[Cite as State v. T.B., 2021-Ohio-2104.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109949 

 v. : 

 

T.B., : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 24, 2021 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-18-631029-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Chadwick Cleveland and Jennifer Driscoll, 

Assistant Prosecuting Attorneys, for appellee. 

Paul W. Flowers Co., L.P.A., and Louis E. Grube, for 

appellant. 
EILEEN T. GALLAGHER, J.: 

Defendant-appellant, T.B.,1 appeals his sentence and claims the 

following three errors: 

1. R.C. 2953.08(D)(1) violates the due process clauses of the Ohio and 

United States Constitutions. 

2. The trial court’s consecutive sentencing order is clearly and 

convincingly not supported by the record. 

3. The trial court committed plain error by failing to merge the 

defendant’s convictions prior to sentencing. 

We find no merit to the appeal and affirm the trial court’s judgment. 

I. Facts and Procedural History 

T.B. was charged with multiple counts of rape, kidnapping, pandering 

sexually oriented material involving a minor, gross sexual imposition, and assault. 

He later pleaded guilty to a total of 19 counts with an agreed sentencing range of 18 

to 25 years in prison. Prior to sentencing, the state advised the court that “there’s a 

new sentencing range,” and that as a result “we need to put the plea on the record 

again, and he needs to enter a plea of guilty based on that new range.” 

Thereafter, the trial court reviewed the charges, outlined the new 

sentencing range, and reviewed T.B.’s Crim.R. 11 rights. There was no explanation 

on the record as to how or why the plea agreement had been modified, but the 

sentencing range was adjusted to 13 to 30 years. Despite reviewing T.B.’s Crim.R. 

 1 Pursuant to Loc.App.R. 13.2(B)(1), we refer to the appellant and victim by initials 

and generic terms to protect the victim’s privacy. 
11 rights, the trial court did not vacate T.B.’s previously entered guilty pleas, and T.B. 

did not enter any new pleas, guilty or otherwise. The trial court nevertheless 

imposed an aggregate sentence of 25 years in prison, including consecutive 

sentences on seven counts. This court vacated T.B.’s convictions and sentence and 

remanded the case to the trial court for further proceedings. State v. T.B., 8th Dist. 

Cuyahoga No. 108803, 2020-Ohio-3. 

On remand, T.B. pleaded guilty to five counts of rape in violation of R.C. 

2907.02(A)(2); six counts of pandering sexually oriented matter involving a minor 

in violation of R.C. 2907.322(A)(1); four counts of pandering sexually oriented 

matter involving a minor in violation of R.C. 2907.322(A)(5); four counts of gross 

sexual imposition in violation of R.C. 2907.05(A)(4); and two counts of assault in 

violation of R.C. 2903.13(A). The trial court sentenced T.B. to 11 years in prison on 

each of the five counts of rape alleged in Counts 1, 5, 13, 17, and 18; eight years in 

prison on each of the five counts of pandering sexually oriented matter involving a 

minor alleged in Counts 2, 6, 10, 14, and 28; three years in prison on the pandering 

sexually oriented matter involving a minor, charge alleged in Count 41; 18 months 

in prison on each count of pandering sexually oriented matter involving a minor 

alleged in Counts 3, 7, 11, and 37; 60 months in prison on each count of the gross 

sexual imposition alleged in Counts 27, 31, 35, and 40; and 180 days in prison on 

each count of assault alleged in Counts 52 and 53. 

The court made the factual findings required by R.C. 2929.14(C)(4) for 

the imposition of consecutive sentences and ordered that the prison terms on 
Counts 1, 5, and 41 run consecutively for an aggregate 25-year prison term. (Nunc 

pro tunc entry dated Sept. 15, 2020.) The remaining counts were ordered to run 

concurrent to each other and to Counts 1, 5, and 41. The court imposed a mandatory 

five-year period of postrelease control, provided T.B. 270 days of jail-time credit, 

and classified T.B. as a Tier II and Tier III sex offender. T.B. now appeals his 

sentence. 

II. Law and Analysis 

A. Due Process 

In the first assignment of error, T.B. argues R.C. 2953.08(D)(1) violates 

the due process clauses of the Ohio and United States Constitutions because it 

prevents appellate review of jointly recommended sentences. 

R.C. 2953.08(D)(1) provides that “[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.” Accordingly, we have held that a trial 

court is not required to make the consecutive-sentence findings required by R.C. 

2929.14(C)(4) when a defendant is being sentenced pursuant to a negotiated plea 

agreement that includes an agreed sentence. State v. Ruffin, 8th Dist. Cuyahoga 

Nos. 109134 and 109135, 2020-Ohio-5085, ¶ 14; State v. Williams, 8th Dist. 

Cuyahoga No. 109091, 2020-Ohio-4467, ¶ 41. Nevertheless, T.B. argues R.C. 

2953.08(D)(1) violates due process because it prevents appellate review of the 
factual findings that must be made by the trial court in support of a criminal 

sentence. 

The United States Constitution does not require states to grant appeals 

as of right to criminal defendants seeking review of alleged trial court errors. Moffitt 

v. Ross, 417 U.S. 600, 610-611, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); McKane v. 

Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 (1894). Nor does the Ohio 

Constitution guarantee a criminal defendant’s right to appeal. State v. Smith, 80 

Ohio St.3d 89, 684 N.E.2d 668 (1997). 

A criminal defendant is not guaranteed the right to appeal because 

“‘the right of appeal is not essential to due process, provided that due process has 

already been accorded in the tribunal of first instance.’” State v. Smith, 80 Ohio 

St.3d 89, 97, 684 N.E.2d 668 (1997), quoting State ex rel. Bryant v. Akron Metro. 

Park Dist., 281 U.S. 74, 80, 50 S.Ct. 228, 74 L.Ed. 710 (1930). 

In Ross v. Moffitt, 417 U.S. 600, 610-611, 94 S.Ct. 2437, 41 L.Ed.2d 341 

(1997), the court explained: 

The defendant needs an attorney on appeal not as a shield to protect 

him against being “haled into court” by the State and stripped of his 

presumption of innocence, but rather as a sword to upset the prior 

determination of guilt. This difference is significant for, while no one 

would agree that the State may simply dispense with the trial stage of 

proceedings without a criminal defendant’s consent, it is clear that the 

State need not provide any appeal at all. 

Article IV, Section 3(B)(2) of the Ohio Constitution grants appellate 

courts “such jurisdiction as may be provided by law to review and affirm, modify, or 

reverse judgment or final orders of the court of record inferior to the court of appeals 
within the district.” R.C. 2953.02 provides a statutory right to appeal a final 

judgment in a criminal case. R.C. 2953.08(D)(1), however, provides an exception to 

the general right to appeal and prohibits appeals of jointly recommended sentences. 

R.C. 2953.08(D)(1) is a statutory recognition that defendants may reach agreements 

regarding their prison sentences and thereby waive any future challenges to those 

sentences. See, e.g., United States v. Smith, 344 F.3d 479, 483 (6th Cir.2003) 

(“Where a defendant waives his right to appeal his sentence in a valid plea 

agreement, this Court is bound by that agreement and will not review the sentence 

except in limited circumstances.”). 

T.B. provides no authority to support his argument that R.C. 

2953.08(D)(1) is unconstitutional because it violates due process, nor have we found 

any. To the contrary, courts have upheld the constitutionality of R.C. 2953.08(D)(1). 

See, e.g., State v. Thomas, 11th Dist. Lake No. 2019-L-085, 2020-Ohio-4635, ¶ 88 

(“If there is no constitutional right to appellate review of a criminal sentence, it 

makes little sense to assert the absence of such an entitlement is unconstitutional.”); 

State v. Burke, 2d Dist. Montgomery No. 26812, 2016-Ohio-8185, ¶ 21 (R.C. 

2953.08 does not violate equal protection because it does not “implicate a 

fundamental constitutional right.”); State v. Reddick, 72 Ohio St.3d 88, 90, 647 

N.E.2d 784 (1995) (App.R. 26(B)’s requirement that an untimely application for 

reopening must show good cause did not violate due process.). 

“The fundamental requirement of due process is the opportunity to be 

heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 
424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 

380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). 

T.B. was represented by counsel when he knowingly, intelligently, and 

voluntarily reached a plea agreement with the state that included an agreed 

sentencing range during both the initial case (prior to the vacated pleas) and the 

second plea hearing. T.B. was advised multiple times of his right to have his case 

heard and decided by a jury of his peers, but he chose instead to enter a guilty plea 

with an agreed sentencing range. As previously stated, “the right of appeal is not 

essential to due process, provided that due process has already been accorded in the 

tribunal of first instance.” Smith, 80 Ohio St.3d at 97, 684 N.E.2d 668, quoting State 

ex rel. Bryant, 281 U.S. at 80, 50 S.Ct. 228, 74 L.Ed. 710. There is nothing in the 

record to suggest that T.B.’s right to due process was violated in the trial court when 

he knowingly, intelligently, and voluntarily waived his right to challenge his 

sentence on appeal. We, therefore, find no constitutional deprivation here. 

The first assignment of error is overruled. 

B. Consecutive Sentences 

In the second assignment of error, T.B. argues the trial court’s 

consecutive-sentencing order is not supported by the record. T.B. does not contend 

that the trial court failed to make the necessary findings under R.C. 2929.14(C) for 

the imposition of consecutive sentences; he contends his 25-year sentence is 

“disproportionately protracted.” 
However, T.B. agreed to a jointly recommended sentencing range 

when he entered his guilty pleas. And, as previously stated in the first assignment 

of error, R.C. 2953.08(D)(1) limits our authority to review agreed sentences. R.C. 

2953.08(D)(1) states: 

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. 

A jointly recommended sentencing range is a “jointly recommended 

sentence” for purposes of R.C. 2953.08(D)(1). State v. Grant, 2018-Ohio-1759, 111 

N.E.3d 791 (8th Dist.). Therefore, T.B.’s jointly recommended sentence is not 

reviewable if it was “authorized by law.” A sentence is “authorized by law” and not 

appealable within the meaning of R.C. 2953.08(D)(1) “if it comports with all 

mandatory sentencing provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1, 922 N.E.2d 923, paragraph two of the syllabus. 

