THE STATE OF OHIO, APPELLANT, v. UNDERWOOD, APPELLEE.
Nos. 2008-2133 and 2008-2228
Supreme Court of Ohio
Submitted September 1, 2009—Decided January 5, 2010
124 Ohio St.3d 365, 2010-Ohio-1
LANZINGER, J.
{¶ 1} This case presents us with the question of whether
Case Background
{¶ 2} Richard Underwood, the appellee, was originally indicted on August 1, 2006, on one count of aggravated theft, a felony of the third degree, and two counts of theft, felonies of the fifth degree. A supplemental indictment, identified as the “B” indictment, was returned on January 16, 2007, for another count of aggravated theft, also a felony of the third degree. Underwood, therefore, faced a total of four counts.
{¶ 3} The third-degree felony charges in count one and the “B” indictment cover events occurring in 2005 when Underwood did not fulfill his agreements to build or remodel homes and retained the victims’ downpayments totaling more than $100,000. Count one alleged aggravated theft by deception, a violation of
{¶ 4} On the day of trial, Underwood entered pleas of no contest to the four counts. Although the plea documents did not mention any sentencing agreement, Underwood acknowledged that he had agreed to a sentencing bargain: If he paid $40,000 in restitution before his sentencing, he would either serve local incarceration as part of a term of community control or serve a prison term of no more than two years, with the state not opposing judicial release. If he failed to pay $40,000 in restitution before sentencing, he would lose the option of community control and would be sentenced to a prison term not to exceed two years.
{¶ 5} Before the sentencing hearing was held, the state filed a sentencing recommendation asking that Underwood be ordered to pay $112,488.34 in restitution and be sentenced to serve a minimum of two years in prison.2 The state also noted, “The two counts in each of the different categories of thefts would be
{¶ 6} Underwood admitted at his sentencing hearing that he had not paid any restitution. The trial court then sentenced him to a prison term of one year on count one, six months each on counts two and three, and two years on the sole count in the “B” indictment. The court ordered all sentences to be served concurrently for an aggregate sentence of two years.3 Although the sentencing recommendation had referred to them, there was no discussion of allied offenses at the hearing.
{¶ 7} On appeal, appointed counsel filed a brief pursuant to Anders v. California (1967), 386 U.S. 738, 744-745, 87 S.Ct. 1396, 18 L.Ed.2d 493, asserting that there were no meritorious issues to argue. The Second District Court of Appeals, in its independent review, identified and ordered briefing on whether the trial court had violated
{¶ 8} The court of appeals determined that
Legal Analysis
Appellate Rights—R.C. 2953.08
{¶ 10} A defendant‘s right to appeal a sentence is based on specific grounds stated in
{¶ 11} “In addition to any other right to appeal and except as provided in division (D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant on one of the following grounds:
{¶ 12} “* * *
{¶ 13} “(4) The sentence is contrary to law.”
{¶ 14} Subsection (D)(1) provides an exception to the defendant‘s ability to appeal:
{¶ 15} “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.”
{¶ 16} In other words, a sentence that is “contrary to law” is appealable by a defendant; however, an agreed-upon sentence may not be if (1) both the defendant and the state agree to the sentence, (2) the trial court imposes the agreed sentence, and (3) the sentence is authorized by law.
{¶ 17} The parties do not contest the first two conditions but contest the third. Underwood acknowledges that his plea agreement provided that if he did not pay $40,000 in restitution before sentencing, he would not receive community control and instead would be sentenced to no more than two years in prison.4 At the
{¶ 18} The state argues that
Authorized by Law—R.C. 2953.08(D)(1)
{¶ 19} We begin with the meaning of “authorized by law.” The term is not defined in
{¶ 20} We do not agree with such a narrow interpretation of “authorized by law.” Adopting this reasoning would mean that jointly recommended sentences imposed within the statutory range but missing mandatory provisions, such as postrelease control (
{¶ 21} Underwood argues that the term “authorized by law” is simply the inverse of “contrary to law.” We do not agree, because the structure of
{¶ 22} Our holding does not prevent
Allied Offenses—R.C. 2941.25
{¶ 23} Because a sentence is authorized by law only if it comports with all mandatory sentencing provisions, we must now determine whether the directive in
{¶ 24} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 25} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶ 26}
{¶ 27} We have acknowledged that “[t]he General Assembly intended a jointly agreed-upon sentence to be protected from review precisely because the parties agreed that the sentence is appropriate. Once a defendant stipulates that a particular sentence is justified, the sentencing judge no longer needs to independently justify the sentence.” State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 25. However, Porterfield did not involve a mandatory sentencing provision, but merely the discretionary decision to impose consecutive sentences. Both
{¶ 28} The state complains that allowing a defendant to appeal in this situation will stifle the practice of plea bargaining and will threaten the finality and reliability of plea agreements. This concern appears overstated. It should be noted that currently, trial courts may reject plea agreements and that they are not bound by a jointly recommended sentence. See State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6.
