[Cite as State v. Daniels , 2017-Ohio-548.]

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: February 17, 2017

Joseph T. Deters , Hamilton County Pros ecuting Attorney, and Scott Heenan
, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ravert J. Clark , for Defendant-Appellant. 

## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO Plaintiff-Appellee,

vs. JABRIEL DANIELS, Defendant-Appellant. :

:

:

:

: APPEAL NO. C-160203 TRIAL NO. B-1405711

O P I N I O N.O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 C UNNINGHAM , Judge. 

### {¶1} Jabriel Daniels appeals from the judgment of the Hamilton County Court of Common Pleas convicting him, after guilty pleas, of robbery and kidnapping. He argues that he was convicted of allied offenses of similar import and, therefore, the trial court committed plain erro r by failing to merge the convictions as required by R.C. 2941.25. Because Daniels failed to demonstrate plain error, we
affirm. Background Facts and Procedure 

### {¶2} Daniels was originally indicted for aggravated robbery, robbery, aggravated burglary, and four counts of kidnapping, all with accompanying firearm specifications. He pleaded guilty to on e reduced charge of robbery under R.C. 2911.02(A)(2), with a three-ye ar firearm specification, an d one count of kidnapping under R.C. 2905.01(A)(2), with a one-year firearm specification. 

### {¶3} The parties agreed that Daniels would be sentenced to two years’ imprisonment on the robbery count, plus three years for the firearm specification, and three years’ imprisonment on the k idnapping count, plus one year for the firearm specification, all to be served consecutively, for an aggregate term of nine
years. 

### {¶4} At sentencing, the court asked Daniels if there was any reason why he should not be sentenced in accordance with the plea agreement. His counsel replied, “No.” The court then asked Daniels if he wanted to address the court, and Daniels said, “No.” Subsequently, the trial court imposed the agreed sentence. Daniels now appeals. In his sole assignment of error, he contends that the trial court committed plain error by failing to merge his convictions for robbery and kidnapping.O HIO F IRST D ISTRICT C OURT OF A PPEALS

3 Merger Analysis 

### {¶5} R.C. 2941.25 governs the merger of allied offenses. R.C. 2941.25 provides: (A) Where the same conduct of th e defendant can be construed to
constitute two or more allied offens es of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant’s conduct cons titutes 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. 

### {¶6} Merger is an issue that arises at sentencing and that the defendant bears the burden on; it is not “an additional burden of proof shouldered by the state” in obtaining a determination of guilt. State v. Washington , 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni , 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987). 

### {¶7} When reviewing the defendant’s claim that there are allied offenses of similar import that merge into a single conv iction under R.C. 2941.25, the trial court and the reviewing court on appeal
must first take into a ccount the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge an d the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance—in other words, each offense caused separate,O HIO F IRST D ISTRICT C OURT OF A PPEALS

4 identifiable harm, (2) th e offenses were commi tted separately, or (3)
the offenses were committed with separate animus or motivation.
State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. In summary, the defendant must show that the conduct the state relied upon resulted in offenses of similar import, committed neither separately nor with a separate animus. See Washington at ¶ 18; Ruff at ¶ 25. 

### {¶8} This court ordinarily reviews th e trial court’s R.C. 2941.25
determination de novo. State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1. But in this case, the trial court did not make a R.C. 2941.25 determination, as the is sue was not raised.
Waiver 

### {¶9} Before addressing the merits of the assigned error, we must first review the state’s argument that Daniels waived appellate review of his sentence on the merger issue because the sentence imposed by the trial court was jointly recommended. It is well settled that under R.C. 2953.08(D), a sentence that has been recommended jointly by the defendant and the prosecution and imposed by a sentencing judge is not subject to appellate review if it is authorized by law. State v.
Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16, cited in State v.
Williams , 1st Dist. Hamilton No. C-150320, 2016-Ohio-376, ¶ 4. 

