[Cite as State v. Ortiz , 2020-Ohio-4013.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. ADAM K. ORTIZ Appellant C.A. No. 19CA011498

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CR089131

DECISION AND JOURNAL ENTRY Dated: August 10, 2020

CARR, Presiding Judge. {¶1} Appellant, Adam Ortiz, appeals the judgment of the Lorain Count y Court of

Common Pleas. This Court affirms.

I. {¶2} This matter emanates from a seri es of events that occurred afte r the tragic shooting of D.M. on May 16, 2013. This Court set forth many of the proc edural facts in Ortiz’s prior appeal. In 2014, [] Ortiz was indicted on two counts of tampering with evidence, four counts of obstructing justice, one count of possessing criminal tools, one count of abusing a corpse, one firearm specification, and one forfeiture specification. The obstruction counts, in particular , were charged as follows: (1) a third-degree felony in violation of R.C. 2921.21(A)(4); (2) a third-degree felony i n violation of R.C. 2921.32(A)(5); (3) a fifth-degree felony in violation of R.C. 2 921.32(A)(4); and (4) a fifth-degree felony in violation of R.C. 2921.32(A)(5). [] O rtiz ultimately signed a written plea agreement, and the parties jointly recommended a sentence to the trial court. The written plea agreement provided for a guilty plea on all four counts of obstructing justice. At the plea hearing, however, the cour t only accepted [] Ortiz’s plea on two counts of obstr ucting justice. Neither the court, nor the parties addressed the remaining two c ounts. The court then imposed the agreed upon sentence and ordered [] Ortiz to successfully complete CBCF and five years of community control. His sentence further provided that, if he v iolated its terms, he2

would be subject to nine years in prison. The court’s sentenci ng entry did not address two counts of ob structing justice. [] Ortiz was unsuccessfully terminated from his CBCF program an d, as a result, was arrested for violating the conditions of his community cont rol. The trial court held a hearing and found him guilty of the community control vi olation. Due to the de minimus nature of the viola tion, however, the court declined to impose a prison term. Instead, it ordered [] Orti z to serve thirty days in jai l before commencing his five-year term of community cont rol. The court cautioned [] Ortiz that any further violation would result in a prison sentence. [] Ortiz was later charged with drug trafficking and came befor e the court on a second community control violation. Following his hearing, the court sentenced him to prison. In its sentencing entry, the court indicated th at [] Ortiz had pleaded guilty to eight counts, including four counts of obstructing ju stice. The court indicated that it was not imposing a sentence on two of the cou nts of obstructing justice because those counts merged with the other two counts o f obstructing justice. Consistent with the terms of the agreed upon sentence , the trial court sentenced [] Ortiz to nine years in prison. State v. Ortiz , 9th Dist. Lorain No. 18CA011253, 2019-Ohio-822, ¶ 2-4. {¶3} Ortiz appealed and raised multiple assignments of error challen ging his sentence. This Court ultimately vacated Or tiz’s sentence on other grounds

. Id . at ¶ 6. In reviewing the record, this Court noted that the trial court’s sentencing entr y for the second community control

violation included all four indi cted counts of obstructing just ice, despite the fact that Ortiz had only pleaded guilty to two of those counts. Id . at ¶ 7-8. Because the trial court found Ortiz guilty on two counts of obstructing jus tice in the absence of either g uilty pleas or guilty verdicts on those counts, this Court concluded that there was structural error an d vacated Ortiz’s sentence and

remanded the matter for further proceedings consistent with thi s decision. Id . at ¶ 12. {¶4} On remand, the trial court dismi ssed the two counts of obstruct ing justice for which Ortiz had never pleaded guilty. With respect to the remaining counts, the trial court imposed a total prison sentence of nine years pursuant to the parties’ ag reement. The trial court issued its sentencing entry on March 26, 2019.3

{¶5} Ortiz filed a timely notice of appeal. Now before this Court, Ortiz raises two assignments of error.

II.

ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT (ORTIZ) WHEN SAID COURT CONVICTED AND SENTENCED ORTIZ FOR SIX DIFFERENT CRIMES OF SIMILAR IMPORT, WHICH WAS CONTRARY TO R.C. [] 2941.25 BECAUSE ORTIZ’S CONDUCT: (1) WAS OF SIMILAR IMPORT; (2) WAS COMMITTED AS A WHOLE DURING ONE SINGLE PERIOD; AND, (3) HAD ONE ANIMUS.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED TO THE DETRIMENT OF ORTIZ WHEN THE TRIAL COURT SENTENCED ORTIZ TO NINE YEARS IN PRISON, WHICH WAS CONTRARY TO R.C. [] 2929.11[.] {¶6} In his first assignment of error, Ortiz contends that the trial court erred when it failed to merge allied offenses of similar import. In his seco nd assignments of error, Ortiz contends that his prison sentence was contrary to R.C. 2929.11. {¶7} R.C. 2953.08(D)(1) provides that “[a] sentence imposed upon a d efendant is not subject to review under this sec tion if the sentence is authori zed by law, has been recommended jointly by the defendant and the prosecution in the case, and i s imposed by a sentencing judge.” It follows that, “[g]enerally speaking, a defendant cannot challen ge a jointly-recommended sentence on appeal.” State v. Zazzara , 9th Dist. Medina No. 18CA0007-M, 2019-Ohio-662, ¶ 10. “A sentence is ‘authorized by law’ and is not appealable within th e meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions.” State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, paragraph two of the syllabus. In Underwood , the Supreme Court held that “[w]hen a sentence is im posed for multip le convictions on offenses that are allied offenses of similar import in violati on of R.C. 2941.25(A), R.C. 2953.08(D) (1) does not bar appellate review4

of that sentence even though it wa s jointly recommended by the parties and imposed by the court.”

