[Cite as State v. Phipps, 2014-Ohio-2905.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 13AP-640 

v. : (C.P.C. No. 12CR-12-6254)

Sharvess Phipps, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on June 30, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Barbara A. 

Farnbacher, for appellee. 

Timothy Young, Ohio Public Defender, and Carrie Wood, for 

appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

T. BRYANT, J. 

{¶ 1} Defendant-appellant, Sharvess Phipps, appeals from a judgment of 

conviction and sentence entered by the Franklin County Court of Common Pleas 

following his guilty plea to seven counts of aggravated robbery, four counts of aggravated 

burglary, five counts of burglary, three counts of kidnapping, one count of felonious 

assault, one count of conspiracy, and accompanying firearm specifications. 
No. 13AP-640 2 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On December 12, 2012, a Franklin County Grand Jury indicted appellant in 

case No. 12CR-6254 on 41 felony counts arising from a series of robberies, burglaries and 

home invasions occurring in southeast Columbus between May 18 and June 29, 2012. On 

January 17, 2013, appellant, represented by counsel, entered guilty pleas to 21 counts of 

the indictment. Specifically, appellant pleaded guilty to 7 counts of aggravated robbery in 

violation of R.C. 2911.01, all with 3-year firearm specifications in violation of R.C. 

2941.145, 4 counts of aggravated burglary in violation of 2911.11, 3 with 3-year firearm 

specifications in violation of R.C. 2941.145, and 1 with a 1-year firearm specification in 

violation of R.C. 2941.141, 5 counts of burglary in violation of R.C. 2911.12, 1 with a 1-year 

firearm specification in violation of R.C. 2941.141, 3 counts of kidnapping in violation of 

R.C. 2905.01, all with 3-year firearm specifications in violation of R.C. 2941.145, 1 count of 

felonious assault in violation of R.C. 2903.11, with a 3-year firearm specification in 

violation of R.C. 2941.145, and 1 count of conspiracy in violation of R.C. 2923.01. In 

exchange for the guilty plea, the prosecutor recommended that the trial court enter a nolle 

prosequi to the remaining 20 counts of the indictment. In addition, appellant entered 

guilty pleas in 2 other felony cases, 12CR-3426 and 12CR-3573. 

{¶ 3} That same day, the trial court accepted appellant's guilty pleas in all three 

cases, found him guilty, dismissed the remaining 20 counts in case No. 12CR-6254, and 

set the matter for sentencing on January 25, 2013. The trial court did not order a 

presentence investigation ("PSI") report, as one had already been prepared in July 2012 

for another pending felony case, case No. 12CR-1628. 

{¶ 4} On January 25, 2013, appellant appeared with counsel for sentencing. In 

case No. 12CR-6254, the trial court imposed prison terms for each of appellant's 21 felony 

convictions and the accompanying firearm specifications. The court also imposed prison 

terms for appellant's convictions in case Nos. 12CR-1628, 12CR-3426, and 12CR-3573. 

Appellant's aggregate prison sentence totaled 172 years and 11 months. 

{¶ 5} Due to certain errors in the January 25, 2013 sentencing proceedings, the 

trial court conducted a resentencing hearing on June 14, 2013, at which appellant again 

appeared with counsel. In a "Corrected Re-Sentencing Judgment Entry" filed on July 23, 

2013, the trial court imposed the following sentence: 
No. 13AP-640 3 

The Court hereby imposes the following sentence: EIGHT (8) 

YEARS CONSECUTIVE to THREE (3) YEARS for the Firearm 

Specification on Count One CONCURRENT to EIGHT (8) 

YEARS CONSECUTIVE to THREE (3) YEARS for the Firearm 

Specification on Count Two; CONSECUTIVE to FIVE (5) 

YEARS on Count Five; CONSECUTIVE to ELEVEN (11) 

YEARS on Count Seven and CONSECUTIVE to THREE (3) 

YEARS for the Firearm Specification; CONSECUTIVE TO 

ELEVEN (11) YEARS on Count Eight and CONSECUTIVE 

TO THREE (3) YEARS for the Firearm Specification; 

CONCURRENT to ELEVEN (11) YEARS on Count Ten; 

CONSECUTIVE to EIGHT (8) YEARS on Count Eleven and 

CONSECUTIVE TO ONE (1) YEAR for the Firearm 

Specification, CONSECUTIVE to FIVE (5) YEARS on Count 

Fifteen; CONSECUTIVE to ELEVEN (11) YEARS on Count 

Eighteen CONSECUTIVE to ONE (1) YEAR for the Firearm 

Specification; CONSECUTIVE to ELEVEN (11) YEARS on 

Count Twenty CONSECUTIVE to THREE (3) YEARS for 

the Firearm Specification; CONCURRENT to ELEVEN (11) 

YEARS on Count Twenty-One CONSECUTIVE to THREE 

(3) YEARS for the Firearm Specification; CONCURRENT TO 

ELEVEN (11) YEARS on Count Twenty-Two; 

CONCURRENT TO ELEVEN (11) YEARS on Count TwentyFive; CONCURRENT TO ELEVEN (11) YEARS ON Count 

Twenty-Six; CONSECUTIVE to ELEVEN (11) YEARS on 

Count Twenty-Eight CONSECUTIVE to THREE (3) YEARS 

for the Firearm Specification; CONSECUTIVE to ELEVEN 

(11) YEARS on Count Twenty-Nine CONSECUTIVE to 

THREE (3) YEARS for the Firearm Specification; 

CONSECUTIVE to ELEVEN (11) YEARS on Count Thirty; 

CONSECUTIVE to EIGHT (8) YEARS on Count ThirtyOne; CONSECUTIVE to FIVE (5) YEARS on Count ThirtyThree; CONSECUTIVE to FIVE (5) YEARS on Count 

Thirty-Four; and CONSECUTIVE to THREE (3) YEARS on 

Count Thirty-Five at the Ohio DEPARTMENT OF 

REHABILITATION AND CORRECTIONS. The total on all 

counts is 150 years. Sentence to be served CONSECUTIVE to 

Case Numbers 12CR-1628; 12CR-3426, and 12CR-3573. The 

Court elects not to impose the following: THREE (3) YEAR 

gun specification on Counts Ten, Twenty-Two, Twenty-Five, 

Twenty-Six, Thirty and Thirty-One. 
No. 13AP-640 4 

II. ASSIGNMENTS OF ERROR 

{¶ 6} Appellant filed a timely notice of appeal from his conviction and sentence in 

case No. 12CR-6254; case Nos. 12CR-1628, 12CR-3426, and 12CR-3573 have not been 

appealed. Appellant sets forth the following six assignments of error for our review: 

ASSIGNMENT OF ERROR I: 

The trial court's failure to ensure that Sharvess 

Phipps understood the maximum penalty for his 

plea, when the court failed to (1) ask Sharvess 

whether he understood that his plea could result in a 

"de facto" sentence of life without the possibility of 

parole, and (2) inform Sharvess that each gun 

specifications [sic] must be run consecutively to any 

other prison term or mandatory prison term 

previously or subsequently imposed, rendered 

Sharvess's guilty plea unknowing, unintelligent, and 

involuntary. Fourteenth Amendment to the United 

States Constitution; Section 10, Article I of the Ohio 

Constitution. 

ASSIGNMENT OF ERROR II: 

The trial court abused its discretion when it failed to 

consider statutory sentencing factors. Sent. Hrg. at 

pp. 3-4. R.C. 2929.11, R.C. 2929.12, Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

ASSIGNMENT OF ERROR III: 

The trial court abused its discretion when it 

sentenced Sharvess to a "de facto" life without parole 

sentence for aggravated burglaries. Sent. Hrg. at pp. 

