[Cite as State v. Adams, 2014-Ohio-3496.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100500



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               DAVID JAMES ADAMS
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-13-573529

              BEFORE:           Blackmon, J., S. Gallagher, P.J., and McCormack, J.

              RELEASED AND JOURNALIZED:                   August 14, 2014
                              -i-




ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender

Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Kristin Karkutt
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant David James Adams (“Adams”) appeals his sentence and sets

forth the following assigned error for our review:

       The trial court committed error and imposed a sentence contrary to law
       when it failed to merge the offenses of involuntary manslaughter and
       felonious assault as they are allied offenses of similar import pursuant to
       R.C. 2941.25(A).

       {¶2} Having reviewed the record and pertinent law, we affirm Adams’s sentence.

 The apposite facts follow.

       {¶3} The Cuyahoga County Grand Jury indicted Adams for two counts of

murder, two counts of felonious assault, and one count of reckless homicide, all of

which had one and three-year firearm specifications attached. Additionally, Adams was

charged with one count of tampering with evidence and one count of grand theft.

       {¶4} Pursuant to a plea agreement, Adams pled guilty to an amended count of

involuntary manslaughter with a three-year firearm specification and one count of

felonious assault. He also pled guilty to tampering with evidence and grand theft. The

remaining counts were nolled.

       {¶5} Adams and the state further agreed to a definite term of incarceration of at

least 15 years, not to exceed 25 years.         They also stipulated that the involuntary

manslaughter and felonious assault counts would not merge. The trial court accepted the

plea deal as presented, and sentenced Adams to 11 years for involuntary manslaughter

along with three years for the firearm specification, eight years for felonious assault, three

years for tampering with evidence, and 18 months for grand theft. The court ordered the
involuntary manslaughter, felonious assault, tampering with evidence, and the firearm

specification be served consecutively, and the grand theft sentence be served

concurrently. The total sentence imposed by the trial court was 25 years in prison.

                                       Allied Offenses

         {¶6} In his sole assigned error, Adams argues that the trial court committed plain

error by failing to merge the involuntary manslaughter and felonious assault counts.

         {¶7} We conclude Adams’s assigned error has no merit. At the guilty plea

hearing, the prosecutor addressed the agreement regarding not merging the counts as

follows:

         As part and parcel of this plea agreement, Your Honor, the State of Ohio
         and defense have an agreement that the felonious assault, Count 3, does not
         merge with the amended Count 2, involuntary manslaughter and that we are
         proposing a range of sentence, for this court to consider, of flat time,
         minimum fifteen years, maximum of twenty-five years.

Tr. 5.

         {¶8} The court and defense counsel then further discussed as follows:

         Attorney:    We understand, again, felonious assault and involuntary
                      manslaughter will probably merge. But, for the sake of the plea
                      bargain, we’re willing to waive.


         Court: Okay. So, we’re going to agree that these are not allied offenses. Also
                     agree that the court, in order to reach the negotiated result here, must
                     issue consecutive sentences, although I will place findings on the
                     record. The defendant is waiving error with regard to the
                     consecutive sentences described?

         Attorney:    Yes, Judge.

Tr. 7.
          {¶9} The trial court then had the following discussion with Adams prior to

accepting his plea:


          Court: You also agree, I want to make this clear for the record that as far as
                      sentencing that you just pled to, Counts 2 and 3 will not merge for
                      sentencing. Do you understand that?

          Adams:       Yes, sir.

          Court:       Does that in any way affect the plea you just made?

          Adams:       No, sir.

Tr. 21.

          {¶10} This court has held that when the transcript demonstrates the state and

defense counsel specifically agreed that the offenses were not allied, the issue of allied

offenses is waived. State v. Yokings, 8th Dist. Cuyahoga No. 98632, 2013-Ohio-1890;

State v. Carmen, 8th Dist. Cuyahoga No. 99463, 2013-Ohio-4910; State v. Ward, 8th

Dist. Cuyahoga No. 97219, 2012-Ohio-1199.

          {¶11} In spite of the above precedent, Adams relies on the Ohio Supreme Court’s

decision in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 93, to

argue that it was plain error for the trial court to fail to consider merging the sentences

even if the sentence was agreed to. Underwood does state:

          When a sentence is imposed for multiple convictions on offenses that are
          allied offenses of similar import in violation of R.C. 2941.25(A), R.C.
          2953.08(D)(1) does not bar appellate review of that sentence even though it
          was jointly recommended by the parties and imposed by the court.
       {¶12} However, this court in Yokings, Carmen, and Ward distinguished

Underwood based on the fact that merger was not discussed as part of the agreed sentence

in Underwood. In fact, Underwood explicitly states:

       [W]e note that 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 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.

Id. at ¶ 29.

       {¶13} The discussion that occurred in the instant case satisfies the requirements of

Underwood.      The prosecutor and defense counsel discussed the fact that they agreed the

offenses would not merge as part of the plea bargain. The trial court explained to Adams

the agreement to not merge the counts, and Adams indicated that he understood that they

would not merge. Thus, the parties had an agreement the offenses would not merge and

Adams got the benefit of the bargain by not having a life-tail imposed at the end of his

sentence. Underwood does not require the trial court to determine whether the offenses

actually merge before accepting the plea when the parties have specifically entered into

an agreement that they do not merge. It is when the parties fail to discuss the merger that

the trial court is obligated to determine if the offenses are allied offenses.   Based on the

terms of the plea in the instant case, the issue of allied offenses is waived. Accordingly,

Adams’s assigned error is overruled.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga Court of Common

Pleas to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
