[Cite as State v. Smith,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 MA 168 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) SANJUAN SMITH ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 11 CR 647

JUDGMENT: Vacated. 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. Gus K. Theofilos First National Tower, Suite 910 11 Central Square Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 28, 2014 [Cite as State v. Smith,

.] WAITE, J.

{¶1} Appellant Sanjuan Smith appeals his ten-year prison sentence imposed

by the Mahoning County Court of Common Pleas for attempted rape, kidnapping,

and felonious assault. After he entered a guilty plea to the charges, the court

sentenced him to three separate prison terms to be served consecutively, for a total

prison term of ten years. Appellant contends that all the charges were allied offenses

of similar import and should have merged at sentencing. The record reflects that all

three charges were based on separate factual circumstances and each could be

given a separate penalty. He also argues that the court should not have imposed

consecutive sentences because the court failed to make the findings required by R.C.

2929.14(E)(4). Although the former version of the consecutive sentencing statute

was found to unconstitutional in State v. Foster,

,

,

, the Ohio Supreme Court has since determined that judicial

factfinding is appropriate with respect to consecutive sentences. The newly revised

consecutive sentencing statute applies to Appellant, and the trial court failed to make

the required findings. Therefore, the case is remanded for resentencing so that the

proper findings can be made.

Case History

{¶2} On June 4, 2011, Appellant attacked his girlfriend Jucinta Roland.

Appellant was 42 years old at the time, and the victim was 20 years old. On June 30,

2011, he was indicted in the Mahoning County Court of Common Pleas on two

counts of rape, R.C. 2907.02(A)(2), two counts of kidnapping, R.C. 2905.01(A)(3) -2-

and (4), and one count of felonious assault, R.C. 2903.11(A)(1). The first four counts

were first degree felonies. The felonious assault charge was a second degree felony.

{¶3} On July 17, 2012, Appellant entered into a Crim.R. 11 guilty plea on

three charges: an amended charge of attempted forcible rape, R.C. 2907.02(A)(2)

(second degree felony); kidnapping, R.C. 2905.01(A)(3) (first degree felony); and

felonious assault, R.C. 2903.11(A)(1) (second degree felony). The other charges

were dismissed. The maximum possible combined prison sentence for the three

charges was twenty-six years. The state promised to recommend a ten-year prison

term at sentencing. After a plea hearing, the court accepted the plea and scheduled

sentencing for August 28, 2012.

{¶4} At the hearing, Ms. Roland testified that she wanted more than a ten-

year prison term to be imposed. She discussed the attack in detail, describing that

she was beaten, strangled, urinated upon, pushed through a wall, raped, and held

captive for six hours. (8/28/12 Tr., p. 4.) She described the emotional toll the attack

took on her, her fear of being alone with men after the attack, and her recurring

nightmares. The state recommended eight years in prison for attempted rape, ten

years for kidnapping, and eight years for felonious assault, all to run concurrently, for

a total of ten years in prison. Appellant’s counsel noted Appellant’s previous

convictions for burglary and assault. Appellant’s counsel acknowledged that

Appellant had beaten Ms. Roland and committed felonious assault, but denied that a

rape occurred. Appellant testified that he physically assaulted Ms. Roland, but stated

that he did not rape her and that their sexual intercourse was consensual. (8/28/12 -3-

Tr., pp. 13, 15.) He admitted that this was not the first time he had a physical

altercation with the victim. He asked the court to be lenient because he had

Parkinson’s disease, bleeding ulcers, and suffered from mental illnesses such as

bipolar disorder and schizophrenia. He then blamed Ms. Roland for the attack

because she kept his brother’s phone number in her phone contact list, causing

Appellant to become suspicious of her.

{¶5} The court sentenced Appellant to two years in prison for attempted

rape, six years for kidnapping, and two years for felonious assault, all to be served

consecutively. The sentencing judgment entry was filed on August 30, 2012. This

timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN FAILING TO MERGE SENTENCES

IMPOSED.

{¶6} Appellant argues that a sentencing judge is required to merge all allied

offenses of similar import at sentencing. Appellant contends that his convictions

should have merged and that he should have only been sentenced for one of those

crimes. Appellant argues that there is a certain amount of “kidnapping” that is implied

in every forcible rape, since a rape necessarily occurs by holding a person against

their will. Appellant argues that he was charged with attempted forcible rape, and

that the force allegedly used was the same force that gave rise to the felonious

assault charge. Appellant claims that, according to the indictment, all three crimes

occurred on the same day and should be presumed to have arisen from the same -4-

conduct. Appellant concludes that there was really only one crime in this case,

felonious assault, and he freely admits that he committed this crime. It is his

hypothesis that he should only have been sentenced for that one crime, even though

he pleaded guilty to three crimes.

