State v. Williams , 2015 Ohio 4100 ( 2015 )

[Cite as State v. Williams, 2015-Ohio-4100.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 MA 125
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
LEXTER WILLIAMS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2009 CR 78
JUDGMENT: Affirmed in part. Reversed in part.
Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones
42 N. Phelps St.
Youngstown, Ohio 44503-1130
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: September 30, 2015
[Cite as State v. Williams, 2015-Ohio-4100.]
WAITE, J.
{¶1} Appellant Lexter Williams appeals from his July 12, 2013 resentencing
entry. Appellant was resentenced after a partially successful appeal to this Court in
State v. Williams, 7th Dist. No. 11 MA 131, 2012-Ohio-6277 (“Williams I”). As a result
of that appeal, Appellant was resentenced to an aggregate total of 81.5 years for his
convictions on aggravated robbery, aggravated burglary, kidnapping, gross sexual
imposition and having a weapon while under disability. Appellant argues that the
kidnapping and aggravated robbery charges should have merged at sentencing as
they are allied offenses of similar import. Similarly, Appellant argues that the gross
sexual imposition and kidnapping charges should have merged at sentencing.
Appellant also argues that his sentence is disproportionate to sentences received by
similarly situated defendants within the region.
{¶2} In response, the state argues that under the facts of this case, the
offenses do not merge, as the movement of the victims was substantial and the
victim of gross sexual imposition was secretly confined. The state also argues that
Appellant violated the terms of his plea agreement, thus he received a higher
sentence than originally agreed.
{¶3} Two additional arguments were brought to our attention at oral
argument. Appellant argued that the trial court failed to make the requisite
consecutive sentence findings pursuant to R.C. 2929.14(C)(4). Additionally,
Appellant argued that he was not properly notified of his postrelease control
sentence. As to the merger issues, Appellant’s arguments are partially sustained
because a complete merger analysis was not undertaken. Thus, we partially remand
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the matter to the trial court to conduct a proper merger review. Appellant’s argument
is without merit as to his disproportionality claim. However, in regard to the two
sentencing issues which arose at oral argument, Appellant’s arguments have merit
and the matter is remanded to the trial court with instructions to consider the
consecutive sentencing factors and to inform Appellant of his postrelease control
sentence. Finally, we sua sponte remand due to error with regard to counts four and
five in the sentencing entry, as those counts actually relate to aggravated burglary
but are incorrectly labeled and dealt with by the court as aggravated robbery counts.
Factual and Procedural History
{¶4} Appellant and two co-defendants entered an occupied house through a
sliding glass door in the kitchen. Upon entry, they observed Joshua Garcia in the
kitchen. Appellant put his gun to Mr. Garcia’s head and ordered him into the living
room where the female victim and Mark Shepherd were watching television.
Appellant ordered all three to the floor and demanded money. Appellant then took
hold of the female victim’s hair and pulled her to a standing position. He forced her at
gunpoint from the living room to the basement stairs, down the stairs and into the
basement. Appellant’s two co-defendants held Mr. Garcia and Mr. Shepherd on the
living room floor at gunpoint while the female victim was taken to the basement.
{¶5} Once in the basement, Appellant began ransacking drawers. The
female victim asked Appellant not to frighten her son, who was upstairs on the
second floor. Appellant pointed his gun at her and threatened to shoot her if she
continued talking. While at gunpoint, Appellant forced the female victim to kiss him.
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He then removed her pants and began to sexually assault her. During this
encounter, one of his co-defendants started down the stairs and Appellant stopped
his assault. He ordered the female victim to put her clothes back on. Appellant and
his co-defendant then forced the female victim to the second floor of the house, while
the remaining co-defendant continued to hold Mr. Garcia and Mr. Shepherd at
gunpoint in the living room. Once upstairs, Appellant and his second co-defendant
robbed the female victim. That evening Appellant and his co-defendants took several
phones, a duffel bag, a digital camera, an ID card, an x-box, x-box games, a DVD
player, several rings, and more than $600 from the three victims.
