[Cite as State v. Thomas, 2016-Ohio-5057.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2015-CA-33
                                                   :
 v.                                                :   Trial Court Case No. 2015-CR-065
                                                   :
 KEVIN L. THOMAS                                   :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 22nd day of July, 2016.

                                              ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

PAUL WAGNER, Atty. Reg. No. 0067647, 111 North Bridge Street, P.O. Box 315,
Gettysburg, Ohio 45328
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, J.
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       {¶ 1} Defendant-appellant, Kevin L. Thomas, appeals from his conviction and

sentence in the Champaign County Court of Common Pleas following a negotiated guilty

plea to charges of attempting to corrupt another with drugs and possessing a controlled

substance. Thomas contends the aforementioned offenses are allied offenses of similar

import that should have been merged at sentencing. For the reasons outlined below, we

do not find that the trial court erred in failing to merge Thomas’s offenses; therefore, the

judgment of the trial court will be affirmed.

       {¶ 2} On July 14, 2015, Thomas entered into a plea agreement in which he agreed

to plead guilty to one count of attempting to corrupt another with drugs in violation of R.C.

2925.02(A)(4)(a) and R.C. 2923.02, and one count of possessing a controlled substance,

Xanax, in violation of R.C. 2925.11(A),(C)(2)(a). As part of the plea agreement, Thomas

stipulated that the offenses were not allied offenses of similar import.

       {¶ 3} The allied-offense stipulation was recorded in a written plea agreement that

was signed by both Thomas and his trial counsel.             The written plea agreement

specifically stated that “Defendant agrees and stipulates that (amended) Count One and

Count Three are not allied offenses of similar import.” Plea of Guilty Agreement and

Entry (July 14, 2015), Champaign County Court of Common Pleas Case No. 2015 CR

065, Docket No. 38, p. 3.

       {¶ 4} The stipulation was also discussed by the parties at the plea and sentencing

hearings. At the plea hearing, the State recited the stipulation on the record and Thomas

indicated that he understood the stipulation and specifically agreed that his offenses were

not allied offenses of similar import. At the sentencing hearing, Thomas’s trial counsel
                                                                                           -3-


confirmed that the defense had agreed to the allied-offense stipulation and that they were

going to “stick by [their] agreement.” Sentencing Hearing Trans. (Aug. 24, 2015), p. 17.

       {¶ 5} Based on the stipulation, the trial court found that Thomas’s offenses were

not allied offenses of similar import. The trial court then imposed an 18-month prison

term, $5,000 fine, and 6-month driver’s license suspension for the count of attempting to

corrupt another with drugs, as well as a concurrent 8-month prison term, $250 fine, and

6-month driver’s license suspension for the count of possessing a controlled substance.

Accordingly, Thomas’s total sentence included 18 months in prison, a $5,000 fine, and a

6-month driver’s license suspension, plus court costs.

       {¶ 6} Thomas now appeals from his conviction and sentence, raising the following

single assignment of error for our review.

       DEFENDANT COULD NOT BE CONVICTED OF BOTH POSSESSION

       AND ATTEMPTED CORRUPTING OF ANOTHER WITH DRUGS

       BECAUSE THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT.

       {¶ 7} Under his sole assignment of error, Thomas contends that his offenses are

allied offenses of similar import that should have been merged at sentencing.              In

response, the State contends that the trial court was not required to merge Thomas’s

offenses since the parties stipulated that the offenses were not allied offenses of similar

import. We agree with the State.

       {¶ 8} “It is well established that there may be only one conviction for allied offenses

of similar import, and thus, allied offenses must be merged at sentencing.” (Citations

omitted.) State v. Donaldson, 2d Dist. Montgomery No. 24911, 2012-Ohio-5792, ¶ 23.

Specifically, Ohio’s allied offense statute, R.C. 2941.25, provides that:
                                                                                        -4-


      (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 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.

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

the Supreme Court of Ohio held that when a sentence is imposed on multiple counts that

are allied offenses of similar import in violation of R.C. 2941.25(A), appellate review of

that sentence is not precluded even though it was jointly recommended by the parties

and imposed by the court, as such a sentence is unauthorized by law. Id. at ¶ 26. In

response to the State’s argument that merging allied offenses under such circumstances

would allow defendants to manipulate plea agreements, the court in Underwood also

observed that:

      With respect to the argument that the merger of allied offenses will allow

      defendants to manipulate plea agreements for a more beneficial result than

      they bargained for, 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. When the plea agreement is silent on
                                                                                        -5-


      the issue of allied offenses of similar import, however, 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.

(Emphasis added.) Id. at ¶ 29.

