[Cite as State v. Recob, 2014-Ohio-929.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100012

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JARED RECOB

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR–12-568960 

BEFORE: Keough, P.J., Kilbane, J., and McCormack, J. 

RELEASED AND JOURNALIZED: March 13, 2014 
ATTORNEY FOR APPELLANT

Rick Ferrara 

2077 East 4th Street 

Second Floor 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Brett Kyker 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, P.J.: 

{¶1} Defendant-appellant, Jared Recob, appeals his sentences for pandering 

sexually-oriented matter involving a minor and possessing criminal tools. Finding no 

merit to the appeal, we affirm. 

 I. Background 

{¶2} In November 2012, the Cuyahoga County Grand Jury returned a 31-count 

indictment against Recob. The indictment stemmed from Recob’s use of his computer to 

share videos of child pornography with other individuals. Counts 1 through 7 charged 

pandering sexually-oriented matter involving a minor in violation of R.C. 

2907.322(A)(2); Counts 8 through 30 charged pandering sexually-oriented matter 

involving a minor in violation of R.C. 2907.322(A)(1); and Count 31 charged possessing 

criminal tools in violation of R.C. 2923.24(A). All counts carried a forfeiture of property 

specification pursuant to R.C. 2941.1417(A). The counts asserted various dates of the 

offenses ranging from July 13, 2012 to August 30, 2012; as relevant to this appeal, 

Counts 1 through 4 charged that the offenses occurred on July 13, 2012, and Counts 5 

through 7 charged that the offenses occurred on July 23, 2012. 

{¶3} On March 14, 2013, Recob appeared in court with defense counsel to enter 

a guilty plea pursuant to a plea agreement with the state. The prosecutor outlined the 

plea agreement and informed the court that Recob “agrees that these are not allied 

offenses of similar import” and that the court could impose consecutive sentences. 

Defense counsel then informed the court that she had explained to Recob the rights he 
was waiving by pleading guilty and the potential penalties that could be imposed, and that 

he understood those rights and penalties. 

{¶4} After questioning Recob regarding his understanding of the rights he would 

be waiving and the potential penalties associated with the offenses to which he would be 

pleading guilty, the trial court specifically inquired of defense counsel regarding whether 

she had considered each count to verify that the offenses were not allied offenses of 

similar import. Defense counsel stated that she had done so but then informed the court 

that the state had just provided to defense counsel that morning a computer forensic 

analysis report that could affect the determination of whether the offenses were allied. 

The trial court continued the plea hearing to allow defense counsel time to review the 

report and make an allied offenses determination. 

{¶5} On April 23, 2013, Recob again appeared with defense counsel to enter a 

guilty plea pursuant to a plea agreement with the state. The state again outlined the 

proposed plea agreement for the court. The prosecutor indicated that Recob would plead 

guilty to Counts 1 through 16 and Count 31 of the indictment, and the other counts would 

be nolled. The prosecutor informed the court that “as part and parcel of the plea 

agreement in this matter, it’s the state’s understanding defendant will agree and stipulate 

that the offenses to which he’s about to enter a plea of guilty are non-allied offenses.” 

{¶6} Following the state’s recitation of the plea agreement, defense counsel 

informed the court that there was “no longer an issue” regarding allied offenses and that 

“the applicable law and case law support the state’s position” that the offenses to which 
Recob would be pleading guilty were not allied offenses of similar import. She stated 

further that she had discussed with Recob his rights and the potential penalties associated 

with the offenses to which he would be pleading guilty. The trial court then re-advised 

Recob of the rights he would be waiving by pleading guilty and the potential penalties 

associated with the offenses included in the plea agreement. The trial court specifically 

advised Recob that Counts 1 through 16 regarding pandering sexually-oriented material 

were second-degree felonies, each punishable by terms of between two and eight years 

incarceration and fines up to $15,000. Recob then pleaded guilty to Counts 1 through 16 

and Count 31 of the indictment. 

{¶7} The trial court subsequently sentenced Recob to four years incarceration 

on each of Counts 8 through 16, concurrent, and to ten months incarceration on Count 31, 

to be served consecutive to the four-year sentence on Counts 8 through 16. The trial 

court also ordered Recob to serve five years of community control sanctions on Counts 1 

through 7, consecutive to and commencing after the completion of the prison term. 

Recob appeals from this judgment. 

 II. Analysis 

{¶8} In his single assignment of error, Recob asserts that the trial court erred in 

not merging allied offenses of similar import at sentencing. Specifically, he contends 

that the court should have merged Counts 1 through 4, which occurred on July 13, 2012, 

and Counts 5 through 7, which occurred on July 23, 2012. 
{¶9} These counts alleged pandering sexually-oriented material under R.C. 

2907.322(A)(2), which provides that “[n]o person, with knowledge of the character of the 

material or performance involved, shall * * * advertise for sale or dissemination, sell, 

distribute, exhibit, or display any material that shows a minor participating or engaging in 

sexual activity, masturbation, or bestiality.” Recob contends that advertising electronic 

files as available for download from one’s IP address, even if multiple files are included, 

is one act committed with a single animus because an individual merely clicks the mouse 

to highlight the selected files and then posts the advertised files as available for sharing. 

Accordingly, he contends, the trial court erred in not merging Counts 1 through 4 and 

Counts 5 through 7 as allied offenses. We disagree. 

{¶10} As the Ohio Supreme Court observed in State v. Underwood, 124 Ohio 

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, it is well established that there may be only one 

conviction for allied offenses of similar import and, therefore, allied offenses must be 

merged at sentencing. Id. at ¶ 26. Because 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 counts 

at sentencing. Id. Nevertheless, the Ohio Supreme Court observed in Underwood that 

nothing in this decision precludes the state and a defendant from stipulating 

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 R.C. 2941.25 to determine 

whether the offenses are allied, and if they are, to convict the defendant of 

only one offense. 
(Emphasis added.) 

{¶11} Here, the record of the plea agreement is not “silent” as to the issue of allied 

offenses. It clearly reflects that as part of his plea bargain, the state and Recob stipulated 

that the offenses to which he was pleading guilty were not allied offenses of similar 

import, and, further, that Recob understood that he could be sentenced to separate terms 

on each of Counts 1 through 4 and 5 through 7. Because of the stipulation, the trial court 

was not obligated to determine whether the offenses were allied and did not err in not 

merging the offenses at sentencing. See, e.g., State v. Mannarino, 8th Dist. Cuyahoga 

No. 98727, 2013-Ohio-1795, ¶ 48-49; State v. Ward, 8th Dist. Cuyahoga No. 97219, 

2012-Ohio-1199, ¶ 17-20; State v. Donaldson, 2d Dist. Montgomery No. 24911, 

2012-Ohio-5792, ¶ 25. The assignment of error is overruled. 

{¶12} Affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 
KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

MARY EILEEN KILBANE, J., and 

TIM McCORMACK, J., CONCUR