STATE OF OHIO, PLAINTIFF-APPELLEE vs. JARED RECOB, DEFENDANT-APPELLANT
No. 100012
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 13, 2014
2014-Ohio-929
BEFORE: Keough, P.J., Kilbane, J., and McCormack, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR–12-568960; RELEASED AND JOURNALIZED: March 13, 2014
Rick Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Jared Recоb, appeals his sentences for pandering sexually-oriented matter involving a minor and possessing criminal tools. Finding no merit to the appeal, we affirm.
I. Background
{¶2} In November 2012, the Cuyahoga County Grand Jury returned a 31-count indictment against Recob. The indictment stemmed from Recob‘s use of his computer to share videos of child pornography with other individuals. Counts 1 through 7 charged pandering sexually-oriented matter involving a minor in violation of
{¶3} On March 14, 2013, Recob appeared in court with defense counsel to enter a guilty plea pursuant to a plea agreement with the state. The prosecutor outlined the plea agreement and informеd the court that Recob “agrees that these are not allied offenses of similar import” and that the court could impose consecutive sentences. Defense counsel then informed the court that she had explained to Recob the rights he
{¶4} After questioning Recob regarding his understanding of the rights he would be waiving and the potentiаl penalties associated with the offenses to which he would be pleading guilty, the trial court specifically inquired of defense counsel regarding whether she had considered each count to verify that the offenses were not allied offenses of similar import. Defense counsel stated that she had dоne so but then informed the court that the state had just provided to defense counsel that morning a computer forensic analysis report that could affect the determination of whether the offenses were allied. The trial court continued the plea hearing to allow defense counsel time to review the report and make an allied offenses determination.
{¶5} On April 23, 2013, Recob again appeared with defense counsel to enter a guilty plea pursuant to a plea agreement with the state. The state again outlined the proposed plea agreement for the court. The prosecutor indicated that Recob would plead guilty to Counts 1 through 16 and Count 31 of the indictment, and the other counts would be nolled. The prosecutor informеd the court that “as part and parcel of the plea agreement in this matter, it‘s the state‘s understanding defendant will agree and stipulate that the offеnses to which he‘s about to enter a plea of guilty are non-allied offenses.”
{¶6} Following the state‘s recitation of the plea agreement, defеnse counsel informed the court that there was “no longer an issue” regarding allied offenses and that “the applicable law and case law support the state‘s position” that the offenses to which
{¶7} The trial cоurt subsequently sentenced Recob to four years incarceration on each of Counts 8 through 16, concurrent, and to ten months incarceration on Count 31, to be served consecutive to the four-year sentence on Counts 8 through 16. The trial court also ordered Recob to serve five years of community control sanctions on Counts 1 through 7, consecutive to and commencing after the completion of the prison term. Recob appeals frоm this judgment.
II. Analysis
{¶8} In his single assignment of error, Recob asserts that the trial court erred in not merging allied offenses of similar import at sentencing. Specifically, he contends that the court should have merged Counts 1 through 4, which occurred on July 13, 2012, and Counts 5 through 7, which occurred on July 23, 2012.
{¶10} As the Ohio Supreme Court observed in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, it is well established that there may be only one convictiоn for allied offenses of similar import and, therefore, allied offenses must be merged at sentencing. Id. at ¶ 26. Because a trial court is prohibited from imposing individuаl sentences for counts that constitute allied offenses of similar import, a defendant‘s plea to multiple counts does not affect the court‘s duty tо merge those counts at sentencing. Id. Nevertheless, the Ohio Supreme Court observed in Underwood that
nothing in this decision precludes the state and a defendant from stipulating that the offenses were committed with sepаrate 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.
{¶11} Here, the record of the plea agreement is not “silent” as to the issue of allied offenses. It clearly reflects that as part of his plea bargain, the statе and Recob stipulated that the offenses to which he was pleading guilty were not allied offenses of similar import, and, further, that Recob understood that he could be sentenced to separate terms on each of Counts 1 through 4 and 5 through 7. Because of the stipulation, the trial court was not obligated tо determine whether the offenses were allied and did not err in not merging the offenses at sentencing. See, e.g., State v. Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 48-49; State v. Ward, 8th Dist. Cuyahoga No. 97219, 2012-Ohio-1199, ¶ 17-20; State v. Donaldson, 2d Dist. Montgomery No. 24911, 2012-Ohio-5792, ¶ 25. The assignment of error is overruled.
{¶12} Affirmed.
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 bаil 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR