[Cite as State v. Lashley, 2017-Ohio-4026.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO                                    )
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )           CASE NO. 16 MA 0094
VS.                                              )
                                                 )                  OPINION
ELIJAH J. LASHLEY, SR.                           )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from the Court of
                                                 Common Pleas of Mahoning County,
                                                 Ohio
                                                 Case No. 2015 CR 563

JUDGMENT:                                        Affirmed in part; reversed in part and
                                                 remanded.
APPEARANCES:
For Plaintiff-Appellee                           Attorney Paul Gains
                                                 Mahoning County Prosecutor
                                                 Attorney Ralph Rivera
                                                 Assistant Prosecutor
                                                 21 West Boardman Street, 6th Floor
                                                 Youngstown, Ohio 44503-1426

For Defendant-Appellant                          Attorney John Ams
                                                 134 Westchester Drive
                                                 Youngstown, Ohio 44515

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                 Dated: May 26, 2017
[Cite as State v. Lashley, 2017-Ohio-4026.]
DeGENARO, J.

        {¶1}     Defendant–Appellant, Elijah Lashley, Sr. appeals the judgment of the
Mahoning County Court of Common Pleas convicting him on two counts of
kidnapping and two counts of felonious assault, denying his pro se pre-sentence
motions to withdraw his guilty plea, and sentencing him accordingly. Appointed
appellate counsel for Lashley has filed a no-merit brief and a request to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493
(1967), and State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970).
        {¶2}     After conducting an independent review of this case, the appeal is not
frivolous and there exists one meritorious issue; specifically regarding consecutive
sentence findings.         Although the trial court made sufficient findings during the
hearing, it failed to make specific findings in the judgment entry, instead cutting and
pasting the entirety of R.C. 2929.14(C)(4) into the entry. Accordingly, the judgment of
the trial court is reversed and this matter is remanded for the trial court to issue a
nunc pro tunc sentencing entry that includes the applicable specific consecutive
sentence findings. See State v. Williams, 7th Dist. No. 16MA0041, 2017-Ohio-856.
                                  Facts and Procedural History
        {¶3}     On June 11, 2015, Lashley was indicted on 10 counts: counts 1 through
5 for rape, R.C. 2907.02(A)(2)(B), first-degree felonies; counts 6 through 8 for
kidnapping, R.C. 2905.01(A)(4)(C), R.C. 2905.01(A)(2)(C), R.C. 2905.01(A)(3)(C),
respectively, first-degree felonies; and counts 9 and 10 for felonious assault, R.C.
2903.11(A)(1)(D), R.C. 2903.11(A)(2)(D), second-degree felonies. He was accused
of raping, kidnapping and assaulting his wife, K.J.
        {¶4}     Lashley was arraigned, pled not guilty and counsel was appointed. He
later entered into a Crim.R. 11 plea agreement with the State. Therein, Lashley
agreed to plead guilty to counts 7 through 10, two counts of kidnapping and two
counts of felonious assault. In exchange, the State agreed to dismiss counts 1
through 6, all five counts of rape and one count of kidnapping and recommend a 10-
year prison sentence.
        {¶5}     During the plea hearing the trial court engaged in a colloquy with
                                                                              -2-