3-4. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio4912, 896 N.E.2d 124, ¶ 19. 

ASSIGNMENT OF ERROR IV: 

The trial court erred by imposing consecutive 

sentences without making the findings required by 

R.C. 2929.14(C) and Crim.R. 32(A)(4) at the 

sentencing hearing, and without have the factual 

basis to make those findings. Sent. Hrg. 3-4, 32. 
No. 13AP-640 5 

ASSIGNMENT OF ERROR V: 

The trial court erred when it imposed separate 

sentences for offenses that arose from the same 

conduct, were not committed separately or with a 

separate animus, and should have been merged for 

sentencing purposes under R.C. 2941.25. Re-Sent. at 

p. 11-12. State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061; Amendment V, U.S. 

Constitution; Section 10, Article I of the Ohio 

Constitution. 

ASSIGNMENT OF ERROR VI: 

Sharvess Phipps was denied the effective assistance 

of counsel as guaranteed by the Sixth and Fourteenth 

Amendments to the United State[s] Constitution and 

Article I, Section Sixteen of the Ohio Constitution 

when defense counsel (1) failed to take any steps to 

ensure or support the sentence requested from the 

trial court; (2) failed to take any steps to cure this 

failure when he admitted he now had information to 

do so; and (3) failed to object when the trial court 

failed to merge allied offenses. 

III. DISCUSSION 

 A. First Assignment of Error – Guilty Plea 

{¶ 7} In his first assignment of error, appellant contends his guilty plea was not 

knowingly, intelligently, and voluntarily entered because the trial court failed to inform 

him of the maximum penalty involved in contravention of Crim.R. 11(C)(2)(a). Appellant 

raises two separate issues under this assignment of error: (1) the trial court failed to 

ensure he understood that the maximum penalty amounted to "de facto" life 

imprisonment, and (2) the trial court failed to inform him that the sentences on the 

firearm specifications were statutorily required to be served consecutively to prison terms 

imposed on the underlying offenses, and to any other prison term, or mandatory prison 

term previously or subsequently imposed. 

{¶ 8} Crim.R. 11 sets forth the procedure a trial court must follow when accepting 

a guilty plea in a felony matter. Crim.R. 11(C)(2)(a) through (c) provide that a trial court 

must personally address the defendant and (a) determine that the defendant is making 

the plea voluntarily, understanding the nature of the charges and the maximum penalty 
No. 13AP-640 6 

involved and potential ineligibility for probation or community control sanctions; (b) 

inform the defendant of and determine that the defendant understands the effect of the 

plea, including the trial court's ability, upon acceptance of the plea, to proceed with 

judgment; and (c) inform the defendant of his rights and determine that the defendant 

understands the nature of the rights he is waiving, including the right to a jury trial, the 

right to confront witnesses against him, the right to have compulsory process for 

obtaining witnesses, the right to require the state to prove the defendant's guilt beyond a 

reasonable doubt, and the right against self-incrimination had the case gone to trial. State 

v. Darks, 10th Dist. No. 05AP-982, 2006-Ohio-3144, ¶ 9. 

{¶ 9} A trial court must strictly comply with the mandates of Crim.R. 11(C)(2)(c) 

regarding the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, syllabus. Strict compliance requires that the court expressly inform the 

defendant of the constitutional rights he is waiving and make certain the defendant 

understands them. Id. at ¶ 27. In contrast, a trial court must only substantially comply 

with the requirements of Crim.R. 11(C)(2)(a) and (b) regarding nonconstitutional rights. 

Id. at ¶ 14. "Substantial compliance means that under the totality of the circumstances, 

the defendant subjectively understands the implications of his plea and the rights he is 

waiving." State v. Nero, 56 Ohio St.3d 106, 108 (1990). "If it appears from the record 

that the defendant appreciated the effect of his plea and his waiver of rights in spite of the 

trial court's error, there is still substantial compliance." State v. Caplinger, 105 Ohio 

App.3d 567, 572 (4th Dist.1995), citing Nero at 108-09. Furthermore, "[a] defendant 

must show prejudice before a plea will be vacated for a trial court's error involving 

Crim.R. 11(C) procedure when nonconstitutional aspects of the colloquy are at issue." 

Veney at ¶ 17. The test for prejudice is whether the plea would have otherwise been made. 

Nero at 108. 

{¶ 10} Appellant first contends the trial court failed to satisfy Crim.R. 11(C)(2)(a) 

because it did not ensure that he understood the maximum penalty involved, i.e., "de 

facto" life imprisonment. Specifically, appellant contends that under a multi-count 

indictment, the trial court must ensure that a defendant understands the "maximum 

exposure" for his plea, not just the maximum sentence for each individual count when 

those counts can or must be run consecutively to each other. (Appellant's brief, at 13.) 
No. 13AP-640 7 

{¶ 11} We note initially that the rights contained in Crim.R. 11(C)(2)(a) regarding 

the defendant's understanding of the maximum penalty involved are nonconstitutional. 

Thus, substantial compliance is sufficient. State v. Boggan, 8th Dist. No. 100096, 2014-

Ohio-1428, ¶ 8. 

{¶ 12} At the January 17, 2013 plea hearing, before accepting appellant's guilty 

pleas, the trial court engaged in a Crim.R. 11 colloquy with appellant. The trial court first 

noted that appellant was entering guilty pleas in three separate felony cases. Through 

inquiry, the court determined that appellant was 20 years old, graduated from high 

school, and could read, write, and understand English. 

{¶ 13} Thereafter, the court separately discussed each of the three felony cases to 

which appellant was pleading guilty. Regarding case. No. 12CR-3426, the court explained 

that appellant was pleading guilty to having a weapon under disability, a third-degree 

felony, which carried a maximum possible penalty of three years in prison, a $10,000 fine, 

and three years of post-release control. When asked if he understood the nature of the 

case and the maximum penalty, defendant replied, "Yes, sir." (Jan. 17, 2013 Tr. 6.) Upon 

the court's further inquiry, appellant averred that he had no questions regarding the case. 

{¶ 14} With respect to case No. 12CR-3573, the court explained that appellant was 

pleading guilty to possession of criminal tools, a fifth-degree felony, which carried a 

maximum possible penalty of 12 months in prison, a $2,500 fine, and three years of postrelease control. When asked if he understood "all of that," appellant replied, "Yes, I do." 

(Jan. 17, 2013 Tr. 7.) Appellant further averred that he had no specific questions about 

the case. 

{¶ 15} As to case No. 12CR-6254, the court explained that appellant was pleading 

guilty to (1) seven counts of aggravated robbery, all first-degree felonies, all with 

accompanying three-year firearm specifications; (2) four counts of aggravated burglary, 

three with accompanying three-year firearm specifications and one with an accompanying 

one-year firearm specification; (3) five counts of burglary, all second-degree felonies, one 

with an accompanying one-year firearm specification; (4) three counts of kidnapping, all 

first-degree felonies, all with accompanying three-year firearm specifications; (5) one 

count of felonious assault, a second-degree felony, with an accompanying three-year 

firearm specification; and (6) one count of conspiracy, a second-degree felony. 
No. 13AP-640 8 

{¶ 16} The court averred that each of the 7 aggravated robbery counts, the 4 

aggravated burglary counts, and the 3 kidnapping counts carried maximum possible 

prison terms of 11 years, and that each of the 5 burglary counts, the felonious assault 

count, and the conspiracy count, carried maximum possible prison terms of 8 years. The 

court further explained that the 3-year firearm specifications attached to the 7 aggravated 

robbery counts, 3 of the 4 aggravated robbery counts, the 3 kidnapping counts, and the 

felonious assault count were all to be served in addition to the prison terms on the 

underlying offenses, and that the 1-year firearm specifications attached to one of the 

aggravated burglary counts and one of the burglary counts were to be served in addition 

to the prison terms on the underlying offenses. The court further averred that "[i]f all of 

those were run consecutive to one another, the total sentence could be as high as 254 

years." (Jan. 17, 2013, Tr. 11.) 

