[Cite as State v. Boyer, 2026-Ohio-2425.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: C.A. No. 2025-CA-69
Appellee :
: Trial Court Case Nos. 24-CR-0337; 24-v. : CR-0690; 24-CR-0931
:
BRAYDEN BOYER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
: FINAL JUDGMENT ENTRY &
OPINION
Pursuant to the opinion of this court rendered on June 26, 2026, the judgments of the
trial court are affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
MARY K. HUFFMAN, JUDGE
LEWIS, P.J., and HANSEMAN, J., concur.
OPINION
CLARK C.A. No. 2025-CA-69
CHIMA R. EKEH, Attorney for Appellant
JOHN M. LINTZ, Attorney for Appellee
HUFFMAN, J.
{¶ 1} After reaching a plea agreement resolving multiple felony cases, Brayden Boyer
pleaded guilty in the Clark County Court of Common Pleas to domestic violence in Clark
C.P. No. 24-CR-0337, complicity to aggravated burglary in Clark C.P. No. 24-CR-690, and
discharge of a firearm on or near prohibited premises and felonious assault, plus firearm
specifications, in Clark C.P. No. 24-CR-0931. The trial court imposed an agreed sentence
for each offense and ordered the sentences in Clark C.P. No. 24-CR-0931 to be served
consecutively, as also agreed. Boyer received a total sentence of 20 to 23 years in prison.
{¶ 2} Boyer appeals from his convictions, claiming that his sentences are contrary to
law. For the following reasons, the trial court’s judgments are affirmed.
I. Facts and Procedural History
{¶ 3} In 2024, Boyer engaged in a series of criminal acts, resulting in four felony
cases. On March 27, he hit and choked his pregnant girlfriend, which led to two counts of
strangulation and one count of domestic violence in Clark C.P. No. 24-CR-0337.
{¶ 4} On June 22, Boyer possessed and shot a firearm while under disability. Ten
days later, he drove three individuals to a residence on Rice Street, knowing that they
possessed firearms and intended to commit aggravated robbery. For these two events,
Boyer was indicted on complicity to aggravated burglary with a three-year firearm
specification and having weapons while under disability. Clark C.P. No. 24-CR-0690.
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{¶ 5} In Clark C.P. No. 24-CR-0768, Boyer was indicted on carrying a concealed
weapon, improper handling of firearms in a motor vehicle, and having weapons while under
disability for conduct that occurred on October 4.
{¶ 6} Finally, on December 13, Boyer participated in a drive-by shooting at a
residence, during which one of the bullets struck a child while she was lying in her bed inside
the home. Boyer was subsequently indicted on having weapons while under disability
(Counts 1 and 6), carrying a concealed weapon (Counts 2 and 4), improper handling of
firearms in a motor vehicle (Counts 3 and 5), discharge of a firearm on or near prohibited
premises (Count 7), discharge of a firearm at or into a habilitation (Counts 8 and 9), and
felonious assault (Counts 10-16). Count 7 included a three-year firearm specification and
Counts 8 through 16 included both three-year and five-year firearm specifications. Clark C.P.
No. 24-CR-0931.
{¶ 7} Ultimately, the State and Boyer reached a plea agreement that encompassed
all four cases. Boyer agreed to plead guilty to the following charges and specifications,1 and
the parties agreed to the following sentences:
Firearm Agreed
Case No. Count Offense Level
Spec. Sentence
Domestic violence
24-CR-337 3 None M1 180 days
(amended)
Complicity to aggravated
24-CR-690 1 None F1 5 to 7.5 years
burglary
Discharge of a firearm on 6 to 9, plus 3
24-CR-931 7 3-year F1
or near prohibited premises years for spec.
3-year; 3 to 4.5 years,
24-CR-931 10 Felonious assault F2
5-year plus 8 for specs.
