[Cite as State v. Sawyer, 124 Ohio St.3d 547, 2010-Ohio-923.]




            THE STATE OF OHIO, APPELLEE, v. SAWYER, APPELLANT.
          [Cite as State v. Sawyer, 124 Ohio St.3d 547, 2010-Ohio-923.]
Court of appeals’ judgment reversed in part on the authority of State v.
        Underwood, and cause remanded.
  (No. 2009-1332 — Submitted February 17, 2010 — Decided March 16, 2010.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-080433,
                        183 Ohio App.3d 65, 2009-Ohio-3097.
                                  __________________
        {¶ 1} The judgment of the court of appeals is reversed on the authority of
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, as to the
court of appeals’ holding that it was without authority to review appellant’s
second and third assignments of error, and the cause is remanded to the court of
appeals for further proceedings consistent with State v. Underwood.
        MOYER, C.J., and PFEIFER, O’CONNOR, and LANZINGER, JJ., concur.
        LUNDBERG STRATTON and O’DONNELL, JJ., dissent.
        CUPP, J., dissents for the reasons stated in his dissenting opinion in State v.
Underwood.
                                  __________________
        O’DONNELL, J., dissenting.
        {¶ 2} Respectfully, I dissent.
        {¶ 3} I continue to adhere to the views expressed in my dissent in State
v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, that a sentence
in a criminal case is authorized by law if it is within the statutory range of
penalties established by the General Assembly.              Id. at ¶ 55 (O’Donnell, J.,
dissenting). Further, a sentence that is authorized by law, jointly recommended
by the parties, and imposed by the court is not subject to review even if it includes
                             SUPREME COURT OF OHIO




convictions for allied offenses of similar import. Id. at ¶ 64 (O’Donnell, J.,
dissenting). According to R.C. 2953.08(D)(1), “[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.”
       {¶ 4} In this case, the grand jury indicted Tiffany Sawyer on two counts
of felonious assault, second-degree felonies, each of which carries a maximum
term of eight years’ incarceration. However, the prosecution and the defense
reached an agreement: Sawyer agreed to plead guilty to two different counts of
aggravated assault, fourth-degree felonies, and the parties agreed to jointly
recommend an aggregate sentence of three years’ incarceration. The trial court
accepted the guilty pleas and imposed the jointly recommended sentence of two
consecutive 18-month terms, and the court of appeals affirmed that judgment.
State v. Sawyer, 183 Ohio App.3d 65, 2009-Ohio-3097, 915 N.E.2d 715, ¶ 70.
       {¶ 5} Notwithstanding Sawyer’s agreement to a three-year sentence as
punishment for her conduct, the majority relies on Underwood and reverses on the
basis that the trial court’s failure to merge the two counts of aggravated assault as
allied offenses is subject to appellate review. Thus, not only does Sawyer receive
the benefit of the plea-bargained agreement by avoiding convictions for felonious
assault as well as the potential maximum eight-year term of incarceration on each
count, but also she receives a sentence of one-half the term she agreed to for her
conduct. This result denies the state the benefit of its bargain and the opportunity
to convict Sawyer of the felonious-assault charges.
       {¶ 6} The remedy fashioned by the majority in Underwood of merging
the sentences for the allied offenses is patently unfair to the state because it fails
to address the plea bargain and deals only with the sentence recommended by the
parties and imposed by the court. Because the state is deprived of the sentence to
which it agreed, equity would suggest that it have the opportunity to renegotiate



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the plea agreement with the defendant. Both the plea and the sentence therefore
ought to be vacated in fairness to both parties.
       {¶ 7} The legislature never intended the allied-offenses statute, R.C.
2941.25(A), to apply as an exception to R.C. 2953.08(D)(1), which bars the
appeal of a sentence that is authorized by law, jointly recommended by the
parties, and imposed by the trial court. Nor did it intend a criminal defendant to
gain the benefit of a plea-bargained reduction in charges and at the same time
avoid the agreed-upon penalty.
       {¶ 8} Because the majority has misinterpreted the manifest purpose of
the legislature in enacting R.C. 2953.08(D)(1), I urge the General Assembly to
clarify its intent, to avoid the forthcoming appeals that will inevitably be
generated by the court’s decisions in this case and in Underwood.
       LUNDBERG STRATTON, J., concurs in the foregoing opinion.
                               __________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel
Lipman Curran, Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Claire R. Cahoon, Assistant
Public Defender, for appellant.
                            ______________________




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