{¶ 17} The court also stated that each the first-degree felony counts carried a 

maximum fine of $20,000 and a mandatory five-year period of post-release control, and 

that each of the second-degree felony counts carried a maximum fine of $15,000 and a 

mandatory three-year period of post-release control. Following this explanation, the 

court inquired "do you have any questions with regard to which offenses you are pleading 

guilty to and what the possible maximum penalty is?" Appellant responded, "No." 

(Jan. 17, 2013 Tr. 11.) 

{¶ 18} The court next stated: 

[I]n addition to those sentences that I have already gone over 

with the maximum possible, there are some mandatory prison 

terms involved here, and they are the firearm specifications. 

Firearm specifications come in two varieties here. One of 

them is a three-year specification. There is a three-year 

firearm specification on counts 1, 2, 7, 8, 10, 21, 22, 25, 26, 28, 

29, 30, 31 and 20. Now, each of those have [sic] a three-year 

firearm specification that must be served consecutive to the 

underlying sentence. 

In addition to that, there are two counts that have one-year 

firearm specifications and there are, therefore, required 

mandatory prison for that one year. And those counts are 

count 11 and count 18 that carry the one-year firearm 

specification. 

When asked if he understood, appellant replied "Yes." (Jan. 17, 2013 Tr. 11-12.) 
No. 13AP-640 9 

{¶ 19} Following the court's averment that the remaining charges in the 

indictment would be dismissed in exchange for appellant's guilty plea, the court asked 

appellant, "do you, sir, have any questions about any of these things that I just have gone 

over that you would like to ask [defense counsel] about or you would like to ask me 

about"? (Jan. 17, 2013 Tr. 13.) After conferring briefly with defense counsel, appellant 

responded, "I don't have anymore [sic] questions." (Jan. 17, 2013 Tr. 13.) 

{¶ 20} The court also noted that it had before it appellant's signed guilty plea forms 

in all three felony cases. In response to the court's questions, appellant averred that 

(1) trial counsel had gone over the guilty plea forms with him prior to his signing them, 

(2) he understood the guilty plea forms, (3) he signed the guilty plea forms voluntarily, 

and (4) he understood that by signing the guilty plea forms he was waiving several 

constitutional rights. The guilty plea form in case No. 12CR-6254 stated that 

constitutional and statutory rights were explained to appellant both by the court and 

appellant's attorney, and that appellant had reviewed the facts and law of his case with his 

attorney. In addition, the guilty plea form set forth each of the 21 counts to which 

appellant pleaded guilty, along with the maximum possible prison term for each offense 

and the accompanying firearm specifications, as well as the possible aggregate maximum 

prison term of 254 years. The guilty plea form also indicated that R.C. 2929.13(F) 

required mandatory prison terms for the one-year and three-year firearm specifications 

and that appellant would not be eligible for community control sanctions, judicial release, 

or earned days of credit regarding those prison terms. 

{¶ 21} After reviewing the totality of the circumstances, we conclude that appellant 

subjectively understood that his guilty plea resulted in a potential sentence amounting to 

life imprisonment. Although there is no simple or precise way to determine what a person 

subjectively understands, if a defendant receives proper information, it can ordinarily be 

assumed he understood that information. State v. Martin, 8th Dist. No. 63177 (Sept. 23, 

1993). Here, the trial court, both in the guilty plea form and during the plea hearing, 

informed appellant about the potential maximum prison term for each of the 21 offenses 

and accompanying firearm specifications and that the maximum aggregate potential 

prison term was 254 years. The court asked appellant if he had questions about the 

offenses to which he was pleading guilty or the potential maximum penalty for those 
No. 13AP-640 10 

offenses, and he responded in the negative. Appellant averred at the plea hearing that he 

could read and write and understood the English language. Nothing in the record 

suggests that appellant did not comprehend that a prison term of 254 years is tantamount 

to life imprisonment. 

{¶ 22} Moreover, there is simply nothing in the record to suggest appellant's guilty 

plea would have been different had the trial court expressly informed him that the 

maximum penalty resulting from his guilty plea would amount to life imprisonment. In 

exchange for his guilty plea to 21 counts, appellant avoided trial on an additional 20 

counts. In addition, we note that appellant declined the state's initial plea offer of 33 

years imprisonment in exchange for his testimony against other persons who may have 

been involved in the crimes. Further, as noted above, the trial court correctly informed 

appellant both in the guilty plea form and during the plea hearing that a guilty plea to the 

21 offenses and the accompanying firearm specifications carried the potential maximum 

penalty of 254 years imprisonment. The record is devoid of any evidence indicating 

appellant misunderstood the ramifications of his decision. As a result, appellant has 

failed to demonstrate that the trial court's failure to invoke the talismanic words "life 

imprisonment" were critical to his decision to enter the guilty pleas. Accordingly, under 

the totality of the circumstances, appellant has not demonstrated any prejudice resulting 

from the trial court's failure to expressly inform appellant that his maximum prison 

sentence of 254 years was tantamount to life imprisonment. 

{¶ 23} Appellant next contends the trial court failed to inform him that the 

sentences on the firearm specifications were statutorily required to be served 

consecutively to prison terms imposed on the underlying offenses and to any other prison 

term or mandatory prison term previously or subsequently imposed. 

R.C. 2929.14(C)(1)(a) provides, in relevant part: 

[I]f a mandatory prison term is imposed upon an offender 

pursuant to division (B)(1)(a) of this section for having a 

firearm on or about the offender's person or under the 

offender's control while committing a felony * * * the offender 

shall serve any mandatory prison term imposed * * * 

consecutively to and prior to any prison term imposed for the 

underlying felony pursuant to [R.C. 2929.14(A)], and 

consecutively to any other prison term or mandatory prison 

term previously or subsequently imposed upon the offender. 
No. 13AP-640 11 

{¶ 24} Appellant maintains that in order for the trial court to substantially comply 

with Crim.R. 11(C)(2)(a), it had to inform him that the firearm specifications to which he 

was pleading guilty must be served consecutively: (1) to their underlying offenses, (2) to 

each other, and (3) to sentences imposed in the other three felony cases to which 

appellant entered guilty pleas. Appellant contends the trial court failed to do so, and that 

such failure resulted in his not being informed of the maximum penalty involved in 

contravention of Crim.R. 11(C)(2)(a). 

{¶ 25} Appellant's claim that he was not properly advised that the prison terms for 

the firearm specifications were mandatory and were required to be served consecutively 

to the sentences imposed for the underlying felony convictions and to each other is belied 

by the record. As noted above, the trial court expressly informed appellant that the prison 

terms imposed on each of the one- and three-year firearm specifications were mandatory 

and required to be served consecutively to the sentence imposed on the underlying 

offense. Further, the signed guilty plea form also specifically advised appellant that 

R.C. 2929.13(F) required mandatory prison terms for each of the one- and three-year 

firearm specifications. 