{¶6} Appellant and his co-defendants were later arrested. On October 22,
2009, Appellant was charged with the following offenses: three counts of aggravated
robbery in violation of R.C. 2911.01(A)(1)(c), a felony of the first degree; one count of
aggravated burglary in violation of R.C. 2911.11(A)(1)(B); one count of aggravated
burglary in violation of R.C. 2911.11(A)(2)(B), a felony of the first degree; three
counts of kidnapping in violation of R.C. 2905.01(A)(2)(C), a felony of the first degree;
one count of kidnapping in violation of R.C. 2905.01(A)(4)(C),a felony of the first
degree; one count of rape in violation of R.C. 2907.02(A)(2)(B), a felony of the first
degree; one count of having a weapon while under disability in violation of R.C.
2923.13(A)(2)(B), a felony of the third degree; and firearm specifications for all counts
except having a weapon while under disability.
{¶7} On October 28, 2010, Appellant entered into a plea agreement with the
state. In exchange for Appellant’s guilty plea, his rape count was to be reduced to
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gross sexual imposition. In addition, the state agreed to recommend a thirteen-year
total sentence. The written, signed plea agreement expressly stated that it was
conditioned on Appellant’s compliance with its terms, which included: electronic
monitoring house arrest (EMHA), reporting daily to CCA, complying with all laws, and
appearing at the sentencing hearing.
{¶8} On September 17 and 18, 2010, Appellant failed to report to CCA as
required under the terms of his plea agreement. Shortly thereafter, CCA learned that
he had removed his ankle bracelet. Based on this information, the trial court ordered
the issuance of an arrest warrant for Appellant. Appellant was found in Philadelphia,
Pennsylvania and was extradited to Mahoning County. At the sentencing hearing, in
light of the fact that Appellant had fled the state, the prosecutor recommended the
maximum sentence. Appellant argued that fleeing the state did not, in and of itself,
support a maximum sentence. However, the trial court found that Appellant had
violated the terms of his plea agreement and found it significant that he had fled.
Accordingly, the trial court sentenced Appellant to the maximum sentence.
{¶9} At the sentencing hearing, the trial court sentenced Appellant as
follows: eight years of incarceration on each of the three counts of aggravated
robbery; ten years on each of the two counts of aggravated burglary; ten years on
each of the three kidnapping counts; eighteen months on the gross sexual imposition
count (GSI); and five years for having a weapon while under disability. Each of these
sentences were ordered to run consecutively. The trial court also sentenced
Appellant to three years for the firearm specifications, which were merged for
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sentencing purposes. Although the trial court judge did not announce the total
sentence, it appears that the court sentenced Appellant to 93.5 years at the hearing.
However, in the entry, Appellant’s aggregate total was listed as 83.5 years. In
addition, the court announced an eight-year sentence per robbery count at the
hearing; however, in the written entry, Appellant was sentenced to ten years per
count.
{¶10} In Williams I, we vacated Appellant’s sentence and remanded the
matter for resentencing. We instructed the trial court to resolve the discrepancy
between the two sentences, to notify Appellant of post-release control, and to inquire
as to whether any of the offenses were allied offenses of similar import for merger
purposes. However, we upheld the trial court’s denial of Appellant’s motion to
withdraw his guilty plea and additionally found that the trial court did not abuse its
discretion on proportionality because Appellant failed to raise the issue at the
sentencing hearing.
First Assignment of Error
The trial Court erred in failing to merge Lexter William’s [sic] sentences
as allied offenses of similar import.
{¶11} Appellant contends that each charged offense occurred at the same
time and place and all acts were intended to accomplish the same goal, thus his
kidnapping charge should have merged with the GSI and robbery charges. He
specifically argues that every robbery requires some form of restraint in order to
complete the offense, so that the kidnapping charges for all three victims should have
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merged with the respective robbery counts for sentencing purposes. Similarly, he
argues that every rape (reduced to a GSI) requires some form of restraint in order to
complete the offense, so he claims his GSI charge should have merged with the
remaining kidnapping charge for sentencing purposes.
{¶12} In response to both arguments, the state argues that although these
specific offenses may merge under some factual instances, this is not one of those
cases. The state further explains that, under Ohio law, a kidnapping charge does not
merge with a second offense when “the restraint is prolonged, the confinement is
secretive, or the movement is substantial.” (Emphasis deleted.) (Appellee’s Brf., p.
11.)
{¶13} The state discusses the actions of Appellant pertaining to each victim,
beginning with victim Mark Shepherd. As each victim, except Mr. Shepherd, was
transported into another room before the act of robbery was committed, the state
argues that the movement was substantial and more than necessary to commit the
robbery. The state does acknowledge that Mr. Shepherd was simply ordered to the
ground. Turning to the gross sexual imposition and kidnapping convictions, the state
argues that Appellant placed the female victim in danger by moving her to a different
location before committing the sexual assault, thus her movement was substantial.
