STATE OF OHIO, Plaintiff-Appellee, v. ANTONIO BAKER, Defendant-Appellant.
No. 108301
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
January 16, 2020
2020-Ohio-107
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-611860-A, CR-16-611862-A, CR-16-611863-A, CR-17-615143-A, CR-17-615423-A
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED IN PART; REMANDED
RELEASED AND JOURNALIZED: January 16, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey and Hannah Smith, Assistant Prosecuting Attorneys, for appellee.
Anna Markovich, for appellant.
EILEEN A. GALLAGHER, J.:
{¶ 1} This consolidated appeal arises from defendant-appellant Antonio Baker‘s convictions in five cases: Cuyahoga C.P. Nos. CR-16-611860-A (“611860”), CR-16-611862-A (“611862”), CR-16-611863-A (“611863”), CR-17-615143-A
{¶ 2} For the reasons that follow, in 611863, we vacate Baker‘s guilty plea to the rape count (Count 1) and the sentence imposed on the felonious assault count (Count 5) (which was found to have merged with a kidnapping count (Count 7)) and remand for further proceedings as to the rape count. With respect to all five cases, we vacate the trial court‘s imposition of consecutive sentences and remand for the trial court to consider whether consecutive sentences are appropriatе under
Procedural History and Factual Background
{¶ 3} In December 2016 and March 2017, Baker was indicted on 22 counts in five cases in connection with a series of thefts, assaults and sexual offenses that occurred from April 2015 through November 2016. Baker initially pled not guilty to
- in 611860 — one count of felonious assault in violation of
R.C. 2903.11(A)(1) , a second-degree felony; - in 611862 — one count of robbery in violation of
R.C. 2911.02 , a third-degree felony; - in 611863 — one count of rape in violation of
R.C. 2907.02(A)(2) , a first-degree felony, with one-year and three-year firearm specifications; an amended count of kidnapping in violation ofR.C. 2905.01(A)(4) , a first-degree felony, with a sexual motivation specification; an amended count of felonious assault in violation ofR.C. 2903.11(A)(1) , a second-degree felony; an amended count of kidnapping in violation ofR.C. 2905.01(A)(3) , a first-degree felony; two counts of endangering children in violation ofR.C. 2919.22(A) , a first-degree misdemeanor; and one count of having weapons while under disability in violation ofR.C. 2923.13(A)(2) , a third-degree felony; the parties agreed that the firearm specifications would merge and that the felonious assault count would merge with the second kidnapping count, with the state electing to sentence Baker on the kidnapping count; - in 615143 — one count of aggravated robbery in violation of
R.C. 2911.01(A)(3) , a first-degree felony; one count of disrupting public service in violation ofR.C. 2909.04(A)(1) , a fourth-degree felony; and one count of assault in violation ofR.C. 2903.13(A) , a first-degree misdemeanor. - in 615423 — an amended count of burglary in violation of
R.C. 2911.12(A)(3) , a third-degree felony.
In exchange for these guilty pleas, the remaining counts against Baker were to be dismissed.
{¶ 4} On November 6, 2017, the triаl court held a change-of-plea hearing. After the state and defense counsel set forth the terms of the plea agreement on the
{¶ 5} The trial court advised Baker of his constitutional rights and confirmed that he understood the rights he would be waiving by entering his guilty pleas. The trial court then identified each of the counts to which Baker would be pleading guilty and set forth the potential penalties he would face on each count by pleading guilty. Specifically, with respect to the rape count in 611863, the trial court stated:
611863, Count 1 is а felony of the first degree. That‘s 3 to 10 years on the underlying charge with a fine up to $20,000. There are two firearm specifications which, as you heard, will be merged. So there‘s an additional 3 years that must be served in addition to and prior to that 3 to 11 years.
Furthermore, that is a Tier 3 sex offense, and we‘ll go into that later.
