State v. Nunez, 2016 Ohio 812

Background

Victor Nunez was convicted in 2009 of multiple sex‑related offenses (three rape counts, two kidnapping counts, aggravated burglary, intimidation) and originally sentenced to an aggregate 22‑year term.
This court in State v. Nunez (Nunez I) held certain rape/kidnapping convictions were allied and remanded for resentencing.
At the December 28, 2010 resentencing, the state elected to merge the kidnapping counts into two rape counts; the trial court again imposed an aggregate 22‑year sentence, with specific counts ordered consecutive or concurrent as announced and in the journal entry, and imposed postrelease control and sex‑offender classification.
Nunez later obtained federal habeas relief permitting a delayed appeal; he raised claims attacking the trial court’s consecutive‑sentence findings, an asserted journal/ oral‑pronouncement inconsistency, alleged merger of multiple rape counts, and ineffective assistance at resentencing.
The court limited review to matters properly before it on remand (state’s election and subsequent sentencing) and affirmed the resentencing in full.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Nunez)	Held
Whether R.C. 2929.14(C) findings were required for consecutive sentences at the 2010 resentencing	H.B.86 requirements for express consecutive‑sentence findings are not applicable because resentencing occurred before the statute’s effective date; post‑Foster judges had discretion to impose consecutive terms	Court erred by not making the specific findings required under the post‑H.B.86 statute	Court: H.B.86 inapplicable to this 2010 resentencing; Foster removed the earlier findings requirement; claim overruled
Whether Count 11’s sentence was ambiguous or improperly journaled/ not pronounced	Trial court’s oral statements and journal entry consistently reflect intent to preserve the original aggregate/consecutive structure; no ambiguity	Sentence on Count 11 should run concurrently with Count 8 or was not pronounced in open court as reflected in journal	Court: No ambiguity; oral pronouncement and journal are consistent; consecutive terms upheld
Whether Counts 8 and 9 (two rape counts against the same victim) were allied and required merger	State contends only rape and kidnapping were found allied in Nunez I and on remand merged kidnapping into rape per the court’s direction; different sexual acts can be separate offenses	Nunez argues Nunez I found the rape counts were allied and should merge into one conviction	Court: Nunez I addressed merger of rape with kidnapping only; different sexual acts (oral vs. vaginal) are distinct offenses; no merger of the two rape counts warranted
Whether counsel was ineffective at resentencing for failing to argue merger of Counts 8, 9, 10	State: Resentencing scope limited to state’s election and merger of rape/kidnapping; counsel’s performance was not deficient and no prejudice shown	Counsel should have argued the rape counts and kidnapping were all allied and merged, which could have reduced sentence	Court: No deficient performance or prejudice shown; ineffective‑assistance claim fails

Key Cases Cited

State v. Foster, 845 N.E.2d 470 (Ohio 2006) (severed statutory consecutive‑sentence findings and restored judicial discretion within statutory ranges)
Oregon v. Ice, 555 U.S. 160 (U.S. 2009) (held Sixth Amendment did not prohibit States from assigning consecutive‑sentence factfinding to judges in some circumstances)
State v. Hodge, 941 N.E.2d 768 (Ohio 2010) (Ice did not revive the severed consecutive‑sentence statutory provisions absent legislative action)
State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (discussed post‑H.B.86 requirements for on‑the‑record findings when imposing consecutive sentences)
State v. Wilson, 951 N.E.2d 381 (Ohio 2011) (limits on appellate review after partial remand; sentencing hearing scope post‑remand)
State v. Saxon, 846 N.E.2d 824 (Ohio 2006) (consecutive sentencing considerations after separate terms are imposed)
State v. Perez, 920 N.E.2d 104 (Ohio 2009) (Strickland/Bradley standards for ineffective‑assistance claims)