{¶ 26} Although appellant correctly notes that the trial court did not expressly 

advise him that the firearm specifications in case No. 12CR-6254 must be served 

consecutively to the prison terms imposed in the other three felony matters, appellant has 

failed to demonstrate resulting prejudice. The record contains no evidence suggesting 

that appellant would not have pleaded guilty had the trial court expressly informed him of 

this consequence. We note, again, that appellant's guilty plea resulted in the dismissal of 

20 additional felony counts, many of which carried firearm specifications. The record 

contains no evidence indicating appellant did not understand the consequences of his 

decision to plead guilty. As a result, appellant has failed to demonstrate that the trial 

court's failure to expressly advise him that the firearm specifications in case No. 12CR6254 must be served consecutively to the prison terms imposed in the other three felony 

matters affected his decision to enter the guilty pleas. Thus, appellant has failed to 

demonstrate prejudice. 

{¶ 27} Appellant's first assignment of error is overruled. 

 
No. 13AP-640 12 

B. Second, Third, Fourth, and Fifth Assignments of Error – Sentencing 

{¶ 28} In his second, third, fourth, and fifth assignments of error, appellant 

essentially challenges the trial court's imposition of a 150-year sentence in 12CR-6254. 

More specifically, in his second and third assignments of error, appellant asserts the trial 

court abused its discretion in imposing a sentence amounting to "de facto" life 

imprisonment without proper consideration and application of the sentencing factors set 

forth in R.C. 2929.11 and 2929.12. In his fourth assignment of error, appellant argues the 

trial court erred by imposing consecutive sentences without making the findings required 

by R.C. 2929.14(C)(4) and Crim.R. 32(A). In his fifth assignment of error, appellant 

contends the trial court erred in failing to merge certain convictions for sentencing 

purposes in contravention of R.C. 2941.25. Because these challenges all involve 

sentencing issues, we address them together where appropriate. 

{¶ 29} Resolution of these assignments of error requires review both of the 

uncontested facts underlying appellant's convictions and sentence as set forth by the 

prosecutor at the plea hearing, and the statements made by appellant, defense counsel, 

and the trial court at the sentencing hearings. 

{¶ 30} Facts pertaining to the May 2012 incidents are as follows. On May 18, 2012, 

appellant robbed two women at gunpoint while they were seated in a car, taking from 

them several items of property, including a laptop. Several hours later, appellant posted 

on his Facebook account that he had a laptop for sale. On May 25, 2012, appellant 

entered a residence through an open garage door and took a purse, wallet, credit card, 

Social Security card, bottles of alcohol and identifications. Later that day, appellant 

posted on his Facebook account that he needed to sell some items. On May 31, 2012, 

appellant, wearing a black mask and black gloves, entered a woman's home, pointed a 

firearm at her, covered her mouth with his hand, and demanded money. After the woman 

gave him $350 in cash and a necklace, appellant instructed her not to call the police for 

ten minutes. He then fled, taking with him the woman's garage door opener. Fifteen 

minutes later, appellant posted a picture of himself on his Facebook account holding $352 

in cash. Following appellant's arrest, police executed a valid search warrant at appellant's 

residence and storage unit and recovered much of the property stolen in the three May 

incidents. 
No. 13AP-640 13 

{¶ 31} Facts regarding the June incidents are as follows. Between June 6 and 7, 

2012, married homeowners left their garage door open slightly while they were away from 

home. Upon returning to their home, the homeowners discovered that numerous 

firearms, jewelry, and other items had been stolen. On June 16, 2012, appellant entered a 

residence through an unlocked garage door and stole a Wii game console and game, 

jewelry, and a laptop. Appellant's co-defendant, Eddie Mims, admitted to committing this 

offense with appellant. On June 20, 2012, at 1:30 a.m., a woman was seated in her living 

room when appellant and Mims entered her residence using a garage door opener found 

in the woman's car. One of the men told the woman not to move. After she screamed, the 

men fled. Sometime later on June 20, 2012, appellant and Mims, wearing black ski masks 

and gloves, entered a residence. They held one victim at gunpoint, got the second victim 

out of bed at gunpoint, and led both victims around the house looking for items of value. 

The two eventually took watches, a laptop, some iPods, and jewelry. 

{¶ 32} On June 23, 2012, at 3:10 a.m., appellant, wearing a dark mask and gloves 

and carrying a flashlight and a firearm, entered a residence through a partially open 

garage door. Appellant confronted one of the residents, a 79 year-old man. The man 

resisted, and appellant struck him in the head with the firearm, causing a laceration which 

required hospitalization. Appellant stole two firearms from the residence. When 

appellant was arrested, gloves in his possession contained DNA which was subsequently 

matched to the victim. On June 28, 2012, at approximately 1:30 a.m., appellant entered a 

residence through a slightly-open garage door, removed a laptop, and fled when a dog 

alerted the resident of the intrusion. On June 28, 2012, at approximately 3:20 a.m., 

appellant, wearing a black ski mask, broke a window in the victim's vehicle and used the 

garage door opener to enter the residence. The victim woke to find appellant standing 

next to her bed. The victim screamed, waking another person. The victims subsequently 

discovered that an iPad was missing from a nightstand. On June 29, 2012, a person 

observed appellant and Mims casing a house; both fled when the person shouted at them. 

Police officers who were in the vicinity investigating the crime spree apprehended and 

arrested appellant. Upon appellant's arrest, police found a firearm that subsequently 

provided the basis for the charges in 12CR-3426, along with a mask, gloves and duct tape 

that later provided the basis for the charges in 12CR-3573. Property stolen during the 
No. 13AP-640 14 

June incidents was recovered from appellant's residence and storage unit pursuant to a 

valid search. 

{¶ 33} At the outset of the January 25, 2013 sentencing hearing, the trial court 

stated: 

Before I begin, let me say that this is a vicious rampage. This 

is a vicious crime spree. This is a case that involves the most 

serious of offenses short of murder, I suppose. We are talking 

about multiple aggravated burglaries at different dates, 

different times, different places, different offenses. 

 

But more than that, more egregious perhaps than what we 

may refer to as a normal burglary, these were more serious. 

They were more serious because they were home invasions. 

The difference being apparently this group, they didn't care 

whether anybody was home or not. They just crashed in and 

held the home of people who lived there hostage and took 

everything they wanted and committed individual robberies 

on the people who lived there and on and on and on. It is not 

just a burglary; it is a home invasion. So I think that needs to 

be considered. 

(Jan. 25, 2013 Tr. 3-4.) 

{¶ 34} The court continued: 

Also I have to consider that these were done with a firearm. 

These were not offenses in which the defendant was unarmed. 

In most of these cases, probably all, he was armed with a 

firearm. So, there again, that makes the case more serious. I 

am saying these things because these are things that I think I 

must take into consideration in the sentencing. 

Also we have multiple, I need to reiterate this, but we have 

multiple, multiple, multiple offenses. So that sentence that we 

are about to go over will be harsh and it should be [harsh]. If 

we cannot secure our own homes, if we cannot protect people 

in their own homes, then perhaps the Court should fold up 

and close up and quit. In other words, all I am saying is that is 

one of our most fundamental purposes for being here, for 

enforcing these laws, for punishing people who violate these 

laws so that you can have safety, peace of mind in your own 

home. And if we don't enforce the laws in order to provide 

that for you, we are not doing our job. So it is serious and I 

take it seriously, as I think I should. 

(Jan. 25, 2013 Tr. 4.) 
No. 13AP-640 15 

{¶ 35} Following these statements, the trial court permitted several of the victims 

to discuss the nature of the crimes committed against them and the impact appellant's 

actions had on their lives. Without exception, the victims emphasized that appellant's 

crime spree terrorized their formerly quiet, safe neighborhood for a five-week period and 

that many persons in the neighborhood, including themselves, remained unable to fully 

resume normal activities due to ongoing fears and safety concerns. The 79-year-old 

victim noted that appellant struck him with a firearm when he attempted to defend his 

home and family. Another victim averred that he researched Facebook accounts 

belonging to appellant and his associates following appellant's arrest and discovered 

several postings describing appellant as a gang leader and depicting him brandishing 

firearms and using drugs. All of these victims implored the court to impose a sentence 

resulting in appellant's lifetime imprisonment. 

