State v. Underwood

• Citation: 2010 Ohio 1,922 N.E.2d 923,124 Ohio St.3d 365
• Decision Date: 05 January 2010
• Docket Number: No. 2008-2228.,No. 2008-2133.,2008-2133.,2008-2228.
• Parties: The STATE of Ohio, Appellant, v. UNDERWOOD, Appellee.
• Court: United States State Supreme Court of Ohio

922 N.E.2d 923

124 Ohio St.3d 365

2010-Ohio-1

The STATE of Ohio, Appellant, v. UNDERWOOD, Appellee.

No. 2008-2133.

No. 2008-2228.

Supreme Court of Ohio.

Submitted September 1, 2009.

Decided January 5, 2010.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Kelly D. Madzey, Assistant Prosecuting Attorney, for appellant.

Timothy Young, Ohio Public Defender, and Claire R. Cahoon, Assistant Public Defender, for appellee.

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.

LANZINGER, J.

{¶ 1} This case presents us with the question of whether R.C. 2953.08(D)(1)¹ precludes an appeal of a jointly recommended sentence when that sentence includes multiple counts of allied offenses of similar import. Because we conclude that such a sentence is not authorized by law, and is therefore appealable, we affirm.

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 R.C. 2913.02(A)(3). The "B" indictment charged aggravated theft by exerting control over the property beyond the scope of the victims' consent, a violation of R.C. 2913.02(A)(2). Similarly, counts two and three of the August 2006 indictment charged Underwood with theft from his employer of more than $500 on March 3, 2003. As with the third-degree felony counts, one fifth-degree felony theft count alleged theft beyond the scope of the owner's consent, while the other alleged theft by deception. Thus, although Underwood faced four separate counts, they relate to only two acts: theft of over $100,000 from the same victims and theft of over $500 from his employer.

{¶ 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 considered allied offenses of similar import and would require the Court to sentence the defendant to only one of the thefts."

{¶ 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 R.C. 2941.25(A) by imposing a sentence on each of the four counts for which Underwood was found guilty. In his supplementary brief, Underwood argued that the trial court had committed plain error by imposing multiple sentences for allied offenses of similar import and that he had received ineffective assistance of counsel because his attorney had failed to object to a sentence that contained multiple sentences for allied offenses of similar import. The state responded that Underwood had waived any claim of error with regard to allied offenses and that his sentence was not reviewable on appeal because it was imposed pursuant to a plea agreement, which included a sentence jointly recommended by the parties. The state also argued that Underwood did not suffer any prejudice because the trial court had imposed concurrent sentences and did not, therefore, commit plain error.

{¶ 8} The court of appeals determined that R.C. 2953.08(D)(1) did not bar review of Underwood's sentence. State v. Underwood, 2d Dist. No. 22454, 2008-Ohio-4748, 2008 WL 4278145, ¶ 26. The court reasoned, "Because the required merger of convictions must precede any sentence the court imposes upon a conviction, [Underwood's] agreement to the multiple sentences the court imposed could not waive his right to the prior merger that R.C. 2941.25 requires. Neither could his no contest pleas waive his right to challenge his multiple convictions on double jeopardy grounds." Id. at ¶ 23. The court of appeals concluded that, in light of the state's concession that the offenses were allied offenses of similar import, Underwood's multiple sentences were not authorized by law. It therefore vacated the convictions for counts one and three. Id. at ¶ 30.

{¶ 9} Upon the state's motion, the Second District Court of Appeals certified its decision as being in conflict with decisions from the Third, Eighth, Tenth, and Twelfth District Courts of Appeals on the following issue: "Is an agreed and jointly recommended sentence `authorized by law' under R.C. 2953.08(D)(1), and thus not reviewable, when the agreed sentence includes convictions for offenses that are allied offenses of similar import?" We accepted the conflict and the state's discretionary appeal. State v. Underwood, 120 Ohio St.3d 1484, 2009-Ohio-278, 900 N.E.2d 196, and 120 Ohio St.3d 1486, 2009-Ohio-278, 900 N.E.2d 197.

Legal Analysis

Appellate Rights — R.C. 2953.08

{¶ 10} A defendant's right to appeal a sentence is based on specific grounds stated in R.C. 2953.08(A):

{¶ 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. R.C. 2953.08(D)(1). If all three conditions are met, the defendant may not appeal the sentence.

{¶ 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 sentencing hearing, the trial court confirmed that Underwood had not paid restitution and therefore did impose an aggregate two-year prison term.

{¶ 18} The state argues that R.C. 2953.08(D)(1) bars appellate review of sentences jointly recommended by the state and defendant even if the agreed sentence includes convictions for offenses that are allied offenses of similar import. The issue is whether Underwood's sentence is "authorized by law." If it is not, then R.C. 2953.08(D)(1)'s exception to appealability does not apply.

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 R.C. 2953.08. Several courts of appeals have held that a sentence is authorized by law within the meaning of the statute simply if the sentence falls within the statutory range for the offense. State v. Sawyer, 183 Ohio App.3d 65, 2009-Ohio-3097, 915 N.E.2d 715, ¶ 70; State v. Bristow (Jan. 29, 1999), 3d Dist. No. 3-98-21, 1999 WL 84868, *3; State v. Jackson, 8th Dist. No. 86506, 2006-Ohio-3165, 2006 WL 1705133, ¶ 49; State v. Henderson (Sept. 27, 1999), 12th Dist. No. CA99-01-002, 1999 WL 761002, *2.

{¶ 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 (R.C. 2929.19(B)(3)(c)) or consecutive sentences (R.C. 2929.14(D) and (E)), would be unreviewable. Our recent cases illustrate that sentences that do not comport with mandatory provisions are subject to total resentencing. See, e.g., State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 11. Nor can agreement to such sentences insulate them from...