### {¶10} But in Underwood , the Ohio Supreme Court rejected the argument now presented by the state on the issue of waiver and jointly recommended sentences, explaining that a sentence that does not comport with all mandatory sentencing provisions, including R.C. 2941.25, the allied-offenses statute, is not authorized by law. Underwood at ¶ 21 and 26. Thus, absent a defendant’s waiver ofthe protection afforded by R.C. 2941.25, a defendant has merely forfeited the alliedoffenses claim for appellate review, allowing for review under a plain-error standard.O HIO F IRST D ISTRICT C OURT OF A PPEALS

5 See id . at ¶ 31; State v. Rogers , 143 Ohio St.3d 385, 2015-O hio-2459, 38 N.E.3d 860, ¶ 20-21. 

### {¶11} The state argues this case is distinguishable from Underwood because

in Underwood , unlike in this case, the state had taken the position in a sentencing
brief that the offenses were allied. But the state’s ac knowledgment in Underwood that the trial court was required to merge offenses went to the issue of whether there was error, and not the issue of waiver. Underwood at ¶ 30. Moreover, the Supreme Court continues to emph asize, as it did in Underwood , that for a defendant to be deemed to have waived the merger issue for appellate review, the waiver must be characterized as intentional and knowing, even when the defendant enters into a plea agreement. See Rogers at ¶ 20. 

### {¶12} Accordingly, the state’s argument in support of waiver is not persuasive and we reject it. However, because Daniels failed to raise the issue in the trial court, he has forfeited all but plain error. See Crim.R. 52(B); Underwood at ¶ 31; Rogers at ¶ 21.
Plain Error 

### {¶13} Under the authority of Crim.R. 52(B ), this court has “discretion to correct ‘[p]lain errors or defects affect ing substantial rights ’ notwithstanding the accused’s failure to meet his obligation to bring those errors to the attention of the
trial court.” Rogers at ¶ 22, quoting Crim.R. 52(B). The appellant has the burden to show plain error on the record. Id ., citing Quarterman , 140 Ohio St.3d 464, 2014- Ohio-4034, 19 N.E.3d 900, at ¶ 16. 

### {¶14} In the context of allied offenses, the Ohio Supreme Court has held that an appellant does not demonstrate plain er ror by showing only that the trial court failed to determine at sentencing whether offenses should merge under R.C. 2941.25, even though multiple offenses presented a facial question of merger. See Rogers at ¶ 1 and 3; State v. Santiago , 8th Dist. Cuyahoga No. 102280, 2015-Ohio-4073, ¶ 3.O HIO F IRST D ISTRICT C OURT OF A PPEALS

6 Instead, to prevail on a claim of plain error under these circumstances, the appellant must demonstrate a prejudicial effect—a “r easonable probability” that “he has, in fact, been convicted of allied offenses of similar import committed with the same
conduct and with the same animus.” Rogers at ¶ 3 and 25; see State v. May , 8th Dist. Cuyahoga No. 103785, 2016-Ohio-7481, ¶ 14; State v. English , 8th Dist. Cuyahoga No. 101883, 2015-Ohio-3227, ¶ 10. 

### {¶15} According to Daniels, the application of the Ruff test to the facts in the instant case results in the conclusion that the robbery and kidnapping to which he admitted his guilt were allied offenses of similar import as contemplated by R.C. 2941.25(A). He contends that the guidelines for determining whether kidnapping and another offense of the same or similar kind must merge are set forth in State v. Logan , 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), and mirror the Ruff test. In Logan , the court stated: (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convic tions; however, where the restraint is prolonged, the confinement is secretive, or the movement is
substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.
Id. at syllabus. 

### {¶16} He directs this court to several port ions of the record to support his
claim that his convictions involved offe nses that were committed with the sameO HIO F IRST D ISTRICT C OURT OF A PPEALS

7 animus. This includes the language of th e amended indictment, to which he pleaded guilty as part of the plea agreement. With respect to the robbery , Daniels agreed that he had “in committing or attempting to co mmit a theft offense, to wit; knowingly obtained or attempted to obtain United St ates currency belonging to McDonald’s, or fleeing immediately thereafter, inflicted or attempted to inflict physical harm [] or threatened to inflict physical harm on Tiffany Chamblin,” in violation of R.C. 2911.02(A)(2). 

