THE STATE OF OHIO, APPELLEE, v. SAWYER, APPELLANT.
No. 2009-1332
Supreme Court of Ohio
March 16, 2010
124 Ohio St.3d 547, 2010-Ohio-923
Submitted February 17, 2010
Shaw & Miller and Mark J. Miller, for appellant.
{¶ 1} The judgment of the court of appeals is reversed on the authority of State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, as to the court of appeals’ holding that it was without authority to review appellant‘s second and third assignments of error, and the cause is remanded to the court of appeals for further proceedings consistent with State v. Underwood.
MOYER, C.J., and PFEIFER, O‘CONNOR, and LANZINGER, JJ., concur.
LUNDBERG STRATTON and O‘DONNELL, JJ., dissent.
CUPP, J., dissents for the reasons stated in his dissenting opinion in State v. Underwood.
{¶ 2} Respectfully, I dissent.
{¶ 3} I continue to adhere to the views expressed in my dissent in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, that a sentence in a criminal case is authorized by law if it is within the statutory range of penalties established by the General Assembly. Id. at ¶ 55 (O‘Donnell, J., dissenting). Further, a sentence that is authorized by law, jointly recommended by the parties, and imposed by the court is not subject to review even if it includes convictions for allied offenses of similar import. Id. at ¶ 64 (O‘Donnell, J., dissenting). According to
{¶ 4} In this case, the grand jury indicted Tiffany Sawyer on two counts of felonious assault, second-degree felonies, each of which carries a maximum term of eight years’ incarceration. However, the prosecution and the defense reached an agreement: Sawyer agreed to plead guilty to two different counts of aggravated assault, fourth-degree felonies, and the parties agreed to jointly recommend an aggregate sentence of three years’ incarceration. The trial court accepted the guilty pleas and imposed the jointly recommended sentence of two consecutive 18-month terms, and the court of appeals affirmed that judgment. State v. Sawyer, 183 Ohio App.3d 65, 2009-Ohio-3097, 915 N.E.2d 715, ¶ 70.
{¶ 5} Notwithstanding Sawyer‘s agreement to a three-year sentence as punishment for her conduct, the majority relies on Underwood and reverses on the basis that the trial court‘s failure to merge the two counts of aggravated assault as allied offenses is subject to appellate review. Thus, not only does Sawyer receive the benefit of the plea-bargained agreement by avoiding convictions for felonious assault as well as the potential maximum eight-year term of incarceration on each count, but also she receives a sentence of one-half the term she agreed to for her conduct. This result denies the state the benefit of its bargain and the opportunity to convict Sawyer of the felonious-assault charges.
{¶ 6} The remedy fashioned by the majority in Underwood of merging the sentences for the allied offenses is patently unfair to the state because it fails to address the plea bargain and deals only with the sentence recommended by the
{¶ 7} The legislature never intended the allied-offenses statute,
{¶ 8} Because the majority has misinterpreted the manifest purpose of the legislature in enacting
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
THE STATE OF OHIO, APPELLEE, v. VON MINCY, APPELLANT.
No. 2009-1439
Supreme Court of Ohio
March 16, 2010
124 Ohio St.3d 549, 2010-Ohio-924
Submitted February 17, 2010
Timothy Young, Ohio Public Defender, and Claire R. Cahoon, Assistant Public Defender, for appellant.
{¶ 1} The judgment of the court of appeals is reversed on the authority of State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, and the cause is remanded to the court of appeals for further proceedings consistent with State v. Underwood.