Further, as she was taken to a location away from the other victims, her confinement
was secretive. She was later transported (unnecessarily) to yet another confined
location where she was robbed, but again placed in fear of another sexual assault.
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{¶14} As merger of allied offenses presents a question of law, an appellate
court must conduct a de novo review. State v. Burns, 7th Dist. No. 09-MA-193, 2012-
Ohio-2698, ¶60. R.C. 2941.25(A) provides that when the same conduct involves two
or more allied offenses of similar import, the defendant may only be convicted of one
offense. R.C. 2941.25(B) states that when a defendant’s conduct involves two or
more dissimilar offenses, or when the conduct is similar but is committed separately
or with a separate animus, the defendant may be convicted of all offenses.
{¶15} Since R.C. 2941.25 was enacted, several Ohio Supreme Court
decisions have undertaken its interpretation. In determining whether offenses were
of similar import, earlier cases looked to whether the offenses at issue contained
similar elements. See State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979).
The focus on elements led to a two-part test: (1) a comparison of the offenses’
elements and (2) a review of the defendant’s conduct and animus for each offense.
See State v. Blankenship, 38 Ohio St.3d 116, 526 N.E.2d 816 (1988). The two-part
test was later amended to include an abstract analysis of the offenses. See State v.
Rance, 85 Ohio St.3d 632, 710 N.E. 699 (1999). The Ohio Supreme Court,
recognizing the inconsistent results produced by Rance, recently created a new test
in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.
{¶16} Pursuant to Johnson, a court must determine whether it is possible to
commit one offense and also commit the other offense(s) with the same conduct. Id.
at ¶48. If the answer is yes, then the court must additionally determine whether the
offenses were committed by the same conduct, i.e. whether they were a “single act,
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committed with a single state of mind.” Id. at ¶49. If the answer is yes, then the
offenses are allied and merge for sentencing purposes. Conversely, if the answer to
either of the questions is no, then the offenses are not allied and do not merge. Id. at
¶50. Thus, the Court placed the focus on the defendant’s conduct.
{¶17} Recently, the Ohio Supreme Court modified Johnson in State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. In Ruff, the Court recognized
that its holding in Johnson was incomplete as it failed to define the term “import.” Id.
at ¶9. Accordingly, the Court produced a fact-specific analysis that looks at the
defendant’s conduct, the animus, and the import. Id. at ¶26. The resulting test asks
three questions: (1) whether the offenses are dissimilar in import or significance, i.e.
each offense caused a separate and identifiable harm; (2) whether the offenses were
separately committed; and, (3) whether the offenses were committed with separate
animus or motivation. Id. at ¶25. If the answer to any of these questions is yes, then
the offenses do not merge. Id. The Court acknowledged that, due to the fact-specific
nature of the test, results will vary on a case-to-case basis. Id. at ¶32. As other
district courts have noted, it remains unclear which pre-Johnson and Ruff cases are
still relevant.
{¶18} This leads to a discussion of State v. Logan, 60 Ohio St.2d 126, 397
N.E.2d 1345 (1979). Although Logan is both a pre-Johnson and Ruff case, it
continues to maintain at least some relevance, as it was analyzed under the
language contained within the third prong in Ruff. Relevant to the instant case,
Logan held that when kidnapping is one of the applicable offenses and there is
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prolonged restraint, secret confinement, and movement which causes a substantial
risk of harm to the victim, the offenses do not require merger. Id. at 135.
{¶19} Pursuant to our request, the state filed a notice of supplemental
authority. In addition to the material we requested, the state filed notice of intent to
rely on three additional cases. Among the cases raised by the state is State v.
Parker, 7th Dist. No. 03-MA-190, 2005-Ohio-4888. In Parker, a pre-Johnson case, a
defendant broke into a home and encountered a fifteen-year-old girl and the two
children she was babysitting. Id. at ¶15. The defendant ordered the girl to perform
oral sex on him and after she refused, he choked her. Id. He then led her to a
bedroom, placed a loaded and cocked gun next to her, and raped her. Id. After the
defendant completed the rape, he ordered her to remain in the room until he left and
threatened to kill the children if she moved. Id.