### {¶17} With respect to the kidnapping, Dani els agreed that he had “purposely, by force, threat or deception, removed Tiffany Chamblin from the place where she was found, or restrained her of her liberty, for the purpose of facilitating the commission of a felony, to wit; aggravated robbery or in flight thereafter,” in violation of R.C. 2905.01(A)(2). 

### {¶18} Daniels also cites the bill of particulars, which provides: On or about the 6th day of October 2014 in the vicinity of 3738Warsaw Avenue, Hamilton County Ohio, the defendant and codefendant * * * entered into a restricted area, not open to the public, of
the McDonald’s restaurant at that address, through a drive-thru window, with a firearm, with the purpose of committing a robbery offense. Their conduct caused multiple McDonald’s employees on duty
and inside the restaurant to flee an d lock themselves in a different room in order to escape the thre at of harm. Defendant and codefendant then shot op en the door to the manager’s office and obtained U.S. currency. 

### {¶19} Finally, Daniels directs this court to his comments and those of the prosecutor during the plea hearing. At that time, Daniels stated, “I was in the same room with them, they ran themselves. I never directed anyone to any direction.” In response, the prosecutor stated,O HIO F IRST D ISTRICT C OURT OF A PPEALS

8 the defendant’s actions, along with his co-defendant[’]s, caused these
individuals to flee for th eir own personal safety and lock themselves into a walk-in refrigerator. * * * And then they were stuck there because they felt threatened and they felt fearful, the fact that a firearm had been displayed; and yes, in fact no one directed them to do
that. The actions of the defendant and co-defendant caused that to happen. 

### {¶20} Daniels argues that the separate co nvictions must be vacated because the application of the Logan guidelines demonstrates that the kidnapping was merely incidental to the robbery. Accept ing without deciding Daniels’s contention
that the Logan guidelines are the equivalent of the Ruff test, we hold that Daniels falls short of demonstrating plain error. Daniels does not point to any facts in the record demonstrating when the restraint ende d or the conditions of the restraint. Thus, he cannot show a reasonable probability that he was, in fact, convicted of allied offenses of similar import. 

### {¶21} This case is easily distinguishable from State v. White , 8th Dist. Cuyahoga No. 88491, 2007-Ohio-3080 , to which Daniels cites. In White , the trial court merged the kidnapping and robbery offenses, because the facts, elicted after a trial, demonstrated that the defendant ha d removed the employees and customers to the back of a hair salon during a robbery and had restrained them there for only five to seven minutes, after which the defendant fled. 

### {¶22} Although there was no trial in this case, Daniels was given the opportunity to place the relevant facts on the record and make the merger argument at the sentencing hearing, which was when the litigation of allied offenses was to

occur. See R.C. 2929.19(B) (“the court, before imposing sentence, shall consider the record, any information presented by [those identified in R.C. 2929.19(A), including the offender, the prosecuting attorney, and the victim], and, if one was prepared, theO HIO F IRST D ISTRICT C OURT OF A PPEALS

9 presentence investigation report * * * and any victim impact statement made pursuant to section 2947.051 of the Revised Code.” R.C. 2929.19(B); Washington
, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E2d 661, at ¶ 20. 

### {¶23} Because Daniels has failed to demonstrate on this record a “reasonable probability” that “he has, in fact, been conv icted of allied offenses of similar import
committed with the same conduc t and with the same animus,” Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 86 0, at ¶ 3 and 25, he has failed to demonstrate plain error. Accordingly, we overrule his assignment of error.
Conclusion 

### {¶24} The judgment of the trial court is affirmed. Judgment affirmed.

M OCK , P.J., and Z AYAS , J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.