{¶ 36} Following the victim impact statements, the prosecutor noted that appellant 

was a known gang member and crack addict, and that the PSI prepared in case No. 12CR1628 revealed juvenile adjudications on burglary, theft and receiving stolen property 

charges, and adult convictions on attempted assault, obstructing justice, drug abuse, and 

having a weapon under disability charges. In addition, the prosecutor averred that 

appellant's Facebook account postings revealed that he boasted about his crimes to his 

peers and showed no remorse for his actions. The prosecutor further noted that in 

telephone calls appellant made from jail five days after his arrest, he stated that he would 

not stop committing crimes and that if he was ever caught again, the police would have to 

shoot him because he refused to go back to jail. 

{¶ 37} Thereafter, the court provided defense counsel the opportunity to make a 

statement in allocution. Counsel noted that the evidence against appellant was 

overwhelming, making it virtually impossible to construct a plausible defense. Counsel 

averred that appellant understood the overwhelming nature of the amassed evidence, 

cooperated fully with defense counsel and the prosecution, and made the decision to 

plead guilty and avoid trial. Counsel noted that appellant's decision to forego a trial saved 

the county time and money, saved the victims from a prolonged trial, and brought closure 

to the proceedings. Counsel further averred that he did not believe appellant to be "an 

evil person," that he was "very engaging, direct * * * [and] healthy" and "could have had a 
No. 13AP-640 16 

fabulous life" before committing these offenses. (Jan. 25, 2013 Tr. 31.) Defense counsel 

requested that the court impose a sentence that would provide appellant "some hope for a 

future outside the institution." (Jan. 25, 2013 Tr. 31.) 

{¶ 38} In addition, defense counsel read appellant's prepared statement. In that 

statement, appellant accepted responsibility and expressed remorse for his actions. He 

also averred that he did not accept the state's initial plea offer because it required him to 

provide potentially damaging information about Mims and others, and he did not think 

he would survive prison if labeled a "snitch." (Jan. 25, 2013 Tr. 29.) He stated that at the 

time he committed the offenses, he was homeless and using multiple drugs "to help keep 

the stress level down and keep the voices out of my head." (Jan. 25, 2013 Tr. 29.) He 

further indicated that he believed time in prison would provide the help he needed, that 

he was a "good person at heart," and that he "just got caught up in the wrong crowd." 

(Jan. 25, 2013 Tr. 30.) 

{¶ 39} Appellant then addressed the court. He apologized to the victims, pledged 

that he would never again commit such crimes, and indicated his intention to rehabilitate 

himself in prison. 

{¶ 40} Thereafter, the court stated: 

This case is truly a tragedy. It is one of the saddest parts of 

this job in a sense because we come across cases like this 

where you see a young person ruin their whole life, and that is 

the case here. 

This young person has committed these horrendous crimes 

that we have heard about and he can't stay on the streets, can't 

put him on the street. He can't function. That gives me no 

particular pleasure, but that is what has got to be done. * * * 

 

So the sad side of this is not only the terror and horror that 

the victims have went through, but also the waste of a very 

young life, which is really over at this point; but we have to do 

what needs to be done. 

 

(Jan. 25, 2013 Tr. 32.) 

{¶ 41} At the June 14, 2013 resentencing hearing, the trial court again provided 

appellant the opportunity to make a statement in allocution. Appellant averred that he 

had nothing to add to the statements he made at the initial sentencing hearing. Defense 
No. 13AP-640 17 

counsel urged the court to consider the statements he made on appellant's behalf at the 

initial sentencing hearing. He further averred that a recent conversation with appellant's 

mother brought to light certain factors in appellant's background that were not articulated 

in the PSI, including "a series of abuses" appellant suffered at a young age at the hands of 

his father. (June 14, 2013 Tr. 4.) Counsel asserted that these factors might explain 

appellant's mental condition at the time he committed the offenses, and, to that end, 

counsel "may end up filing some motion in this case asking for maybe a reconsideration of 

the sentence or something." (June 14, 2013 Tr. 5.) Counsel also stated he had advised 

appellant about his conduct in prison and that he should take advantage of opportunities 

to improve both mentally and physically in an effort to overcome whatever issues caused 

him "to go haywire in such a serious way in such a short time." (June 14, 2013 Tr. 6.) 

Counsel averred that the case was "completely untriable because of the evidence, the 

testimony that would have been presented against him, the physical evidence that was out 

there as well as, I think, a confession." (June 14, 2013 Tr. 6.) 

{¶ 42} After acknowledging the lengthy sentence imposed at the original 

sentencing hearing, the court stated: 

I can only say that if you review these charges, they are 

multiple, multiple, multiple, and this was tantamount to 

terrorizing the entire neighborhood, a lot of homes. And 

every one of them I dare say without exception are most 

serious charges. So, I understand, but I don't know that I 

have ever had a case that had this many charges, serious 

charges in such short order. 

 

(June 14, 2014 Tr. 6-7.) 

{¶ 43} We note initially that appellant failed to object to his sentence during the 

initial or resentencing hearings on any of the grounds he now asserts as error. Thus, he 

has forfeited all but plain error. See Crim.R. 52(B); State v. Cochran, 10th Dist. No. 11AP408, 2012-Ohio-5899, ¶ 51, citing State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio666, ¶ 84. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial 

rights may be noticed although they were not brought to the attention of the court." For 

an error to be "plain" within the meaning of Crim.R. 52(B), it " 'must be an "obvious" 

defect in the trial proceedings.' " State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 

¶ 16, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Reviewing courts notice plain 
No. 13AP-640 18 

error " 'with the utmost caution, under exceptional circumstances and only to prevent a 

manifest miscarriage of justice.' " Barnes at 27, quoting State v. Long, 53 Ohio St.2d 91 

(1978), paragraph three of the syllabus. "The burden of demonstrating plain error is on 

the party asserting it." Payne at ¶ 17. 

{¶ 44} In State v. Ibrahim, 10th Dist. No. 13AP-167, 2014-Ohio-666, ¶ 16-17, this 

court discussed the standard of review applicable to felony sentencing decisions: 

This court reviews a trial court's sentence to determine if it is 

clearly and convincingly contrary to law. State v. Green, 10th 

Dist. No. 10AP-934, 2011-Ohio-6451, ¶ 7, citing State v. 

Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19; 

R.C. 2953.08(B). "In applying this standard, we look to the 

record to determine whether the sentencing court considered 

and properly applied the [non-excised] statutory guidelines 

and whether the sentence is otherwise contrary to law." 

Green at ¶ 7, citing State v. Carse, 10th Dist. No. 09AP-932, 

2010-Ohio-4513, ¶ 60; Burton. 

After Burton, the Supreme Court of Ohio issued a plurality 

decision in State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 

2008-Ohio-4912, finding appellate courts must apply a twostep approach when reviewing felony sentences. First, 

appellate courts must examine the sentencing court's 

compliance with all applicable rules and statutes in imposing 

the sentence to determine whether the sentence is clearly and 

convincingly contrary to law. If this factor is satisfied, then 

the appellate court reviews the trial court's decision to impose 

a term of imprisonment under the abuse of discretion 

standard. Id. at ¶ 26, 896 N.E.2d 124; State v. Vaughn, 10th 

Dist. No. 09AP-73, 2009-Ohio-4970, ¶ 13. 

