         [Cite as State v. Williams, 2016-Ohio-376.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                     :   APPEAL NO. C-150320
                                                       TRIAL NO. B-1403896
        Plaintiff-Appellee,                        :
                                                          O P I N I O N.
  vs.                                              :

FONTE WILLIAMS,                                    :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: February 5, 2016


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher, William R. Gallagher and Elizabeth Conkin, for Defendant-
Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Judge.

       {¶1}   Defendant-appellant Fonte Williams was originally charged with one

count of aggravated murder, one count of murder, and two counts of felonious

assault, all with accompanying firearm specifications. He pleaded guilty to one count

of a reduced charge of involuntary manslaughter under R.C. 2903.04(A), with one

accompanying firearm specification, and one count of felonious assault under R.C.

2903.11(A)(2). The trial court dismissed the two remaining charges and all other

firearm specifications.

       {¶2}    Under the terms of an agreed sentence, the trial court sentenced

Williams to 11 years’ imprisonment on the involuntary manslaughter count, plus

three years for the firearm specification.     It also sentenced him to eight years’

imprisonment on the felonious-assault count. The court ordered that all of the

sentences be served consecutively, for a total of 22 years. This appeal followed.

       {¶3}   In his sole assignment of error, Williams contends that the trial court

committed plain error in ordering him to serve the sentences for the two offenses

consecutively. He argues that the two offenses were allied offenses of similar import

that should have been merged for sentencing.

       {¶4}   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; State v. Livingston, 2014-Ohio-1637,

9 N.E.3d 1117, ¶ 4 (1st Dist.). A sentence is authorized by law and is not appealable

only if it comports with all mandatory sentencing provisions.          Underwood at

paragraph two of the syllabus.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



          {¶5}   In Underwood, the Ohio Supreme Court also held that when a

sentence is imposed for multiple convictions on offenses that are allied offenses of

similar import, R.C. 2953.08(D)(1) does not bar appellate review of the sentence

even though it was jointly recommended by the parties and imposed by the court. Id.

at paragraph one of the syllabus. But the court set forth an exception to that general

rule. It stated, “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.

          {¶6}   The Ohio Supreme Court later reiterated that statement. In State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the court discussed the

difference between waiver and forfeiture. It defined “waiver” as “an intentional

relinquishment or abandonment of a known right.” It then stated, “It 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.’ ” Id. at ¶ 20, quoting Underwood at ¶ 29.

          {¶7}   Further, other appellate districts have held that by stipulating that two

or more offenses were committed separately or with a separate animus, the

defendant waived the allied-offense issue. Therefore, the sentences in those cases

were not contrary to law. See State v. Lung, 12th Dist. Clermont No. CA2014-12-081,

2015-Ohio-3833, ¶ 11-12; State v. Booker, 8th Dist. Cuyahoga No. 101886, 2015-

Ohio-2515, ¶ 17-19; State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-

Ohio-926, ¶ 11-16; State v. Bryant, 5th Dist. Richland No. 14CA23, 2014-Ohio-4661,

¶ 8-13.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}    After some discussion, Williams ultimately agreed that the offenses were

committed with a separate animus. While describing the terms of the plea agreement,

the prosecutor told the court that “the Defendant is agreeing that, in fact, these two

crimes were created [sic] with a separate animus, as a result they are not allied offenses

of similar import, and he’s agreeing that they should not be merged but rather he can be

sentenced consecutively on those counts.” Williams’s counsel, responded that “[w]e’re

in agreement.” He further stated, “Judge, he wants to proceed. We have a plea

agreement, an agreed plea, and we ask the Court to accept that and proceed with

sentencing.”

       {¶9}    The parties clearly included consecutive sentences as part of the plea

agreement, which benefited Williams because the state dismissed two of the charges

against him, as well as several firearm specifications, and reduced the most serious

charge against him to a lesser offense. The agreement falls squarely within the exception

set forth by the Ohio Supreme Court in Underwood, and we hold that Williams waived

the allied-offense issue.

       {¶10} Williams argues that the state conceded that the plea agreement could be

vacated if a higher court found that the two offenses did not arise out of a separate

animus and should not have been merged. Essentially, he is arguing that he did not

waive his right to appeal the sentence. The record does not support this assertion.

Williams specifically agreed that the two offenses were committed with a separate

animus. In discussing the agreement, the state added that “he’s agreeing that if for some

reason a higher court were to determine that that was not correct, that it was remanded,

we can simply proceed on the original indictment.” This statement simply clarified what

the agreement was, but as an agreed plea, it did not render the sentence appealable.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



          {¶11} Because the sentences comported with all mandatory-sentencing

provisions, they were authorized by law. Consequently, this court is without jurisdiction

to review the sentences. See State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992

N.E.2d 1095, ¶ 22; State v. Tisdale, 11th Dist. Trumbull No. 2007-T-0122, 2008-Ohio-

5452, ¶ 11-12; State v. Knisely, 3d Dist. Hancock No. 5-07-37, 2008-Ohio-2255, ¶ 12;

State v. Simmons, 1st Dist. Hamilton No. C-050817, 2006-Ohio-5760, ¶ 5. Because

Williams only challenges his sentences, and not the guilty findings, we dismiss the

appeal.

                                                                      Appeal dismissed.


F ISCHER , P.J., and S TAUTBERG , J., concur.


Please note:
          The court has recorded its own entry this date.




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