[Cite as State v. Ewing, 2015-Ohio-3804.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-14-1127

        Appellee                                 Trial Court No. CR0201302370

v.

Michael R. Ewing                                 DECISION AND JUDGMENT

        Appellant                                Decided: September 18, 2015


                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Edward J. Stechschulte, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Michael Ewing, appeals his judgment of conviction from the

Lucas County Court of Common Pleas on one count of aggravated assault and one count

of aggravated riot. For the following reasons, we affirm.
       {¶ 2} On August 14, 2013, the Lucas County Grand Jury returned a three-count

indictment against appellant. Count One was for felonious assault in violation of R.C.

2903.11(A)(1), a felony of the second degree. Count Two was for intimidation of an

attorney, victim, or witness in a criminal case in violation of R.C. 2921.04(B), a felony of

the third degree. Count Three was for aggravated riot in violation of R.C. 2917.02(A)(2)

and (C), a felony of the fourth degree. The charges stemmed from a fight in the parking

lot of a bar during which appellant and several other individuals approached and

physically beat the victim. The victim suffered a fractured orbital bone and required

several staples to close a cut on his forehead.

       {¶ 3} On December 16, 2013, appellant withdrew his initial plea of not guilty, and

entered a plea of guilty pursuant to North Carolina v. Alford to the lesser-included

offense of aggravated assault in Count One and to the offense of aggravated riot in Count

Three, both felonies of the fourth degree. As part of the plea deal, appellant agreed to a

sentence of two years in prison, not including time already served, and the state agreed to

dismiss Count Two.

       {¶ 4} At the subsequent sentencing hearing, the trial court imposed the two-year

prison sentence, ordering appellant to serve consecutive one-year terms for each count.

At that time, appellant did not raise the issue of whether aggravated riot and aggravated

assault were allied offenses, nor did he object to the trial court’s failure to consider

whether the two counts should merge.




2.
                                   Assignments of Error

       {¶ 5} We have granted appellant’s motion for leave to file a delayed appeal, and

appellant now presents two assignments of error for our review:

              Assignment of Error No. 1: The trial court committed plain error

       when it failed to inquire and determine whether Appellant’s convictions of

       aggravated assault and aggravated riot merged as allied offenses of a

       similar import pursuant to R.C. §2941.25(A).

              Assignment of Error No. 2: Appellant’s trial counsel deprived

       Appellant of his rights to a fair trial, the effective assistance of counsel, and

       due process of law as guaranteed by the Fifth, Sixth, and Fourteenth

       Amendments to the United States Constitution and comparable provisions

       of the Ohio Constitution.

                                          Analysis

       {¶ 6} In his first assignment of error, appellant argues that the trial court

committed plain error in failing to conduct a merger analysis. Because the issue of allied

offenses was not raised in the trial court, our review shall proceed under the plain error

standard. Crim.R. 52(B).

       {¶ 7} Before reaching the merits of appellant’s assignment of error, we will

address the state’s contention that he is precluded from now raising the issue on appeal.

The state presents two reasons to support its position. First, the state argues that

appellant is precluded from raising the issue because he received the benefit of the



3.
bargain of the plea agreement. Second, the state argues that appellant waived the issue

when he agreed to a sentence that was longer than the maximum possible sentence for

either of the offenses alone, thereby necessitating that the sentences would be consecutive

and unmerged.1 Notably, the Ohio Supreme Court addressed both of these arguments in

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

       {¶ 8} In that case, Underwood was indicted on two counts of aggravated theft and

two counts of theft. Underwood agreed to plead no contest to the four counts in

exchange for receiving a prison term of no more than two years. In its written sentencing

recommendation, the state noted that the two counts in each of the different categories of

thefts would be considered allied offenses of similar import. However, at sentencing, no

discussion was held regarding allied offenses, and the trial court sentenced Underwood

on all four counts. The trial court ordered all of the sentences to be served concurrently

for a total prison term of two years. Id. at ¶ 2-6.

       {¶ 9} Underwood appealed, arguing that the trial court committed plain error by

imposing multiple sentences for allied offenses of similar import. The Second District

agreed with Underwood and reversed the conviction. The state then appealed the

decision to the Ohio Supreme Court on the following issue: “Is an agreed and jointly

recommended sentence ‘authorized by law’ under R.C. 2953.08(D)(1), and thus not

reviewable, when the agreed sentence includes convictions for offenses that are allied



1
 The maximum term of incarceration for a felony of the fourth degree is 18 months.
R.C. 2929.14(A)(4). Here, appellant was sentenced to two years in prison.


4.
offenses of similar import?” Id. at ¶ 7-9. The Ohio Supreme Court answered the

question in the negative and affirmed the decision of the Second District.

         {¶ 10} In its decision, the Ohio Supreme Court stated,

                [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. at ¶

         26.

         {¶ 11} Regarding the state’s argument that appellant has received the benefit of his

bargain, the Ohio Supreme Court dismissed a similar contention that its holding would

allow defendants to manipulate plea agreements for a more beneficial result. The court

noted,

                [N]othing 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 the issue of allied

         offenses of similar import, however, the trial court is obligated under R.C.