{¶20} Using a Logan analysis, we held that the rape and kidnapping had a
separate animus, thus were not allied offenses. Id. at ¶27. Although Parker
precedes Johnson, it is arguably still relevant as we specifically found that each act
had a separate animus, a consideration we now analyze under the third prong of
Ruff. As merger has developed into a fact-specific analysis, we must place a high
emphasis on factual similarities when relying on stare decisis in a merger case.
Unlike the present matter, Parker involves only two offenses – rape and kidnapping.
The additional offense of robbery in the matter before us is highly important.
However, Parker presents a situation in which movement from a downstairs area to
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an upstairs area where a victim is raped and additionally held against her will while
the offender escapes does not require merger of kidnapping and rape charges.
{¶21} The state next cites to State v. Gardner, 7th Dist. 10 MA 52, 2011-Ohio-
2644. While Gardner presents a case involving the question of merger of rape and
kidnapping offenses, that is where the similarities end. Unlike the case at bar, the
defendant in Gardner was driving in his car behind the victim as he pointed his gun at
her and directed her where to drive, blocking her attempts to stray from his path by
swerving in front of her. Id. at ¶3. He led her to an abandoned house where, after a
brief interruption from a neighbor, he assaulted and raped her. Id. at ¶5-7. This is a
significant factual departure from the instant case, where each offense was
committed in various rooms of the same house. As the law on merger is fact-
specific, Gardner holds little, if any, value in our analysis.
{¶22} The final case cited by the state is State v. Smith, 7th Dist. No. 11 MA
120, 2013-Ohio-756. Of all the supplemental authority provided, Smith is most
closely aligned with the instant case. In Smith, a defendant broke into a home and
awoke his victim by shaking her. Id. at ¶3. Once awake, he moved her out of her
bedroom, down a hallway to a dining room, and then to her living room where he
raped her. Id. at ¶3-4. He then took her back to her bedroom and placed her in a
closet while he searched for valuables, removing several items and money. Id. at ¶5.
He took her out of the closet and raped her a second time. Id. at ¶6. After the
second rape, he took her to the bathroom and forced her to take a bath before he left
the house. Id. at ¶7. On review, we held that the acts of kidnapping were not merely
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incidental to the rapes. Id. at ¶98. Instead, the act of kidnapping was a restraint for
purposes of committing a robbery and to facilitate his escape without allowing the
victim to immediately call the police. Id. Thus, Smith has some value in our analysis
as regards the sexual assault victim in the present case.
Victim 1, The female victim
{¶23} We begin by reviewing whether the kidnapping, GSI, and robbery
offenses are dissimilar in import, or in other words, whether the harm that resulted
from each offense is separate and identifiable. In reviewing Appellant’s acts
throughout the ordeal, the female victim was held at gunpoint the entire time.
However, looking more specifically at each act, the record demonstrates that the
female victim appears to have suffered separate and identifiable harm at each stage
of the encounter.
{¶24} We first examine whether the harm that resulted from the kidnapping
was separate from the sexual assault and robbery. The apparent kidnapping
occurred between the initial confrontation and the assault. During this time period,
the female victim suffered several harms. First, she was ordered to the living room
floor at gunpoint. Second, she was forcibly pulled to a standing position by her hair.
Third, she was led at gunpoint from the living room, down a set of stairs, and into the
basement. Fourth, once in the basement, Appellant pointed his gun at her and
threatened to shoot her if she did not keep quiet. In addition to the presence of the
gun and Appellant’s threats, it could also be argued that Appellant used the female
victim’s fear for her son to restrain the victim prior to the assault. None of these
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incidents overlapped with either the assault, which did not occur until they had been
in the basement for some time, or the actual robbery, which occurred later and on a
separate level of the house.
{¶25} The restraint in regard to the assault involved Appellant holding a gun
to his victim’s head and forcing her to kiss him and subsequently assaulting her. This
restraint is clearly different than the restraint which occurred prior. Turning to the
robbery of the female victim, while Appellant argues that the sole purpose for
entering the home was to complete a robbery, it is clear that the sexual assault was
an intervening act. Thus, it appears from the record that Appellant’s actions as a
whole do not constitute a continuous sequence of events related to robbery.
Accordingly, his initial detainment of this victim cannot be linked to the robbery as
that event did not occur until after the assault and occurred on a separate floor of the
building.
{¶26} Next, we examine whether the offenses were committed with separate
animus or motivation. We first look to whether the force used against the female
victim was more than what was necessary to complete the assault and robbery.
Appellant held a loaded semi-automatic handgun to the victim’s head, pointed the
gun at her while threatening to shoot her, and at one point pulled her from the ground
to a standing position by her hair. If the sole purpose of her restraint was robbery,
Appellant could have left the female victim with the other two victims in the living
room while he ransacked the house. Instead, he took her with him to the basement
and exposed her to additional harms, which the other two victims did not suffer.
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Thus, the force used was more than was necessary to accomplish both assault and
robbery.
{¶27} We next look to whether the movement was substantial. The victim was
forced to the living room floor, then pulled to a standing position by her hair and led to
the basement stairs, down the stairs, and into the basement. After her sexual assault
in the basement, she was forced back up the stairs and led to the second level of the
house, where the robbery actually took place. This amount of movement is arguably
substantial.
{¶28} Additionally, as she was led away from the other victims and onto a
separate floor of the house, her restraint was secretive and she was subjected to an
increased risk of substantial harm. Hence, it is apparent that the kidnapping was not
incidental to the sexual assault. This record is less clear, however, on the second
kidnapping charge as it relates to the robbery of the female victim. While the
offenses of kidnapping and gross sexual imposition are not allied here and are not
subject to merger, the record is inadequate to determine whether the second
kidnapping charge should merge with the robbery charge. Appellant’s argument as
to the charges pertaining to his offenses against the female victim are sustained in
part and the matter is remanded to the trial court to determine whether merger is
appropriate as to the second kidnapping charge.
Victims 2 and 3, Mr. Shepherd and Mr. Garcia
{¶29} Although Mr. Garcia was additionally restrained as he was led from the
kitchen at gunpoint into the living room where Mr. Shepherd was found, the two
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suffered similar harms and will be discussed together. This record is factually sparse
in regard to the restraint involving Mr. Shepherd and Mr. Garcia. One important fact
not in evidence is the duration of the restraint. Although Appellant offers that the
restraint lasted a matter of less than five minutes, that appears unlikely in reviewing
the facts that do appear in the record. Mr. Shepherd and Mr. Garcia were ordered to
the floor almost immediately after Appellant entered the house and remained there
while the female victim was taken to the basement, the basement was ransacked, the
female victim was sexually assaulted and then taken to the second floor of the house,
where finally she was robbed. It is incredible that all of these activities took place
within a matter of minutes.
{¶30} However, this record reveals very little about the detainment of the two
male victims. It is impossible to determine from the trial court’s record whether
merger is appropriate in regard to the charges connected to the crimes against these
victims. It is apparent, however, that an appropriate merger review was not
undertaken in the trial court. Thus, we remand the issue of merger of the kidnapping
and robbery charges as these relate to victims Shepherd and Garcia, as well.
Hence, while we affirm the trial court in part on the issue of merger of the kidnapping
and GSI counts, we remand for further action on the question of merger of
kidnapping and robbery charges regarding all three victims.
Second Assignment of Error
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The trial Court erred in declining to impose sentences commensurate
with those regional Court typically impose on similarly situated
defendants.
{¶31} Before we address the assignment of error contained in Appellant’s
brief, at oral argument Appellant raised two additional sentencing errors. First, he
argued that the trial court failed to make the requisite consecutive sentencing findings
in both the sentencing hearing and the sentencing entry. Second, he asserted that
the trial court failed to properly notify him of his postrelease control sentence. The
state conceded both issues.
{¶32} As these issues were raised for the first time at oral argument,
Appellant is limited to a plain error review. “In order to reverse based on ‘plain error,’
an actual error must exist, the error must be an obvious defect in the trial
proceedings, and the error must affect the substantial rights of the defendant.” State
v. Kolat, 7th Dist. No. 07 BE 5, 2008-Ohio-869, ¶9, citing State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶33} Pursuant to R.C. 2929.14(C)(4), before a trial court can impose
consecutive sentences on a defendant, the court must find:
[T]hat the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive sentences
are not disproportionate to the seriousness of the offender's conduct
and to the danger the offender poses to the public, and if the court also
finds any of the following:
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(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender's
conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶34} The consecutive sentence findings must be made at the sentencing
hearing and must additionally be incorporated into the sentencing entry. State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶37. However, a trial
court need not state reasons to support its finding nor it is required to use any
“magic” or “talismanic” words, so long as it is apparent that the court conducted the
proper analysis. State v. Jones, 7th Dist. No. 13 MA 101, 2014-Ohio-2248, ¶6, citing
State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, ¶28-29.