1. The plea form and the prosecutor’s articulation of the plea agreement at the plea hearing both indicated that Boyer agreed to three-year firearm specifications for Counts 7 and 10. However, the plea form cited to R.C. 2941.141, which addresses one-year and 18-month firearm specifications based on possession of a firearm or having a firearm under the offender’s control while committing the offense. We infer that the references to R.C. 2941.141, rather than R.C. 2941.145, were typographical errors.
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The sentences for Clark C.P. No. 24-CR-0931 would be served consecutively to one another
but concurrently with the remaining counts, for an aggregate sentence of 20 to 23 years in
prison. Boyer also agreed to provide truthful testimony against another individual who was
involved in the aggravated burglary in that person’s pending criminal cases. In exchange for
the pleas, the State agreed to dismiss the remaining charges and specifications, including
Clark C.P. No. 24-CR-0768 in its entirety.
{¶ 8} At Boyer’s plea hearing, the trial court accepted Boyer’s guilty pleas and
indicated that it would follow the parties’ joint sentencing recommendation if he fulfilled his
obligation to testify truthfully. The trial court sentenced Boyer on August 19, 2025, after he
testified as required, and it imposed the agreed individual sentences and aggregate
sentence. The court subsequently filed written judgments consistent with its oral
pronouncements.
{¶ 9} Boyer appeals from his convictions, claiming that his sentences are contrary to
law. He contends that (1) the trial court failed to comply with the requirement that it consider
the purposes and principles of felony sentencing, as set forth in R.C. 2929.11, and the
sentencing factors in R.C. 2929.12, and (2) the trial court should have merged the offenses
of discharge of a firearm on or near prohibited premises and felonious assault as allied
offenses of similar import. We address these arguments in reverse order. Before doing so,
we consider Boyer’s contention that his sentences are appealable.
{¶ 10} As an initial matter, neither of Boyer’s arguments is relevant to his
misdemeanor sentence in Clark C.P. No. 24-CR-0337. Accordingly, his conviction in that
case is summarily affirmed.
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II. Appealability of Boyer’s Sentences
{¶ 11} Boyer acknowledges that agreed sentences are generally not reviewable on
appeal and that the trial court imposed the parties’ agreed sentences in his case. He asserts
that he may nevertheless appeal his sentences because the trial court’s sentences were not
“authorized by law.” We question whether Boyer’s sentences are appealable.
{¶ 12} “A defendant’s right to appeal a sentence is generally derived from
R.C. 2953.08.” State v. Brabson, 2023-Ohio-449, ¶ 6 (8th Dist.). Under that statute, a
sentence is not subject to review “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.” R.C. 2953.08(D)(1); see State v. Grevious, 2022-Ohio-4361, ¶ 32. The
Ohio Supreme Court has held that “a sentence is ‘authorized by law’ and is not appealable
within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing
provisions.” State v. Underwood, 2010-Ohio-1, ¶ 19.
{¶ 13} Although a trial court must merge allied offenses at sentencing, nothing
precludes the State and a defendant from stipulating in the plea agreement that offenses
are not allied offenses of similar import. Underwood at ¶ 27, 29. While Boyer did not
expressly stipulate that Counts 7 and 10 were not allied offenses of similar import, such a
stipulation appears to be implicit in the plea terms. Accord State v. Conner, 2023-Ohio-1220,
¶ 36 (8th Dist.) (an express stipulation is not the exclusive means by which a defendant may
waive the protection of R.C. 2941.25). Boyer agreed to specific sentences for Counts 7 and
10, that Counts 7 and 10 would be served consecutively to each other, and that the
aggregate sentence for his offenses would be 20 to 23 years in prison. These terms
necessitated that Counts 7 and 10 not be merged as allied offenses of similar import.
