[Cite as State v. Thomas, 2016-Ohio-5057.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CHAMPAIGN COUNTY 

STATE OF OHIO 

Plaintiff-Appellee

v. 

KEVIN L. THOMAS 

Defendant-Appellant 

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Appellate Case No. 2015-CA-33 

Trial Court Case No. 2015-CR-065 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 22nd day of July, 2016. 

. . . . . . . . . . . 

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign 

County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 

 Attorney for Plaintiff-Appellee 

 

PAUL WAGNER, Atty. Reg. No. 0067647, 111 North Bridge Street, P.O. Box 315, 

Gettysburg, Ohio 45328 

 Attorney for Defendant-Appellant 

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WELBAUM, J. 
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{¶ 1} Defendant-appellant, Kevin L. Thomas, appeals from his conviction and 

sentence in the Champaign County Court of Common Pleas following a negotiated guilty 

plea to charges of attempting to corrupt another with drugs and possessing a controlled 

substance. Thomas contends the aforementioned offenses are allied offenses of similar 

import that should have been merged at sentencing. For the reasons outlined below, we 

do not find that the trial court erred in failing to merge Thomas’s offenses; therefore, the 

judgment of the trial court will be affirmed. 

{¶ 2} On July 14, 2015, Thomas entered into a plea agreement in which he agreed 

to plead guilty to one count of attempting to corrupt another with drugs in violation of R.C. 

2925.02(A)(4)(a) and R.C. 2923.02, and one count of possessing a controlled substance, 

Xanax, in violation of R.C. 2925.11(A),(C)(2)(a). As part of the plea agreement, Thomas 

stipulated that the offenses were not allied offenses of similar import. 

{¶ 3} The allied-offense stipulation was recorded in a written plea agreement that 

was signed by both Thomas and his trial counsel. The written plea agreement 

specifically stated that “Defendant agrees and stipulates that (amended) Count One and 

Count Three are not allied offenses of similar import.” Plea of Guilty Agreement and 

Entry (July 14, 2015), Champaign County Court of Common Pleas Case No. 2015 CR 

065, Docket No. 38, p. 3. 

{¶ 4} The stipulation was also discussed by the parties at the plea and sentencing 

hearings. At the plea hearing, the State recited the stipulation on the record and Thomas 

indicated that he understood the stipulation and specifically agreed that his offenses were 

not allied offenses of similar import. At the sentencing hearing, Thomas’s trial counsel 
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confirmed that the defense had agreed to the allied-offense stipulation and that they were 

going to “stick by [their] agreement.” Sentencing Hearing Trans. (Aug. 24, 2015), p. 17. 

{¶ 5} Based on the stipulation, the trial court found that Thomas’s offenses were 

not allied offenses of similar import. The trial court then imposed an 18-month prison 

term, $5,000 fine, and 6-month driver’s license suspension for the count of attempting to 

corrupt another with drugs, as well as a concurrent 8-month prison term, $250 fine, and 

6-month driver’s license suspension for the count of possessing a controlled substance. 

Accordingly, Thomas’s total sentence included 18 months in prison, a $5,000 fine, and a 

6-month driver’s license suspension, plus court costs. 

{¶ 6} Thomas now appeals from his conviction and sentence, raising the following 

single assignment of error for our review. 

DEFENDANT COULD NOT BE CONVICTED OF BOTH POSSESSION 

AND ATTEMPTED CORRUPTING OF ANOTHER WITH DRUGS 

BECAUSE THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT. 

{¶ 7} Under his sole assignment of error, Thomas contends that his offenses are 

allied offenses of similar import that should have been merged at sentencing. In 

response, the State contends that the trial court was not required to merge Thomas’s 

offenses since the parties stipulated that the offenses were not allied offenses of similar 

import. We agree with the State. 

{¶ 8} “It is well established that there may be only one conviction for allied offenses 

of similar import, and thus, allied offenses must be merged at sentencing.” (Citations 

omitted.) State v. Donaldson, 2d Dist. Montgomery No. 24911, 2012-Ohio-5792, ¶ 23. 

Specifically, Ohio’s allied offense statute, R.C. 2941.25, provides that: 
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(A) Where 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 defendant may be 

convicted of only one. 

(B) Where the defendant’s conduct constitutes two or more offenses of 

dissimilar import, or where his conduct results in two or more offenses of 

the same or similar kind committed separately or with a separate animus as 

to each, the indictment or information may contain counts for all such 

offenses, and the defendant may be convicted of all of them. 

{¶ 9} In State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, 

the Supreme Court of Ohio held that when a sentence is imposed on multiple counts that 

are allied offenses of similar import in violation of R.C. 2941.25(A), appellate review of 

that sentence is not precluded even though it was jointly recommended by the parties 

and imposed by the court, as such a sentence is unauthorized by law. Id. at ¶ 26. In 

response to the State’s argument that merging allied offenses under such circumstances 

would allow defendants to manipulate plea agreements, the court in Underwood also 

observed that: 

With respect to the argument that the merger of allied offenses will allow 

defendants to manipulate plea agreements for a more beneficial result than 

they bargained for, 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 
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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. 

(Emphasis added.) Id. at ¶ 29. 

