[Cite as State v. Allen, 2016-Ohio-5258.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150769 TRIAL NO. B-1500828-A Plaintiff-Appellee, : O P I N I O N. vs. :
SHAWN ALLEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 5, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Law Office of Wendy R. Calaway, Co., LPA, and Wendy R. Calaway, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} Defendant-appellant Shawn Allen has appealed from the trial court’s
entry convicting him, following guilty pleas, of involuntary manslaughter and
aggravated robbery and sentencing him to 18 years’ imprisonment. He challenges
both the trial court’s acceptance of his guilty pleas and the sentences imposed.
Because Allen entered his guilty pleas knowingly, intelligently, and voluntarily, and
because no error occurred in the imposition of sentence, we affirm the trial court’s
judgment.
Factual Background
{¶2} Allen was indicted on two counts, murder pursuant to R.C.
2903.02(B), and aggravated robbery pursuant to R.C. 2911.01(A)(1). Both charges
carried accompanying weapon specifications. The victim of both offenses was
Gerald Hummer.
{¶3} The state and Allen reached a plea agreement wherein Allen pled guilty
to an amended Count 1 of involuntary manslaughter and to aggravated robbery in
Count 2. At the plea hearing, the prosecutor read the following facts in support of
the charges:
Judge, in this case, in Count 1, Shawn Allen, on or about the 7th day of
February, 2015, Hamilton County, State of Ohio, did cause another’s
death, that being Gerald Hummer, II, as a proximate result of
committing or attempting to commit a felony. In this case, Judge, that
would have been trafficking in drugs, Judge, in this case, cocaine, a
Schedule II prohibited substance in violation of Section 2903.04,
2 OHIO FIRST DISTRICT COURT OF APPEALS
Judge, and at the time, the defendant did have on or about his person
a firearm while committing the underlying offense, did display,
brandished the firearm, indicated he possessed the firearm used to
facilitate the offense therein in Count 1, Judge.
Separate and distinct from that Count 1, Judge, the defendant is also
pleading guilty to aggravated robbery. That would be that Shawn
Allen, on or about the 7th day of February 2015, Hamilton County,
State of Ohio, in committing or attempting to commit a theft offense as
defined in the Ohio Revised Code, knowingly obtained or attempted to
obtain United States currency and/or personal property belonging to
Gerald Hummer, II, and in fleeing immediately thereafter, knowing he
had a deadly weapon on or about his person, under his control,
displayed, brandished indicated possession or used a deadly weapon;
in this case, a firearm, Judge. Gun specifications 1 and 2 to Count 2
are dismissed pursuant to plea agreement.
Again, Judge, the State believes that Count[s] 1 and 2 are separate and
distinct with a separate animus [and] import in both matters.
{¶4} Counsel for Allen was given an opportunity to respond to the
prosecutor’s statement of the facts, and he responded that “We would agree that
based on the facts as read, they are not allied offenses. We would only note for the
record, we accept the facts insofar as they constitute the offense to which we have
tendered a plea of guilty.” Allen then personally conceded on the record that the
facts as read were fair and accurate.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The trial court accepted Allen’s guilty pleas and continued the matter
for sentencing. Prior to imposing sentence, the trial court stated on the record that “I
want to make it clear that there was an indication that there was a separate animus
regarding the involuntary manslaughter and the aggravated robbery. So I’m
considering Counts 1 and 2 not to be allied offenses.” The court then sentenced Allen
to 11 years’ imprisonment for the offense of involuntary manslaughter, along with a
consecutive three years’ imprisonment for the accompanying weapon specification.
It imposed a sentence of four years’ imprisonment for the offense of aggravated
robbery. These sentences were made consecutive, resulting in an aggregate sentence
of 18 years’ imprisonment.
Allied Offenses
{¶6} In his first assignment of error, Allen argues that the trial court erred
by imposing multiple sentences for the offenses of involuntary manslaughter and
aggravated robbery because they were allied offenses of similar import.
{¶7} Pursuant to R.C. 2941.25, Ohio’s multiple-count statute, where the
defendant’s conduct constitutes two or more allied offenses of similar import, the
defendant may only be convicted of one offense. See R.C. 2941.25(A). To determine
whether offenses are allied, courts must consider the defendant’s conduct, animus,
and import. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
paragraph one of the syllabus. A defendant may be separately convicted of multiple
offenses if the offenses were either of dissimilar import, were committed separately,
or were committed with a separate animus. Id., at paragraph three of the syllabus;
R.C. 2941.25(B).
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} Allen failed to raise an allied-offense argument before the trial court
and did not request that the offenses of involuntary manslaughter and aggravated
robbery be merged at sentencing. In fact, he specifically conceded during his plea
hearing that the offenses were not allied. Consequently, the state contends that Allen
has waived his allied-offense argument. In State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, the Ohio Supreme Court recently explained under
what circumstances an allied-offense argument is waived, as well as clarified the
difference between the waiver and the forfeiture of an allied-offense argument.