{¶ 29} With respect to the argument that the merger of allied offenses will allow defendants to manipulate plea agreements for a more beneficial result than they bargained for, we 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
{¶ 30} In this case, the state acknowledged that count one of the August 2006 indictment and the sole count in indictment “B” were allied offenses of similar import and that counts two and three of the August 2006 indictment were also allied. Therefore, the trial court was required under
{¶ 31} Finally, the state argues that where a defendant is sentenced to a jointly recommended sentence pursuant to a plea agreement, the failure to merge convictions on allied offenses cannot be said to constitute plain error. We disagree. Under
{¶ 32} Justice Cupp‘s dissent asserts that “Underwood‘s agreement to the sentence here should be characterized as a specific waiver of the ability to challenge the sentence.” We have held that ” ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” (Emphasis added.) State v. Adams (1989), 43 Ohio St.3d 67, 69, 538 N.E.2d 1025, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461, quoting Aetna Ins. Co. v. Kennedy (1937), 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177, and Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio (1937), 301 U.S. 292, 307, 57 S.Ct. 724, 81 L.Ed. 1093. There is nothing in the record that demonstrates that Underwood was informed that he was agreeing to be convicted of allied offenses, thereby waiving his constitutional right to be free from double jeopardy.
Conclusion
{¶ 33} We hold that
Judgment affirmed.
LUNDBERG STRATTON, O‘DONNELL, and CUPP, JJ., dissent.
O‘CONNOR, J., concurring.
{¶ 34} I concur in the conclusion that
{¶ 35} I write separately, however, to emphasize my view that allied offenses are merged at sentencing solely for the purpose of sentencing.
MOYER, C.J., concurs in the foregoing opinion.
O‘DONNELL, J., dissenting.
{¶ 36} Respectfully, I dissent.
{¶ 37} The Second District Court of Appeals agreed with the state of Ohio that its decision in this case conflicted with judgments of the Third, Eighth, Tenth, and Twelfth District Courts of Appeals, and it certified the following question to the Supreme Court for resolution:
{¶ 38} “Is an agreed and jointly recommended sentence ‘authorized by law’ under
Appealability of a Felony Sentence
{¶ 39}
{¶ 40} “In addition to any other right to appeal and except as provided in division (D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant on one of the following grounds:
{¶ 41} “(1) The sentence consisted of or included the maximum prison term allowed for the offense by division (A) of section 2929.14 or section 2929.142 of the Revised Code, the sentence was not imposed pursuant to division (D)(3)(b) of section 2929.14 of the Revised Code, the maximum prison term was not required for the offense pursuant to Chapter 2925. or any other provision of the Revised Code, and the court imposed the sentence under one of the following circumstances:
{¶ 42} “(a) The sentence was imposed for only one offense.
{¶ 44} “(2) The sentence consisted of or included a prison term, the offense for which it was imposed is a felony of the fourth or fifth degree or is a felony drug offense that is a violation of a provision of Chapter 2925. of the Revised Code and that is specified as being subject to division (B) of section 2929.13 of the Revised Code for purposes of sentencing, and the court did not specify at sentencing that it found one or more factors specified in divisions (B)(1)(a) to (i) of section 2929.13 of the Revised Code to apply relative to the defendant. If the court specifies that it found one or more of those factors to apply relative to the defendant, the defendant is not entitled under this division to appeal as a matter of right the sentence imposed upon the offender.
{¶ 45} “(3) The person was convicted of or pleaded guilty to a violent sex offense or a designated homicide, assault, or kidnapping offense, was adjudicated a sexually violent predator in relation to that offense, and was sentenced pursuant to division (A)(3) of section 2971.03 of the Revised Code, if the minimum term of the indefinite term imposed pursuant to division (A)(3) of section 2971.03 of the Revised Code is the longest term available for the offense from among the range of terms listed in section 2929.14 of the Revised Code. As used in this division, ‘designated homicide, assault, or kidnapping offense’ and ‘violent sex offense’ have the same meanings as in section 2971.01 of the Revised Code. As used in this division, ‘adjudicated a sexually violent predator’ has the same meaning as in section 2929.01 of the Revised Code, and a person is ‘adjudicated a sexually violent predator’ in the same manner and the same circumstances as are described in that section.
{¶ 46} “(4) The sentence is contrary to law.
{¶ 47} “(5) The sentence consisted of an additional prison term of ten years imposed pursuant to division (D)(2)(a) of section 2929.14 of the Revised Code.
