[Cite as State v. Santiago,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102280

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DAVID SANTIAGO, III DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART AND REVERSED IN PART

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-588032-A

BEFORE: E.A. Gallagher, P.J., S. Gallagher, J., and Blackmon, J.

RELEASED AND JOURNALIZED: October 1, 2015 ATTORNEY FOR APPELLANT

John Toth The Law Office of John Toth 766 Park Avenue Amherst, Ohio 44001

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Kristin Karkutt Daniel T. Van Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, P.J.:

{¶1} Defendant-appellant David Santiago appeals from his sentences imposed in

the Cuyahoga County Common Pleas Court. Santiago argues that the trial court

committed plain error in failing to inquire into whether his offenses constituted allied

offenses of similar import. Santiago also argues that the trial court erred in imposing

consecutive sentences. For the following reasons, we affirm in part, and reverse, in part.

{¶2} Santiago pled guilty to one count each of rape, gross sexual imposition,

failure to comply and attempted inducing panic. The trial court imposed prison

sentences of ten years to life for rape, two years for gross sexual imposition, one year for

failure to comply and six months for attempted inducing panic. The trial court ordered

the sentences for rape, gross sexual imposition and failure to comply to be served

consecutively to each other for cumulative sentence of 13 years to life.

{¶3} In his first assignment of error, Santiago argues that the trial court erred in

failing to consider, sua sponte, whether his convictions for rape and gross sexual

imposition were allied offenses of similar import. Santiago failed to raise the issue of

allied offenses at sentencing and, therefore, has forfeited all but plain error. State v.

Rogers, Slip Opinion No.

, ¶ 3. Santiago has the burden to

“demonstrate a reasonable probability that the convictions are for allied offenses of

similar import committed with the same conduct and without a separate animus * * *.”

{¶4} Santiago concedes that the record lacks sufficient facts to demonstrate that

his rape and gross sexual imposition offenses were allied. Instead, he relies on this court’s decision in State v. Rogers,

,

(8th Dist.), which

was overruled by the Ohio Supreme Court in State v. Rogers, Slip Opinion No.

, for the proposition that the trial court’s failure to, sua sponte, inquire

into potentially allied counts constituted plain error. Santiago’s reliance on that case is

misplaced because the Ohio Supreme Court held that:

[A]n accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; and, absent that showing, the accused cannot demonstrate that the trial court’s failure to inquire whether the convictions merge for purposes of sentencing was plain error.

Id. at ¶ 3.

{¶5} Santiago has failed to carry his burden pursuant to Rogers and his first

assignment of error is overruled.

{¶6} In his second assignment of error Santiago argues that the trial court failed to

make the required findings pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive

sentences.

{¶7} R.C. 2929.14(C)(4) requires a trial court to engage in a three-step analysis

before it imposes consecutive sentences. First, the court must find that “consecutive

service is necessary to protect the public from future crime or to punish the offender.” Id.

Second, the trial court must find that “consecutive sentences are not disproportionate to

the seriousness of the offender’s conduct and to the danger the offender poses to the

public.” Id. Third, the trial court must find that at least one of the following applies: (a) the offender committed one or more of the multiple offenses while

awaiting trial or sentencing, while under a sanction, or while under

postrelease 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 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; [or]

(c) the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

Id.

{¶8} The court must make the statutory findings as stated above at the sentencing

hearing and incorporate those findings into its sentencing entry. See State v. Bonnell,

,

,

, syllabus. Although the trial court was

not required to use “talismanic words,” it must be clear from the record that it actually

made the findings required by statute. Id. at ¶ 37.

{¶9} In this instance, the trial court made findings relating to the need to protect

the public, Santiago’s history of criminal behavior and the fact that Santiago’s crimes

were so great or unusual that a single term would not adequately reflect the seriousness of

the conduct. However, the record does not contain any language that could reasonably

be construed to satisfy the requirement that “consecutive sentences are not

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

offender poses to the public.” The trial court’s sentencing entry is similarly deficient. Therefore, the trial court erred in imposing consecutive sentences without making the

required findings. See, e.g., State v. Marneros, 8th Dist. Cuyahoga Nos. 101872 and

101873,

(reversing consecutive sentences due to the trial court’s failure

to make a proportionality finding). Santiago’s second assignment of error is sustained.

{¶10} In light of our resolution of Santiago’s second assignment of error, his third

assignment of error, wherein he argues that his consecutive sentences violate the Equal

Protection Clause of the United States and Ohio Constitutions, is moot.

{¶11} The judgment of the trial court is affirmed, in part, and reversed, in part.

{¶12} We vacate Santiago’s consecutive sentences and remand this matter to the

trial court for resentencing. See

. On remand, the trial court shall

consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and if

so, shall make the required statutory findings on the record at resentencing, and

incorporate its findings into the subsequent sentencing entry.

It is ordered that appellant and appellee share the 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 appeal 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. _________________________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., CONCURS SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, J., DISSENTING:

{¶13} I respectfully dissent from the majority’s resolution of the consecutive

sentences issue. It can be discerned from the record that all the findings were made in

support of the order imposing sentences to be served consecutively. State v. Bonnell,

,

,

. In the final sentencing

entry, the trial court codified its findings: “consecutive sentences are given because of

defendant’s criminal history, the nature of the offense, to protect the public and the

offender’s relationship with the victim facilitated the offense.” Thus, as the majority

noted, the only finding not specifically addressed was whether consecutive service of the

sentences was disproportionate to the seriousness of the offender’s conduct. At

sentencing the trial court found that “the crimes committed were so great or unusual that a

single term would not adequately reflect the seriousness of the [offender’s] conduct.”

{¶14} I believe the court’s finding resolves both R.C. 2929.14(C)(4)

(disproportionate finding) and R.C. 2929.14(C)(4)(b) (great-or-unusual finding) findings.

If no single term adequately reflects the seriousness of the offender’s conduct, then, logically, the consecutive service of prison sentences is not disproportionate to the

offender’s conduct. In State v. Duhamel, 8th Dist. Cuyahoga No. 102346,

, a panel of this court concluded that the trial court’s finding that:

consecutive sentences are necessary to protect the public from future crimes and to punish you. They’re not disproportionate to the seriousness of [your] conduct and danger you pose. I do find that this was part of a course of conduct inasmuch as, again, as I indicated, happened on June 10th, June 24th, June 25th, June 29th, July 1st

satisfied the same findings involved in the current case. Notably absent was any

mention of the great-or-unusual verbiage.

If the disproportionate finding satisfied

the great-or-unusual one in Duhamel, then the converse must be equally true.

{¶15} Bonnell allows this court to affirm the imposition of consecutive service of

prison terms if it can “discern that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings.” I would, therefore,

affirm the conviction. It can be discerned from the record that trial court engaged in the

proper analysis, but failed to simply enunciate the precise finding being made. Bonnell

dicates that reviewing courts not require a rote recitation of the findings; therefore, the

trial court’s finding satisfied both the disproportionate and the great-or-unusual findings

as required under R.C. 2929.14(C)(4). Further, Santiago only challenges the lack of

findings and not whether the record supports those findings. As a result, I must dissent.

I would affirm the conviction.