee and lock themselves in a different

       room in order to escape the threat of harm.          Defendant and co-

       defendant then shot open the door to the manager’s office and

       obtained U.S. currency.

       {¶19} Finally, Daniels directs this court to his comments and those of the
prosecutor during the plea hearing. At that time, Daniels stated, “I was in the same

room with them, they ran themselves. I never directed anyone to any direction.” In

response, the prosecutor stated,



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                 OHIO FIRST DISTRICT COURT OF APPEALS



       the defendant’s actions, along with his co-defendant[’]s, caused these

       individuals to flee for their own personal safety and lock themselves

       into a walk-in refrigerator. * * * And then they were stuck there

       because they felt threatened and they felt fearful, the fact that a

       firearm had been displayed; and yes, in fact no one directed them to do

       that. The actions of the defendant and co-defendant caused that to

       happen.

       {¶20} Daniels argues that the separate convictions must be vacated because
the application of the Logan guidelines demonstrates that the kidnapping was

merely incidental to the robbery. Accepting without deciding Daniels’s contention

that the Logan guidelines are the equivalent of the Ruff test, we hold that Daniels

falls short of demonstrating plain error. Daniels does not point to any facts in the

record demonstrating when the restraint ended or the conditions of the restraint.

Thus, he cannot show a reasonable probability that he was, in fact, convicted of allied

offenses of similar import.

       {¶21} This case is easily distinguishable from State v. White, 8th Dist.
Cuyahoga No. 88491, 2007-Ohio-3080, to which Daniels cites. In White, the trial

court merged the kidnapping and robbery offenses, because the facts, elicted after a

trial, demonstrated that the defendant had removed the employees and customers to

the back of a hair salon during a robbery and had restrained them there for only five

to seven minutes, after which the defendant fled.

       {¶22} Although there was no trial in this case, Daniels was given the
opportunity to place the relevant facts on the record and make the merger argument

at the sentencing hearing, which was when the litigation of allied offenses was to

occur. See R.C. 2929.19(B) (“the court, before imposing sentence, shall consider the

record, any information presented by [those identified in R.C. 2929.19(A), including

the offender, the prosecuting attorney, and the victim], and, if one was prepared, the



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presentence investigation report * * * and any victim impact statement made

pursuant to section 2947.051 of the Revised Code.” R.C. 2929.19(B); Washington,

137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E2d 661, at ¶ 20.

       {¶23} Because Daniels has failed to demonstrate on this record a “reasonable
probability” that “he has, in fact, been convicted of allied offenses of similar import

committed with the same conduct and with the same animus,” Rogers, 143 Ohio

St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 3 and 25, he has failed to

demonstrate plain error. Accordingly, we overrule his assignment of error.

                                     Conclusion

       {¶24} The judgment of the trial court is affirmed.
                                                                     Judgment affirmed.

MOCK, P.J., and ZAYAS, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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