[Cite as State v. Williams,

.] 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,

.] 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,

(“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 -2-

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. -3-

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 -4-

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 -5-

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 -6-

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. -7-

{¶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,

,

(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,

,

(1988). The two-part

test was later amended to include an abstract analysis of the offenses. See State v.

Rance,

,

(1999). The Ohio Supreme Court,

recognizing the inconsistent results produced by Rance, recently created a new test

in State v. Johnson,

,

,

.

{¶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, -8-

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,

,

,

. 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,

,

(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 -9-

prolonged restraint, secret confinement, and movement which causes a substantial

risk of harm to the victim, the offenses do not require merger.

.

{¶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,

. 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 -10-

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,

. 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 -11-

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 -12-

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. -13-

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 -14-

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 -15-

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,

, citing State v. Barnes,

,

(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: -16-

(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,

,

,

. 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,

, citing

State v. Verity, 7th Dist. No. 12 MA 139,

.

{¶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 -17-

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. -18-

State v. Peck, 7th Dist. No. 12 MA 125,

, citing State v.

Newsome, 3d Dist. No. 12-12-03,

; State v. Fischer,

,

.

{¶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,

, citing State v. Singleton,

,

,

. 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,

, citing

{¶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,

,

,

, paragraph two of

the syllabus. We note that in this case the record contains nothing which would lead -19-

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,

(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 -20-

115,

(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,

,

,

. 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,

,

,

. 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)?”

{¶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. -21-

{¶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,

,

,

,

¶30. -22-

{¶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,

, citing State v.

Breeden, 8th Dist. No. 84663,

.

{¶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 -23-

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 -24-

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 -25-

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. -26-

Donofrio, P.J., concurs.

Robb, J., concurs.