[Cite as State v. Champion , 2022

- Ohio

- 3146.]



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

STATE OF OHIO , Plaintiff

- Appell ee ,

VS
.

JERMAINE CHAMPION , Defendant

- Appellant

. :

:

:

:

:

: APPEAL NO S . C

- 210534

C

- 210604 TRIAL NO. B

- 2000 0 01

O P I N I O N.

Criminal Appeal s From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: September 9, 2022

Joseph T. Deters , Hamil ton County Prosecuting Attorney , and S ean M. Donovan , Assistant Prosecuting Attorney, for Plaintiff

- Appellee , Clyde Bennett, for Defendant

- Appellant.OHIO FIRST DISTRICT COURT OF APPEALS

2 C ROUSE , Judge. 

### {¶1} Defendant

- appellant Jermaine Champion appeals the judgment of the Hamilton County Court of Common Pleas

. In t hree assignment s of error, Champion

argues the underlying offense s and firearm specifications for which he was sentenced
should ha v e merged as a matter of law , and that his trial counsel was ineffective for failing to raise this issue. Because Champion entered into a pl ea agreement with an agreed sentence and stipulated that the offenses were committed with a separate animus, we affirm the judgment of the trial court.
Facts and Procedure 

### {¶2} On January 3, 2020, Champion was charged with aggravated murder, murder, felony murder, felonious assault, and having weapons under disability. The aggravated

- murder, murder, felony

- murder, and felonious

- assault charges each carried firearm specifications. The matter proceeded to a jury trial, but e nded in a
mistrial. 

### {¶3} On October 6 , 2021, Champion waived his right to a jury trial and entered into a plea agreement. Champion pleaded guilty to an amended and reduced charge of involuntary manslaughter, in violation of R.C. 2903.04(A), with a three

- year firearm specification (count 3) , 1 felonious assault, in violation of R.C. 2903.11A(A)(1),
with a three

- year firearm specification (count 4) , and having weapons while under disability, in violation of R.C. 292 3 .13(A)(3) (count 5)

. The plea agreement included

a n agreed recommended aggregat e sentence of 19 years and specified that the

sentences for counts 3 and 4, including the attendant firearm specifications would be

1 At the plea hearing, the prosecutor stated , “Count 3 has been amended and reduced, Your Honor, from murder to involuntary manslaughter, 2903.04(A).”OHIO FIRST DISTRICT COURT OF APPEALS

3 served consecutively , while the sentence for count 5 would be se rved concurrently . In exchange , t he state dismissed the rem aining charges and specifications. 

### {¶4} At the plea hearing , Champio n stipulated that counts 3 and 4 were not allied offenses of similar impor t :
PROSECUTOR: And it is my understanding, Your Honor, th at the Defense is stipulating that there was a separate anim us in the
commission of * * * Counts 3 and 4.
DEFENSE COUNSEL: That is correct, Your Honor.
THE COURT : Thank you. 

### {¶5} After a thorough Crim.R. 11 plea colloquy, the trial court accepted the plea agreement and sentenced Champion to the agreed recommended 19
- yea r aggregate sentence , followed by five years of pos t release control

. 

### {¶6} Champion timely appealed. R.C. 2953.08(D)(1) 

### {¶7} In his first assignment o f error, Champion contends that the trial court
erred when it ordered Champion ’ s sentences for involuntary manslau ghter and felonious assault to be served consecutively because they were allied offenses. Champion argues that the offenses were “based on th e exact same conduct for the
exact same individual victim ” and thus were not committed separately and were not

com mitted with separate animus. He further argues that the resulting harm from the offenses is not separate and identifiable. 

### {¶8} In his second assi gnment of error, Champion contends that because the involuntary

- manslaughter and felonious

- assault convictions wer e allied offenses, theOHIO FIRST DISTRICT COURT OF APPEALS

4 trial court further erred in sentencing him to consecutive sentences for the firearm specifications attendant to those convictions. 

### {¶9} R.C. 2953.08(D)(1) provides: “ A sentence imposed upon a defendant is not subject to review under thi s 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. ” See State v. Underwood , 124 Ohio St.3d 365, 2010

- Ohio

- 1, 922 N.E.2d 923, ¶ 16; State v. Wi lliams , 1st Dist. Hamilton No. C

- 150320, 2016

- Ohio

- 376, ¶ 4. 

### {¶10} The Ohio Supreme Court explained in Underwood that “a sentence is
autho rized by law only if it comports with all mandatory sentencing provisions.”
Underwood at ¶ 23. R.C. 2941.25(A) is among t hose mandatory provisions, and
mandates that there may be only one conviction , and thus one sentence, for allied
offenses of similar i mport. Underwood at ¶ 26 ; but see State v. Lee , 2018

- Ohio

- 1839,

112 N.E.3d 65, ¶ 14 (8th Dist.) ( “the burden to raise R.C. 2941.2 5 at sentencing falls on the defendant and only then does the trial court have an obligation under R.C.

2941.25 .”). Thus, a court’s failure to merge allied offenses of similar import at sentencing may result in a sentence that is not authorized by law. In those instances, appellate review is not barred by R.C. 2953.08(D)(1) even if the sentence was jointly
recommended and imposed by the court. Underwood at ¶ 26; Williams at ¶ 5. 

