[Cite as State v. Taylor , 2013-Ohio-471.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 12CA9

vs. : DANDY E. TAYLOR, II, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANT: Benjamin E. Fi ckel, 47 North Market Street, Ste. 208, Logan, Ohio 43138 COUNSEL FOR APPELLEE: Laina Fetherolf, Hocking County Prosecuting Attorney, 88 South Market Street, Logan, Ohio 43138

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 2-6-13 ABELE, J. {¶ 1} This is an appeal from a Hocking C ounty Common Pleas Court judgment of conviction and sentence. Dandy E. Taylor, II, defendant below a nd appellant herein, pled guilty to (1) breaking and entering in violation of R.C. 2911.13(A), and (2) possession of criminal tools in violation of R.C. 2923.24(A). {¶ 2} Appellant assigns the following error for review:

“THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES UPON DANDY E. TAYLOR FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH ASEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER O.R.C. 2941.25.” {¶ 3} On January 6, 2012, the Hocking County Grand Jury returned an indictment that charged appellant with the above noted offenses, as well as a third count that charged him with tampering with a coin machine in violation of R.C. 2911.32(A). Appella nt initially pled not guilty, but later agreed to plead guilty to the firs t and second counts in retu rn for dismissal of the third count, and a recommendation of six month sentences on the first two counts, both to be served consecutively. {¶ 4} At the plea hearing, the parties reviewed the agreement's terms and the trial court

endeavored to ascertain whether appellant understood his rights. Sa tisfied that he did, the trial court accepted the guilty pleas and imposed six m onth terms of incarceration for each count, to be served consecutively as per the plea agreement. This appeal followed. {¶ 5} Appellant asserts that the trial court erre d by imposing separate sentences for the two counts because, pursuant to R.C. 2941.25(A), th ey are allied offenses of similar import. The appellee concedes the argument and agrees the matter must be remanded for re-sentencing. {¶ 6} Ohio law provides that when “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 de fendant may be convicted of only one.” R.C. 2941.25(A). The statute's effect is that allied o ffenses of similar import are to be merged at sentencing. See State v. Brown , 119 Ohio St.3d 447, 2008-Ohio- 4569, 895 N.E.2d 149, ¶43;

State v. McGuire , 80 Ohio St.3d 390, 399, 686 N.E.2d 1112 (1997). {¶ 7} Breaking and entering and the possession of criminal tools may not always be allied offenses in all cases. See, e.g., State v. Brewer , 3 rd Dist. No. 16–11–13, 2012-Ohio-3899, atHOCKING, 12CA9 3 ¶48. However, they may be a llied offenses when the criminal tools are used for the breaking and entering. See, State v. VanValkenburg , 5 th Dist. No. 11–CA–91, 2012-Ohio-1213, at ¶17. {¶ 8} The appellee concedes “[t]here is no evidence the Defendant used the tools for any other purpose than to commit the offense of breaking and entering.” We accept that admission for purposes of our review, and, thus, ag ree that the charges are allied offenses of similar import and that a ppellant may only be convi cted and sentenced under one. However, our initial question is whether appellant's plea agreement concerning his sentence constitutes a waiver of the statute's application. R.C. 2953.08(D )(1) provides that a sent ence is not subject to appellate review if it is “recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.” Here, appellant's sent ence resulted from a plea agreement. Consequently, we must ask whether appellant's agreement re sulted in a waiver of the application of R.C. 2945.25(A)? On this point the appellee concedes that he did not, and we

agree. {¶ 9} The Ohio Supreme Court held in State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at paragr aph one of the syllabus, that when multiple sentences are “imposed for multiple convictions on offenses that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate revi ew of that sentence even though it was jointly recommended by the pa rties and imposed by the court.” The Court explained that R.C. 2941.25, in essence, codifies the Double Jeopardy protections of the Fifth Amendment to the United States Constitution and, t hus, must be considered as an exception to R.C. 2953.08(D)(1). Underwood , supra , at ¶¶23-26. {¶ 10} Because the appellee conceded that these offenses are allied offenses of similarHOCKING, 12CA9 4 import, and because R.C. 2941.25 protecti ons are not waived pursuant to the Underwood decision, we agree that the trial court erred by sentencing appellant for both the offenses of breaking and entering and the possession of criminal tools. {¶ 11} Accordingly, appellant’s a ssignment of error is well taken and sustained. We hereby affirm the trial c ourt's judgment as it relate s to appellant's convicti on, but reverse as to the

sentence and remand the matter for re-s entencing pursuant to this opinion.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.HOCKING, 12CA9 5[Cite as State v. Taylor , 2013-Ohio-471.] JUDGMENT ENTRY It is ordered the judgment be affirmed in part, reversed in part, and that the case be remanded for further proceedings c onsistent with this opinion. A ppellant to recover of appellee costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and releas e upon bail has been previously granted, it is continued for a period of sixty days upon the bail pr eviously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five da y period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Oh io Supreme Court dismisse s the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. Harsha, J. & Kline, J.: Concur in Judgment & Opinion

For the Court

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.