STATE OF OHIO, PLAINTIFF-APPELLEE vs. ALIJAH K. LEE, DEFENDANT-APPELLANT
No. 105894
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 10, 2018
[Cite as State v. Lee, 2018-Ohio-1839.]
BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-16-612252-B
J. Philip Calabrese
Porter Wright Morris & Arthur, L.L.P.
950 Main Avenue, Suite 500
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Timothy R. Troup
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Alijah Lee appeals his 14-year, aggregate sentence that was imposed by the trial court upon the parties’ recommendation. Lee‘s convictions are affirmed.
{¶2} The sentences imposed in this case are not ones that can be reviewed under
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.
In that statutory section, the legislature limited appellate jurisdiction with respect to agreed sentences. State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 22 (”
{¶3} Lee agreed to serve an aggregate term of 14 years in prison through the imposition of minimum terms on all counts to be served consecutive to each other. Tr. 19:7-11 (confirming that the defendant‘s plea agreement and jointly recommended sentence included the understanding that all minimum-termed sentences would be consecutively served). A defendant has no right to appeal his sentences if they are jointly recommended by the parties, the trial court imposes the agreed sentences, and the sentences are “authorized by law.”
{¶5} Underwood stands for the proposition that “[a] sentence is ‘authorized by law’ and is not appealable within the meaning of
2010-Ohio-1, 922 N.E.2d 923.
{¶6} Often overlooked is the fact that Underwood did not involve an agreement on the merger issue implicating
{¶7} Underwood nevertheless acknowledged the possibility that an agreed sentence that involves a discretionary sentencing decision is unreviewable. Sergent at ¶ 29, citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690. Accordingly, defendants can waive application of
{¶8} Agreeing to serve consecutive sentences is equivalent to agreeing that multiple offenses are separate under
{¶9} A defendant cannot agree to consecutively serve sentences without agreeing that the court has authority to impose the individual sentences on each count. Stated another way, agreeing to the imposition of multiple sentences is a necessary prerequisite to agreeing to consecutive service, for it is “[o]nly after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively.” State v. Saxon, 109
{¶10} In this case, Lee agreed that consecutively serving the minimum prison terms on all counts was part of his plea agreement. Tr. 19:7-11. Lee necessarily waived the argument that the underlying offenses were allied ones of similar import through his agreement to serve all counts consecutively; otherwise, consecutive sentences would not have been possible. See, e.g., Black at ¶ 17. Since Lee waived the merger issue, his sentences are authorized by law. Sergent; State v. Johnson, 8th Dist. Cuyahoga No. 105904, 2018-Ohio-102, ¶ 11. This ends the appellate inquiry in this case. We have no authority to review the sentence.
{¶11} For the sake of discussion, and in light of the concurring opinion‘s misplaced focus on Rogers, even if Lee had not waived his right to challenge his sentences under
{¶12} The concurring opinion suggests the existence of a paradox that permits appellate review of the sentences in this case, that under Rogers the appellate court must review the validity of the imposed sentences under the plain-error standard of review in order to determine whether the sentences are “authorized by law” under
{¶13} The Ohio Supreme Court has held that when a trial court “finds that convictions are not allied offenses of similar import, or when it fails to make any finding regarding whether the offenses are allied,” imposing separate sentences is not contrary to law and any allegations of error must be asserted through a direct appeal. (Emphasis added.) Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 26, citing Rogers. In other words, there is no mandatory duty for a trial court to sua sponte
{¶14} However, that proposition is no longer valid, if it ever was. See generally Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860. In Rogers, it was determined that the burden to raise
{¶15} Notwithstanding, the concurring opinion concludes that “[a]lthough Lee failed to raise the issue of allied offenses in the trial court, we are required to review his claim for plain error in order to determine whether or not it is reviewable under
{¶16} The resolution of the plain error inquiry does not impact the determination of whether a sentence is “authorized by law.” A sentence is “authorized by law” if it comports with all mandatory sentencing provisions because “[a] trial court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory provisions.” Underwood at ¶ 20.