Lashley concerning the rights he would give up by pleading guilty, and ultimately
accepted Lashley's plea as knowingly, voluntarily and intelligently made and
continued sentencing so that a presentence investigation could be prepared.
       {¶6}    Several weeks later, Lashley filed a series of pro se motions to
withdraw his guilty plea. In these motions, Lashley claimed he had additional
evidence to present in his defense and claimed his guilty plea was not actually an
admittance of guilt but an acknowledgement that racism still existed; he claimed his
attorney told him that a white suburban jury would not believe him as an African
American male with a criminal history. Lashley also claimed counsel was ineffective
for allegedly losing exculpatory evidence he gave to him.
       {¶7}    During a hearing on March 15, 2016, the pro se plea withdrawal
motions were addressed first. Defense counsel stated that he was just learning about
the pro se motions for the first time that morning, despite the fact that he visited
Lashley in jail the day before. Defense counsel accordingly deferred to his client to
speak on those matters. Thereafter, arguments were made by Lashley, pro se, and
by the prosecutor regarding the plea withdrawal motions, which were overruled by
the trial court.
       {¶8}    The State stood by its promise to recommend a 10-year prison
sentence. Defense counsel made arguments in favor of a lesser sentence. The trial
court asked Lashley if he had anything to say regarding his sentence and Lashley
made a statement. The victim made a lengthy statement detailing the crimes and the
serious impact it had on her life. The State presented as exhibits two photographs of
the victim taken soon after the crimes.
       {¶9}    At the close of the hearing, the trial court sentenced Lashley to ten
years each for counts 7 and 8, the two kidnapping charges, to run concurrently to
each other; and three years each on counts 9 and 10, the two felonious assault
charges, to run concurrently to each other. Counts 7 and 9 were ordered to run
consecutively to one another for an aggregate prison term of 13 years. The trial court
also imposed a mandatory five-year term of post-release control, and explained the
                                                                               -3-


ramifications of violating post-release control. The trial court failed to make any
consecutive sentence findings during this hearing.
       {¶10} However, before the sentencing entry was issued, the trial court
reconvened the parties for a resentencing hearing to address the issue of
consecutive sentences. First, however, counsel for both sides made brief sentencing
arguments, and the trial court again asked Lashley if he had anything to say
pertaining to sentencing and Lashley made a brief statement.
       {¶11} The trial court then made the required consecutive sentence findings.
The trial court sentenced Lashley to ten years each for counts 7 and 8, the two
kidnapping charges, to run concurrently to each other; and three years each on
counts 9 and 10, the two felonious assault charges, to run concurrently to each other.
Counts 7 and 9 were ordered to run consecutively to one another for an aggregate
prison term of 13 years. The trial court also imposed a mandatory five-year term of
post-release control and explained the ramifications of violating post-release control.
       {¶12} On May 9, 2016, the trial court issued its sentencing entry, in which it
imposed the 13-year sentence along with 5 years of mandatory post-release control.
However, instead of making specific consecutive sentence findings which were made
during the hearing, the entirety of R.C. 2924.14(C)(4) was cut and pasted into the
entry. On July 1, 2016, Lashley filed a pro se motion for leave to file a delayed
appeal, which this court granted.
                                    Anders Review
       {¶13} An attorney appointed to represent an indigent criminal defendant may
seek permission to withdraw if the attorney can show that there is no merit to the
appeal. See generally Anders, 386 U.S. 738. To support such a request, appellate
counsel is required to undertake a conscientious examination of the case and
accompany his or her request for withdrawal with a brief referring to anything in the
record that might arguably support an appeal. Toney, 23 Ohio App.2d at 207.
Counsel's motion must then be transmitted to the defendant in order to assert any
error pro se. Id. at syllabus. The reviewing court must then decide, after a full
                                                                                  -4-


examination of the proceedings and counsel's and the defendant's filings, whether
the case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is
granted, new counsel is denied, and the trial court's judgment is affirmed. Id.
       {¶14} Counsel filed a no-merit brief, which raised several potential issues but
ultimately concluded there was no error. We granted Lashley 30 days to file a pro se
brief, which he failed to file.
                                      Guilty Plea
       {¶15} In the typical Anders case involving a guilty plea, the only issues that
can be reviewed relate to the plea or the sentence. See, e.g., State v. Verity, 7th Dist.
No. 12 MA 139, 2013–Ohio–1158, ¶ 11.
       {¶16} A guilty plea must be made knowingly, voluntarily and intelligently.
State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 7. If it is
not, it has been obtained in violation of due process and is void. State v. Martinez,
7th Dist. No. 03 MA 196, 2004–Ohio–6806, ¶ 11, citing Boykin v. Alabama, 395 U.S.
238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness
of a plea, this court must consider all of the relevant circumstances surrounding it.
State v. Johnson, 7th Dist. No. 07 MA 8, 2008–Ohio–1065, ¶ 8, citing Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
       {¶17} The trial court must engage in a Crim.R. 11(C) colloquy with the
defendant in order to ensure that a felony defendant's plea is knowing, voluntary and
intelligent. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶
25–26. During the colloquy, the trial court is to provide specific information to the
defendant, including constitutional and nonconstitutional rights being waived. Crim.R.
11(C)(2); State v. Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355.
       {¶18} The constitutional rights the defendant must be notified of are the right
against self-incrimination, to a jury trial, to confront one's accusers, to compel
witnesses to testify by compulsory process, and to have the state prove guilt beyond
a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008–
Ohio–5200, 897 N.E.2d 621, ¶ 19–21. A trial court must strictly comply with these
                                                                                  -5-