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{¶ 14} As to Boyer’s argument regarding R.C. 2929.11 and 2929.12, those statutes
provide guidelines for the trial court’s exercise of its discretion in determining an appropriate
sentence for an offender. By presenting the trial court with an agreed sentence, the parties
necessarily conceded that the proposed sentence is an appropriate resolution to the charges
under R.C. 2929.11 and 2929.12. See Grevious at ¶ 32. “The General Assembly intended
a jointly agreed-upon sentence to be protected from review precisely because the parties
agreed that the sentence is appropriate. Once a defendant stipulates that a particular
sentence is justified, the sentencing judge no longer needs to independently justify the
sentence.” State v. Porterfield, 2005-Ohio-3095, ¶ 25. “[A]ppellate review under
R.C. 2953.08 is unnecessary because the parties have agreed that the sentence is
appropriate and the trial court accordingly has elected not to exercise its broad discretion in
determining the sentence.” Grevious at ¶ 32.
{¶ 15} Boyer claims that consideration of R.C. 2929.11 and 2929.12 are mandatory
sentencing requirements, and thus he can appeal the court’s failure to consider those
statutory factors in accordance with Underwood. However, Underwood stated that its
holding did “not prevent R.C. 2953.08(D)(1) from barring appeals that would otherwise
challenge the court’s discretion in imposing a sentence, such as whether the trial court
complied with statutory provisions like R.C. 2929.11 (the overriding purposes of felony
sentencing), 2929.12 (the seriousness 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. We have rejected a similar argument regarding R.C. 2929.19(B)(1)(b), which requires
a trial court to consider a juvenile offender’s youth and its characteristics as mitigating factors
at sentencing. State v. Moore, 2024-Ohio-5839 (2d Dist.).
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{¶ 16} While we have concerns about whether Boyer may appeal his sentences, the
State does not argue that R.C. 2953.08(D)(1) precludes Boyer’s appeal. Instead, it has
chosen to address only the merits of Boyer’s assignment of error. When the State fails to
raise a defendant’s appeal waiver to the court of appeals, that argument is forfeited. State
v. Gwynne, 2019-Ohio-4761, ¶ 2, 11-12. Accordingly, we now turn to Boyer’s arguments.
III. Allied Offenses of Similar Import
{¶ 17} Boyer claims that his sentences for discharge of a firearm on or near prohibited
premises (Count 7) and felonious assault (Count 10) in Clark C.P. No. 24-CR-0931 are
contrary to law because the trial court should have merged the offenses as allied offenses
of similar import.
{¶ 18} The Double Jeopardy Clause of the United States Constitution protects
against multiple punishments for the same criminal conduct. State v. Ruff, 2015-Ohio-995,
¶ 10. “A defendant may be indicted and tried for allied offenses of similar import, but may be
sentenced on only one of the allied offenses.” State v. Whitfield, 2010-Ohio-2, ¶ 17. When
a defendant’s conduct supports multiple offenses, courts conduct an allied offenses analysis
to determine if the charges merge or if the defendant may be convicted of separate crimes.
This process is governed by R.C. 2941.25, which provides:
(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
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each, the indictment or information may contain counts for all such offenses,
and the defendant may be convicted of all of them.
“At its heart, the allied-offense analysis is dependent upon the facts of a case because
R.C. 2941.25 focuses on the defendant’s conduct.” Ruff at ¶ 26.
{¶ 19} “In determining whether offenses are allied and should be merged for
sentencing, courts are instructed to consider three distinct factors: the conduct, the animus,
and the import.” State v. Hess, 2023-Ohio-3658, ¶ 9 (2d Dist.), citing Ruff at paragraph one
of the syllabus. “Offenses do not merge and a defendant may be convicted and sentenced
for multiple offenses if any of the following are true: ‘(1) the conduct constitutes offenses of
dissimilar import; (2) the conduct shows that the offenses were committed separately; or
(3) the conduct shows that the offenses were committed with separate animus.’” Id., quoting
Ruff at paragraph three of the syllabus and ¶ 25. “[T]wo or more offenses of dissimilar import
exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes
offenses involving separate victims or if the harm that results from each offense is separate
and identifiable.” Ruff at ¶ 23; see also State v. Williams, 2018-Ohio-1647, ¶ 23 (2d Dist.).