{¶ 45} Having preliminarily set forth the pertinent facts and standard of review 

applicable to appellant's sentencing challenges, we now turn to a discussion of the 

individual assignments of error. Appellant contends in his second and third assignments 

of error that the trial court failed to properly consider and apply the sentencing factors set 

forth in R.C. 2929.11 and 2929.12. 

{¶ 46} In sentencing a felony offender, the trial court must consider the overriding 

purposes of sentencing, which are "to protect the public from future crime by the offender 

and others and to punish the offender using the minimum sanctions that the court 

determines accomplish those purposes without imposing an unnecessary burden on state 
No. 13AP-640 19 

or local government." R.C. 2929.11(A). This requires consideration of "the need for 

incapacitating the offender, deterring the offender and others from future crime, 

rehabilitating the offender, and making restitution to the victim of the offense, the public, 

or both." R.C. 2929.11(A). Further, pursuant to R.C. 2929.12(A), the court must consider 

the factors set forth R.C. 2929.12(B) and (C) relating to the seriousness of the offender's 

conduct, as well as the factors set forth in R.C. 2929.12(D) and (E) relating to the 

likelihood of recidivism, along with any other relevant factors. State v. Patrick, 10th Dist. 

No. 10AP-26, 2011-Ohio-1592, ¶ 24. 

{¶ 47} In Patrick, this court discussed a trial court's duty with regard to 

R.C. 2929.11 and 2929.12, at ¶ 25: 

[T]he failure to indicate at the sentencing hearing that the 

court has considered the factors in R.C. 2929.11 and 2929.12 

does not automatically require reversal. State v. Reed, 10th 

Dist. No. 09AP-1163, 2010-Ohio-5819, ¶ 8. "When the trial 

court does not put on the record its consideration of 

R.C. 2929.11 and 2929.12, it is presumed that the trial court 

gave proper consideration to those statutes." Id., citing Kalish 

at ¶ 18, fn. 4. "A trial court's rote recitation that it has 

considered applicable factors satisfies the court's duty to 

follow the relevant statutes in sentencing an offender." State 

v. Easley, 10th Dist. No. 08AP-755, 2009-Ohio-2984, ¶ 19 

(citations omitted). "The Code does not specify that the 

sentencing judge must use specific language or make specific 

findings on the record in order to evince the requisite 

consideration of the applicable seriousness and recidivism 

factors." State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio302. 

{¶ 48} In the present case, the trial court's judgment entry states that it 

"considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the 

factors set forth in R.C. 2929.12." This court has previously held that such language in the 

judgment entry defeats a claim that the trial court failed to consider statutory sentencing 

guidelines. Patrick at ¶ 26, citing State v. Reeves, 10th Dist. No. 09AP-493, 2010-Ohio4018, ¶ 16; Cochran, 2012-Ohio-5899, ¶ 53, citing State v. Green, 10th Dist. No. 10AP934, 2011-Ohio-6451, ¶ 8. 

{¶ 49} Appellant contends that none of the factors enumerated in R.C. 2929.12(B) 

indicated that his conduct was more serious than conduct normally constituting the 
No. 13AP-640 20 

offense. In considering the factors set forth in R.C. 2929.12, the trial court has the 

discretion "to determine the weight to assign a particular statutory factor." State v. 

Arnett, 88 Ohio St.3d 208, 215 (2000), citing State v. Fox, 69 Ohio St.3d 183, 193 (1994). 

Further, in addition to considering the seriousness and recidivism factors, the trial court 

may consider any other factors which are relevant to achieving the purposes and 

principles of sentencing. See R.C. 2929.12(A). 

{¶ 50} Here, the trial court emphasized that appellant committed multiple home 

invasions in the same neighborhood over a very short period of time. Indeed, the trial 

court characterized appellant's five-week crime spree as "tantamount to terrorizing the 

entire neighborhood," (June 14, 2013 Tr. 7) and as a "vicious rampage." (Jan. 25, 2013 

Tr. 3.) The trial court also referenced the apparent "terror and horror" the victims 

suffered by appellant's "horrendous crimes." (Jan. 25, 2013 Tr. 32.) The trial court noted 

that appellant entered the victims' homes without regard for whether they were present 

and that those victims who were present were held hostage. The court further noted that 

the vast majority of the crimes were committed with a firearm. 

{¶ 51} The court clearly believed that appellant's actions warranted a harsh 

sentence, averring that to do otherwise would afford persons little sense of security in 

their homes. Upon review of the record, we find no abuse of discretion in the trial court's 

imposition of a lengthy prison sentence on appellant, as he pled guilty to a number of 

offenses resulting from multiple home invasions involving a firearm. "The more crimes 

an individual commits, the more likely it is that the ultimate prison sentence will indeed 

be a lengthy one." State v. Watkins, 10th Dist. No. 13AP-133, 2013-Ohio-5544, ¶ 19 

(noting that the severity of sentence resulted in part from the number of crimes 

committed). 

{¶ 52} Appellant also contends the trial court failed to consider rehabilitation and 

that only three of the recidivism factors in R.C. 2929.12(D) pertain to appellant. The trial 

court clearly determined that appellant was not a candidate for rehabilitation. The trial 

court implicitly lamented appellant's lack of rehabilitative potential, stating that 

appellant, a young man, had "ruin[ed] and "waste[d]" his life. (Jan. 25, 2013, Tr. 32.) 

Further, as to the recidivism factors in R.C. 2929.12(D), we note that appellant appears to 

concede that three of the five factors apply to him. 
No. 13AP-640 21 

{¶ 53} For the foregoing reasons, we overrule appellant's second and third 

assignments of error. 

{¶ 54} In his fourth assignment of error, appellant contends the trial court erred by 

failing to make the findings required under Crim.R. 32(A)(4) and R.C. 2929.14(C)(4) 

before imposing consecutive sentences. 

{¶ 55} Crim.R. 32(A)(4) provides, in part, that "[a]t the time of imposing sentence, 

the court shall * * * [i]n serious offenses, state its statutory findings." R.C. 2929.14(C)(4) 

provides: 

(4) If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the 

offender to serve the prison terms consecutively if the court 

finds that the consecutive service is necessary to protect the 

public from future crime or to punish the offer 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: 

(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 292918 of the Revised Code, or was under postrelease 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. 

{¶ 56} "R.C. 2929.14(C)(4) now requires the trial court to make three findings 

before imposing consecutive sentences: (1) that consecutive sentences are necessary to 

protect the public from * * * future crime or to punish the offender; (2) 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 (3) that one of the subsections (a), (b), or (c) 
No. 13AP-640 22 

apply." State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 76. While the trial 

court is not required to use talismanic words to comply with R.C. 2929.14(C)(4) before 

imposing consecutive sentences, the trial court must make clear on the record that it 

made the required findings. State v. Boynton, 10th Dist. No. 12AP-975, 2013-Ohio-3794, 

¶ 9, citing State v. Marton, 8th Dist. No. 99253, 2013-Ohio-3430, ¶ 13 ("it must be clear 

from the record that the trial court actually made the findings required by statute"). 

(Emphasis sic.) 

{¶ 57} The record reveals that although the court discussed the seriousness of 

appellant's offenses, the need to protect the public and punish appellant, and that the 

offenses were committed as part of a "crime spree," the court's statements were not made 

expressly in the context of imposing consecutive sentences. Further, the court did not 

make the specific findings required by R.C. 2929.14(C)(4). This court has consistently 

held that "when the record demonstrates that the trial court failed to make the findings 

required by R.C. 2929.14(C)(4) before imposing consecutive sentences on multiple 

offenses, 'appellant's sentence is contrary to law and constitutes plain error.' " State v. 

Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 15, quoting State v. Wilson, 10th Dist. 

No. 12AP-551, 2013-Ohio-1520, ¶ 18; Boynton at ¶ 12; see also State v. Bailey, 10th Dist. 

No. 12AP-699, 2013-Ohio-3596, ¶ 46. Although the state disagrees with the plain-erroras-a-matter-of-law standard employed in these cases, we are bound by the doctrine of 

stare decisis and will follow this court's precedent. Consistent with the holdings in the 

above-cited cases, we conclude that the trial court's failure to make the findings required 

by R.C. 2929.14(C)(4) before imposing consecutive sentences on appellant's multiple 

offenses is contrary to law and constitutes plain error. Accordingly, we must remand this 

matter to the trial court to consider whether consecutive sentences are appropriate 

pursuant to R.C. 2929.14(C)(4) and, if so, to enter the proper findings on the record. 

Boynton at ¶ 12; State v. Corker, 10th Dist. No. 13AP-264, 2013-Ohio-5446, ¶ 28, citing 

State v. Bass, 10th Dist. No. 12AP-622, 2013-Ohio-4503, ¶ 44. Appellant's fourth 

assignment of error is sustained. 

{¶ 58} In his fifth assignment of error, appellant contends the trial court erred in 

failing to merge the convictions for kidnapping and aggravated robbery stemming from 

the June 20, 2012 incident involving two victims. As noted above, the prosecutor's factual 
No. 13AP-640 23 

summary of this incident established that appellant and Mims entered a residence, held 

one victim at gunpoint, got a second victim out of bed at gunpoint, led both victims 

around the house looking for items of value, and ultimately stole several items. Appellant 

pled guilty to one count of aggravated burglary, two counts of aggravated robbery (one for 

each victim) and two counts of kidnapping (one for each victim). The trial court imposed 

concurrent sentences on the aggravated robberies, concurrent sentences on the 

kidnappings, and ordered that they be served consecutively to each other and to the 

aggravated burglary. Appellant contends the trial court should have merged the 

kidnapping and aggravated robbery convictions for each victim because "the conduct with 

respect to each victim was the same for the aggravated robbery and the kidnapping." 

(Appellant's brief, at 44.) 

{¶ 59} Pursuant to R.C. 2941.25(A), where a defendant's conduct " 'can be 

construed to constitute two or more allied offenses of similar import, the indictment or 

information may contain counts for all such offenses, but the defendant may be convicted 

of only one.' " Roush, 2013-Ohio-3162, ¶ 66, quoting R.C. 2941.25(A) Where, however, 

" 'the defendant's conduct constitutes two or more offenses of dissimilar import, or where 

his conduct results in two or more offenses of the same or similar kind committed 

separately or with a separate animus as to each, the indictment or information may 

contain counts for all such offenses, and the defendant may be convicted of all of them.' " 

Id., quoting R.C. 2941.25(B). 

{¶ 60} In State v. Rance, 85 Ohio St.3d 632 (1999), the Supreme Court of Ohio 

held that crimes are allied offenses of similar import "[i]f the elements of the crimes 

'correspond to such a degree that the commission of one crime will result in the 

commission of the other.' " Id. at 636, quoting State v. Jones, 78 Ohio St.3d 12, 13 (1997). 

The Supreme Court stated that this analysis requires courts to compare the statutory 

elements of the offenses in the "abstract." Rance at 636. Subsequently, the Supreme 

Court clarified Rance to hold that, "if, in comparing the elements of the offenses in the 

abstract, the offenses are so similar that the commission of one offense will necessarily 

result in commission of the other, then the offenses are allied offenses of similar import." 

State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, paragraph one of the syllabus. 
No. 13AP-640 24 

{¶ 61} The Supreme Court established a new allied-offense analysis in State v. 

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. There, the Supreme Court averred that a 

trial court "must determine prior to sentencing whether the offenses were committed by 

the same conduct," and therefore "the court need not perform any hypothetical or abstract 

comparison of the offenses at issue in order to conclude that the offenses are subject to 

merger." Id. at ¶ 47. Accordingly, "[w]hen determining whether two offenses are allied 

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the 

accused must be considered." Id. at syllabus. 

{¶ 62} Initially, we swiftly dispose of the state's argument that the Johnson 

decision left untouched earlier decisions standing for the proposition that, in determining 

whether multiple offenses share a similar import, courts are to compare the elements to 

determine whether the commission of one offense "will necessarily result" in commission 

of the other offense. This court has previously rejected this argument and "we have 

consistently applied the two-part test set forth in the Johnson plurality opinion when 

conducting allied-offense analysis." State v. Damron, 10th Dist. No. 12AP-209, 2012-

Ohio-5977, ¶ 11, citing State v. Carson, 10th Dist. No. 11AP-809, 2012-Ohio-4501, ¶ 16. 

{¶ 63} Under the two-part Johnson analysis, "we first examine whether the 

offenses are able to be committed with the same conduct." Damron at ¶ 11. See also State 

v. Rivera, 10th Dist. No. 10AP-945, 2012-Ohio-1915, ¶ 59, citing Johnson at ¶ 48 ("The 

first question is whether it is possible to commit one offense and commit the other with 

the same conduct."). If it is possible to commit both offenses with the same conduct, the 

test then requires the court to determine whether the offenses were, in fact, committed by 

the same conduct, "i.e., 'a single act, committed with a single state of mind.' " Johnson at 

¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the answer to 

both inquiries is yes, the court must merge the allied offense prior to sentencing. Johnson 

at ¶ 50. "Conversely, if the court determines that the commission of one offense will 

never result in the commission of the other, or if the offenses are committed separately, or 

if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), 

the offenses will not merge." (Emphasis sic.) Id. at ¶ 51. "As an appellate court, we must 

employ a de novo standard in reviewing the trial court's determination whether 
No. 13AP-640 25 

R.C. 2941.25 requires merger of multiple convictions." Corker, 2013-Ohio-5446, ¶ 28, 

citing Roush at ¶ 47, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. 

{¶ 64} Turning to the offenses at issue in the present case, a conviction for 

aggravated robbery, as defined in R.C. 2911.01(A), requires proof that an offender, "in 

* * * committing a theft offense * * * [had] a deadly weapon on or about the offender's 

person or under the offender's control and either display[ed] the weapon, brandish[ed] it, 

indicate[ed] that the offender possess[ed] it, or use[d] it." Kidnapping, in accordance 

with R.C. 2905.01, requires proof that an offender "by force, threat, or deception * * * 

remove[d] another person from the place where the other person [was] found or 

restrain[ed] the liberty of the other person * * * [t]o facilitate the commission of any 

felony." 

{¶ 65} "The Supreme Court has recognized that the commission of aggravated 

robbery necessarily involves the restraint of the victim." Corker at ¶ 29, citing State v. 

Jenkins, 15 Ohio St.3d 164, 198 (1984), fn. 29. Thus, while it is possible to commit 

aggravated robbery and kidnapping with the same conduct, the further inquiry under 

Johnson is whether the offenses were in fact committed by the same conduct. "Whether a 

defendant has established the 'same conduct' requirement of R.C. 2941.25(A) inherently 

depends on " ' "the particular facts of each case. " ' " State v. Cochran, 2012-Ohio-5899, 

¶ 62, quoting State v. Cooper, 104 Ohio St.3d 293, 2004-Ohio-6553, ¶ 19, quoting Jones

at 14. In this case, the merger issue was not discussed at either of the sentencing hearings, 

and the record does not indicate that the trial court considered or applied Johnson. This 

court has held that " 'where the record suggests that multiple offenses to which a 

defendant has pled guilty or no contest may be allied offenses of similar import, but the 

record is inconclusive in that regard, the trial court has a duty to conduct inquiry 

concerning the circumstances of the offenses, and the trial court's failure to do so is plain 

error.' " State v. Bryant, 10th Dist. No. 12AP-703, 2013-Ohio-5105, ¶ 18, quoting State v. 