{¶ 10} We applied the aforementioned principles from Underwood to Donaldson, 

a case in which the parties entered into a plea agreement and expressly stipulated that 

the defendant’s involuntary manslaughter charge was committed with a separate animus 

and was not an allied offense to a previous charge of attempted murder. Donaldson at 

¶ 25. After determining that the defendant understood the stipulation, we held that “[t]his 

is precisely the type of factual stipulation that the court in Underwood acknowledged as 

a means of addressing a defendant’s potential ‘manipulation’ of a plea agreement for a 

‘more beneficial result’ where allied offenses are involved.” Id. As a result, we held that 

the trial court did not err in failing to merge the convictions for attempted murder and 

involuntary manslaughter. Id. Accord State v. Williams, 1st Dist. Hamilton No. C150320, 2016-Ohio-376, ¶ 8-9 (finding that defendant’s plea agreement “[fell] squarely 

within the exception set forth by the Ohio Supreme Court in Underwood,” because 

defendant agreed that his offenses were committed with a separate animus and were not 

allied offenses of similar import); State v. Moll, 3d Dist. Defiance Nos. 4-14-17, 4-14-18, 

2015-Ohio-926, ¶ 16 (finding that “since the parties stipulated that the offenses were 

committed with a separate animus and are not allied offenses of similar import, the trial 

court was under no obligation to determine whether the offenses were allied pursuant to 

R.C. 2941.25”). 

{¶ 11} Approximately three years after our decision in Donaldson, the Supreme 
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Court of Ohio confirmed in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 

N.E.3d 860, that “[i]t 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.’ ” (Emphasis added.) Id. at ¶ 20, citing Underwood 

at ¶ 29. In interpreting the aforementioned language from Rogers, the Eighth Appellate 

District recently held that “the Ohio Supreme Court observed that such a stipulation is 

simply one means by which a defendant may ‘waive the protection afforded by R.C. 

2941.25[.]’ ” State v. Black, 2016-Ohio-383, ___N.E.3d___, ¶ 16 (8th Dist.) In so 

holding, the Eight District concluded that a plea agreement need not specifically stipulate 

to there being a separate animus in order to effectively waive the allied offense issue. 

Id. at ¶ 16-18. 

{¶ 12} The court in Black explained that: 

Although there is nothing in the record to suggest that the parties 

specifically “stipulat[ed] in the plea agreement that the offenses were 

committed with separate animus,” the transcripts from the plea and 

sentencing hearings not only reflect that Black knowingly, intelligently and 

voluntarily agreed to the sentence that was imposed by the trial court but 

also that he expressly agreed through defense counsel (1) that the felonious 

assault and domestic violence counts “would not merge for the purpose of 

sentencing” and (2) that consecutive sentences would be imposed for these 

offenses. 

This court has previously held that where the transcript demonstrates 

that the state and defense counsel agreed that offenses were not allied, the 
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issue of allied offenses is waived. * * * In this case, the transcript clearly 

shows that defense counsel agreed that the offenses were not allied 

offenses and would not merge for sentencing. Therefore, Black waived the 

allied offense issue. 

Black at ¶ 17-18. 

{¶ 13} Furthermore, in State v. Torres, 8th Dist. Cuyahoga No. 100106, 2014-

Ohio-1622, the Eighth District held that a stipulation in a plea agreement providing “that 

the offenses to which [the defendant is] about to plead guilty are non-allied offenses” was 

sufficient to relieve the trial court of its obligation to determine whether the offenses were 

allied offenses. Id. at ¶ 7, 11. Similarly, in State v. Recob, 8th Dist. Cuyahoga No. 

100012, 2014-Ohio-929, the Eighth District held that the trial court did not err in failing to 

merge the defendant’s offenses at sentencing because the defendant stipulated that the 

offenses to which he was pleading guilty were not allied offenses of similar import and 

indicated that he understood the court could impose consecutive sentences. ¶ 3, 11. 

{¶ 14} In the instant case, the record of the plea and sentencing hearings, as well 

as the written plea agreement, clearly establish that Thomas stipulated his offenses were 

not allied offenses of similar import. The record also indicates that Thomas advised the 

trial court that he understood the stipulation. Moreover, prior to Thomas entering his 

guilty plea, the trial court advised him of the maximum sentence he could receive for each 

of his offenses, noting that consecutive sentences could be imposed and would amount 

to a total maximum prison term of 48 months. Thomas thereafter indicated he 

understood the maximum possible sentence. Therefore, in light of the trial court’s 

advisements at the plea hearing, Thomas was, at the very least, indirectly made aware 
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of the fact that his offenses would not merge at sentencing. 

{¶ 15} Under the circumstances of this case, we find that pursuant to Underwood 

and its progeny, the trial court did not err in finding that Thomas’s offenses were not allied 

offenses of similar import, as the trial court’s decision was based on the stipulation in the 

plea agreement, which Thomas indicated he understood. Accordingly, Thomas’s sole 

assignment of error is overruled and the judgment of the trial court is affirmed. 

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FAIN, J. and FROELICH, J., concur. 

Copies mailed to: 

Jane A. Napier 

Paul Wagner 

Hon. Nick A. Selvaggio