{¶7} “Allied offenses” are defined by R.C. 2941.25 which provides: “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.” R.C. 2941.25(A).

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 each, the defendant may be

convicted of all of them. R.C. 2941.25(B).

{¶8} Determining whether offenses are allied within the meaning of the

statute is a two-step process. A court must first determine whether, when the

elements of the two crimes are compared, the elements “correspond to such a

degree that the commission of one crime will result in the commission of the other.”

State v. Rance,

,

(1999). Rance called for

this comparison of the elements of the crime to be done in the abstract.

at

paragraph one of the syllabus. This aspect of Rance has since been overruled, and

now the sentencing court must consider both the statutory elements of the offenses

and the conduct of the accused when determining whether the elements of the two

offenses constitute allied offenses. State v. Johnson,

, 2010- -5-

Ohio-6314,

, paragraph one of the syllabus (overruling paragraph

one of the syllabus in Rance). In comparing the two offenses, the court looks at

“whether it is possible to commit one offense and commit the other with the same

conduct, not whether it is possible to commit one without committing the other.”

(Emphasis sic.) Id. at ¶48, citing State v. Blankenship,

,

(1988) (Whiteside, J., concurring).

{¶9} If the court determines that the two offenses are allied, the second step

of the analysis requires the court to look at the defendant’s conduct to determine

whether the crimes were committed separately or with separate animus. State v.

Cabrales,

,

,

; State v. Jones,

,

(1997).

{¶10} If no objection is made during the trial court proceedings regarding

allied offenses, any error in failing to merge offenses may only be reviewed for plain

error. Crim.R. 52(B). Plain error exists where there is an obvious deviation from a

legal rule that affected the outcome of the proceeding. Crim.R. 52(B); State v.

Eafford,

,

,

, ¶11. If the record

reflects that multiple sentences for allied offenses of similar import were imposed, this

amounts to plain error. State v. Underwood,

,

,

, ¶31.

{¶11} Rape is defined under R.C. 2907.02(A)(2) as follows: -6-

(2) No person shall engage in sexual conduct with another when the

offender purposely compels the other person to submit by force or

threat of force.

{¶12} Appellant pleaded guilty to attempted rape. The attempt statute

provides that “[n]o person, purposely or knowingly * * * shall engage in conduct that,

if successful, would constitute or result in the offense.” R.C. 2923.02(A).

{¶13} Kidnapping is defined in R.C. 2905.01(A)(3) as:

No person, by force, threat, or deception, or, in the case of a victim

under the age of thirteen or mentally incompetent, by any means, shall

remove another from the place where the other person is found or

restrain the liberty of the other person, for any of the following

purposes:

***

(3) To terrorize, or to inflict serious physical harm on the victim or

another;

{¶14} Felonious assault is defined in R.C. 2903.11(A)(1), which states:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

{¶15} It is very clear from the record in this case that the three offenses were

committed separately and could be punished separately. Although the indictment -7-

does charge that Appellant committed all three crimes on the same day, Appellant’s

own admissions, along with the testimony of the victim, reveal enough context to

establish that three different crimes were committed. Regarding the overlap of

attempted rape and kidnapping, Appellant is correct that they have often been found

to be allied offenses. State v. Donald,

,

(1979),

syllabus; State v. Saleh, 10th Dist. No. 07AP431,

. These

rulings were based on the conclusion that “[n]ecessarily, in the crime of rape, the

victim must be restrained of her liberty, which can constitute an element of

kidnapping.”

. Accordingly, courts would determine whether the

kidnapping and rape or attempted rape were committed with separate animus. Saleh

at ¶126. Where the restraint is prolonged, however, a separate animus can be found

for the kidnapping charge independent of the attempted rape charge, and both

crimes may be punished separately. State v. Lynch,

, 2003-Ohio-

2284, ¶135. In this case, the victim testified that she was held captive for six hours.

This is a very long period of time, and a separate animus can be attributed to the

lengthy kidnapping that is distinct from the attempted rape charge.