{¶35} The trial court failed to mention R.C. 2929.14(C) at the sentencing
hearing despite ordering Appellant’s sentences to run consecutively. Failure to
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explicitly mention the statute is not fatal. However, there is nothing else within the
record that could allow us to find that the trial court conducted a proper sentencing
analysis prior to consecutive sentencing, as the record is devoid of any discussion of
the R.C. 2929.14(C)(4) factors. It is clear that the written entry is also devoid of any
appropriate findings. Based on this record, plain error exists and the matter is
remanded to the trial court with instructions to complete the appropriate sentencing
analysis in accordance with R.C. 2929.14(C)(4) should the trial court determine that
consecutive sentencing is necessary.
{¶36} Turning to the issue of postrelease control, pursuant to R.C.
2929.19(B), a trial court must give notice of postrelease control to a defendant
sentenced on a first-degree felony. R.C. 2967.28(B)(1) states that the postrelease
control period for a first-degree felony is five years. There are four things a trial court
must tell a defendant who is subject to postrelease control:
(1) [T]he offender will be subject to postrelease control supervision
under R.C. 2967.28; (2) if the offender violates postrelease control
supervision or a condition of postrelease control, the parole board may
impose a term of incarceration, as part of the sentence, of up to one-
half of the stated prison term originally imposed; (3) whether
postrelease control is mandatory or discretionary; and (4) the duration
of postrelease control.
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State v. Peck, 7th Dist. No. 12 MA 125, 2013-Ohio-5526, ¶8, citing State v.
Newsome, 3d Dist. No. 12-12-03, 2012-Ohio-6119, ¶72; State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, ¶27-29.
{¶37} A trial court must inform a defendant of his postrelease control
sentence at both the sentencing hearing and within the sentencing entry. State v.
Butler, 7th Dist. No. 10 JE 44, 2011-Ohio-6366, ¶6, citing State v. Singleton, 124
Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶22. If it is found that a defendant
was not properly informed of his postrelease control sentence, “only that part of the
sentence dealing with postrelease control should be voided: the remaining aspects of
the conviction and sentence should not be disturbed.” State v. Wells, 7th Dist. No. 14
JE 5, 2014-Ohio-5504, ¶6, citing Fischer, supra.{¶38} While the trial court properly informed Appellant that he would be
subject to a five-year postrelease control period, the court clearly failed, at both the
hearing and within the entry, to inform Appellant of the possible sanctions that can be
levied if his postrelease control sentence is violated. On this basis, we remand the
matter to the trial court with instructions to properly advise Appellant of his
postrelease control sentence.
{¶39} Also mentioned at oral argument was an issue regarding the
constitutionality of sentencing Appellant for gross sexual imposition. Recently the
Ohio Supreme Court held that a mandatory GSI sentence was unconstitutional.
State v. Bevly, 142 Ohio St.3d 41, 2015-Ohio-475, 27 N.E.3d 516, paragraph two of
the syllabus. We note that in this case the record contains nothing which would lead
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us to believe the trial court was sentencing Appellant under the mistaken impression
that such a sentence was mandatory in nature. Bevly does not apply to this matter
and the sentence was not erroneous in this regard.
{¶40} Finally, we sua sponte raise an error regarding the July 12, 2013
resentencing entry. The trial court labeled counts one through five as aggravated
robbery counts. However, Appellant was charged with only three aggravated robbery
counts. The fourth and fifth counts were for aggravated burglary. Accordingly, on
remand the trial court should revisit sentencing on this basis, also, and at least
correct the sentencing entry.
{¶41} Having addressed all additional arguments that arose during oral
argument, we now turn to Appellant’s second assignment of error. Appellant
contends that the trial court improperly sentenced him to a longer period of
incarceration than similarly situated defendants in the region have received.
Appellant notes that his two co-defendants have each been sentenced to only seven
years. Appellant also describes a defendant in a separate and unrelated case who
was sentenced to fifteen years for similar, but not identical convictions. Appellant
urges that his sentence is 700% of the term to which the state initially agreed and is
eight to sixteen times that which his co-defendants received.