### {¶11} However, “[i] t is possible for an accused to expressly waive the

pro tection afforded by R.C. 2941.25 such as ‘ by stipulating in the plea agreement that
the offenses were committed with separate animus. ’ ” (Emphasis added.) State v. Rogers , 143 Ohio St.3d 385 , 2015
- Ohio

- 2459, 38 N.E.3d 860, ¶ 20 , quoting
Underwood at ¶ 29 ; see Williams at ¶ 5

. But, “ [w] aiving rights under R.C. 2941.25OHIO FIRST DISTRICT COURT OF APPEALS

5 arises in a variety of ways and is not limited to an agreement expressly referencing
R.C. 2941.25. ” State v. Lee , 2018

- Ohio

- 1839, 112 N.E.3d 65, ¶ 7 (8th Dist.)

. For instance, waiver can also occur “where the transcript demonstrates that the state and defense counsel agreed that offenses were not allied

. ” State v. Black , 2016

- Ohio

- 383, 58 N.E.3d 561 ¶ 17

- 19 ( 8th Dist.) . And a defendant’s “[a] gre e[ment] to serve consecutive sentences is equivalent to agreeing that multiple offenses are separate under R.C. 2941.25. ” Lee at ¶ 8. 

### {¶12} At the sentencing hearing, Champion, through couns el, stipulated that there was separate animus in the commission of counts 3 and 4. And Champion ’s signed plea agreement provided that the sentences for counts 3 and 4 would be served consecutively

. 

### {¶13} It follows that Champion’s stipulation that the offense s were committed with separate animus also applies to the firearm specification s. A firearm specification is not a separate criminal offense, but “merely a sentencing provision that requires an enhanced penalty upon certain findings.” State v. Ford , 128 O hio St.3d 398, 2011
- Ohio

- 765, 945 N.E.2d 498, ¶ 19
. In other words, the specification is contingent upon the underlying offense. Id. ; see State v. Hayes , 2d Dist. Clark No. 2014
- CA

- 27, 2014
- Ohio

- 5362, ¶ 25. 

### {¶14} Because Champion stipulated that c ounts 3 and 4 were committed with separate animus, he expressl y waived the allied

- offenses issue. Accordingly, t he

sentence s imposed by the trial court were authorized by law and are not subject to appellate review

. The first and second assignments of error are ove rruled.OHIO FIRST DISTRICT COURT OF APPEALS

6 Ineffective Assistance of Counsel 

### {¶15} In Champion’s third assignment of error, he argues that he received ineffective assistance because his counsel “drafted a plea agreement and ha d his client enter into an agreement that stated that two clearly alli ed offenses would be served consecutively.” C hampion contends that, but for his counsel’s ineffective assistance,
his sentences would not be served consecutively, and he would be serving less time in prison

. The state contends that Champion readily agree d to enter into the plea
agreement , and that w ithout the stipulation, he would be facing life in prison. 

### {¶16} To prevail on his ineffective

- assistance

- of

- counsel claim, Champion
must demonstrate that “counse l ’ s performance fell below an objective standard of

re asonableness, and that, but for counsel ’ s erro rs, he would not have pleaded guilty and would have insisted on going to trial.” State v. James , 1st Dist. Hamilton No.
C

- 210319, 2021 Ohio App. LEXIS 4456, ¶ 21 (Dec. 22, 2021) ; see State v. Collins , 2022
- Ohio

- 452, 185 N.E.3d 146 , ¶ 12 (1st Dist.) ; Hill v. Lockhart , 474 U.S. 52, 58

- 59, 106
S.Ct. 366, 88 L.Ed.2d 203 (1985)

. “A court must indulge a strong presumption that
counsel ’ s conduct falls within the wide range of reasonable professional assistance.”
Stric kland v. Washington , 466 U .S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), syllabus

. 

### {¶17} First, Champion has not demonstrated that his counsel’s performance
was deficient . Rather, defense counsel secured a plea deal that significantly reduced Champion’s prison time and resulted in the state reducing his felony murder charge

to involuntary manslaughter , and dismissing charges for murder and aggravated murder, which carried a potential life sentence. Moreover, s tipulating to the
allied

- offense issue was permissi ble pursuant to Underwood , Rogers , and Williams ,OHIO FIRST DISTRICT COURT OF APPEALS

7 and was reasonable given the circumstances

. See Underwood , 124 Ohio St.3d 365,

2010
- Ohio

- 1, 922 N.E.2d 923 , at ¶ 29 (“ nothing in this decision precludes the state and a defendant from stipulating in the ple a agreement that the offe nses were committed with separate animus, thus subjecting the defendant to more than one
conviction and sentence. ”). 

### {¶18} Even if Champion had satisfied the first prong, his claim would fail on the second prong because he has not demons trated that, but for coun sel’s performance , he would have insisted on going to trial instead of entering a guilty plea

. Rather, the record demonstrates that Champion was advised multiple times of the plea
deal , understood the alternatives , 2 and signed a w ritten plea agreement that clearly
listed the maximum sentences and recommended sentence s
. At the plea hearing, the

court told Champion , “I am choosing to tell you that I intend to follow that recommendation when we get through with this. Do you understan d that?” Champion
said that h e underst ood

. T he court then sentenced him to the recommended

sentence s
. 

### {¶19} Thus, Champion has not met his burden to demonstrate ineffective
assistance of counsel

. The third assignment of error is overruled.
Conclusion 

### {¶20} For th e foregoing reasons, we overrule Cha m pion’s first, second, and third assignment s of error and affirm the judgment of the trial court. Judgment affirmed

.

2 At sentencing, counsel for Champion stated, “ F ollowing the trial, we’ve h ad intense discussions about the case and he, without hesitation, agreed to enter this guilty plea. * * * He is prepared to serve the consequences of his actions.”OHIO FIRST DISTRICT COURT OF APPEALS

8 

### Z AYAS 

### , P. J., and B ERGERON 

### , J., concur.

Please note : The court has recorded its entry on the d ate of the release of this opinion

.