requirements. Id. at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115
(1981). "Strict compliance" does not require a rote recitation of the exact language of
the rule. Rather, a reviewing court should focus on whether the "record shows that
the judge explained these rights in a manner reasonably intelligible to the defendant."
Id. at paragraph two of the syllabus.
       {¶19} The nonconstitutional rights the defendant must be informed of are the
effect of his plea, the nature of the charges, and the maximum penalty, which
includes an advisement on post-release control if applicable. Further, a defendant
must be notified, if applicable, that he is not eligible for probation or the imposition of
community control sanctions. Finally, this encompasses notifying the defendant that
the court may proceed to judgment and sentence after accepting the guilty plea.
Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio St.3d 176 at ¶ 10–13; Sarkozy, 117 Ohio
St.3d 86, at ¶ 19–26. The trial court must substantially comply with these
requirements. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
"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." Id. at 108. In addition to demonstrating the trial court did not substantially
comply with Crim R. 11(C)(2)(a)(b) the defendant must also show a prejudicial effect,
meaning the plea would not have otherwise been made. Veney, 120 Ohio St.3d 176
at ¶ 15 citing Nero, 56 Ohio St.3d at 108.
       {¶20} The trial court's advisement of Lashley's constitutional rights strictly
complied with Crim.R. 11(C)(2)(c), and he indicated he understood he was giving up
all of those rights. The trial court also substantially complied with Crim.R. 11(C) when
advising Lashley of his nonconstitutional rights. As the trial court's colloquy with
Lashley complied with Crim.R. 11(C), the plea was knowingly, voluntarily, and
intelligently entered. Further, trial counsel was not ineffective with regard to the plea
proceedings.


                   Pre-Sentence Motion to Withdraw Guilty Plea
                                                                                  -6-


       {¶21} Regarding the pre-sentence motion to withdraw guilty plea, The Ohio
Supreme Court has stated that trial courts should "freely and liberally" grant pre-
sentence motions to withdraw guilty pleas. State v. Xie, 62 Ohio St.3d 521, 527, 584
N.E.2d 715 (1992). That, however, does not mean a defendant has an absolute right
to withdraw a guilty plea prior to sentencing. Id. at paragraph one of the syllabus.
Rather, there must be "a reasonable and legitimate basis for withdrawal of the plea."
Id. A trial court's decision regarding a plea withdrawal motion is reviewed under an
abuse of discretion standard. Xie at 526. "Abuse of discretion means an error in
judgment involving a decision that is unreasonable based upon the record; that the
appellate court merely may have reached a different result is not enough." State v.
Dixon, 7th Dist. No. 10 MA 185, 2013–Ohio–2951, ¶ 21.
       {¶22} The factors to be considered when making a decision on a motion to
withdraw a guilty plea are: 1) prejudice to the state; 2) counsel's representation; 3)
adequacy of the Crim.R. 11 plea hearing; 4) extent of the plea withdrawal hearing; (5)
whether the trial court gave full and fair consideration to the motion; 6) timing; 7) the
reasons for the motion; 8) the defendant's understanding of the nature of the charges
and the potential sentences; and 9) whether the defendant was perhaps not guilty or
has a complete defense to the charge. State v. Cuthbertson, 139 Ohio App.3d 895,
898–899, 746 N.E.2d 197 (7th Dist. 2000), following State v. Fish, 104 Ohio App.3d
236, 661 N.E.2d 788 (1st Dist.1995) No one factor is determinative. See State v.
Morris, 7th Dist. No. 13MA19, 2014–Ohio–882, ¶ 22. "Rather, it is a weighing
process." State v. Peck, 7th Dist. No. 14 MA 56, 2015–Ohio–1279, ¶ 24, citing
Cuthbertson, 139 Ohio App.3d at 899.
       {¶23} First, there is no indication in the record of prejudice to the State, so this
factor weighs in favor of Lashley. Second, Lashley was more than adequately
represented by counsel, in having six counts dismissed and avoiding a sex offender
classification. Defense counsel did not present arguments for the plea withdrawal
motion at the hearing because Lashley filed the motion and declined to tell his
attorney about it, despite the fact that the attorney had visited Lashley in the jail the
                                                                                 -7-