Id . at paragraph one of the syllabus. {¶8} On appeal, Ortiz contends that R.C. 2953.08(D)(1) does not appl y in this case for a

number of reasons. {¶9} Ortiz first argues that the trial court did not impose the agre ed sentence. Ortiz maintains that the parties’ agreement stipulated that he would be sentenced to community control and CBCF with the understanding t hat he would be sentenced to n ine years in prison upon a

violation. Because this Court v acated Ortiz’s prison sentence after his second community control violation, Ortiz contends that th e trial court never lawfully s entenced him to community control in the first instance, meaning that the imposition of a prison sen tence would be premature. This argument is without merit. In Ortiz’s prior appeal, this Court noted that the trial court “imposed the agreed upon sentence” at Ortiz’s original sentencing. Ortiz , 2019-Ohio-822, at ¶ 2. After two community control violations, the trial court imposed the agree d nine-year prison sentence, although it indicated that Ortiz had pleaded guilty to four cou nts of obstructing justice instead of

two. Id . at ¶ 4. This Court vacated Ortiz’s prison sentence on the ba sis that the sentencing entry

included two counts of obstructin g justice for which Ortiz had never pleaded guilty. Id . at ¶ 12. Notably, this Court did not dete rmine that the trial court’s in itial imposition of community control pursuant at the original sentencing hearing was void ab initio. Therefore, Ortiz cannot prevail on his argument that the trial court failed to properly impose com munity control pursuant to the agreed

sentence. {¶10} Ortiz further argues that his sentence was not authorized by la w because he was sentenced on allied of offenses of similar import. Specificall y, Ortiz suggests that the actions he took while cleaning up the crime scene on May 16, 2013, constit uted a single act and that he should5

not have been sentenced on separat e offenses related to each in dividual action he took throughout that process. “Failure to actively seek the merger of purporte d allied offenses at the trial court level forfeits the issue for appellate review.” State v. May , 9th Dist. Lorain No. 17CA011204, 2018-Ohio-2996, ¶ 9, State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 21, citing State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 15. “[F]ailure to obje ct or make any allied offenses argument at sentencing forfeits all but plain error.” May at ¶ 9. “Under a plain error review, any mistake by the trial court regarding allied offense s ‘is not reversible error unless it affected the outcome of the proceeding and reversal is necessar y to correct a manifest miscarriage of justice.’” State v. Beech , 9th Dist. Summit No. 29036, 2019-Ohio-120, ¶ 17, quoting Rogers at ¶ 3. Here, Ortiz did not raise an allied offenses argument at the time of his original sentencing when the trial court adopted the agreed sentence. As Ortiz has failed to set forth a plain error argument in his merit brief, thi s Court declines to create one on his behalf. See State v. Boatright , 9th Dist. Summit No. 28101, 2017-Ohio-5794, ¶ 8. Accordingly, Ortiz cannot prevail on his allied

offenses claim. {¶11} Finally, Ortiz contends that the total sentence of nine years i mposed by the trial

court in this matter was unlawful because it was inconsistent w ith the purposes of sentencing in R.C. 2929.11. Ortiz sets forth numerous arguments in support o f his position, most notably that the individual who was responsib le for the killing in this matt er received only a six-year sentence. While the Supreme Court in Underwood held that the trial court must comply with all mandatory sentencing provisions in order fo r a sentence to be authorized by law, the high court further specified that “[o]ur holding does not prevent R.C. 2953.08(D)( 1) from barring appeals that would otherwise challenge the court’s discretion in imposing a senten ce, such as whether the trial court complied with statutory provi sions like R.C. 2929.11 (the overr iding purposes of felony6

sentencing), 2929.12 (the serious ness and recidivism factors), and/or 2929.13(A) through (D) (the sanctions relevant to the felony degree) or whether consecutive or maximum sentences were appropriate under certain circumstances.” Underwood , 2010-Ohio-1, at ¶ 22. Here, the trial court imposed a prison sentence that w as jointly recommended by Ortiz and the State. The refore, Ortiz is barred from challenging the sentence on the basis that it fa iled to comply with R.C. 2929.11. {¶12} The first and second assignment s of error are overruled.

III. {¶13} Ortiz’s first and second assign ments of error are overruled. T he judgment of the Lorain County Court of Co mmon Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30.7

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

HENSAL, J. SCHAFER, J. CONCUR.

APPEARANCES: KENNETH N. ORTNER, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assi stant Prosecuting Attorney, for Appellee.