5.
       2941.25 to determine whether the offenses are allied, and if they are, to

       convict the defendant of only one offense. Id. at ¶ 29.

       {¶ 12} Here, the plea agreement is silent on the issue of allied offenses.

Therefore, in accordance with Underwood, we find meritless the state’s argument that

appellant should be precluded from raising the issue of allied offenses because he

received the benefit of the bargain.

       {¶ 13} Turning to the state’s argument regarding waiver, the Ohio Supreme Court

rejected a similar argument made by Justice Cupp in his dissent. The court stated, “We

have held that ‘courts indulge every reasonable presumption against waiver’ of

fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of

fundamental rights.’ A waiver is ordinarily an intentional relinquishment or

abandonment of a known right or privilege.” (Emphasis sic.) Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 32, quoting State v. Adams, 43 Ohio St.3d

67, 69, 538 N.E.2d 1025 (1989). The court noted, “[t]here is nothing in the record that

demonstrates that Underwood was informed that he was agreeing to be convicted of

allied offenses, thereby waiving his constitutional right to be free from double jeopardy.”

Id.

       {¶ 14} While acknowledging the court’s holding in Underwood, the state urges us

to find the present case distinguishable. In particular, the state notes that the defendant in

Underwood agreed to a prison term that was within the allowable range for one of the

offenses. In contrast, appellant agreed to a term that by necessity would require the two



6.
sentences to be run consecutively since he agreed to a two-year prison term when the

maximum for each individual offense was only 18 months. Thus, the state concludes that

“the agreed-upon sentence should be viewed as an intentional relinquishment of any right

to insist upon an allied-offense analysis.”

       {¶ 15} We disagree. Although it could be inferred that appellant relinquished his

right to argue double jeopardy, such an inference does not overcome the strong

presumption against waiver, particularly where the record contains no discussion of the

issue. Therefore, we find that appellant did not waive his right to argue the issue of allied

offenses of similar import.

       {¶ 16} Turning now to the merits of appellant’s first assignment of error, appellant

argues that the trial court committed plain error when it failed to conduct the merger

analysis. The state, on the other hand, contends that no error occurred because the

aggravated riot and aggravated assault offenses were committed by multiple acts, not by a

single act with a single animus. In responding to the state’s argument, appellant asserts

that the state’s position misses the mark. He concludes,

              [T]he State has not cited a single case where a fight among multiple

       actors arising from a continuous sequence of events was found not to

       constitute a single act committed with single state of mind. But even

       assuming that such a conclusion could be drawn, it is a conclusion that

       should have been made by the trial court at sentencing. The trial court

       failed to make any such inquiry. Accordingly, there is simply insufficient



7.
       facts in the record to determine whether merger applies. It was the trial

       court’s failure to determine that the offenses were allied offenses of similar

       import that gives rise to this appeal. Because the court failed to undergo

       the required analysis, the trial court committed plain error.

       {¶ 17} In making his argument, appellant relies on State v. Rogers, 2013-Ohio-

3235, 994 N.E.2d 499 (8th Dist.). However, that decision was recently reversed by the

Ohio Supreme Court. In State v. Rogers, --- Ohio St.3d ---, 2015-Ohio-2459, --- N.E.3d -

--, ¶ 3, the Ohio Supreme Court rejected the same argument raised by appellant that the

trial court committed plain error simply by not engaging in an allied offenses analysis,

holding,

              An accused’s failure to raise the issue of allied offenses of similar

       import in the trial court forfeits all but plain error, and a forfeited error is

       not reversible error unless it affected the outcome of the proceeding and

       reversal is necessary to correct a manifest miscarriage of justice.

       Accordingly, an accused has the burden to demonstrate a reasonable

       probability that the convictions are for allied offenses of similar import

       committed with the same conduct and without a separate animus; and,

       absent that showing, the accused cannot demonstrate that the trial court’s

       failure to inquire whether the convictions merge for purposes of sentencing

       was plain error. (Emphasis added.).




8.
       {¶ 18} Here, appellant has not met his burden to show that the offenses of

aggravated riot and aggravated assault were committed with the same conduct and

without a separate animus. Therefore, he has not demonstrated that plain error occurred.

See id. at ¶ 25.

       {¶ 19} Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 20} In his second assignment of error, appellant argues that trial counsel was

ineffective for not objecting to the trial court’s failure to conduct a merger analysis, and

for not requesting a hearing pursuant to R.C. 2941.25 to determine whether the two

offenses should merge. In order to demonstrate ineffective assistance of counsel,

appellant must satisfy the two-prong test developed in Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel’s

performance fell below an objective standard of reasonableness, and a reasonable

probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694. “The object of an ineffectiveness claim is not to

grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.” Id. at 697.

       {¶ 21} In this case, as with his first assignment of error, appellant has failed to

demonstrate that the two offenses would have merged. Thus, he has failed to satisfy the

second prong requiring that a reasonable probability exists that the result of the

proceedings would have been different but for counsel’s error.



9.
       {¶ 22} Accordingly, appellant’s second assignment of error is not well-taken.

       {¶ 23} For the foregoing reasons, we find that substantial justice was done the

party complaining and the judgment of the Lucas County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.



                                                                      Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, .J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




10.