{¶ 6} The trial judge further stated that in 611683, “Count 7 [the second kidnapping count] would merge with Count 5 [the felonious assault count], so for sentencing purposes it will be as though you only have Count 7 to deal with.” The trial judge informed Baker that all of his sentences could be imposed consecutively
{¶ 7} After the trial court concluded its advisemеnts, Baker pled guilty to each of the charges above in accordance with the plea agreement. He confirmed that no one had made any threats or promises to induce him to enter his guilty pleas other than as set forth on the record. The trial court found that Baker understood his constitutional rights and that he had voluntarily and willingly waived those rights. The trial court accepted Baker‘s guilty pleas and dismissed the remaining counts with which he had been charged in the five cases.
{¶ 8} The court scheduled the sentencing heаring for later that week and stated that “[w]e will go into the details of the Tier 3 sex offender registration * * * at that time.”
{¶ 9} Baker was sentenced on November 9, 2017. At the outset of the hearing, the trial judge explained the registration requirements associated with Baker‘s classification as a Tier III sex offender. After hearing from Baker, defense counsel and the assistant prosecuting attorney (who read statements from several of Baker‘s victims), the trial court sentenced Baker to an aggregate sentence of 15 years as follows:
- in 611860 — two years on the felonious assault count, to be served concurrently with the sentences in 611862 and 615423 but consecutively to the sentences in 611863 and 615143;
- in 611862 — two years on the robbery count, to be served concurrently with the sentences in 611860 and 615423 but consecutively to the sentences in 611863 and 615143;
- in 611863 — an aggregate sentence of eight years: five years on the underlying rape charge plus three years on the firearm specifications (merging the one-year and three-year firearm specifications) to be served prior to and сonsecutively with the five-year sentence on the rape charge; five years on each of the kidnapping counts; three years on the felonious assault count; six months on each of the endangering children counts and two years on the having weapons while under disability count, with the sentences on each count to run concurrently with one another but consecutively to the sentences in 611860, 611862, 615143 and 615423;
- in 615143 — an aggregate sentence of five years: five years on the aggravated robbery count, one year on thе disrupting public service count, and six months on the assault count, with the sentences on each count to run concurrently with one another but consecutively to the sentences in 611860, 611862, 611863 and 615423; and
- in 615423 — two years on the amended burglary count to be served concurrently with the sentences in 611860 and 611862 and consecutively to the sentences in 611863 and 615143.
{¶ 10} The trial judge made no consecutive sentencing findings at the sentencing hearing but set forth findings in support of the imposition of consecutive sentences in its sentencing journal entries in each of the five cases as follows:
The court imposes prison terms consecutively finding that consecutive service is necessary to protect the public from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant‘s conduct and to the danger defendant poses to the public; and that, at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and the harm causеd by said multiple 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 defendant‘s conduct, or defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by defendant.
{¶ 11} This court granted Baker leave to file a delayed appeal. He raises the following two assignments of error for review:
Assignment of Error I
The trial court erred in imposing consecutive sentences without making the requisite findings under
Assignment of Error II
The appellant‘s guilty plea to rape with firearm specifications was invalid, where guilty plea subjected him to sex offender registration and community notification and residential restrictions as Tier III sex offender, but the trial court failed to inform appellant of those implications during plea colloquy.
{¶ 12} We address Baker‘s second assignment of error first.
Law and Analysis
Sex Offender Classification and Crim.R. 11(C)(2)(a)
{¶ 13} In his second assignment of error, Baker contends that his guilty plea to the rape count (Count 1) in 611863 was invalid because the trial court failed to advise him during the
{¶ 14} “Due process requires that a defendant‘s plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant‘s plea is invalid.” State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; see also State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996) (“When a defendant enters a
{¶ 15} In considering whether a criminal defendant knowingly, intelligently and voluntarily entered a guilty plea, we first review the record to determine whether the trial court complied with
(a) Determining that the defеndant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶ 16} The trial court must strictly comply with those provisions of
{¶ 17}
{¶ 18} The state urges us to find that the trial court substantially complied with its obligations to inform Baker of his sex offender status and the consequences of that status prior to accepting his guilty plea based on: (1) the trial court‘s description of the rape count as a “Tier 3 sex offense” during the plea colloquy; (2) statements the assistant prosecuting attorney made regarding the rape count at an August 22, 2018 hearing when describing a plea offer the state had offered but Baker had rejected and (3) the notifications the trial court provided Baker regarding his stаtus as sex offender at the sentencing hearing, claiming that the parties had “agreed to discuss the details of the Tier III sex offender registration * * * at sentencing.”