day before the hearing. This factor favors the State.
       {¶24} Third, the plea hearing was adequate. Lashley stated that he had
reviewed the plea agreement with his attorney and acknowledged that he was
waiving his constitutional rights to a trial. Lashley further indicated that his plea was
voluntary, not forced and not based on any promises. This factor favors the State.
       {¶25} Fourth, the plea withdrawal hearing was held, during which Lashley and
the prosecutor both presented arguments. Defense counsel was present, but did not
make arguments because Lashley did not inform him about the motion. Lashley
expressed displeasure with his counsel, and claimed he had new evidence but said
he did not share this evidence with counsel because counsel had taken "nine
months" to return other evidence to Lashley. The prosecutor then made her
arguments, noting, among other things, that defense counsel had negotiated an
excellent plea deal for Lashley and that Lashley failed to profess his innocence
during the pre-sentence investigation, instead conceding that the night had " 'got out
of hand[,]' " and that he " 'was drunk, high, and just plain being selfish.' "   The trial
court then overruled the motion. Thus, a hearing was held, and both sides presented
arguments before a ruling was made. This factor favors the State.
       {¶26} Fifth, the record is unclear what consideration the trial court gave to the
motion. Both parties were heard before a ruling was made but the trial court did not
state on the record the basis for its ruling. However, the record also contains no
evidence of irregularity by the trial court. Therefore, this factor is neutral to both
parties. Sixth, Lashley's motion was filed two weeks before the hearing, and
approximately two weeks after the plea hearing. This time is reasonable and favors
Lashley.
       {¶27} Seventh, the reason for Lashley's motion was his dissatisfaction with
counsel and an allegation that he had new evidence. However, counsel met with
Lashley, received evidence from Lashley, negotiated a Crim.R. 11 plea agreement
which dismissed six counts against Lashley and avoided a sex offender classification.
Further, although Lashley claimed he had additional evidence, he admitted to
                                                                             -8-


concealing it from counsel. The record indicates that this purported new evidence
may not have been new, but rather new copies of the evidence that Lashley had
already provided to counsel. Regardless, the evidence is immaterial given Lashley's
admissions in the presentence investigation report that he had been out of control on
the night of the offense and was now paying the penalty for that, which was read into
the record during the hearing. This factor favors the State.
       {¶28} Eighth, Lashley understood the charges against him and the potential
sentences. During the plea hearing, Lashley stated he understood the potential
penalties for the charges to which he was pleading guilty, which could have been a
possible 38 years in prison. This factor favors the State.
       {¶29} Finally, the record does not support that Lashley may not have been
guilty or that he had a complete defense to the charges. In his presentence
investigation, Lashley admitted to being under the influence of substances, being out
of control, and being selfish, resulting in the loss of his family and freedom. The
victim gave a compelling statement about her ordeal which, along with photographs,
strongly supports Lashley's guilt. This factor also favors the State.
       {¶30} Given that the majority of the Fish factors favor the State, there are no
appealable issues with regard to the trial court's denial of Lashley's pre-sentence
motion to withdraw his guilty plea.
                                      Sentencing
       {¶31} First trial counsel was not ineffective with respect to sentencing.
Regarding the sentence itself, appellate courts review a felony sentence to determine
whether the trial court's findings—or where findings are not required, the sentence
itself—are clearly and convincingly unsupported by the record, or whether the
sentence is otherwise contrary to law. R.C. 2953.08(G)(2); State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; ¶ 23.
       {¶32} Regarding merger of any or all of the offenses, this issue was not raised
in the trial court. In State v. Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922
N.E.2d 923, the Ohio Supreme Court held that the requirement to merge allied
                                                                                   -9-


