2018 Ohio 3672
Ohio Ct. App.2018Background
- Hernandez was indicted on seven rape counts and four kidnapping counts; he pleaded guilty to two counts of sexual battery, one count of abduction, and one count of gross sexual imposition; remaining counts were nolled.
- The state stipulated that the abduction and gross sexual imposition counts were allied offenses.
- Sentencing: two sexual-battery terms of 7 years each, abduction 3 years, gross sexual imposition 3 years; the court ordered the two sexual-battery terms and the gross sexual imposition term to be served consecutively for a total of 17 years.
- Defense argued the abduction and gross sexual imposition counts should have been merged and that counsel was ineffective for not objecting to separate sentences on allied counts.
- Defendant also argued consecutive sentences were not supported because he likely faces deportation after imprisonment, reducing the need to protect the public.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether abduction and gross sexual imposition were merged as allied offenses | State had stipulated they were allied and should be merged | Hernandez: trial court erred by not merging; counsel ineffective for failing to object | Court: Error to fail to merge; vacated those sentences and remanded for merger/resentencing |
| Whether counsel was ineffective for failing to object to sentencing on allied counts | No response needed; state conceded merger error | Hernandez: trial counsel ineffective at sentencing | Court: Second assignment moot after concession and merger ruling |
| Whether consecutive sentences were improper | State: court made required R.C. 2929.14(C)(4) findings at hearing supporting consecutive terms | Hernandez: consecutive sentences unnecessary because likely deportation makes public-protection rationale inapplicable and incarceration would be wasteful | Court: Overruled; court had made required findings and record supports them; deportation is not a valid basis to avoid consecutive sentences |
| Whether sentencing entry properly incorporated statutory findings | State: sentencing hearing included required findings | Hernandez: sentencing entry failed to reflect findings | Court: Trial court failed to incorporate findings in journal entry; directed the trial court to issue a nunc pro tunc entry reflecting findings on remand |
Key Cases Cited
- Bonnell v. Ohio, 140 Ohio St.3d 209 (2014) (court must incorporate statutory consecutive-sentence findings in the sentencing entry and nunc pro tunc may correct omission)
- Marcum v. Ohio, 146 Ohio St.3d 516 (2016) (standards for appellate review of felony sentences)