{¶ 48} “(6) The sentence consisted of an additional prison term of ten years imposed pursuant to division (D)(3)(b) of section 2929.14 of the Revised Code.” (Emphasis added.)
{¶ 49} Importantly, for purposes of review here, the statute carves out an all-inclusive exception in
{¶ 51} As we explained in State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 37, “[a] cardinal rule of statutory interpretation is that ‘[a] court must look to the language and purpose of the statute in order to determine legislative intent.’ State v. Cook (1998), 83 Ohio St.3d 404, 416, 700 N.E.2d 570. ‘[W]hen the General Assembly has plainly and unambiguously conveyed its legislative intent, there is nothing for a court to interpret or construe, and therefore, the court applies the law as written.’ State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus.” Further, as the court noted in State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 18, “courts are not free to delete or insert other words.”
{¶ 52} Notably, the exception to the appealability of sentences provided in
{¶ 53} In State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, we addressed the appealability of a jointly recommended sentence in the context of a trial court that failed to make findings in connection with imposing a consecutive sentence. Justice O‘Connor, writing for the court, there stated:
{¶ 54} “Porterfield‘s sentence was authorized by law, was recommended jointly by him and the prosecution, and was imposed by a sentencing judge. Pursuant to
{¶ 55} The parties here do not dispute that the prosecuting attorney prepared and filed a written sentencing recommendation seeking a two-year term of incarceration, or that Underwood and his attorney agreed to that sentence. Also, there is no dispute that the trial court imposed that sentence. At issue here is whether a recommended and agreed-upon sentence is authorized by law when it includes convictions for allied offenses.
Authorized by Law
{¶ 56} The phrase “authorized by law” refers to the punishment for an offense that the General Assembly has authorized a trial court to impose. For the offenses at issue in this case, the General Assembly has authorized in
{¶ 57} The sentence imposed by the trial court in this case conforms to those statutes and has therefore been authorized by the legislature. The court imposed concurrent terms of incarceration of two years for aggravated theft in violation of
{¶ 58} Notably, every appellate district in Ohio—but for the Second District in this case—has similarly concluded that a sentence is authorized by law if it is within the statutory range of possible sentences established by the legislature. See State v. Royles, 1st Dist. Nos. C-060875 and C-060876, 2007-Ohio-5348, 2007 WL 2892017, ¶ 8; State v. Giesey, 3d Dist. No. 5-06-31, 2006-Ohio-6851, 2006 WL 3771982, at ¶ 9; State v. Duran, 4th Dist. No. 06CA2919, 2007-Ohio-2743, 2007 WL 1616628, at ¶ 11; State v. Starner, 5th Dist. No. CT2006-0038, 2007-Ohio-1219, 2007 WL 803648, at ¶ 9-13; State v. Eskridge, 6th Dist. No. L-06-1013, 2007-Ohio-4712, 2007 WL 2683556, at ¶ 15; State v. Smith, 7th Dist. No. 06-BE-64, 2007-Ohio-5244, 2007 WL 2851932, at ¶ 43; State v. Montgomery, 8th Dist. No. 83914, 2008-Ohio-443, 2008 WL 322830, at ¶ 8; State v. Mangus, 9th Dist. No. 23666, 2007-Ohio-5033, 2007 WL 2781202, at ¶ 10; State v. Billups, 10th Dist. No. 06AP-853, 2007-Ohio-1298, 2007 WL 853335, at ¶ 16; State v. Owens, 11th Dist. No. 06 JE 50, 2008-Ohio-3071, 2008 WL 2485593, at ¶ 17; State v. Miniard, 12th Dist. No. CA2006-03-074, 2007-Ohio-458, 2007 WL 313489, at ¶ 10.
{¶ 59} The majority opinion cleverly conflates the phrase “authorized by law” with the phrase “contrary to law.” While the former refers to what the General Assembly of this state has provided as a punishment for an offense, the latter is a description of an act taken by a court that imposes punishment that does not conform with what the legislature has prescribed. See, e.g., State v. Lodge, Montgomery App. No. 2004 CA 43, 2005-Ohio-1908, 2005 WL 937759, ¶ 64. See also Griffin & Katz, Ohio Felony Sentencing Law (2008) 1211, Section 10:8 (“Ignoring an issue or factors which a statute requires a court to consider renders the resulting judgment ‘contrary to law’ “).