{¶9} The Rogers court explained that waiver is the “intentional
relinquishment or abandonment of a known right.” (Internal citations omitted.) Id.
at ¶ 20. It acknowledged that it is possible for a defendant to waive an allied-offense
argument, but that waiver occurs only when the defendant intends or knowingly
relinquishes that right, such as by stipulating in a plea agreement that the offenses
were not allied or were committed separately. Id. The Rogers court further
explained that forfeiture, in contrast to waiver, “is the failure to timely assert a right
or object to an error.” Id. at ¶ 21. Accordingly, by failing to seek the merger of
alleged allied offenses before the trial court, a defendant forfeits, rather than waives,
the right to assert an allied-offense argument on appeal. Id.
{¶10} Here, Allen conceded at the plea hearing that the offenses were not
allied. Under these circumstances, we recognize that a strong argument exists that
he did, in fact, waive the right to assert an allied-offense argument. But because
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[Cite as State v. Allen, 2016-Ohio-5258.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150769 TRIAL NO. B-1500828-A Plaintiff-Appellee, : O P I N I O N. vs. :
SHAWN ALLEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 5, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Law Office of Wendy R. Calaway, Co., LPA, and Wendy R. Calaway, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} Defendant-appellant Shawn Allen has appealed from the trial court’s
entry convicting him, following guilty pleas, of involuntary manslaughter and
aggravated robbery and sentencing him to 18 years’ imprisonment. He challenges
both the trial court’s acceptance of his guilty pleas and the sentences imposed.
Because Allen entered his guilty pleas knowingly, intelligently, and voluntarily, and
because no error occurred in the imposition of sentence, we affirm the trial court’s
judgment.
Factual Background
{¶2} Allen was indicted on two counts, murder pursuant to R.C.
2903.02(B), and aggravated robbery pursuant to R.C. 2911.01(A)(1). Both charges
carried accompanying weapon specifications. The victim of both offenses was
Gerald Hummer.
{¶3} The state and Allen reached a plea agreement wherein Allen pled guilty
to an amended Count 1 of involuntary manslaughter and to aggravated robbery in
Count 2. At the plea hearing, the prosecutor read the following facts in support of
the charges:
Judge, in this case, in Count 1, Shawn Allen, on or about the 7th day of
February, 2015, Hamilton County, State of Ohio, did cause another’s
death, that being Gerald Hummer, II, as a proximate result of
committing or attempting to commit a felony. In this case, Judge, that
would have been trafficking in drugs, Judge, in this case, cocaine, a
Schedule II prohibited substance in violation of Section 2903.04,
2 OHIO FIRST DISTRICT COURT OF APPEALS
Judge, and at the time, the defendant did have on or about his person
a firearm while committing the underlying offense, did display,
brandished the firearm, indicated he possessed the firearm used to
facilitate the offense therein in Count 1, Judge.
Separate and distinct from that Count 1, Judge, the defendant is also
pleading guilty to aggravated robbery. That would be that Shawn
Allen, on or about the 7th day of February 2015, Hamilton County,
State of Ohio, in committing or attempting to commit a theft offense as
defined in the Ohio Revised Code, knowingly obtained or attempted to
obtain United States currency and/or personal property belonging to
Gerald Hummer, II, and in fleeing immediately thereafter, knowing he
had a deadly weapon on or about his person, under his control,
displayed, brandished indicated possession or used a deadly weapon;
in this case, a firearm, Judge. Gun specifications 1 and 2 to Count 2
are dismissed pursuant to plea agreement.
Again, Judge, the State believes that Count[s] 1 and 2 are separate and
distinct with a separate animus [and] import in both matters.
{¶4} Counsel for Allen was given an opportunity to respond to the
prosecutor’s statement of the facts, and he responded that “We would agree that
based on the facts as read, they are not allied offenses. We would only note for the
record, we accept the facts insofar as they constitute the offense to which we have
tendered a plea of guilty.” Allen then personally conceded on the record that the
facts as read were fair and accurate.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The trial court accepted Allen’s guilty pleas and continued the matter
for sentencing. Prior to imposing sentence, the trial court stated on the record that “I
want to make it clear that there was an indication that there was a separate animus
regarding the involuntary manslaughter and the aggravated robbery. So I’m
considering Counts 1 and 2 not to be allied offenses.” The court then sentenced Allen
to 11 years’ imprisonment for the offense of involuntary manslaughter, along with a
consecutive three years’ imprisonment for the accompanying weapon specification.
It imposed a sentence of four years’ imprisonment for the offense of aggravated
robbery. These sentences were made consecutive, resulting in an aggregate sentence
of 18 years’ imprisonment.
Allied Offenses
{¶6} In his first assignment of error, Allen argues that the trial court erred
by imposing multiple sentences for the offenses of involuntary manslaughter and
aggravated robbery because they were allied offenses of similar import.
