[Cite as State v. Williams, 2016-Ohio-376.]

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Appeal Dismissed 

Date of Judgment Entry on Appeal: February 5, 2016 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher, William R. Gallagher and Elizabeth Conkin, for DefendantAppellant. 

Please note: This case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

FONTE WILLIAMS, 

 Defendant-Appellant. 

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APPEAL NO. C-150320 

TRIAL NO. B-1403896 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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MOCK, Judge. 

{¶1} Defendant-appellant Fonte Williams was originally charged with one 

count of aggravated murder, one count of murder, and two counts of felonious 

assault, all with accompanying firearm specifications. He pleaded guilty to one count 

of a reduced charge of involuntary manslaughter under R.C. 2903.04(A), with one 

accompanying firearm specification, and one count of felonious assault under R.C. 

2903.11(A)(2). The trial court dismissed the two remaining charges and all other 

firearm specifications. 

{¶2} Under the terms of an agreed sentence, the trial court sentenced 

Williams to 11 years’ imprisonment on the involuntary manslaughter count, plus 

three years for the firearm specification. It also sentenced him to eight years’ 

imprisonment on the felonious-assault count. The court ordered that all of the 

sentences be served consecutively, for a total of 22 years. This appeal followed. 

{¶3} In his sole assignment of error, Williams contends that the trial court 

committed plain error in ordering him to serve the sentences for the two offenses 

consecutively. He argues that the two offenses were allied offenses of similar import 

that should have been merged for sentencing. 

{¶4} 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; State v. Livingston, 2014-Ohio-1637, 

9 N.E.3d 1117, ¶ 4 (1st Dist.). A sentence is authorized by law and is not appealable 

only if it comports with all mandatory sentencing provisions. Underwood at 

paragraph two of the syllabus. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶5} In Underwood, the Ohio Supreme Court also held that when a 

sentence is imposed for multiple convictions on offenses that are allied offenses of 

similar import, R.C. 2953.08(D)(1) does not bar appellate review of the sentence 

even though it was jointly recommended by the parties and imposed by the court. Id.

at paragraph one of the syllabus. But the court set forth an exception to that general 

rule. It stated, “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.” 

Id. at ¶ 29. 

{¶6} The Ohio Supreme Court later reiterated that statement. In State v. 

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the court discussed the 

difference between waiver and forfeiture. It defined “waiver” as “an intentional 

relinquishment or abandonment of a known right.” It then stated, “It is possible for 

an accused to expressly waive the protection afforded by R.C. 2941.25 such as ‘by 

stipulating in the plea agreement that the offenses were committed with separate 

animus.’ ” Id. at ¶ 20, quoting Underwood at ¶ 29. 

{¶7} Further, other appellate districts have held that by stipulating that two 

or more offenses were committed separately or with a separate animus, the 

defendant waived the allied-offense issue. Therefore, the sentences in those cases 

were not contrary to law. See State v. Lung, 12th Dist. Clermont No. CA2014-12-081, 

2015-Ohio-3833, ¶ 11-12; State v. Booker, 8th Dist. Cuyahoga No. 101886, 2015-

Ohio-2515, ¶ 17-19; State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-

Ohio-926, ¶ 11-16; State v. Bryant, 5th Dist. Richland No. 14CA23, 2014-Ohio-4661, 

¶ 8-13. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶8} After some discussion, Williams ultimately agreed that the offenses were 

committed with a separate animus. While describing the terms of the plea agreement, 

the prosecutor told the court that “the Defendant is agreeing that, in fact, these two 

crimes were created [sic] with a separate animus, as a result they are not allied offenses 

of similar import, and he’s agreeing that they should not be merged but rather he can be 

sentenced consecutively on those counts.” Williams’s counsel, responded that “[w]e’re 

in agreement.” He further stated, “Judge, he wants to proceed. We have a plea 

agreement, an agreed plea, and we ask the Court to accept that and proceed with 

sentencing.” 

{¶9} The parties clearly included consecutive sentences as part of the plea 

agreement, which benefited Williams because the state dismissed two of the charges 

against him, as well as several firearm specifications, and reduced the most serious 

charge against him to a lesser offense. The agreement falls squarely within the exception 

set forth by the Ohio Supreme Court in Underwood, and we hold that Williams waived 

the allied-offense issue. 

{¶10} Williams argues that the state conceded that the plea agreement could be 

vacated if a higher court found that the two offenses did not arise out of a separate 

animus and should not have been merged. Essentially, he is arguing that he did not 

waive his right to appeal the sentence. The record does not support this assertion. 

Williams specifically agreed that the two offenses were committed with a separate 

animus. In discussing the agreement, the state added that “he’s agreeing that if for some 

reason a higher court were to determine that that was not correct, that it was remanded, 

we can simply proceed on the original indictment.” This statement simply clarified what 

the agreement was, but as an agreed plea, it did not render the sentence appealable. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶11} Because the sentences comported with all mandatory-sentencing 

provisions, they were authorized by law. Consequently, this court is without jurisdiction 

to review the sentences. See State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 

N.E.2d 1095, ¶ 22; State v. Tisdale, 11th Dist. Trumbull No. 2007-T-0122, 2008-Ohio5452, ¶ 11-12; State v. Knisely, 3d Dist. Hancock No. 5-07-37, 2008-Ohio-2255, ¶ 12; 

State v. Simmons, 1st Dist. Hamilton No. C-050817, 2006-Ohio-5760, ¶ 5. Because 

Williams only challenges his sentences, and not the guilty findings, we dismiss the 

appeal. 

Appeal dismissed. 

FISCHER, P.J., and STAUTBERG, J., concur. 

Please note: 

 The court has recorded its own entry this date.