[Cite as State v. Accorinti, 2013-Ohio-4429.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 CASE NOS. CA2012-10-205 

 Plaintiff-Appellee, : CA2012-11-221 

 

 : O P I N I O N

 - vs - 10/7/2013 

 : 

PASQUALE E. STEVEN ACCORINTI, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2012-06-0953 

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee 

John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant 

 S. POWELL, J.

{¶ 1} Defendant-appellant, Pasquale E. Steven Accorinti, appeals from the conviction 

and sentence he received in the Butler County Court of Common Pleas following his guilty 

plea to two counts of rape and one count of kidnapping. For the reasons outlined below, we 

affirm in part, reverse in part, and remand for further proceedings. 

{¶ 2} On June 20, 2012, the Butler County grand jury returned an indictment against 

Accorinti charging him with four counts of rape, three counts of gross sexual imposition, one 
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count of attempted rape, and one count of kidnapping. The charges stemmed from 

allegations Accorinti forced K.B., a 12-year-old girl, to engage in a variety of sex acts with him 

against her will. These included Accorinti digitally penetrating K.B.'s vagina, as well as 

having vaginal intercourse with her. 

{¶ 3} Accorinti initially pled not guilty to all charges. However, on October 10, 2012, a 

plea agreement was reached in which Accorinti would plead guilty to two counts of rape and 

one count of kidnapping in exchange for the remaining counts being merged. The parties 

also entered into an agreed sentence wherein they requested the trial court to impose an 

aggregate sentence of 20 years to life in prison on the two rape charges. As the trial court 

stated during the change of plea hearing: 

THE COURT: * * * [T]here has been extensive plea bargaining 

discussion in this particular case, and I want to make sure that 

you understand what the sentence will be because there's an 

agreed sentence in this particular case. If you plead guilty today, 

the Court will impose two consecutive ten year to life sentences. 

Do you understand that? 

* * * 

DEFENDANT: Yes. 

THE COURT: Two consecutive, so the maximum sentence will 

be twenty years to life in prison, and those are twenty years of 

actual incarceration. In other words, they're mandatory time. 

Accorinti then entered his guilty plea which the trial court accepted. 

{¶ 4} Thereafter, during the October 17, 2012 sentencing hearing, the trial court 

merged the kidnapping charge at the state's request finding it to be an allied offense of 

similar import. The state then elected to proceed on the two rape charges. The trial court 

subsequently sentenced Accorinti to the agreed sentence of 20 years to life in prison. During 

the sentencing hearing, the trial court again stated: 

THE COURT: * * * Counts two and four will run consecutive to 
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each other. Therefore, the actual sentence is two consecutive 

ten to life sentences. The ten years in both counts are 

consecutive, and they must be mandatory, so in other words, 

that he will not be eligible for parole until he serves twenty actual 

years of incarceration. 

The trial court also ordered Accorinti to pay court costs. The trial court, however, did not 

provide any notice to Accorinti that he could be ordered to perform community service if he 

failed to pay the costs in accordance with the now former R.C. 2947.23(A)(1)(a). 

{¶ 5} Accorinti appeals from his conviction and sentence, raising three assignments 

of error for review. For ease of discussion, Accorinti's second assignment of error will be 

addressed out of order. 

{¶ 6} Assignment of Error No. 1: 

{¶ 7} THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES 

FOR THE OFFENSES THAT AROSE FROM THE SAME CONDUCT, WHERE COMMITTED 

WITH A SINGLE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING 

PURPOSES UNDER R.C. 2941.25. 

{¶ 8} In his first assignment of error, Accorinti claims the trial court erred by failing to 

merge the two rape charges for purposes of sentencing as they constitute allied offenses of 

similar import. In support of this claim, Accorinti argues that while he admittedly engaged in 

"several sexual activities" with his 12-year-old victim, there was "no separate animus for any 

of the alleged crimes[.]" We disagree. 

{¶ 9} At the outset, we note Accorinti never raised the issue of merger in the trial 

court as it relates to the two rape charges. Regardless, the imposition of multiple sentences 

for allied offenses of similar import amounts to plain error. State v. Clay, 196 Ohio App.3d 

305, 2011-Ohio-5086, ¶ 25 (12th Dist.); State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio1, ¶ 31-33. Therefore, this court will review Accorinti's allied offense argument for plain error. 
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State v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 14. 