offenses is mandatory, occurs at sentencing, is reviewable on appeal even pursuant
to a Crim.R. 11 agreement, and may be reviewed for plain error even when no allied
offense objection is raised at trial. Id. at ¶ 20, 26, 31. "While plain error may be
reviewed by an appellate court, plain error must still be demonstrated by the record."
State v. Peck, 7th Dist. No. 12 MA 205, 2013–Ohio–5526, ¶ 15.
      {¶33} The Ohio Supreme Court recently stated:

              An accused's failure to raise the issue of allied offenses of
      similar import in the trial court forfeits all but plain error, and a forfeited
      error is not reversible error unless it affected the outcome of the
      proceeding and reversal is necessary to correct a manifest miscarriage
      of justice. Accordingly, an accused has the burden to demonstrate a
      reasonable probability that the convictions are for allied offenses of
      similar import committed with the same conduct and without a separate
      animus; absent that showing, the accused cannot demonstrate that the
      trial court's failure to inquire whether the convictions merge for
      purposes of sentencing was plain error.

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.
      {¶34} Pursuant to R.C. 2941.25(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." However, "[w]here 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." R.C. 2941.25(B).
      {¶35} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892,
the Court held that if a defendant's conduct supports multiple offenses, the defendant
can be convicted of all of the offenses if any one of the following is true: 1) the
                                                                                      - 10 -


conduct constitutes offenses of dissimilar import, 2) the conduct shows the offenses
were committed separately, or 3) the conduct shows the offenses were committed
with separate animus. Id. at paragraph three of the syllabus, citing R.C. 2941.25(B).
Two or more offenses are of dissimilar import within the meaning of R.C. 2941.25(B)
"when the defendant's conduct constitutes offenses involving separate victims or if
the harm that results from each offense is separate and identifiable." Id. at paragraph
two of the syllabus.
       {¶36} Lashley was convicted of two counts of kidnapping, one pursuant to
R.C. 2905.01(A)(2) and the other R.C. 2905.01(A)(3), which provide:

               (A) No person, by force, threat, or deception, or, in the case of a
       victim under the age of thirteen or mentally incompetent, by any means,
       shall remove another from the place where the other person is found or
       restrain the liberty of the other person, for any of the following purposes
       ***
               (2) To facilitate the commission of any felony or flight thereafter;
               (3) To terrorize, or to inflict serious physical harm on the victim or
       another[.]

       {¶37}     Additionally, he was convicted of two counts of felonious assault, one
pursuant to R.C. 2903.11(A)(1), and the other pursuant to R.C. 2903.11(A)(2)(D),
which provide:

       (A) No person shall knowingly do either of the following:
       (1) Cause serious physical harm to another * * *
       (2) Cause or attempt to cause physical harm to another * * * by means
       of a deadly weapon or dangerous ordnance.

       {¶38} These crimes were all committed on the same day, with the same
victim, over an approximately three-hour time period. The victim gave a very detailed
description of the crimes during sentencing:
                                                                          - 11 -


       So once the time came where I was exhausted trying -- tired of
trying, I felt lifeless, hopeless. He had stolen my joy, my happiness. I
told him I couldn't do this anymore. I gave everything to God in that
moment. Nothing else was working, so I figured I would try God. I finally
threw in the towel. A little while later I went to go lay down in bed
because I had to be at work at four a.m. I had to work a whole 12 hours
because I missed so much work. He came in the room, and he ripped
the blankets off me. He ripped them off two times. Each time I got up
and I pulled the blankets back on me and I said, Elijah, please stop; I
have to be up early for work. I need to go to sleep. He laid down next to
me and he asked me, why can't you do this? I said, look at all that
you've done. I can't be with you anymore. I stopped loving myself. I'm
tired of all this. You need to go. He then pulled my hair, and I told him I
was going to call the police. He then grabbed my phone, and he threw it
across the room. As I attempted to get up to get my phone, he jumped
on me, sitting on my stomach, saying you're not sending me to jail
again. I really wasn't going to call the police. I just wanted to scare him
so that he would just leave me alone. Then he started to choke me,
telling me that he was going to kill me before I went to jail again. I no
longer felt the pain in my -- I no longer felt the pain of his hand around
my throat. I couldn't hear anything, and I'm pretty sure I blacked out.