Cleveland, 2d Dist. No. 24379, 2011-Ohio-4868, ¶ 19. 

{¶ 66} In the instant case, the prosecutor's summary statement at the plea hearing 

contains the only factual background regarding the incident. While the limited facts as 

recited by the prosecutor raise an issue as to whether the offenses are subject to merger, 

the record on appeal is not developed sufficiently to determine whether the offenses were 
No. 13AP-640 26 

committed by the same conduct, i.e., "a single act, committed with a single state of mind." 

Johnson at ¶ 49. We thus conclude that the matter should be remanded to the trial court 

to "apply Johnson [and] to consider appellant's conduct" and determine whether 

appellant's offenses should merge. Bryant at ¶ 19, quoting State v. Rivera, 2012-Ohio1915, ¶ 66. "[E]ven though offenses may be of similar import, [a defendant] 'can be 

sentenced for both if he committed the crimes separately or with a separate animus.' " 

Bryant at ¶ 19, quoting State v. Nguyen, 4th Dist. No. 12CA14, 2013-Ohio-3170, ¶ 108. 

Appellant's fifth assignment of error is sustained. 

 C. Sixth Assignment of Error – Ineffective Assistance of Counsel 

{¶ 67} In his sixth assignment of error, appellant argues his defense counsel 

rendered ineffective assistance. In Ohio, a properly licensed attorney is presumed 

competent and the burden is upon appellant to demonstrate counsel's ineffectiveness. 

State v. Davis, 10th Dist. No. 13AP-98, 2014-Ohio-90, ¶ 20, citing Vaughn v. Maxwell, 2 

Ohio St.2d 299, 301 (1965). In Strickland v. Washington, 466 U.S. 668 (1984), the 

Supreme Court of the United States established a two-prong test for ineffective assistance 

of counsel. Under Strickland, the defendant first must demonstrate that counsel's 

performance was outside the range of professionally competent assistance and, therefore, 

deficient. Id. at 687. Second, the defendant must demonstrate that counsel's deficient 

performance prejudiced the defense and deprived the defendant of a fair trial. Id. A 

defendant establishes prejudice if "there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome." Id. at 694. In the context of convictions based upon guilty pleas, the prejudice 

element of an ineffective assistance of counsel claim generally requires a showing that 

there is a reasonable probability that, but for counsel's errors, the defendant would not 

have pleaded guilty and would have insisted on going to trial. State v. Bonnet, 12th Dist. 

No. CA96-07-059 (Mar. 3, 1997), citing Hill v. Lockhart, 474 U.S. 52, 59 (1985). 

{¶ 68} Appellant first contends his defense counsel was ineffective because he 

failed to conduct a reasonable investigation into relevant mitigation factors prior to 

sentencing. Appellant particularly notes defense counsel's averments at the resentencing 

hearing regarding the discussion he had with appellant's mother about alleged childhood 
No. 13AP-640 27 

abuse inflicted on appellant by his father and that he might file a motion for 

reconsideration based upon this newly discovered information. Appellant argues that 

defense counsel did not reveal the substance of the mother's statement, did not request a 

continuance to conduct further investigation, did not have the mother provide a 

statement at the sentencing hearing, and did not file a motion for reconsideration of the 

sentence. Appellant maintains that had defense counsel properly prepared for the 

sentencing hearings, the outcome of the sentencing proceeding would have been different. 

{¶ 69} "An attorney who fails to conduct a reasonable investigation into a 

defendant's history and background provides ineffective assistance." State v. Hunter, 131 

Ohio St.3d 67, 2011-Ohio-6524, ¶ 104. However, appellant's arguments regarding defense 

counsel's alleged failure to conduct a satisfactory investigation are purely speculative and 

would require resort to evidence outside the record. "When affidavits or other proof 

outside the record are necessary to support an ineffective assistance claim, however, it is 

not appropriate for consideration on direct appeal." State v. Zupancic, 9th Dist. No. 

12CA0065, 2013-Ohio-3072, ¶ 4, citing State v. Madrigal, 87 Ohio St.3d 378, 390-91 

(2000). " '[A] claim of ineffective assistance of counsel on direct appeal cannot be 

premised on decisions of trial counsel that are not reflected in the record of proceedings 

* * * [and] [s]peculation regarding the prejudicial effects of counsel's performance will not 

establish ineffective assistance of counsel.' " Zupancic at ¶ 4, quoting State v. Leyland, 

9th Dist. No. 23833, 2008-Ohio-777, ¶ 7. 

{¶ 70} Appellant cites nothing in the record to demonstrate that his counsel 

conducted a less than adequate investigation into appellant's background. We note that 

defense counsel spoke on appellant's behalf and read appellant's prepared statement, 

which included mitigating factors pertaining to his homelessness, drug use, and mental 

health issues as a purported explanation for his criminal behavior. In addition, defense 

counsel provided appellant the opportunity to speak at the sentencing hearing, and 

appellant expressed remorse for his actions. Further, we have no way of knowing whether 

revelation of the substance of the mother's statement, allowing the mother to speak at the 

sentencing hearing, requesting a continuance of the hearing, or filing a motion for 

reconsideration would have been beneficial. 
No. 13AP-640 28 

{¶ 71} Moreover, even if defense counsel performed deficiently, appellant has 

failed to establish prejudice, as nothing in the record suggests that his sentence would 

have been different had defense counsel more fully developed the alleged childhood abuse 

mitigation evidence. Appellant was convicted of 21 felony offenses involving use of a 

firearm, resulting in a 150-year sentence. Appellant fails to identify any reason why the 

trial court would have imposed a lesser sentence even if defense counsel had done what 

appellant now contends should have been done. 

{¶ 72} Appellant also argues that his defense counsel was ineffective for not 

objecting to the trial court's failure to merge the kidnapping offenses and the aggravated 

robbery offenses pertaining to the June 20, 2012 incident involving two victims. We note 

initially that appellant makes no separate argument in support of this claim in 

contravention of App.R. 16(A)(7). Accordingly, this court may disregard this portion of 

the assignment of error. App.R. 12(A)(2). Moreover, as previously determined in our 

disposition of appellant's fifth assignment of error, the merger issue must be remanded 

for resolution by the trial court in the first instance. Accordingly, the issue whether 

appellant's defense counsel was ineffective in failing to object is moot, and we need not 

address it. App.R. 12(A)(1)(c). 

{¶ 73} Thus, we overrule in part and render moot in part appellant's sixth 

assignment of error. 

{¶ 74} For the foregoing reasons, appellant's first, second, and third assignments 

of error are overruled, appellant's fourth and fifth assignments of error are sustained, and 

appellant's sixth assignment of error is overruled in part and moot in part. Accordingly, 

the judgment of the Franklin County Court of Common Pleas is affirmed in part and 

reversed in part and remanded to that court for further proceedings in accordance with 

law and consistent with this decision. 

Judgment affirmed in part; reversed in part; cause remanded.

KLATT and CONNOR, JJ., concur. 

T. BRYANT, J., retired, of the Third Appellate District, 

assigned to active duty under authority of Ohio Constitution, 

Article IV, Section 6(C).