{¶42} The Seventh District is currently split as to the standard of review in
felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014-Ohio-919(Vukovich, J., Donofrio, J., majority with DeGenaro, J., concurring in judgment only
with concurring in judgment only opinion; State v. Wellington, 7th Dist. No. 14 MA
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115, 2015-Ohio-1359 (Robb, J., DeGenaro, J., majority with Donofrio, J. concurring in
judgment only with concurring in judgment only opinion).
{¶43} The approach adopted in Hill applied the two-prong test set forth in the
plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶26. Hill at ¶7-20. Under Kalish, a court first determines whether the sentence
is “clearly and convincingly contrary to law.” Kalish at ¶26 (O’Connor, J. plurality
opinion). If the sentence is not contrary to law, a reviewing court determines whether
the trial court abused its discretion in ordering a sentence within the statutory range.
Id. at ¶17.
{¶44} On the other hand, as adopted in Wellington, a court on review will
strictly follow R.C. 2953.08(G), which does not include an abuse of discretion
determination. Wellington at ¶9-14. R.C. 2953.08(G) solely looks to whether a
felony sentence is clearly and convincingly contrary to law. Id.
{¶45} The issue of which standard of review an appellate court must
undertake is currently before the Ohio Supreme Court. State v. Marcum, 141 Ohio
St.3d 1453, 2015-Ohio-239, 23 N.E.3d 1453. The Court accepted the certified
question “[D]oes the test outlined by the [c]ourt in State v. Kalish apply in reviewing
felony sentences after the passage of R.C. 2953.08(G)?” Id.{¶46} In the present matter, regardless which standard is used, the result as
to Appellant’s second assignment of error is the same; his sentence is not
disproportionate.
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{¶47} In this assignment, Appellant solely challenges the trial court’s
compliance with R.C. 2929.11(B), thus we need not discuss whether the trial court
abused its discretion in sentencing Appellant. Pursuant to R.C. 2929.11(B):
A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to
the seriousness of the offender's conduct and its impact upon the
victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.
{¶48} In Williams I, we noted that Appellant failed to raise the issue of
disproportionate sentences at the trial court. We found, then, that the issue had been
waived. However, we determined that the trial court appropriately relied on the fact
that Appellant had violated the terms of his agreement in determining his sentence.
Based on the totality of the circumstances, the sentence appeared reasonable.
{¶49} We remanded this matter for resentencing based on a separate error.
Even though we have once partially addressed Appellant’s disproportionality
argument in Williams I, he is not barred from reasserting this argument. When a
defendant is resentenced, “[t]he doctrine of res judicata does not bar a defendant
from objecting to issues that arise at the resentencing hearing or from the resulting
sentence.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,
¶30.
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{¶50} At the resentencing hearing, Appellant specifically raised this issue and
provided the court with general information about the sentences received by
Appellant’s co-defendants and another allegedly similarly situated local defendant.
The trial court acknowledged the statute but noted that because each case involves a
different set of facts and circumstances, trial courts are provided with a sentencing
range to assist in their determination of a sentence.
{¶51} Relevant to this case, two issues are pertinent. First, whether
Appellant’s offenses and criminal record appear to place him among similarly situated
defendants within the region who received a lesser sentence. Second, whether the
facts of this case distinguish Appellant from such a group.
{¶52} We must first address whether Appellant provided evidence of similarly
situated defendants and that he received a sentence disproportionate to those
defendants. Appellant has done neither. The Eighth District has stated that “[a]
defendant alleging disproportionality in felony sentencing has the burden of
producing evidence to ‘indicate that his sentence is directly disproportionate to
sentence given to other offenders with similar records who have committed these
offenses.’ ” State v. Wilson, 8th Dist. No. 99331, 2013-Ohio-3915, ¶16, citing State v.
Breeden, 8th Dist. No. 84663, 2005-Ohio-510, ¶81.
{¶53} Appellant claims that his circumstances are similar to the three
defendants he discusses because they committed similar offenses. However, this is
not the only factor to consider. Appellant has presented no evidence that his criminal
record is similar to any of the defendants he uses as examples. In fact, although the
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burden of proof falls on Appellant, it was the prosecutor who provided the details of
Appellant’s extensive criminal record and noted that it is significantly greater than his
co-defendants. Appellant did not rebut this claim. As Appellant has failed to provide
any evidence that his criminal record is similar to the defendants with whom he aligns
himself, he has not shown that he is similarly situated to these defendants.