       He then released my neck, and I didn't know what was going on.
I was scared. I tried to get him off of me. I started to fight back. Due to
the memory from the mattress, I was unsuccessful. He was so sweaty, I
couldn't even scratch him. My hands kept slipping and sliding all over
the place. We were knocking stuff over, and I hit him -- I hit him in the
face a couple times. He said, you want to fight back now? Then he
grabbed a cord off the headboard and he ties my left hand up and pulls
it to my neck and wraps the cord around my neck two times and pulls it,
                                                                            - 12 -


strangling me. My right hand was still loose. I tried to go for his eye. He
grabbed my right hand, and he ties it. I started praying the Lord's prayer
out loud, scared, not knowing why this man that claimed to love me
would hurt me like this. He then hit me with something, not sure what it
was, but my eye flashed a couple times.

       Then he ripped my dress and my bra in half. Before all this
started, I had told him that I didn't want to have sex with him. I was not
feeling it. And for a woman, we have to be physically and mentally into
it. I was neither. I persisted to tell him that I didn't want to have sex with
him. And because he had me tied up and I was scared, I had told him to
go ahead. Go ahead, Elijah, just take it and go. Just leave. Don't hurt
me anymore, please. I begged him. I was sliding off the bed and was
stuck on the metal bedrails causing a lot of pain to my butt area. I was
trying to fight back to get him off of me because I didn't want to have
sex with him. He told me to move up on the bed. I said no. Then he
pulled the cord again forcing me to move up, choking me in the
process. I started asking God to forgive him for he didn't know what he
was doing. I kept thinking in this moment I was going to die, I was -- if I
was going to die, I was going to go to Heaven.

       While he had sex with me, he pulled out and came on my face.
He knew I was not into that. It is so gross. I think it is a disgrace for
women to have that done. He proceeded to have sex with me five more
times -- or five times total. He came in different places on my body. I
found it very gross. The crazy thing for me was that Elijah had never
been into having sex while being tied up. And we had bed restraints,
and we only used them one time the whole five-years that we were
together. And for him to penetrate for the two minutes that he did each
time, he came so fast that I found it very disturbing because at this point
                                                                          - 13 -


I was tied up with wire and he was choking me. And if this was his
fetish, it was something I didn't know about.

       After he got what he wanted and he did what he did to me, I
thought he was going to leave, but he didn't. He continued to wrap
more wires around my neck and my hands. He kept on pulling them
tighter and tighter to the point where I could barely breathe. He sat on
top of me and started shoving his fingers between my throat and the
wires continually causing pain to my neck. I remember laying there
gasping for air hardly being able to catch my breath. I could feel my
heart slow down. Things started to look fuzzy. As I laid there tied up
with wires and could not move, I honestly thought I was dying a few
times. While I was going through this, I remember just wishing that he
would have just choked me to death than have to make me suffer with
the cord around my neck and the pain and bruises he inflicted on my
hand, arms, legs, and buttocks, the humiliation of the rape and the fear
he caused me not knowing what he was going to do to me next. The
gasping for air for this was worse. I would never wish this on any living
creature ever. It seems like this torture went on for days and he was
never going to stop.

       I started singing songs to God, anything that I could think of. He
backs up off the bed, and he looks at me laying there. He stands at the
foot of the bed and he -- and the look in his eyes, it wasn't him. I'm still
singing because of the -- in between the breaths of air I was able to get
and crying out for him to just leave me alone and stop hurting me. And I
asked him, why are you doing this? All he could say was because I'm
not going [to] jail. He was going to kill me before he goes back to jail.
His eyes were dark, and they were not his at all. It was as if a demon
had took him over, and I wasn't scared anymore. I gave everything to
                                                                         - 14 -


God in that moment and totally forgave him. As he steadily choked me,
he said I'm not going to kill you. God saved your life. I started crying,
and I asked him to please release me. I told him and I promised him I
would not call the police. I told him just to take my cards, my money, the
car, my phone, just please let me go.