T.B. does not argue that the trial court failed to make necessary 

findings or otherwise failed to comply with any “mandatory sentencing provisions.” 

He argues his consecutive sentences should be vacated because the record clearly 

and convincingly did not support the trial court’s findings in support of the 

imposition of consecutive sentences under R.C. 2929.14(C)(4). 

The trial court imposed an aggregate 25-year prison term, which is 

within the agreed sentencing range and is authorized by law. Therefore, the 

sentence is not reviewable pursuant to R.C. 2953.08(D)(1). 
The second assignment of error is overruled. 

C. Allied Offenses 

In the third assignment of error, T.B. argues the trial court committed 

plain error by failing to merge his convictions for sentencing. He cites State v. 

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, to support this 

argument. 

In Underwood, the Ohio Supreme Court held that “[w]hen a sentence 

is 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 

review of that sentence even though it was jointly recommended by the parties and 

imposed by the court.” Id. at paragraph one of the syllabus. T.B. argues that because 

many of his offenses were committed by the same conduct against the same victim, 

the offenses should have merged for sentencing even though his sentence was jointly 

recommended by the parties. 

However, in Underwood, the state and the defendant agreed on a 

sentence, but their agreement was silent on the issue of allied offenses. The 

Underwood Court explained that “[w]hen the plea agreement is silent on the issue 

of allied offenses of similar import * * *, the trial court is obligated under R.C. 

2941.25 to determine whether the offenses are allied.” Id. at ¶ 29. However, when 

the transcript demonstrates the defendant and the state agreed that the offenses 

were not allied, the issue of allied offenses is waived. State v. Yokings, 8th Dist. 

Cuyahoga No. 98632, 2013-Ohio-1890; State v. Carmen, 8th Dist. Cuyahoga No. 
99463, 2013-Ohio-4910; State v. Ward, 8th Dist. Cuyahoga No. 97219, 2012-Ohio1199. In Underwood, the court explained: 

[W]e note that nothing in this decision precludes the state and a 

defendant from stipulating in the plea agreement 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. 

Id. at ¶ 29. 

 The parties in this case agreed that none of the offenses to which he 

pleaded guilty were allied offenses of similar import. (Tr. 134, 136, 168.) T.B., 

therefore, waived the issue of allied offenses. 

The third assignment of error is overruled. 

Judgment 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 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. 

 

EILEEN T. GALLAGHER, JUDGE 

SEAN C. GALLAGHER, P.J., CONCURS; 

KATHLEEN ANN KEOUGH, J., CONCURS IN PART, AND CONCURS IN 

JUDGMENT ONLY IN PART, WITH SEPARATE ATTACHED OPINION 

KATHLEEN ANN KEOUGH, J., CONCURRING IN PART, AND CONCURRING IN 

JUDGMENT ONLY IN PART: 

I respectfully concur in judgment only with the majority opinion 

insofar as it concludes that T.B.’s second assignment of error challenging the 

consecutive-sentence portion of his sentence is not reviewable because the sentence 

falls within the agreed sentencing range. In support, the majority relies on State v. 

Grant, 8th Dist. Cuyahoga No. 104918, 2018-Ohio-1759. I dissented from the 

majority opinion in Grant on this issue, opining that unless the defendant agrees to 

the imposition of nonmandatory consecutive sentences when agreeing to a 

sentencing range, the sentence is still reviewable under R.C. 2953.08(D)(1). 

In this case, T.B. did not expressly agree to the imposition of 

nonmandatory consecutive sentences. The record demonstrates that on multiple 

occasions during the plea colloquy, T.B. agreed to a sentence range of 13-25 years. 

See tr. 134-135, 146, and 151. During each of these discussions, T.B. was also advised 

that the offenses would not be deemed allied and the sentences for each offense 

could be imposed consecutively. During one colloquy, the trial court explained to 
T.B. the difference between concurrent and consecutive sentences and then 

confirmed with T.B. that he understood that the court could run the sentences 

consecutively. (Tr. 146.) Immediately following this exchange, the court again 

confirmed with T.B. that the sentencing range was 13-25 years in prison. (Tr. at id.) 

Subsequently, T.B. acknowledged that the offenses were not allied, and understood 

that (1) the court could impose the sentences consecutively, (2) there was an agreed 

sentencing range of 13 to 25 years, and (3) there was no promise of a particular 

sentence. (Tr. 151.) 

Therefore, unlike in Grant, where the record only reflected an agreed 

sentencing range without any additional facts regarding what the defendant knew 

or agreed to regarding consecutive sentences, the record in this case indicates that 

T.B. understood that consecutive sentences could be imposed so long as the total 

sentence fell within the agreed sentencing range. 

Accordingly, I find that Grant is distinguishable, but I would agree 

that under the circumstances in this case, the sentence is unreviewable pursuant to 

R.C. 2953.08(D)(1).