{¶16} Regarding the alleged overlap of the felonious assault charge with the

attempted rape charge, some courts have held, both before and after Rance, that the

two crimes are not allied offenses. State v. Burke, 1st Dist. No. C-840526,

(May 29, 1985); State v. Griffin, 10th Dist. No. 10AP-902,

, ¶85.

Other courts have agreed with Appellant that the force used to commit felonious

assault may be the same force used to commit a forcible attempted rape. See, e.g., -8-

State v. Parker, 10th Dist. No. 89AP-1217,

(May 24, 1990). Even

assuming the two crimes are allied, the second step of the allied offense analysis

requires an examination of the facts to determine whether the crimes were committed

separately or with separate animus. Appellant admitted at sentencing and in his brief

on appeal that he assaulted Ms. Roland by striking her in the face, and that this

occurred after they had sexual intercourse. Appellant cannot argue both that the

sexual conduct was consensual, that is, unforced, and that the serious physical harm

sustained by the victim was part of the attempted rape. Ms. Roland testified that she

was beaten, strangled, pushed through a wall, and sustained two black eyes and a

broken orbital bone of her face. These are extensive injuries not necessarily

connected to the acts involved in an attempted rape. Since the record reflects that at

least two separate crimes occurred, there was no error in failing to merge the crimes

at sentencing.

{¶17} Because this record reveals both separate animus and separate and

distinct facts to support separate punishment for each of the three crimes, there is no

plain error in the record and Appellant’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

SENTENCES.

{¶18} Appellant argues that consecutive sentences should not have been

imposed in this case because a mandatory statutory finding was not made. Appellant

cites to the former R.C. 2929.14(E)(4), which imposed a requirement on trial judges -9-

to make a series of very specific findings prior to imposing consecutive sentences.

These findings had previously been held to violate the Sixth Amendment in State v.

Foster,

,

,

. More recently, the Ohio

Supreme Court revised part of its Foster holding in State v. Hodge,

,

2010–Ohio-6320,

, and recognized that mandatory findings could be

required in the limited situation where consecutive sentences were being imposed.

{¶19} The state legislature responded by enacting revised R.C.

2929.14(C)(4). Under the new law, former R.C. 2929.14(E)(4) was repealed, and the

factfinding requirement was moved to R.C. 2929.14(C)(4). Although Appellant

committed his crime before the sentencing statute was revised, because he was

sentenced after the effective date of H.B. 86, the newly revised section R.C.

2929.14(C)(4) applies to him. State v. Esmail, 7th Dist. No.

, 2013-Ohio-

2165; State v. Power, 7th Dist. No.

,

; State v. Stout, 7th

Dist. No. 13 MA 30,

. Although we have had at least one recent

case that has caused some confusion regarding the applicability of amended R.C.

2929.14(C)(4) to defendants who committed their crimes before the statute was

enacted but were sentenced after it took effect, it is clear that the amended statute

does apply to those, like Appellant, who were sentenced on or after September 30,

2011. See also State v. Venes, 8th Dist. No. 98682,

; State v.

Wilson, 10th Dist. No. 12AP-551,

; State v. Jones, 1st Dist. No. C-

110603,

. -10-

{¶20} Our review of felony sentences is a limited, two-step approach, as set

forth in the plurality opinion in State v. Kalish,

, 2008–Ohio-4912,

. First, we must examine the sentence to determine if it is

“clearly and convincingly contrary to law.”

If the sentence is not clearly and

convincingly contrary to law, we then review the sentence to determine whether the

trial court abused its discretion. Id. at ¶17. Some appellate courts have ceased to

apply an abuse of discretion standard to felony sentences because newly reenacted

R.C. 2953.08(G)(2) appears to direct otherwise. Former R.C. 2953.08(G)(2) was

declared unconstitutional in both Foster and Kalish. Although H.B. 86 modified

portions of R.C. 2953.08(G), subsection (G)(2) was retained and left unchanged from

the version that was determined to be unconstitutional. Some courts apply the newly

enacted version of R.C. 2953.08(G)(2), including its prescription against using the

abuse of discretion standard, however, many (including this Court) do not. See, e.g.,

State v. Forney, 2d Dist. No. 2012-CA-36,

; State v. Nguyen, 4th

Dist. No. 12CA14,

; State v. Robinson, 5th Dist. No. CT2012-0005,

. We have consistently continued to apply the two-fold Kalish

standard even when reviewing consecutive sentences pursuant to H.B. 86. State v.

Jackson, 7th Dist. No. 12 MA 199,

; State v. Hill, 7th Dist. No. 13 MA

1,

.