       After three hours of him raping me and choking me and tying me
with anything he could get his hands on, he said maybe I should kill
you. I'm going to prison anyway. I'm going to burn the house down and
leave you in it to burn to death. Better yet, I'll leave the gas on and let
you die a slow death. I then started to get scared because I didn't know
what he was going to do when I was tied up. I couldn't move. I never
thought that he would have tied me up and choked me and raped me.
And he did all this crazy stuff to me. He never -- I never, never --
because I trusted him. I married him for goodness sakes.

       I remember the name of Jesus had saved me, and he was right
there with me saving my life. The fear started to go away. I thought at
that moment I needed to be smart I told him and I promised him I would
not call the police. I told him just to take my cards, my money, the car,
my phone, just please let me go.

       I remember the name of Jesus had saved me, and he was right
there with me saving my life. The fear started to go away. I thought at
that moment I needed to be smart and not let him know that I was able
to wiggle my hand out. And he left the room. I started to wiggle my right
hand out. It was too tight. A couple minutes later he comes back in with
a roll of duct tape. He sticks a sock in my mouth and he tapes it. He
wrapped the tape completely around my head, through my hair, and
around the front of my face leaving my nose to breathe. I was lying
                                                                          - 15 -


there thinking, okay, that's it. He's done. No, he wasn't. He then
proceeded to tape my hands. My left hand -- I left my right hand loose
in hopes I would be able to wiggle my fingers out. Then he tapes
around my head again. My left hand was so numb I could no longer feel
it. I begged him to please loosen it, but he wouldn't. I thought it was
going to fall off. He took some stuff. I'm not sure exactly what. I couldn't
move my head or my body at all. I knew definitely that he took the stuff
that I told him to take.

       When I heard the van pull off, I wiggled my fingers out of the
tape on my right hand. I reached over to unhook the bed restraints from
my left arm, choking myself in the process because of the way he had
me tied up. It was like a shoestring. He wrapped it around my neck, and
he looped it once. And then he pulled it and tied my hands up. So every
time I pulled my hands, it would tighten around my neck. As soon as I
got the bed restraints off, I was able to run next door, and I took
everything with me including the bed sheets. I believe it was the bed
sheets, the restraint, the wires, and all of which I'm sure you've seen in
the pictures.

       When I ran to the neighbor's house, I was pretty much naked. I
kicked on the door, and he answered the door. He told me to come in. I
asked him to call the police, and I told him that my husband had tried to
kill me. So he called the police. As we waited for the police to arrive, I
begged him to cut the wires off my left hand. My left hand was so numb,
I literally thought it was going to fall off. But he wouldn't. He wanted to
wait for the police to arrive. Then the police finally arrived and saw me.
They took pictures, and I had told them to cut the wires off my left hand.
I thought to myself if I lose a hand, oh, well, at least I'm alive. They cut
the duct tape, and they were shocked to see all the wires and cords, the
                                                                                - 16 -


       belts and whatever else was around my neck. I went to the hospital and
       was looked over. The duct tape that was in my hair, the nurses couldn't
       even get it out. So they tried to use this chemical to remove it, and I
       remember it burned so bad because I had wire burns on the back of my
       neck.