{¶ 10} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of 

multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio 

App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). As R.C. 2941.25 states: 

(A) Where the same conduct by defendant 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. 

(B) Where 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. 

{¶ 11} The Ohio Supreme Court established a two-part test for determining whether 

offenses are allied offenses of similar import under R.C. 2941.25 in State v. Johnson, 128 

Ohio St.3d 153, 2010-Ohio-6314. Under Johnson, the first inquiry focuses on whether it is 

possible to commit both offenses with the same conduct. State v. Richardson, 12th Dist. 

Clermont No. CA2012-06-043, 2013-Ohio-1953, ¶ 21, citing Johnson at ¶ 48. In making this 

determination, it is not necessary that the commission of one offense would always result in 

the commission of the other, but instead, the question is simply whether it is possible for both 

offenses to be committed with the same conduct. State v. Craycraft, 193 Ohio App.3d 594, 

2011-Ohio-413, ¶ 11 (12th Dist.); State v. Marlow, 12th Dist. Clermont No. CA2012-07-051, 

2013-Ohio-778, ¶ 10. 

{¶ 12} If it is possible to commit both offenses with the same conduct, courts must 

then determine whether the offenses were in fact committed by the same conduct, that is, by 

a single act, performed with a single state of mind. State v. Lung, 12th Dist. Brown No. 

CA2012-03-004, 2012-Ohio-5352, ¶ 11, citing Johnson at ¶ 49. If so, the offenses are allied 
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offenses of similar import and must be merged. State v. Luong, 12th Dist. Brown No. 

CA2011-06-110, 2012-Ohio-4520, ¶ 39. However, if 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." State v. Standifer, 12th Dist. Warren No. CA2011-07-071, 2012-

Ohio-3132, ¶ 66, quoting Johnson at ¶ 51. 

{¶ 13} Since the issuance of Johnson, several courts, including this one, have 

continued to follow the well-established principle that "different forms of forcible penetration 

constitute separate acts of rape for which a defendant may be separately punished." State v. 

Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 9; see, e.g., State v. Hernandez, 12th 

Dist. Warren No. CA2010-10-098, 2011-Ohio-3765, ¶ 48-49; State v. Cuthbert, 5th Dist. 

Delaware No. 11CAA070065, 2012-Ohio-4472, ¶ 50-51; State v. Trotter, 8th Dist. Cuyahoga 

No. 97064, 2012-Ohio-2760, ¶ 45; State v. Davic, 10th Dist. Franklin No. 11AP-555, 2012-

Ohio-952, ¶ 16. 

{¶ 14} For example, in Daniels, the evidence introduced at trial indicated the 

defendant, Lemar Daniels, digitally penetrated the victim's vagina, forced the victim to 

perform fellatio, and then finally engaged in vaginal intercourse with the victim. Id., 2013-

Ohio-358 at ¶ 8. Following a jury trial, Daniels was found guilty and sentenced on the three 

counts of rape. Id. at ¶ 3. On appeal, Daniels argued the trial court erred, claiming all of the 

rape charges should have merged for purposes of sentencing as they constituted allied 

offenses of similar import. Id. at ¶ 5. The Ninth District Court of Appeals disagreed by 

stating, in pertinent part, the following: 

By forcibly penetrating the victim three times in three distinct 

manners, Daniels separately committed three acts of rape. The 

acts involved distinct, different kinds of sexual activity. Thus, 

they were separate offenses for merger purposes, even though 
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they were committed in the course of the same sexual 

encounter. Because these offenses involved different, distinct 

types of sexual activity, they each constituted a separate crime, 

and their merger was not required by R.C. 2941.25(B). (Internal 

citations, quotation, and brackets omitted.) 

Id. at ¶ 10. 

{¶ 15} The First District Court of Appeals reached the same conclusion in State v. 

Strong, 1st Dist. Hamilton Nos. C-100484 and C-100486, 2011-Ohio-4947, ¶ 71, wherein the 

court found two counts of rape involving different types of sexual activity, vaginal intercourse 

and digital penetration, were committed separately and should not be merged for sentencing 

purposes. See also State v. Drummonds, 1st Dist. Hamilton No. C-110011, 2011-Ohio-5915, 

¶ 7-9 (finding trial court did not err in failing to merge two counts of rape involving digital 

penetration and cunnilingus). 