{¶ 20} “The defendant bears the burden of establishing that offenses should be
merged as allied offenses.” State v. Frazier, 2021-Ohio-4155, ¶ 20 (2d Dist.). An appellate
court reviews the trial court’s merger determination de novo. State v. Bailey, 2022-Ohio4407, ¶ 6. However, failure to raise the issue of merger in the trial court forfeits all but plain
error, and the error is not reversible unless it affects the outcome of the proceeding and
reversal is necessary to correct a manifest injustice. State v. Rogers, 2015-Ohio-2459, ¶ 22.
Because Boyer did not object to the trial court’s failure to merge Counts 7 and 10 in the trial
court, the plain error standard applies here.
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{¶ 21} Under the doctrine of plain error, “intervention by a reviewing court is
warranted only under exceptional circumstances to prevent injustice.” Bailey at ¶ 8. To
establish plain error, Boyer must demonstrate that “an error occurred, that the error was
obvious, and that there is a reasonable probability that the error resulted in prejudice,
meaning that the error affected the outcome of the trial.” State v. Echols, 2024-Ohio-5088,
¶ 50. A trial court's failure to merge offenses “does not automatically constitute plain error.”
Hess at ¶ 11, citing Bailey.
{¶ 22} In this case, Boyer was charged in Count 7 with discharge of a firearm on or
near prohibited premises in violation of R.C. 2923.162(A)(3), which prohibits discharging a
firearm upon or over a public road or highway. Count 10, felonious assault, alleged that
Boyer caused or attempted to cause physical harm to another by means of a deadly weapon,
in violation of R.C. 2903.11(A)(2). Both offenses were based on Boyer’s shooting a firearm
from his vehicle toward a residence. Several people were in a vehicle in front of the house
at the time, and a child inside the home was struck in the arm. Count 7 was elevated to a
felony of the first degree because Boyer caused serious physical harm to a person.
R.C. 2903.162(C)(4).
{¶ 23} Initially, we agree that Boyer committed the offenses of felonious assault and
discharging a firearm on or near prohibited premises with the same conduct and the same
animus. However, Boyer was not entitled to merger of the two offenses because his conduct
constituted offenses of dissimilar import.
{¶ 24} We have repeatedly recognized that the victim of the offense of discharge of
a firearm upon or over a public road or highway is the public. E.g., Williams, 2018-Ohio1647, at ¶ 24 (2d Dist.); State v. Davis, 2025-Ohio-1676, ¶ 37 (2d Dist.). Adopting the
reasoning in State v. James, 2015-Ohio-4987, ¶ 33 (8th Dist.), we recognized that
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R.C. 2923.162(A)(3) is intended to benefit the public good and that the statute prohibits the
act of discharging a firearm upon or over a roadway or highway itself. Williams at ¶ 24. “The
offense can be completed with no one remotely near the location where the firearm is
discharged upon or over the public road or highway.” Id., quoting James at ¶ 33. In contrast,
felonious assault under R.C. 2903.11(A)(2) requires physical harm or an attempt to cause
physical harm to a particular person. The two offenses thus differ in their significance and in
the nature of the harm that they address. Davis at ¶ 38.
{¶ 25} Boyer argues that the two offenses are of similar import in this case because
the harm caused by the felonious assault was the same as the harm in the aggravating
element of discharge of a firearm on or near prohibited premises. In Williams, we
acknowledged that the defendant’s act of shooting and killing the victim elevated the degree
of the offense of discharge of a firearm on or near prohibited premises to a first-degree
felony. Williams at ¶ 24, fn. 4. But we concluded that it had no effect on the merger analysis,
stating, “The fact remains, however, that the act of discharging a firearm over a public road
or highway itself constituted a violation of the statute.” Id. We have followed Williams on
several occasions. See State v. Davison, 2021-Ohio-728, ¶ 33-34 (2d Dist.) (aggravated
murder and discharging a firearm on or near prohibited premises were of dissimilar import
or significance); Davis at ¶ 37-38 (court did not err in failing to merge felonious assault and
discharging a firearm on or near prohibited premises).