      {¶ 10} We applied the aforementioned principles from Underwood to Donaldson,

a case in which the parties entered into a plea agreement and expressly stipulated that

the defendant’s involuntary manslaughter charge was committed with a separate animus

and was not an allied offense to a previous charge of attempted murder. Donaldson at

¶ 25. After determining that the defendant understood the stipulation, we held that “[t]his

is precisely the type of factual stipulation that the court in Underwood acknowledged as

a means of addressing a defendant’s potential ‘manipulation’ of a plea agreement for a

‘more beneficial result’ where allied offenses are involved.” Id. As a result, we held that

the trial court did not err in failing to merge the convictions for attempted murder and

involuntary manslaughter.    Id.   Accord State v. Williams, 1st Dist. Hamilton No. C-

150320, 2016-Ohio-376, ¶ 8-9 (finding that defendant’s plea agreement “[fell] squarely

within the exception set forth by the Ohio Supreme Court in Underwood,” because

defendant agreed that his offenses were committed with a separate animus and were not

allied offenses of similar import); State v. Moll, 3d Dist. Defiance Nos. 4-14-17, 4-14-18,

2015-Ohio-926, ¶ 16 (finding that “since the parties stipulated that the offenses were

committed with a separate animus and are not allied offenses of similar import, the trial

court was under no obligation to determine whether the offenses were allied pursuant to

R.C. 2941.25”).

      {¶ 11} Approximately three years after our decision in Donaldson, the Supreme
                                                                                           -6-

Court of Ohio confirmed in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38

N.E.3d 860, 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 added.) Id. at ¶ 20, citing Underwood

at ¶ 29. In interpreting the aforementioned language from Rogers, the Eighth Appellate

District recently held that “the Ohio Supreme Court observed that such a stipulation is

simply one means by which a defendant may ‘waive the protection afforded by R.C.

2941.25[.]’ ”     State v. Black, 2016-Ohio-383, ___N.E.3d___, ¶ 16 (8th Dist.)         In so

holding, the Eight District concluded that a plea agreement need not specifically stipulate

to there being a separate animus in order to effectively waive the allied offense issue.

Id. at ¶ 16-18.

       {¶ 12} The court in Black explained that:

                Although there is nothing in the record to suggest that the parties

       specifically “stipulat[ed] in the plea agreement that the offenses were

       committed with separate animus,” the transcripts from the plea and

       sentencing hearings not only reflect that Black knowingly, intelligently and

       voluntarily agreed to the sentence that was imposed by the trial court but

       also that he expressly agreed through defense counsel (1) that the felonious

       assault and domestic violence counts “would not merge for the purpose of

       sentencing” and (2) that consecutive sentences would be imposed for these

       offenses.

                This court has previously held that where the transcript demonstrates

       that the state and defense counsel agreed that offenses were not allied, the
                                                                                           -7-


       issue of allied offenses is waived. * * * In this case, the transcript clearly

       shows that defense counsel agreed that the offenses were not allied

       offenses and would not merge for sentencing. Therefore, Black waived the

       allied offense issue.

Black at ¶ 17-18.

       {¶ 13} Furthermore, in State v. Torres, 8th Dist. Cuyahoga No. 100106, 2014-

Ohio-1622, the Eighth District held that a stipulation in a plea agreement providing “that

the offenses to which [the defendant is] about to plead guilty are non-allied offenses” was

sufficient to relieve the trial court of its obligation to determine whether the offenses were

allied offenses. Id. at ¶ 7, 11. Similarly, in State v. Recob, 8th Dist. Cuyahoga No.

100012, 2014-Ohio-929, the Eighth District held that the trial court did not err in failing to

merge the defendant’s offenses at sentencing because the defendant stipulated that the

offenses to which he was pleading guilty were not allied offenses of similar import and

indicated that he understood the court could impose consecutive sentences. ¶ 3, 11.

       {¶ 14} In the instant case, the record of the plea and sentencing hearings, as well

as the written plea agreement, clearly establish that Thomas stipulated his offenses were

not allied offenses of similar import. The record also indicates that Thomas advised the

trial court that he understood the stipulation. Moreover, prior to Thomas entering his

guilty plea, the trial court advised him of the maximum sentence he could receive for each

of his offenses, noting that consecutive sentences could be imposed and would amount

to a total maximum prison term of 48 months.              Thomas thereafter indicated he

understood the maximum possible sentence.           Therefore, in light of the trial court’s

advisements at the plea hearing, Thomas was, at the very least, indirectly made aware
                                                                                           -8-


of the fact that his offenses would not merge at sentencing.

       {¶ 15} Under the circumstances of this case, we find that pursuant to Underwood

and its progeny, the trial court did not err in finding that Thomas’s offenses were not allied

offenses of similar import, as the trial court’s decision was based on the stipulation in the

plea agreement, which Thomas indicated he understood. Accordingly, Thomas’s sole

assignment of error is overruled and the judgment of the trial court is affirmed.

                                      .............



FAIN, J. and FROELICH, J., concur.



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