{¶ 16} The rationale applied by the Fifth and First Districts in Daniels and Strong 

likewise applies in this case. As the record clearly indicates, Accorinti pled guilty to two 

counts of rape after it was alleged he digitally penetrated K.B.'s vagina, and had vaginal 

intercourse with her. These are two distinct types of sexual activity, each constituting a 

separate crime, for which Accorinti may be separately punished. In fact, as previously noted 

by Ohio Supreme Court in State v. Barnes, 68 Ohio St.2d 13 (1981): 

Repeated acts of forcible sexual intercourse are not to be 

construed as a roll of thunder, − an echo of a single sound 

rebounded until attenuated. One should not be allowed to take 

advantage of the fact that he has already committed one sexual 

assault on the victim and thereby be permitted to commit further 

assaults on the same person with no risk of further punishment 

for each assault committed. Each act is a further denigration of 

the victim's integrity and a further danger to the victim. 

Id. at 19, quoting Harrell v. State, 88 Wis.2d 546, 565 (1979). Because the two rape 

offenses were committed through separate sexual activity, something which Accorinti readily 

admits, the trial court did not err in failing to merge these charges for sentencing purposes. 
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Accorinti's first assignment of error is therefore overruled. 

{¶ 17} Assignment of Error No. 3: 

{¶ 18} IT WAS ERROR AND CRUEL AND UNUSUAL PUNISHMENT AND 

COTRARY (sic) TO ARTICLE VIII OF THE UNITED STATES CONSTITUTION AND 

ARTICLE 1, SECTION 9 OF THE OHIO CONSTITUTION TO SENTENCE THE 

APPELLANT TO TWO CONSECUTIVE LIFE SENTENCES OR EVEN ONE LIFE 

SENTENCE IN THE INSTANT CASE. 

{¶ 19} In his third assignment of error, Accorinti claims his agreed upon aggregate 

sentence of 20 years to life in prison amounts to cruel and unusual punishment in violation of 

the Eighth Amendment to the United States Constitution and Section 9, Article 1 of the Ohio 

State Constitution. We disagree. 

{¶ 20} The Eighth Amendment to the United States Constitution applies to the states 

pursuant to the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 82 S.Ct. 

1417 (1962). Pursuant to the Eighth Amendment, "[e]xcessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted." Section 9, Article I of 

the Ohio Constitution sets forth the same restriction. State v. Davis, 12th Dist. Butler No. 

CA2009-10-263, 2011-Ohio-787, ¶ 118; State v. Weitbrecht, 86 Ohio St.3d 368, 370 (1999). 

{¶ 21} "The constitutional prohibition against cruel and unusual punishment has been 

interpreted to prohibit barbaric punishment, as well as sentences which are disproportionate 

to the crime committed." State v. Garland, 116 Ohio App.3d 461, 466 (12th Dist.1996), citing 

Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001 (1983). In turn, it is generally accepted 

the punishments which are prohibited by the Eighth Amendment are "limited to torture or 

other barbarous punishments, degrading punishments unknown at common law, and 

punishments which are so disproportionate to the offense as to shock the moral sense of the 
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community." State v. Blanton, 12th Dist. Butler No. CA2008-09-235, 2009-Ohio-3311, ¶ 28, 

quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 69 (1964). Therefore, "a sentence within 

statutory limitations is not excessive and does not violate the constitutional prohibition 

against cruel and unusual punishment." State v. Bosman, 12th Dist. Butler No. CA2001-05-

101, 2002 WL 42887, *1 (Jan. 14, 2002). 

{¶ 22} After a thorough review of the record, we find no evidence to even remotely 

suggest Accorinti's aggregate sentence of 20 years to life imprisonment for raping a 12-yearold girl would shock the conscience of the community. The rape of a child "is shocking, 

outrageous, abominable, and it has enduring effects on the child," and therefore, a "penalty 

equivalent to its enormity" is required. State v. Gregory, 8 Ohio App.3d 184, 185-186 (1st 

Dist.1982); see, e.g., State v. Murrell, 2d Dist. Montgomery No. 24717, 2012-Ohio-2108, ¶ 

33 (finding indefinite sentence of 10 years to life imprisonment for rape of child under 13 

years old did not constitute cruel and unusual punishment); State v. Warren, 168 Ohio 

App.3d 288, 2006-Ohio-4104, ¶ 29 (8th Dist.) (same). In fact, as this court has stated 

previously, "there is no constitutional violation when a person is convicted and sentenced to 

life imprisonment for a violation of R.C. 2907.02(B) because the penalty is proportional to the 

act." State v. Sholler, 12th Dist. Clinton No. CA96-08-013, 1997 WL 208124, *2 (Apr. 28, 

1997). 