{¶ 26} Here, Boyer fired shots from his vehicle toward a residence, harming the public
at large and placing several people at risk. A child inside the home was hit by a bullet,
causing her serious physical harm. The offenses involved separate victims and were of
dissimilar import or significance. Accordingly, we find no error, plain or otherwise, in the trial
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court’s failure to merge felonious assault and discharge of a firearm on or near prohibited
premises as allied offenses of similar import in Clark C.P. No. 24-CR-0931.
IV. Failure to Consider R.C. 2929.11 and 2929.12
{¶ 27} Boyer further claims that his sentences are contrary to law because the trial
court did not consider R.C. 2929.11 and 2929.12 at sentencing. The record does not support
Boyer’s contention.
{¶ 28} R.C. 2929.11(A) requires the trial court to be guided by the overriding purposes
of felony sentencing: “to protect the public from future crime by the offender and others, to
punish the offender, and to promote the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those purposes without imposing
an unnecessary burden on state or local government resources.” R.C. 2929.11(A). To
achieve those purposes, the sentencing court must consider the need to incapacitate the
offender, deter the offender and others from future crime, rehabilitate the offender, and make
restitution to the victim of the offense, the public, or both. Id.
{¶ 29} R.C. 2929.12 contains a list of factors to be considered by the trial court when
imposing a sentence under R.C. 2929.11, underscoring that a court imposing a sentence on
an offender for a felony has discretion to determine the most effective way to comply with
the purposes and principles of sentencing. The factors in R.C. 2929.12(B) through (F) relate
to matters such as the seriousness of the offender’s conduct, the likelihood of the offender’s
recidivism, and the offender’s service in the armed forces of the United States. The trial court
may also “consider any other factors that are relevant to achieving those purposes and
principles of sentencing.” R.C. 2929.12(A).
{¶ 30} “R.C. 2929.11 and R.C. 2929.12 are not fact-finding statutes and, while the
sentencing court must ‘consider’ the factors, it is not required to make specific findings on
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the record regarding its consideration of the factors.” State v. Bryant, 2024-Ohio-1192, ¶ 33
(2d Dist.). “It is enough that the record demonstrates that the trial court considered R.C.
2929.11 and R.C. 2929.12 prior to imposing its sentence.” State v. Trent, 2021-Ohio-3698,
¶ 15 (2d Dist.). Moreover, when the record is silent, we presume that the trial court
considered the statutory purposes and principles of sentencing and the statutory
seriousness and recidivism factors. State v. Youngblood, 2025-Ohio-2794, ¶ 17 (2d Dist.);
State v. Goldblum, 2014-Ohio-5068, ¶ 50 (2d Dist.).
{¶ 31} Boyer acknowledges that we have repeatedly held that a defendant’s sentence
is not contrary to law when the trial court expressly stated in its sentencing entry that it had
considered R.C. 2929.11 and 2929.12, even if it neglected to mention the statutes at the
sentencing hearing. E.g., State v. Seiker, 2026-Ohio-1073, ¶ 11 (2d Dist.) (citing five prior
cases). He further concedes that the judgment entry in each felony case included a
statement that the court had “considered the record, oral statements of counsel, the
defendant’s statement, and the principles and purposes of sentencing under Ohio Revised
Code Section 2929.11, and then balanced the seriousness and recidivism factors under
Ohio Revised Code Section 2929.12.”
{¶ 32} Boyer nevertheless asks us to conclude that his sentences are contrary to law
because the transcript of the sentencing hearing does not substantiate that the court
considered the statutory considerations in R.C. 2929.11 and 2929.12. We find no basis to
reconsider our long-standing precedent. On the record before us, we cannot conclude that
Boyer’s felony sentences are contrary to law.
{¶ 33} Boyer’s assignment of error is overruled.
V. Conclusion
{¶ 34} The trial court’s judgments are affirmed.
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LEWIS, P.J., and HANSEMAN, J., concur.
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