Ohio Supreme Court Rules That Jointly Recommended Sentence May be Appealed If It is Not ‘Authorized by Law’

State v. Underwood, Slip Opinion No. 2010-Ohio-1.
Montgomery App. No. 22454, 2008-Ohio-4748. Certified question answered in the negative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, O'Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O'Donnell, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1.pdf

(Jan. 5, 2010) The Supreme Court of Ohio ruled today that R.C. 2953.08(D)(1), which bars a criminal defendant from appealing a jointly recommended sentence that is “authorized by law,” does not bar appellate review in cases where the sentence imposed by a trial court is contrary to a mandatory provision of the state’s criminal sentencing statutes.

Applying that rationale to a Montgomery County case, the Court held that R.C. 2953.08(D)(1) does not bar appellate review of a sentence that has been jointly recommended by the parties and imposed by the court when that sentence includes multiple convictions for offenses that are “allied offenses of similar import,” which by law must be merged into a single conviction subject to a single sentence under R.C. 2941.25.

The Court’s 4-3 majority opinion was authored by Justice Judith A. Lanzinger.

NOTE: This is one of two separate decisions announced today addressing the proper application of R.C. 2941.25, Ohio’s “allied offense statute.” See also Case No. 2008-1669, State v. Whitfield.

The case involved Richard Underwood of Dayton, a construction contractor who was charged with aggravated theft of more than $100,000 when he failed to perform contracts to build or remodel homes and retained the customers’ advances. Underwood was also charged with theft for a separate incident in which he stole more than $500 from his employer. As part of a plea bargain with the state, Underwood entered no contest pleas to two counts of aggravated theft and two counts of theft. In exchange, the state agreed to a recommended sentence of no more than two years’ imprisonment with no objection to early judicial release. The trial court found Underwood guilty on all four counts and sentenced him to prison terms of one year on the first count of aggravated theft, two years on the second count of aggravated theft, and six months on each of the two theft counts, with all terms to be served concurrently (at the same time). The result was an aggregate prison term of two years.

On appeal, appointed counsel filed an Anders brief (a brief asserting the attorney’s belief that there were no meritorious issues to argue). In its independent review , the 2nd District Court of Appeals identified and ordered briefing on whether the trial court’s sentencing of Underwood for two aggravated theft convictions based on his dealings with customers and for two theft convictions based on his theft from his employer was contrary to R.C. 2941.25. That statute requires that when the same conduct by a criminal defendant may support his conviction for two crimes that are “allied offenses of similar import,” the defendant may be indicted and tried for both of the allied offenses, but if he is found guilty on both counts, the allied offenses must be consolidated into a single conviction punishable by a single sentence.

In briefs filed with the court of appeals, the state argued that Underwood waived any claim of error with regard to allied offenses when he failed to raise the issue to the trial court and that because Underwood had agreed to the two-year sentence and because the two-year sentence imposed by the court was within the statutory range for the offenses he plead to, R.C. 2953.08(D) applied and the court of appeals was barred from reviewing his sentence.

The court of appeals held that because R.C. 2941.25 mandates that allied offenses of similar import must be merged into a single conviction, the separate sentences imposed on Underwood by the trial court for the two allied offense counts that should have been merged were not “authorized by law,” and therefore appellate review of his sentence was not precluded by R.C. 2953.08(D). Accordingly, the 2nd District vacated one of Underwood’s aggravated theft convictions and one of his theft convictions along with the sentences imposed for those counts.

The 2nd District certified that its ruling on the appealability of a jointly recommended sentence was in conflict with decisions in several other appellate districts. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.

Writing for the majority in today’s decision, Justice Lanzinger affirmed the holding of the 2nd District that the sentence imposed on Underwood by the trial court was not “authorized by law” and therefore was not excluded from appellate review.

She wrote: “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. ... 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. ... 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. ... Nor can agreement to such sentences insulate them from appellate review, for they are not authorized by law. We hold 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. A trial court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory provisions.”

“Because a sentence is authorized by law only if it comports with all mandatory sentencing provisions, we must now determine whether the directive in R.C. 2941.25 contains such a provision,” wrote Justice Lanzinger. “The statute states: ‘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.’ ... R.C. 2941.25(A) clearly provides that there may be only one conviction for allied offenses of similar import. Because a defendant may be convicted of only one offense for such conduct, the defendant may be sentenced for only one offense. This court has previously said that allied offenses of similar import are to be merged at sentencing. ... Thus, a trial court is prohibited from imposing individual sentences for counts that constitute allied offenses of similar import. A defendant’s plea to multiple counts does not affect the court’s duty to merge those allied counts at sentencing. This duty is mandatory, not discretionary. Therefore, we conclude 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.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.

Justice O’Connor also entered a concurring opinion, joined by Chief Justice Moyer, in which she agreed with the majority holding that R.C. 2953.08(D) does not bar appellate review of Underwood’s sentence but added: “I write separately to emphasize my view that allied offenses are merged at sentencing solely for the purpose of sentencing.”

Justice Terrence O’Donnell entered a dissent that was joined by Justices Evelyn Lundberg Stratton and Robert R. Cupp. Justice O’Donnell wrote that in his view the “authorized by law” language in R.C. 2953.08(D) precludes a defendant from seeking appellate review of a jointly recommended sentence so long as the agreed-upon sentence falls within the statutory sentencing guidelines for the offense(s) of which that person was convicted. In this case, he noted, if the allied offenses had been merged pursuant to R.C. 2941.25(A), and Underwood had been sentenced for only single counts of theft and aggravated theft, he would still have been subject to up to six years of imprisonment – as opposed to the two-year term he was able to obtain by entering into a plea bargain.

“Underwood entered into a plea-bargained arrangement with the state and received exactly what he bargained for. Furthermore, he neither asked the court to merge the sentences as allied offenses nor objected at the time of sentencing on that basis and has now forfeited that right,” wrote Justice O’Donnell. “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 for allied offenses.”

Justice Cupp also entered a dissent that was joined by Justice Stratton. In addition to endorsing Justice O’Donnell’s view that any sentence within the statutory range for a defendant’s crime is a sentence “authorized by law,” Justice Cupp also cited prior court decisions holding that a defendant’s failure to timely object to a trial court’s failure to merge allied offenses waives any future right to raise such objections on appeal. He wrote: “Underwood’s agreement to the sentence here should be characterized as a specific waiver of the ability to challenge the sentence. ... 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.”

Contacts
Kelly D. Madzey, 937.225.5775, for the state and Montgomery County prosecutor’s office.

Claire R. Cahoon, 614.466.5394, for Richard Underwood.

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