State v. Lee, 105894

• Decision Date: 10 May 2018
• Docket Number: No. 105894,105894
• Citation: 2018 Ohio 1839,112 N.E.3d 65
• Parties: STATE of Ohio, Plaintiff–Appellee v. Alijah K. LEE, Defendant–Appellant
• Court: Ohio Court of Appeals

112 N.E.3d 65

2018 Ohio 1839

STATE of Ohio, Plaintiff–Appellee

v.Alijah K. LEE, Defendant–Appellant

No. 105894

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: May 10, 2018

J. Philip Calabrese, Porter Wright Morris & Arthur, L.L.P., 950 Main Avenue, Suite 500, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT

Michael C. O'Malley, Cuyahoga County Prosecutor, By: Timothy R. Troup, Assistant Prosecuting Attorney, Justice Center—8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE

BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, J.:

{¶ 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 R.C. 2953.08(D)(1). R.C. 2953.08(D)(1) states as follows:

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 (" R.C. 2953.08(D)(1) is another example of a statutory limit on a court of appeals' jurisdiction to hear an appeal.").

{¶ 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." R.C. 2953.08(D)(1). State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph two of the syllabus.¹

{¶ 4} Lee neither claims, nor even remotely suggests, that his sentences are not authorized by law. Lee simply discusses the merits of his sentences without regard to his ability to appeal them under R.C. 2953.08. A defendant's right to appeal a sentence is derived from R.C. 2953.08. Underwood at ¶ 10. "[I]f a jointly recommended sentence imposed by a court is ‘authorized by law,’ then the sentence ‘is not subject to review.’ " State v. Sergent , 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 15. There is no dispute from the record that the trial court imposed the sentence that was jointly recommended. R.C. 2953.08(D)(1). Thus, the only question is whether the sentences imposed 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 R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions." (Emphasis sic.) Sergent at ¶ 26, quoting Underwood at paragraph two of the syllabus. One of those mandatory provisions is R.C. 2941.25(A). Underwood recognized that "when a sentence is imposed on multiple counts that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D) does not bar appellate review of that sentence even though it was jointly recommended by the parties and imposed by the court." (Emphasis added.) Underwood at ¶ 26. Thus, that statutory section prohibits sentencing on multiple offenses only if the trial court determines or the parties concede that the offenses are allied and subject to merger. State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 27–28 ; State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860 ; see also Underwood at ¶ 21. If a trial court sentences a defendant on separate counts deemed to be allied offenses, the sentence is both contrary to law and not authorized by law, and a trial court plainly errs in imposing such sentences. Underwood at ¶ 21, 31.

{¶ 6} Often overlooked is the fact that Underwood did not involve an agreement on the merger issue implicating R.C. 2953.08(D)(1). State v. Underwood , 2d Dist. Montgomery No. 22454, 2008-Ohio-4748, 2008 WL 4278145, ¶ 24. After the defendant pleaded guilty, the state prepared a sentencing memorandum conceding that the two counts merged for the purposes of sentencing. Id. The trial court nonetheless imposed concurrent sentences on both counts. Id. at ¶ 27. The error in Underwood was that the court imposed separate sentences on counts deemed to be allied offenses of similar import at the sentencing hearing. No court has authority to impose such sentences, which are void as a matter of law. Williams at ¶ 28. Regardless of R.C. 2953.08(D)(1), an appellate court has authority to review sentences that are void. Id. , citing State v. Singleton , 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 25 (when a sentence is contrary to law, and thus void, it is a nullity—it is as though it never occurred).

{¶ 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 R.C. 2941.25. State v. Cunningham , 8th Dist. Cuyahoga No. 104520, 2017-Ohio-4069, 2017 WL 2378124, ¶ 8, citing State v. Booker , 8th Dist. Cuyahoga No. 101886, 2015-Ohio-2515, 2015 WL 3899217, ¶ 18–19. Waiving rights under R.C. 2941.25 arises in a variety of ways and is not limited to an agreement expressly referencing R.C. 2941.25. State v. Black , 2016-Ohio-383, 58 N.E.3d 561, ¶ 16 (8th Dist.), citing Rogers at ¶ 20. Black noted that in Rogers , the Ohio Supreme Court indicated that "[i]t is possible for an accused to expressly waive the protection afforded by R.C. 2941.25, such as by ‘stipulating in the plea agreement that the offenses were committed with separate animus.’ " (Emphasis sic.) Id., quoting Underwood at ¶ 29. Thus, expressly stipulating that the offenses were committed with a separate animus is not the exclusive method of waiving rights under R.C. 2941.25.

{¶ 8} Agreeing to serve consecutive sentences is equivalent to agreeing that multiple offenses are separate under R.C. 2941.25. The result is the same. The trial court is authorized to impose separate sentences on each count irrespective of the lack of R.C. 2929.14(C)(4) findings that ordinarily render the consecutive sentence as being contrary to law. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, at ¶ 29.

{¶ 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 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9. Therefore, agreeing to consecutively serve multiple sentences includes the defendant's agreement that the sentences are separate for the purposes of R.C. 2941.25.

{¶ 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, 2018 WL 386587, ¶ 11. This ends the appellate inquiry in this case. We have no authority to review the sentence. R.C. 2953.08(D)(1).

{¶ 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 R.C. 2941.25 by agreeing to consecutively serve the separate sentences, he at the least forfeited the merger argument by failing to object to the imposition of multiple sentences at the sentencing hearing. The trial court did not consider R.C. 2941.25 at sentencing because Lee failed to object to his sentences. It is only once the allied-offense issue is raised by the defendant that the mandatory sentencing provision under R.C. 2941.25 may be implicated, but only in situations in which the trial court concludes or the parties concede that the offenses are allied ones of similar import. Williams at ¶ 25–28. Accordingly, the sentences in this case comport with all mandatory sentencing provisions as contemplated under Underwood and R.C. 2953.08(D)(1), even if Lee had not negotiated the question of merger out of the sentencing equation.

{¶ 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 R.C. 2953.08(D)(1). The existence of plain error, a standard of appellate review, does not resolve or even impact the threshold question of whether a sentence is "authorized by law" under R.C. 2953.08(D)(1), a legal determination focusing on the trial court's mandatory sentencing obligations. The plain-error standard of review necessarily assumes that appellate review of a sentence is authorized under R.C. 2953.08. If an imposed agreed sentence is "authorized by law," we lack jurisdiction to...