State v. Bonner

[Cite as State v. Bonner, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 108273
                 v.                                :

DEONDRE BONNER,                                    :

                 Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 19, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-623056-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel A. Cleary, Assistant Prosecuting
                 Attorney, for appellee.

                 Ariel Burr, for appellant.


KATHLEEN ANN KEOUGH, J.:

                   Defendant-appellant, Deondre Bonner, appeals his convictions for

rape and aggravated robbery. For the following reasons, we affirm his convictions.

                   In November 2017, Bonner was named in a 13-count indictment

charging him with six counts of rape, three counts of kidnapping, three counts of
aggravated robbery, and one count of gross sexual imposition.            The charges

stemmed from Bonner’s multiple acts of rape involving three different victims. In

November 2018, Bonner pleaded guilty to Counts 1 and 2, rape (vaginal and oral;

victim 1); Count 4, aggravated robbery; Count 5, rape (vaginal; victim 2); and Counts

8 and 9, rape (oral and digital; victim 3). At the time of the plea, the parties agreed

that the offenses would not merge for sentencing. Bonner was sentenced to a total

prison term of 55 years.

               Bonner now appeals, contending in his sole assignment of error that

the trial court committed plain error by failing to merge the rape offenses charged

in Counts 1 and 2 pertaining to victim 1, and by failing to merge the rape offenses

charged in Counts 8 and 9 pertaining to victim 3.

               R.C. 2941.25(A) prohibits multiple punishments for two or more

offenses resulting from the same conduct. It is possible, however, 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.’” State

v. Rogers, 

, 

, 

, quoting State

v. Underwood, 

, 

, 

, ¶ 29. This court

has repeatedly held that where the transcript demonstrates that the state and

defense counsel agreed that offenses were not allied, the issue of allied offenses is

waived. See, e.g., State v. Albright, 8th Dist. Cuyahoga No. 107632, 2019-Ohio-

1998, ¶ 34; State v. Black, 

, 

 (8th Dist.); State v.

Booker, 8th Dist. Cuyahoga No. 101886, 

.
              In this case, the state and defense agreed that the offenses would not

merge. (Tr. 15, 31.) Accordingly, Bonner has waived this issue on appeal.

              Notwithstanding waiver, each rape offense for each victim

represented different acts of rape. Offenses are not allied when they are dissimilar

in import or significance, or when the offenses are committed separately. State v.

Ruff, 

, 

, 

. This court has

consistently held that rape involving different types of sexual activity, such as

vaginal intercourse, digital penetration, and oral intercourse, arise from distinct

conduct and are not considered allied offenses, even when committed during the

same sexual assault. See, e.g., State v. Nunez, 8th Dist. Cuyahoga No. 102946, 2016-

Ohio-812, ¶ 20; State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 

.

              In this case, Bonner pleaded guilty to rape offenses involving three

different victims. Regarding the argument raised on appeal, the rape charges in

Counts 1 and 2 pertaining to victim 1 involved distinct acts of sexual conduct; thus,

those counts are not allied and do not merge. Similarly, the rape charges in

Counts 8 and 9 pertaining to victim 3 also involved distinct acts of sexual conduct;

thus, those counts are not allied and do not merge.

              The assignment of error is wholly without merit and is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MARY EILEEN KILBANE, A.J., and
SEAN C. GALLAGHER, J., CONCUR