[Cite as State v. Hernandez, 2018-Ohio-3672.]

 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 106483

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

CESAR HERNANDEZ

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART; REVERSED IN PART

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-17-620953-A 

BEFORE: E.A. Gallagher, A.J., Blackmon, J., and Jones, J. 

RELEASED AND JOURNALIZED: September 13, 2018 
[Cite as State v. Hernandez, 2018-Ohio-3672.]

ATTORNEYS FOR APPELLANT

Mark A. Stanton 

Chief Public Defender 

BY: Noelle A. Powell 

Assistant Public Defenders 

301 Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Jennifer A. Driscoll 

 Ronni Ducoff 

Assistant Prosecuting Attorneys 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
[Cite as State v. Hernandez, 2018-Ohio-3672.]

EILEEN A. GALLAGHER, A.J.: 

{¶1} Defendant-appellant Cesar Hernandez appeals his sentence in the Cuyahoga 

County Court of Common Pleas. For the following reasons, we affirm in part, and 

reverse in part. 

Facts and Procedural History 

{¶2} On August 31, 2017, Hernandez was indicted on seven counts of rape and 

four counts of kidnapping. On September 14, 2017, Hernandez plead guilty to two 

counts of sexual battery, one count of abduction and one count of gross sexual imposition. 

 Pursuant to the plea agreement, the remaining counts in the indictment were nolled and 

the state stipulated that the abduction and gross sexual imposition counts were allied 

offenses. 

{¶3} The court imposed prison terms of seven years for each count of sexual 

battery, three years for the count of abduction and three years for the count of gross 

sexual imposition. The court ordered the prison terms for the two counts of sexual 

battery and the count of gross sexual imposition to be served consecutive to each other for 

a cumulative prison term of 17 years. 

Law and Analysis 

I. Allied Offenses

{¶4} We address Hernandez’s first and second assignments of error together. In 

his first assignment of error, Hernandez argues that the trial court erred in failing to 

merge his abduction and gross sexual imposition counts at sentencing. In his second 
assignment of error, he argues that his trial counsel provided ineffective assistance of 

counsel at sentencing for failing to object to the imposition of separate sentences on 

counts to which the state had stipulated to be allied offenses. 

{¶5} The state concedes that the trial court erred in failing to merge the two counts 

at sentencing. 

{¶6} Hernandez’s first assignment of error is sustained and, therefore, his second 

assignment of error is moot. 

II. Consecutive Sentences 

{¶7} In his third assignment of error, Hernandez argues that the trial court erred in 

imposing consecutive sentences. 

{¶8} In reviewing felony sentences, this court does not review the imposition of 

consecutive sentences for an abuse of discretion. R.C. 2953.08(G)(2). We review felony 

sentences under the standard set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio 

St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. 

{¶9} With respect to the imposition of consecutive sentences, as this court 

previously explained: 

There are two ways that a defendant can challenge consecutive sentences on 

appeal. First, the defendant can argue that consecutive sentences are 

contrary to law because the court failed to make the necessary findings 

required by R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(b); State v. Nia, 

8th Dist. Cuyahoga, 2014-Ohio-2527, ¶ 16, 15 N.E.3d 892. Second, the 

defendant can argue that the record does not support the findings made 

under R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Nia. 

State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 7. 
{¶10} In order to impose consecutive sentences, the trial court must find (1) that 

consecutive sentences are necessary to protect the public from future crime or to punish 

the offender, (2) that such sentences are not disproportionate to the seriousness of the 

conduct and to the danger the offender poses to the public and (3) that at least one of the 

following applies: 

(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 2929.18 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. 

R.C. 2929.14(C)(4). 

{¶11} The trial court must make both the statutory findings required for 

consecutive sentences at the sentencing hearing and incorporate those findings into its 

sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, 

syllabus. 
[Cite as State v. Hernandez, 2018-Ohio-3672.]

{¶12} In this case, Hernandez does not dispute that the trial court made all of the 

requisite findings under R.C. 2929.14(C)(4). Rather, he contends that the record does not 

support the trial court’s findings. Specifically, he argues that the imposition of 

consecutive sentences was “not necessary to protect the public” because he is not an 

American citizen and faces likely deportation at the conclusion of his prison term. 

{¶13} Both this court and other appellate districts in this state have rejected the 

argument that the potential deportation of a noncitizen defendant following the 

completion of his prison term is valid consideration under the consecutive sentencing 

provisions of R.C. 2929.14(C)(4). State v. Balbi, 8th Dist. Cuyahoga No. 102321, 

2015-Ohio-4075, ¶ 10; State v. Bautista, 2d Dist. Clark No. 2015-CA-74, 

2016-Ohio-5436, ¶ 12; State v. Rivera, 10th Dist. Franklin No. 14AP-460, 

2015-Ohio-1731, ¶ 2-7. We explained in Balbi: 

Assuming the certainty of Balbi’s deportation, it is not a valid reason to find 

that it supersedes the state’s interest in punishing him and that he will not 

resume his activity elsewhere. Apart from the self-serving nature of the 

argument, any deterrence factor in his punishment would be lost. 

Balbi at ¶ 10. 

{¶14} To hold otherwise would undermine faith in the criminal justice system and 

undoubtably place members of the public at risk. For the same reason, we reject the 

repackaged argument by Hernandez that his incarceration in light of his potential 

deportation violates R.C. 2929.11(A) as an “unnecessary burden on state or local 

government resources.” 
{¶15} Hernandez makes no effort to assert that the facts underlying his conviction 

do not otherwise support the imposition of consecutive sentences under R.C. 

2929.14(C)(4). 

{¶16} Hernandez’s third assignment of error is overruled. 

{¶17} Sua sponte, we note that although the trial court made the required findings 

in support of its imposition of consecutive sentences at the sentencing hearing, it failed to 

incorporate those findings in the sentencing journal entry as required under State v. 

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. 

{¶18} A trial court’s failure to incorporate statutory findings made under R.C. 

2929.14(C)(4) in the sentencing journal entry after properly making those findings at the 

sentencing hearing is a “clerical mistake” that may be corrected by the court through a 

nunc pro tunc entry “to reflect what actually occurred in open court.” Id. at ¶ 29. It “does 

not render the sentence contrary to law.” Id. 

{¶19} Accordingly, the judgment of the trial court is affirmed in part, and reversed 

in part. Hernandez’s sentences on the counts of abduction and gross sexual imposition 

are vacated and the case is remanded to the trial court for appropriate merger and 

resentencing after the state elects under which count it wishes to proceed to sentencing 

under. Upon issuing a new sentencing entry, the trial court shall incorporate the findings 

it made in support of the imposition of consecutive sentences into the entry. 

It is ordered that appellant and appellee share 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 of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

_____________________________________________________ 

EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE 

PATRICIA A. BLACKMON, J., and 

LARRY A. JONES, SR., J., CONCUR