State v. Garner, 2017 Ohio 8405

Gary Garner was convicted in 2014 of multiple sexual offenses, including seven counts of rape, seven counts of gross sexual imposition (GSI), five counts of kidnapping, and one count of intimidation; many counts included sexually violent predator specifications.
This court affirmed the convictions but in State v. Garner (Garner I) reversed the trial court’s GSI sentences as contrary to law under R.C. 2971.03(A)(3)(a) and outside the range in R.C. 2929.14(A)(3)(a).
On remand the trial court resentenced Garner on the seven GSI counts, imposing five years to life on each GSI count and ordering them to be served consecutively.
The resentencing hearing and journal entry did not: (1) state consideration of R.C. 2929.11 or 2929.12, (2) allow Garner allocution, (3) merge potentially duplicative GSI counts, or (4) consolidate all convictions and cumulative terms into a single cohesive sentencing entry.
The state argued the trial court need not consider R.C. 2929.11/2929.12 when imposing a sexually-violent-offender term under R.C. 2971.03(A)(3)(a).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court must consider R.C. 2929.11 and 2929.12 when resentencing a sexually violent offender under R.C. 2971.03(A)(3)(a)	State: No; those statutes need not be considered when imposing a sexually-violent-offender term	Garner: Trial court must consider R.C. 2929.11 and 2929.12 in exercising sentencing discretion under R.C. 2929.14(A)(3)(a)	Court rejected the State; trial court was required to consider R.C. 2929.11 and 2929.12 and failed to do so
Whether the trial court’s failure to provide allocution rendered the resentencing defective	State: Not argued as dispositive	Garner: Lack of allocution and full resentencing procedure made the sentence contrary to law	Court found failure to permit allocution was among defects in the resentencing
Whether the trial court erred by ordering GSI counts to run consecutively without stating cumulative term	State: Not specifically argued	Garner: Sentencing entry must state cumulative term and integrate prior sentences	Court held sentencing entry was defective for not stating cumulative term and not integrating all convictions
Whether certain GSI counts should have been merged for sentencing	State: Not expressly defended	Garner: Counts 7, 9, 11 may merge because they concern the same victim/time period	Court expressed concern that the trial court did not address potential merger and remanded for resentencing

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002 (Ohio 2016) (standard for appellate review of felony sentences and when sentence may be reversed as contrary to law)