{¶21} Under revised R.C. 2929.14(C)(4), a trial court has to make three

findings before imposing consecutive sentences. The court can impose sentences

consecutively only if it finds that: (1) consecutive service is necessary to protect the -11-

public from future crime or to punish the offender; (2) consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public; and (3) two of the offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of these

offenses 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. Thus, while the trial court is once again

required to make findings, it is no longer required to state reasons supporting these

findings. State v. Galindo–Barjas, 7th Dist. No. 12MA37,

, ¶16–17,

19. The court is not required to cite any "magic words" before imposing consecutive

sentences, as long as it is “clear from the record that the trial court engaged in the

appropriate analysis.” State v. Power, 7th Dist. No.

,

,

quoting State v. McKenzie, 3d Dist. No. 15-12-07,

. The trial

court can use either the exact words from R.C. 2929.14(C)(4) or other language that

reflects that it made the requisite findings. We then review the record to determine

whether the findings were made.

{¶22} The sentencing entry in this case states that: “The Court has reviewed

the sentencing guidelines (criteria) of enacted House Bill 86 and the revised ORC

§§2929.11, 2929.13 and 2929.14.” There is no mention of the findings required by

R.C. 2929.14(C)(4) in either the sentencing judgment entry or the sentencing

transcript. We have previously held that the record does not support that the findings

were made when there are only general references to R.C. 2929.14(C)(4) in the -12-

record, or when even one of the three required findings cannot be established.

7th Dist. No. 12 MA 199 at ¶19 (failure to make even one of the

findings requires resentencing); State v. Bellard, 7th Dist. No. 12-MA-7, 2013-Ohio-

2956, ¶17 (general statements about the seriousness of the defendant's conduct and

his juvenile criminal history do not comply with R.C. 2929.14(C)(4)); Esmail, supra,

7th Dist. No.

at ¶29-13 (simply stating that the sentence is consistent with

H.B. 86 and making only one of the three required findings of R.C. 2929.14(C)(4)

requires resentencing).

{¶23} As the trial court did not make the findings required by R.C.

2929.14(C)(4), this sentence was contrary to law. Appellant's second assignment of

error is sustained.

Conclusion

{¶24} Appellant challenges his felony sentence for two reasons. First, he

argues that his convictions for attempted rape, kidnapping, and felonious assault

were allied offenses and should have merged. The record shows that the victim was

held captive for six hours and that this constitutes a kidnapping separate from the

attempted rape charge. The record also reflects that at least one separate assault

occurred at a different point in time from the attempted rape. Therefore, the crimes

were not allied offenses and could be separately punished. Second, Appellant

argues that the trial court failed to make findings required by former R.C.

2929.14(E)(4) regarding consecutive sentences. Former R.C. 2929.14(E)(4) has

been replaced by R.C. 2929.14(C)(4), which requires three findings must be made -13-

before consecutive sentences can be imposed. The trial court did not make the

required findings, here. We overrule Appellant's first assignment of error and sustain

the second assignment of error, vacate the August 30, 2012, judgment entry of

sentence and remand the case for resentencing.

Donofrio, J., concurs.

DeGenaro, P.J., concurs in part; see concurring in part opinion. -14-

DeGenaro, P.J., concurring in part. {¶25} Acknowledging that regardless of what standard of review is employed, I agree with the majority that the trial court erred in the imposition of concurrent sentences because it failed to comport with the criteria set forth in R.C. 2929.14(C)(4) as a result of the enactment of H.B. 86. However, consistent with my dissent in State v. Hill, 7th Dist. No. 13 MA 1,

, post H.B. 86, the clearly and convincingly contrary to law standard of review should be applied to felony sentences pursuant to R.C. 2953.08(G)(2). See also State v. White,

,

, ¶5-10 (1st Dist.); State v. Rodeffer, 2d Dist. Nos. 25574, 25575, 25576,

; State v. Hites, 3d Dist. No. 6-11-07,

; State v. Tammerine, 6th Dist. No. L–13–1081,

, ¶10-12; State v. Venes,

,

, ¶10 (8th Dist.); State v. Blair-Walker, 11th Dist. No. 2012–P–0125,

; State v. Crawford, 12th Dist. No. CA2012– 12–088,

. {¶26} Thus, while I concur with the majority's analysis with respect to merger and its conclusion that Appellant's case must be remanded for resentencing, I respectfully dissent from the majority's application of the Kalish standard of review.