{¶17} Further, any reliance on
{¶18} In Williams, the trial court deemed two counts to be allied offenses of similar import, but nonetheless imposed separate sentences to be served concurrently in the sentencing entry. Williams at ¶ 7. The Ohio Supreme Court concluded that those sentences were void and subject to attack irrespective of
{¶19} According to Williams, the Underwood analysis interpreting
{¶20} In consideration of the foregoing, the only review permitted at this juncture is to determine whether we have jurisdiction to review the imposed agreed sentence. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095. Under
{¶21} Lee advanced a single claim that permeated every appellate argument — that the imposition of multiple sentences was plain error under
{¶22} Lee‘s sentence is not contrary to law as contemplated in Underwood, through the lens of Williams — the aggregate sentence is not comprised of sentences for offenses the trial court determined or the parties conceded to be allied ones of similar import. And his sentences comport with all mandatory sentencing provisions — when the plea agreement is silent on the issue of allied offenses of similar import, the trial court is not obligated under
{¶23} It would be simple to consider the merits of Lee‘s sentencing arguments in this case. Under Rogers, we review the failure to consider
{¶24} The practice of reviewing sentences such as the underlying ones in this case, would condone the review of an otherwise unreviewable sentence, nullifying the statutory limitation on appellate jurisdiction to review sentences. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, at ¶ 22. The concern is not necessarily this case, but the long-term impact of such a holding. Freely reviewing sentences in such cases would only serve to undermine the state‘s incentive to entertain plea bargains in the first place. As has been recognized,
[A] plea bargain is, after all, a bargain. In the bargain, the prosecutor achieves certain benefits: a foregoing of the risk that the defendant will be found not guilty, relief from the burden of trying the case and a concomitant ability to devote prosecutorial resources to other cases, and limitations on the defendant‘s right to appeal an agreed sentence, see
R.C. 2953.08(D)(1) . In return, the prosecutor is able to offer the defendant certain sentencing considerations. Both sides exchange risk about the outcome for an enhanced degree of certainty.
(Emphasis added.) State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 17.
{¶25} Finally, Lee argues that his plea was invalid because his trial counsel‘s assistance fell below the objective standards of reasonableness in rendering advice regarding the sentencing agreement. Generally the validity of the plea is separate from the sentencing review precluded under
{¶26} According to Lee, he would not have pleaded guilty to such a long sentence had he been advised that the various offenses “constitute allied offenses under Ohio
{¶27} Lee cannot challenge his attorney‘s failure to object to aspects of the sentences to which Lee agreed. See, e.g., State v. Anthony, 2015-Ohio-2267, 37 N.E.3d 751, ¶ 66 (8th Dist.) (attorney cannot be deemed ineffective for failing to object to an agreed sentence). Without any demonstration that his sentences are not authorized by law or are contrary to law, his ineffective assistance of counsel argument is disregarded pursuant to
{¶28} Lee‘s sentences are authorized by law and are ones that were both jointly recommended by the parties and imposed by the trial court. There was no mandatory
It is ordered that appellee recover from appellant 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 common pleas court 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.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, J., CONCURS;
EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION
EILEEN T. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:
{¶30}
{¶31} A sentence is “authorized by law” and not appealable within the meaning of
{¶32} Lee‘s first assignment of error states: “The trial court erred by accepting and imposing a sentence for allied offenses that merge for purposes of sentencing.” Within this assigned error, Lee argues his aggravated robbery and kidnapping convictions “are allied offenses that constitute a single offense for sentencing purposes.” (Appellant‘s brief p. 8.) He also asserts that “these offenses were not committed separately” and that “they were not committed with a separate animus or motivation.” Thus, Lee argues he
{¶33}
{¶34} The dissenting justices in Underwood made arguments similar to that put forth by the majority. Justice O‘Donnell argued that Underwood‘s sentence was not reviewable because it was jointly recommended, and Underwood received the benefit of his plea bargain. Id. at ¶ 60. Justice Cupp argued that Underwood‘s agreement to the sentence “should be characterized as a specific waiver of the ability to challenge the sentence.” Id. at ¶ 73. However, the majority in Underwood rejected these arguments,
{¶35} The majority in Underwood also observed that courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and that they do not presume acquiescence in the loss of fundamental rights. Id. ¶ 32. Moreover, “‘[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.‘” Id., quoting State v. Adams, 43 Ohio St.3d 67, 69, 538 N.E.2d 1025 (1989). Thus, the majority in Underwood suggested that a defendant could waive the issue of allied offenses by “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. Lee neither stipulated that his offenses were committed with a separate animus nor did he indicate a specific intent to relinquish his right to be free from Double Jeopardy.
{¶36} Nevertheless, the majority maintains, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that Lee forfeited his allied offenses claim by failing to raise the issue in the trial court. But a forfeited error is not unreviewable; it is reviewable for plain error. Rogers at ¶ 22. Moreover, the “imposition of multiple sentences for allied offenses of similar import is plain error.” Underwood at ¶ 31, citing Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102. Although Lee failed to raise the issue of allied offenses in the trial court, we are required to review his claim for plain error in order to determine whether or not it is reviewable under
{¶37} The majority further asserts, citing State v. Sergeant, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, that “by agreeing to consecutively serve the sentences imposed on all counts, his sentences are ‘authorized by law’ irrespective of the finding under
{¶38} Finally, the majority maintains that the practice of reviewing sentences such as the one at issue in this case “would condone the review of an otherwise unreviewable sentence” and thereby “nullify[] the statutory limitation on appellate jurisdiction to review sentences.” (Majority opinion at ¶ 21.) But that is the paradox set forth in