{¶7} Pursuant to R.C. 2941.25, Ohio’s multiple-count statute, where the
defendant’s conduct constitutes two or more allied offenses of similar import, the
defendant may only be convicted of one offense. See R.C. 2941.25(A). To determine
whether offenses are allied, courts must consider the defendant’s conduct, animus,
and import. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
paragraph one of the syllabus. A defendant may be separately convicted of multiple
offenses if the offenses were either of dissimilar import, were committed separately,
or were committed with a separate animus. Id., at paragraph three of the syllabus;
R.C. 2941.25(B).
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} Allen failed to raise an allied-offense argument before the trial court
and did not request that the offenses of involuntary manslaughter and aggravated
robbery be merged at sentencing. In fact, he specifically conceded during his plea
hearing that the offenses were not allied. Consequently, the state contends that Allen
has waived his allied-offense argument. In State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, the Ohio Supreme Court recently explained under
what circumstances an allied-offense argument is waived, as well as clarified the
difference between the waiver and the forfeiture of an allied-offense argument.
{¶9} The Rogers court explained that waiver is the “intentional
relinquishment or abandonment of a known right.” (Internal citations omitted.) Id.
at ¶ 20. It acknowledged that it is possible for a defendant to waive an allied-offense
argument, but that waiver occurs only when the defendant intends or knowingly
relinquishes that right, such as by stipulating in a plea agreement that the offenses
were not allied or were committed separately. Id. The Rogers court further
explained that forfeiture, in contrast to waiver, “is the failure to timely assert a right
or object to an error.” Id. at ¶ 21. Accordingly, by failing to seek the merger of
alleged allied offenses before the trial court, a defendant forfeits, rather than waives,
the right to assert an allied-offense argument on appeal. Id.
{¶10} Here, Allen conceded at the plea hearing that the offenses were not
allied. Under these circumstances, we recognize that a strong argument exists that
he did, in fact, waive the right to assert an allied-offense argument. But because
Allen’s concession was not actually included in a plea agreement between the parties,
we find that he has forfeited, rather than waived, his right to assert an allied-offense
5 OHIO FIRST DISTRICT COURT OF APPEALS
argument. See State v. Black, 8th Dist. Cuyahoga No. 102586, 2016-Ohio-383, ¶ 17-
19.
{¶11} Because Allen forfeited his right to assert an allied-offense argument,
we review solely for plain error. Rogers at ¶ 22. Plain error is that which affects the
outcome of the proceedings. Id., citing State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002). It should only be found under exceptional circumstances and
to prevent a manifest miscarriage of justice. (Internal citations omitted.) Id. at ¶ 23.
Following our review of the record, we find that Allen has failed to establish that
plain error resulted from the trial court’s failure to merge the offenses of involuntary
manslaughter and aggravated robbery.
{¶12} We hold that the trial court did not err by imposing multiple sentences
for allied offenses, and we overrule Allen’s first assignment of error.
Consecutive Sentences
{¶13} In his second assignment of error, Allen argues that the trial court
erred by imposing consecutive sentences.
{¶14} Pursuant to R.C. 2953.08(G)(2), we may only vacate or modify a
defendant’s sentence if we clearly and convincingly find either that the record does
not support any mandatory sentencing findings or that the sentence is contrary to
law. See State v. White, 997 N.E.2d 629, 2013-Ohio-4225, ¶ 11 (1st Dist.). Here, the
trial court made all the necessary findings under R.C. 2929.14(C)(4) prior to
imposing consecutive sentences, and those findings were supported by the record.
And Allen’s sentences were not otherwise contrary to law.
{¶15} The trial court did not err by imposing consecutive sentences. Allen’s
second assignment of error is overruled.
6 OHIO FIRST DISTRICT COURT OF APPEALS
Allen’s Plea was Voluntary
{¶16} In his third assignment of error, Allen contends that his guilty plea to
the offense of involuntary manslaughter was not entered knowingly, intelligently,
and voluntarily because it was not supported by sufficient evidence. Specifically, he
alleges that there was no factual basis to support the assertion that he had caused the
death of another while engaged in drug trafficking.
{¶17} A guilty plea is a complete admission of the defendant’s guilt that
removes any issues of factual guilt from the case. See State v. Derkson, 1st Dist.
Hamilton No. C-130844, 2014-Ohio-3831, ¶ 10; State v. Wilson, 58 Ohio St.2d 52,
388 N.E.2d 745 (1979), paragraph one of the syllabus. Because Allen pled guilty to
involuntary manslaughter, he cannot challenge the sufficiency of the evidence
supporting that conviction.
{¶18} The trial court engaged in a thorough Crim.R. 11(C) colloquy prior to
accepting Allen’s guilty plea. We hold that Allen entered his plea to involuntary
manslaughter knowingly, intelligently, and voluntarily.
{¶19} Allen’s third assignment of error is overruled, and the judgment of the
trial court is affirmed.
Judgment affirmed.
MOCK and STAUTBERG, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.