{¶ 60} It is almost as if the majority seeks to challenge past decisions of this court holding that a contrary-to-law judgment is void and to propose that it should be voidable. Using examples of postrelease control and imposition of consecutive sentences—not at issue here—the majority has managed to go far afield of the narrow issue in this case: whether
Enforceability of a Plea Bargain
{¶ 61} The record reveals that Underwood agreed to plead no contest to four charges in exchange for the state‘s recommendation that he serve a maximum of two years’ incarceration. A plea bargain is a contract, see State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 50, subject to contract-law standards, see Baker v. United States (C.A.6, 1986), 781 F.2d 85, 90, and enforceable by specific performance, see Santobello v. New York (1971), 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427. He bargained with the state to achieve a desired outcome, avoided a potentially longer term of imprisonment, and is now precluded from challenging his convictions as allied offenses of similar import. Underwood having accepted and received the benefit of the recommended sentence, the plea agreement “is sufficient to withstand any later attack even when the attack involves a plea to allied offenses.” State v. Styles (Oct. 9, 1997), Cuyahoga App. No. 71052, 1997 WL 626058, *3. A defendant is “prohibited from appealing the trial court‘s acceptance of the agreed sentence in an attempt to circumvent the terms of the plea agreement at the expense of the interests of the state.” State v. Graham (Sept. 30, 1998), 10th Dist. No. 97APA11-1524, 1998 WL 680968, *3.
Forfeiture
{¶ 62} Underwood neither asked the court at the time of sentencing to merge the allied offenses nor objected to the failure of the court to do so, and pursuant to State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23, his failure to preserve an objection forfeits the ability to claim error on appeal absent a showing of plain error. In State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 78, we explained, “Plain error is not present unless but for the error complained of, the outcome of the trial would have been different.”
{¶ 63} Here, Underwood has failed to demonstrate plain error because he has not shown that the outcome of the proceeding would have been different. At the time he entered pleas of no contest to the four counts in the indictment, the court could have imposed a potential maximum sentence of 12 years’ incarceration.
{¶ 64} A sentence involving allied offenses that is authorized by law, jointly recommended by the parties, and imposed by the trial court is not subject to review because
{¶ 65} This conclusion is further fortified by the decisions in six appellate districts holding that
Conclusion
{¶ 66} A sentence in a criminal case that has been authorized by law, agreed to and jointly recommended by the parties, and imposed by a trial court in conformity with a plea-bargained agreement and applicable statutes is not subject to review even if that sentence includes convictions for allied offenses of similar import.
{¶ 67} Accordingly, the certified question should be answered in the affirmative, and the judgment of the Second District Court of Appeals should be reversed.
LUNDBERG STRATTON and CUPP, JJ., concur in the foregoing opinion.
{¶ 68} I respectfully dissent from the majority‘s decision.
{¶ 69} The punishment to which Underwood agreed and that the trial court imposed—two years’ imprisonment—was within the statutory range of permissible sentences for Underwood‘s crime. Thus, his two-year sentence was “authorized by law” within the meaning of
{¶ 70} By contrast, merger of allied offenses of similar import, while required by
{¶ 71} I therefore agree with Justice O‘Donnell‘s view expressed in his dissenting opinion that the sentence involved here was “authorized by law” for purposes of
{¶ 72} In addition, apart from any
{¶ 73} Underwood‘s agreement to the sentence here should be characterized as a specific waiver of the ability to challenge the sentence. See State v. McCausland, 124 Ohio St.3d 8, 2009-Ohio-5933, 918 N.E.2d 507, syllabus (a defendant waives the right to present a closing argument when he or she neither requests a
{¶ 74} A defendant who specifically bargains for and agrees to a sentence does more than fail to preserve an objection to the sentence, and therefore rather than forfeiting any objection, he affirmatively waives it. See State v. Hooper, 7th Dist. No. 03 CO 30, 2005-Ohio-7084, 2005 WL 3610335, ¶ 18, a case not involving an agreed sentence, in which the Seventh District Court of Appeals held that sentencing issues related to allied offenses of similar import are waived if not timely raised with the trial court. The court in that case noted the incongruity of a defendant‘s position in agreeing to a plea bargain but arguing on appeal that he “cannot be sentenced for the additional charge that was part of the plea bargain.” Id. at ¶ 20. See also State v. Antenori, 8th Dist. No. 90580, 2008-Ohio-5987, 2008 WL 4951248, ¶ 6 (“by voluntarily entering his guilty pleas to two separate offenses, defendant waived any argument that the same constituted allied offenses of similar import“).5 If a defendant who pleads guilty to allied offenses when there is not an agreed sentence waives the right to make an allied-offenses argument on appeal, a defendant who agrees to accept a sentence as part of a plea bargain certainly waives the right to argue allied offenses in challenging his sentence.
{¶ 75} Moreover, if this process is viewed as a waiver, then a plain-error analysis is unwarranted. See Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 23 (a waived right cannot be the basis for a claim of plain error under
{¶ 76} For these reasons, I dissent.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Kelly D. Madzey, Assistant Prosecuting Attorney, for appellant.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, and Robert Kenneth James, Assistant Solicitor, urging reversal for amicus curiae Attorney General of Ohio.