{¶54} Even if Appellant had offered some evidence, this record demonstrates
that there are substantial differences between Appellant’s actions and those of the
other defendants. Importantly, Appellant and his co-defendants initially were to
receive a similar sentence as a result of their respective plea agreements. Appellant
clearly had an opportunity to receive a sentence in line with his co-defendants.
Appellant, however, violated the terms of the plea agreement. Due to his own
actions, he received a more significant sentence. The record clearly establishes that
Appellant had notice that any violation of his plea agreement would likely result in a
greater sentence.
{¶55} At the sentencing hearing, the prosecutor commented that “[i]f he in any
way violates the terms of his GPS, if he goes missing for an hour, ten minutes, or one
minute, if he turns it off, if he cuts it off, if he flees * * * the state will rescind the
recommendation, will recommend the maximum sentence, which is in excess of 80
years.” (10/28/10 Plea Hrg. Tr., p. 4.) His attorney acknowledged that the plea deal
was contingent on Appellant’s compliance with all the terms of the bargain several
times during the plea hearing. His attorney stated: “[w]e understand, Your Honor, a
sentence of imprisonment will be invoked for a minimum of 13 years, and hopefully
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that will be the sentence, obviously governed by [Appellant’s] conduct.” (10/28/10
Plea Hrg. Tr., p. 12.) And he later said: “[w]e’re not looking to trip and fall here * * * if
the coffee can falls off the shelf, it’s a violation. Everybody’s using common sense.
[Appellant] knows he owes you a duty of being prompt, he owes you a duty of not
violating house arrest. Obviously, that goes without saying.” (10/28/10 Plea Hrg. Tr.,
p. 14.)
{¶56} The trial court acknowledged the conditions of the plea agreement:
“[a]nd I sincerely, sincerely hope you abide by the terms and conditions of that house
arrest because 13 years versus 95 years is a big difference, and do not think that for
one minute this court would not impose that long of a period of time.” (10/28/10 Plea
Hrg. Tr., p. 16.) The trial court judge asked Appellant if he understood this, to which
he responded in the affirmative.
{¶57} Appellant, who was present at the hearing, clearly knew that if he
violated the terms of his plea agreement the state would recommend the maximum
sentence. Appellant was specifically told that if he fled the jurisdiction, he would be
subject to the maximum sentence. He was also warned by the trial court that this
sentence was available if Appellant violated the plea agreement. The trial court
asked Appellant if he understood and he stated that he did. Further, the plea
agreement, which was signed by Appellant, contained a written notice that the offer
was expressly contingent on compliance with its terms.
{¶58} Despite these warnings, Appellant fled the state and was found in
Philadelphia, Pennsylvania. He failed to report to CCA on two occasions, which is
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also a direct violation of the terms of his plea agreement. He removed his EMHA
bracelet, again in violation of the terms of his plea agreement. This record clearly
demonstrates that the facts and circumstances of this case are significantly different
from the other cases alluded to by Appellant. Appellant has not shown that he is
similarly situated with lesser-sentenced defendants or that he received a
disproportionate sentence. Accordingly, Appellant’s second assignment of error is
without merit and the judgment of the trial court is affirmed on the issue of the
proportionality of his sentence. However, we remand the issues of consecutive
sentences, postrelease control, and the incorrect naming of his crimes on the
sentencing entry to the trial court for further proceedings consistent with this Opinion.
Conclusion
{¶59} As the record supports a finding that the kidnapping charge as to the
female victim was not merely incidental to her sexual assault, the offenses are not
allied and are not subject to merger. However, because of the incomplete hearing on
the matter, the record is less clear as to whether the kidnapping and robbery charges
surrounding any of the three victims are allied offenses subject to merger. As to
sentencing, Appellant has not shown that he is similarly situated with defendants who
received a lesser sentence. Even so, he had an opportunity to receive a lesser
sentence, but lost that opportunity due to his own actions. However, we remand the
matter due to other sentencing issues, specifically: consecutive sentences,
postrelease control and errors in the titles of the charges on which Appellant was
convicted for further proceedings consistent with this Opinion.
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Donofrio, P.J., concurs.
Robb, J., concurs.