{¶ 19} As it relates to a defendant‘s classification as a sex offender, this court has previously found substantial compliance with
{¶ 20} In Creed, for example, the trial court informed the defendant during the plea colloquy that he would be classified as a Tier III sex offender by operation of his plea and that he would be subject to various reporting and notification requirements for life. Creed, 2012-Ohio-2627, ¶ 16. The trial court, however, did not inform the defendant that he would be prohibited from living within 1,000 feet of a school. Id. at ¶ 13, 17. This court held that the trial court was not “required to
{¶ 21} This is not that case. Rather, this case is more akin to our decision in Brown, 2019-Ohio-527. In Brown, the trial court found the defendant to be a Tier II sex offender after he pled guilty to conspiracy to commit trafficking in persons. Id. at ¶ 2. The trial court had failed to inform the defendant that he would be
{¶ 22} Based on the record before us, considering the totality of the circumstances, we find that the trial court did not substantially comply, and completely failed to comply, with its obligations under
{¶ 23} Although the trial court notified Baker of his Tier III sex offеnder status and the registration requirements to which he was subject as a Tier III sex offender at the sentencing hearing,
{¶ 24} Likewise, we cannot say that the assistant prosecutor‘s comments on August 22, 2018, two-and-one-half months before the change-of-plea hearing, describing a plea offer Baker rejected, were sufficient to satisfy the trial court‘s
[ASSISTANT PROSECUTING ATTORNEY]: And then starting with 611863.
THE COURT: Okay.
[ASSISTANT PROSECUTING ATTORNEY]: The State would accept a plea to Count 1, a felony of the first degree tier-three rape, as indicted including the one- and three-year firearm specifications as indicted. * * * And then just for purposes of the rеcord, with the tier — with the rape being tier three, that is a registration every 90 days, but I believe that‘s just one of the tier III — it were life. Tier II would be for 20 years.
{¶ 25} Because we find that there was a complete failure to comply with
Sentencing on Merged Offense
{¶ 26} With respect to 611863, we also note, sua sponte, that although the parties agreed as part of their plea agreement that the felonious assault count (Count 5) would merge with the second kidnapping count (Count 7), and the trial court informed Baker during the plea colloquy that the felonious assault count would
Imposition of Consecutive Sentences
{¶ 27} In his first assignment of error, Baker contends that his consecutive sentences should be vacated because the trial court failed to make the findings necessary for the imposition of consecutive sentences under
(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 tо section
2929.16 ,2929.17 , or2929.18 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 оf criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 29} The trial court must make the required statutory findings at the sentencing hearing and incorporate those findings into its sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. To make the requisite “findings” under the statute, “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). When imposing consecutive sentences, the trial court is not required to give a “talismanic incantation of the words of the statute.” Bonnell at ¶ 37. “[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.
{¶ 30} In this case, although the trial court set forth all the requisite findings for imposing consecutive sentences in its sentencing journal entries, it did not make any of these findings at the sentencing hearing. As such, Baker‘s consecutivе sentences are contrary to law. See, e.g., Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 36-37; State v. Lariche, 8th Dist. Cuyahoga No. 106106, 2018-Ohio-3581, ¶ 25; see also State v. Hairston, 10th Dist. Franklin Nos. 17AP-416 and 17AP-417, 2017-Ohio-8719, ¶ 13-14.
{¶ 31} We sustain Baker‘s first assignment of error.
Conclusion
{¶ 32} In 611863, we vacate Baker‘s guilty plea to the rape count (Count 1) and the sentence imposed on the felonious assault count (Count 5) and remand for further proceedings as to the rape count. With respect to all five cases, we vacate the trial court‘s imposition of consecutive sentences and remand for the trial court to consider whether consecutive sentences are appropriate under
It is ordered that appellant recover from appellee 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy оf this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR
Notes
During a plea proceeding, does the failure of the sentencing court to inform a defendant of all of the penalties associated with a sex offender classification imposed by