[Cite as State v. Dalton, 2013-Ohio-5127.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99661



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   WILLIAM DALTON
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-557076

         BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Blackmon, J.

         RELEASED AND JOURNALIZED:                   November 21, 2013
ATTORNEY FOR APPELLANT

Kevin M. Cafferkey
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Blaise D. Thomas
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant William Dalton appeals the judgment of the Cuyahoga

County Court of Common Pleas. For the following reasons, we affirm in part, reverse in

part and remand for correction of Dalton’s sentencing journal entry.

       {¶2} A true bill indictment was returned against Dalton charging him with two

counts of kidnapping, four counts of rape and one count of felonious assault. Pursuant

to a plea agreement the state amended one count of kidnapping to abduction in violation

of R.C. 2905.02 and one count of rape to sexual battery in violation of R.C.

2907.03(A)(1). Dalton pled guilty to the amended counts and the remaining counts were

nolled. The trial court imposed prison terms of 30 months with respect to the abduction

charge and 54 months with respect to the sexual battery charge. The trial court ordered

the prison terms to be served consecutively for a cumulative sentence of 84 months.

Dalton timely appealed.

       {¶3} Dalton’s first assignment of error states:

              The trial court erred and/or abused its discretion when it failed to
       merge the offenses of abduction in violation of R.C. 2905.02(A)(2) and
       sexual battery in violation of R.C. 2907.03(A)(1).

       {¶4} Dalton argues that his convictions for abduction and sexual battery

constituted allied offenses of similar import and, as such, the trial court committed plain

error by failing to merge the offenses at sentencing. We find Dalton’s argument to be

without merit. The record reflects that the court and the parties addressed the issue of
merger at the plea hearing and prior to Dalton entering his guilty pleas. 1 The state

represented that the parties agreed that the two counts were not allied offenses and would

not merge. Dalton’s attorney affirmed this stipulation prior to his plea.

       {¶5} This court has previously recognized that a stipulation by the parties is

sufficient to resolve the issue of merger. State v. Rogers, 8th Dist. Cuyahoga Nos. 98292,

98584, 98585, 98586, 98587, 98588, 98589, and 98590, 2013-Ohio-3235, ¶ 40-44. In

Rogers, we explained:

       In the absence of a stipulation or an agreement on which offenses are allied,
       a guilty plea does not negate the court’s mandatory duty to merge allied
       offenses of similar import at sentencing.

       While facts establishing the conduct of the offender offered at the time of a
       plea may be used to establish that offenses are not allied, a guilty plea alone
       that does not include a stipulation or a finding that the offenses are not
       allied offenses of similar import does not conclusively resolve the merger
       question. (Citation omitted.)

Id. at ¶ 40-41.

       {¶6} We noted that there are many opportunities to address the allied-offense

issue along the path of case resolution including, “a stipulation on what offenses are

committed with separate conduct or a distinct animus.” Id. at ¶ 44.

       {¶7} Although the parties did, in fact, enter a stipulation in this case, the trial

court went a step further and elicited the basis of the stipulation. The parties explained

that the evidence that would have been presented at trial included two separate incidents,


      1
        We find this practice advisable because it provides clarity to the defendant
regarding the nature of the plea agreement and reduces uncertainty for all parties
in the process.
one which occurred in Dalton’s apartment and another that occurred when he refused to

let the victim leave his automobile. Dalton’s counsel stated that because of the alleged

separate acts the parties had agreed that there would be no merger.

        {¶8} Dalton’s first assignment of error is overruled.

        {¶9}   Dalton’s second assignment of error states:

        The court erred by failing to include the defendant’s sex offender
        classification in the sentencing journal entry.

        {¶10} The trial court held an Adam Walsh Act classification hearing and informed

Dalton that he would be classified as a Tier III sexual offender pursuant to his guilty plea

to the sexual battery charge.      At sentencing the trial court noted that Dalton had

previously been adjudicated a Tier III sex offender and reiterated his duties as a sex

offender. However, the trial court’s sentencing entry failed to state that Dalton is a Tier

III sex offender.

        {¶11} R.C. 2929.19(B)(3)(a) requires a trial court to include in an offender’s

sentence a statement that the offender is a Tier III sex offender. See, e.g., State v. Kase,

187 Ohio App.3d 590, 2010-Ohio-2688, 932 N.E.2d 990 (7th Dist.).

        {¶12} Under these circumstances it is appropriate to remand the case to the trial

court to correct its sentencing journal entry to accurately reflect Dalton’s classification as

a Tier III sex offender. State v. Mahan, 8th Dist. Cuyahoga No. 95696, 2011-Ohio-5154,

¶ 65.

        {¶13} Dalton’s second assignment of error is sustained.

        {¶14} The judgment of the trial court is affirmed in part, reversed in part and this
case is remanded for the trial court to correct the sentencing entry.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

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

Rule 27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