{¶ 23} Moreover, as the record clearly indicates, this was an agreed sentence that 

was mandatory pursuant to R.C. 2907.02(B), R.C. 2971.03(B)(1)(a) and R.C. 2929.13(F)(2). 

As noted by the Ohio Supreme Court, "reviewing courts should grant substantial deference 

to the broad authority that legislatures possess in determining the types and limits of 

punishments for crimes." State v. Weitbrecht, 86 Ohio St.3d 368, 373 (1999); see also State 

v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, ¶ 20. In turn, although mandatory 
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penalties may be considered cruel by some, "they are not unusual in the constitutional 

sense, having been employed in various forms throughout our Nation's history." Harmelin v. 

Michigan, 501 U.S. 957, 994-995, 111 S.Ct. 2680 (1991). Therefore, we find the mandatory 

and agreed upon sentence imposed by the trial court in this case simply cannot be deemed 

cruel and unusual punishment. See State v. Fenton, 68 Ohio App.3d 412, 439 (6th 

Dist.1990); State v. Wolf, 11th Dist. Lake No. 93-L-151, 1994 WL 738805, * 11 (Dec. 30, 

1994); State v. Johnson, 8th Dist. Cuyahoga No. 80436, 2002-Ohio-7057, ¶ 120. 

Accordingly, Accorinti's third assignment of error is likewise overruled. 

{¶ 24} Assignment of Error No. 2: 

{¶ 25} IT WAS ERROR FOR THE TRIAL COURT TO NEGLECT TO ADVISE THE 

DEFENDANT/APPELLANT WHEN COURT COSTS WERE IMPOSED, THAT FAILURE TO 

PAY SAID COSTS COULD RESULT IN THE IMPOSITION OF COMMUNITY SERVICE TO 

PAY THE SAME AT A RATE NOT TO EXCEED 40 HOURS PER MONTH. 

{¶ 26} In his second assignment of error, Accorinti argues the trial court erred when it 

imposed court costs without notifying him he could be ordered to perform community service 

if he failed to pay the costs in conformance with the now former R.C. 2947.23(A)(1)(a). The 

state concedes, and we agree, the trial court erred in this regard. 

{¶ 27} Accorinti was sentenced on October 17, 2012. At the time of his sentencing, 

R.C. 2947.23(A)(1)(a) specified that in all criminal cases, a court shall include in the 

sentence court costs and render a judgment against the defendant for such costs.1 When 

including these costs in a defendant's sentence, the trial court must notify the defendant that 

if he fails to pay court costs, the court may order him to perform community service in lieu of 

 

1. It should be noted, R.C. 2947.23(A)(1)(a) has since been modified effective March 22, 2013 to apply only 

where "the judge or magistrate imposes a community control sanction or other nonresidential sanction[.]" 
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payment. "The community service notification in this version of R.C. 2947.239(A)(1)(a) is 

mandatory and must be provided by the trial court at sentencing." State v. Willis, 12th Dist. 

Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 48, citing State v. Smith, 131 Ohio St.3d 297, 

2012-Ohio-781, ¶ 10. If a trial court fails to notify the defendant of the possibility of courtordered community service if he fails to pay court costs, the proper remedy is to vacate the 

imposition of costs and remand the case for proper community-service notification. State v. 

Weathers, 12th Butler Dist. No. CA2012-02-036, 2013-Ohio-1104, ¶ 25. 

{¶ 28} In this case, the trial court imposed court costs during the sentencing hearing, 

but did not advise Accorinti that he could be ordered to perform community service if he 

failed to pay the costs. As noted above, the state concedes this was in error. Therefore, we 

reverse that portion of the trial court's judgment imposing court costs only, affirm the 

remainder of the trial court's judgment, and remand the matter to the trial court for the proper 

imposition of court costs in accordance with R.C. 2947.23(A)(1)(a). Accordingly, Accorinti's 

second assignment of error is well-taken and sustained. 

{¶ 29} Judgment affirmed in part, reversed in part, and remanded. 

 HENDRICKSON, P.J., and RINGLAND, J., concur.