[Cite as State v. Hamlin,

.]

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

STATE OF OHIO C.A. No. 27650

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MICHAEL HAMLIN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2014 02 0359

DECISION AND JOURNAL ENTRY

Dated: March 23, 2016

CARR, Presiding Judge.

{¶1} Appellant, Michael Hamlin, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms in part, reverses in part, and remands for further

proceedings.

I.

{¶2} Hamlin was charged with rape of a child under the age of 13 and gross sexual

imposition. Pursuant to a plea agreement that removed the age of the victim as an element of the

offense, he pleaded guilty to both counts. The parties jointly recommended a sentence of ten

years for rape and four years for gross sexual imposition, with those sentences to be served

consecutively. During the sentencing hearing, the trial court asked the parties whether the

offenses should merge for sentencing. Hamlin’s counsel advised the court that the offenses

should not merge and that there was no need to conduct a merger analysis. 2

{¶3} The trial court imposed the agreed sentence. The court also ordered Hamlin to

have no contact with the victim.

{¶4} Hamlin has appealed his sentence and presented two assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TWO CONVICTIONS AND TWO SENTENCES VIOLATE THE DOUBLE JEOPARDY PROTECTION OF THE U.S. CONSTITUTION BECAUSE THE INDICTMENT INCLUDES THE IDENTICAL DATE RANGE FOR BOTH OFFENSES, AND THEREFORE BOTH CONVICTIONS AND SENTENCES MAY BE FOR A SINGLE ACT OCCURRING ON THE SAME DATE, CONSTITUTING PLAIN ERROR.

{¶5} Hamlin argues in his first assignment of error that the trial court erred when it

sentenced him on allied offenses of similar import. He contends that the trial court committed

plain error when it imposed sentences on both counts without conducting a merger analysis.

{¶6} A defendant may appeal his sentence pursuant to R.C. 2953.08. R.C.

2953.08(D)(1) establishes a statutory limit on a court of appeals’ jurisdiction to hear an appeal of

the defendant’s sentence. It prevents appellate review of a sentence “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.” State v. Noling,

,

.

Hamlin has argued that his sentence is not authorized by law because the trial court did not

conduct an allied offense analysis; he has not challenged any other aspect of his sentence.

{¶7} There is no dispute that the sentence was jointly recommended and imposed by a

sentencing judge. A sentence is authorized by law and is not appealable only if it comports with

all mandatory sentencing provisions. State v. Underwood,

,

,

paragraph two of the syllabus. 3

{¶8} Hamlin relies on Underwood, which held that when a trial court imposes

sentences 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.

, 2010–Ohio–1, at

paragraph one of the syllabus. The Court also recognized an exception to this general rule,

noting that the State and defendant can stipulate that the offenses were committed with a separate

animus. Id. at ¶ 29.

{¶9} The Supreme Court reiterated this exception in State v. Rogers,

, 2015–Ohio–2459. The Court held that a defendant could waive the protection afforded by

the allied offense statute. Id. at ¶ 20. One way for a defendant to do this is to stipulate in the

plea agreement that the offenses were committed with a separate animus. Id.

{¶10} After reviewing the transcript of the sentencing hearing, we conclude that Hamlin

waived the protection of the allied offense statute. When the prosecutor described the plea

agreement at the start of the combined plea and sentencing hearing, he told the trial court that the

parties agreed that the sentence should be a total of 14 years for the two offenses.

{¶11} Hamlin’s attorney told the trial court that the prosecutor accurately stated the plea

agreement. He addressed the offenses and said:

Judge, I would ask you to structure that sentence as follows: To impose a ten- year sentence on Count 1, the rape charge, and a four-year sentence on the gross sexual imposition Count 2 charge, to be run consecutively for a total of 14 years.

Mr. Hamlin is aware of his constitutional rights. I have explained those to him.

{¶12} Immediately after accepting Hamlin’s guilty pleas, and finding him guilty, the

following exchange occurred: 4

With that being said, from the State of Ohio and, [Hamlin’s counsel], I will ask you the same question, do we have any issues of merger with Count 1 and Count 2?

{¶13} The prosecutor responded that there was no issue of merger. Hamlin’s attorney

then said:

It is a non merger. We believe they were - - consecutive sentences are appropriate.

{¶14} The parties informed the trial court that these offenses were not allied offenses

subject to merger. At both the plea and sentencing stage, Hamlin asserted that the offenses were

not subject to merger. He waived any argument that these offenses were allied offenses by

telling the court that merger was not an issue and consecutive sentences were appropriate.

{¶15} Hamlin now argues that a forfeiture analysis is appropriate, but this is not a case

where the defendant failed to timely assert a right.

. Rather, Hamlin intentionally

abandoned a known right, the right to argue that the offenses were subject to merger, by

affirmatively stating that merger does not apply and consecutive sentences are appropriate.

. The record demonstrates that Hamlin “intended to relinquish the opportunity to

argue that he committed his offenses with the same conduct and the same animus.”

Thus,

Hamlin waived this issue.

{¶16} Hamlin waived the merger issue he now asserts on appeal. Because the sentences

complied with the mandatory-sentencing provisions, they were authorized by law. Accordingly,

this Court is without jurisdiction to review the sentences, and the first assignment of error is

overruled. See Noling, 2013–Ohio–1764, at ¶ 22.

ASSIGNMENT OF ERROR II

THE SENTENCING ENTRY IMPOSES A PRISON TERM AND A NO CONTACT ORDER WHICH IS VOID AS A MATTER OF LAW AS EXPLAINED BY STATE V. ANDERSON. 5

{¶17} In his second assignment of error, Hamlin argues that the trial court erred by

imposing a no contact order as part of his sentence. The State has conceded that the trial court

erred. In light of the Ohio Supreme Court’s conclusion that a trial court cannot impose a prison

term and a no-contact order for the same offense, State v. Anderson,

, 2015-

Ohio-2089, ¶ 32, the assignment of error is sustained and this matter is remanded with

instructions for the trial court to vacate the no-contact order. State v. Clayton, 9th Dist. Summit

No. 27515, 2015–Ohio–2499, ¶ 12.

III.

{¶18} Hamlin’s first assignment of error is overruled and his second assignment of error

is sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part,

reversed in part, and remanded for further proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court 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 6

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

DONNA J. CARR FOR THE COURT

WHITMORE, J. SCHAFER, J. CONCUR.

APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.