       {¶39} Consistent with the holding in Ruff, the victim’s description supports
Lashley’s convictions for at least two felonious assaults and at least two instances of
kidnapping, all four convictions committed separately and/or with separate animus.
Accordingly, the trial court did not commit plain error by failing to merge these four
convictions.
       {¶40} Moving on to other potential sentencing issues, Lashley was afforded
his allocution rights pursuant to Crim.R. 32(A)(1). That the trial court chose to deviate
from the jointly-recommended sentence does not constitute error because the trial
court forewarned Lashley during the plea hearing of the applicable penalties,
including the possibility of imposing a greater sentence than that recommended by
the prosecutor. See State v. Vari, 7th Dist. No. 07–MA–142, 2010–Ohio–1300, ¶ 24.
The trial court emphasized that the 10-years in the plea agreement was merely a
"recommendation."
       {¶41} The trial court properly notified Lashley that upon his release from
prison he would be subject to a mandatory five-year period of post-release control
and explained the ramifications of violating post-release control. See R.C.
2967.28(B)(1).
       {¶42} The 13-year prison sentence Lashley received is within the 3 to 38 year
range for the charges. See R.C. 2929.14(A)(1) and (2). The trial court considered the
principles and purposes of felony sentencing and the sentencing factors. R.C.
2929.11 and R.C. 2929.12. Jail-time credit was properly imposed.
       {¶43} Regarding consecutive sentences, R.C. 2929.14(C)(4) requires three
findings: that consecutive sentences are 1) necessary to protect the public from
future crime or to punish the defendant; 2) not disproportionate to the seriousness of
                                                                                - 17 -


the defendant's conduct and the danger the defendant poses to the public; and 3)
one of three alternative findings set out in subsections: a) the defendant was under
post-release    control,   specified   statutory   community    control,   or   awaiting
trial/sentencing; b) the offenses were committed during a course of conduct and the
harm was so great/unusual that a single term does not reflect the seriousness of the
defendant's conduct; or c) the defendant's criminal history demonstrates the need to
protect the public from future crime by the defendant. R.C. 2929.14(C)(4).
      {¶44} The findings supporting consecutive sentences must be made both at
the sentencing hearing and in the entry. Bonnell, supra, 140 Ohio St.3d 209, ¶ 37.
But a trial court is not required to state reasons supporting its findings or use magic
or talismanic words, so long as it is apparent the court conducted the proper analysis.
State v. Jones, 7th Dist. No. 13 MA 101, 2014–Ohio–2248, ¶ 6; see also Bonnell at ¶
37. Post-Bonnell, we may liberally review the entire sentencing transcript to discern
whether the trial court made the requisite findings. Bonnell at ¶ 29. However, as
demonstrated by the outcome in Bonnell—the Supreme Court reversed and
remanded Bonnell's sentence because the trial court failed to make a proportionality
finding—there are limits to that deference. Bonnell at ¶ 33–34. After a reviewing court
determines the findings have been made, the court "must also determine whether the
record contains evidence in support of the trial court's findings." State v. Correa, 7th
Dist. 13 MA 23, 2015–Ohio–3955, ¶ 76, citing Bonnell at ¶ 29.
      {¶45} The trial court made the following consecutive sentence findings during
the hearing:

               The Court further finds that consecutive sentences are
      necessary to protect the public from any future crime of the offender
      and they're no[t] disproportionate with the seriousness of the offender's
      conduct and the danger the offender possesses to the public.

               The Court also finds that this offense was committed as part of
      one or more courses of conduct and that the crime is so serious that it -
                                                                                - 18 -


       - the offender did not show much remorse.

              The Court further finds that consecutive sentences, based on the
       defendant's actions, are necessary to protect the public of future
       crimes.

       {¶46} As conceded by appellate counsel, the findings made at the hearing are
sufficient, and the record contains ample evidence to support them.
       {¶47} However, counsel neglected to assert that the trial court failed to make
specific consecutive sentence findings in the sentencing entry. Instead, the trial court
cut and paste the entirety of R.C. 2929.14(C)(4) into the entry, without denoting
which specific findings applied to this case. This is error. State v. Williams, 7th Dist.
No. 16MA0041, 2017-Ohio-856.         Since adequate findings were made during the
hearing, a remand to the trial court is warranted with instructions to issue a nunc pro
tunc sentencing entry setting forth the applicable findings.
       {¶48} In sum, there are no appealable errors with regard to Lashley's plea or
the plea withdrawal motion. However, the trial court failed to make consecutive
sentence findings in the entry. Accordingly, the judgment of the trial court is reversed
in part, and a limited remand is ordered for the trial court to issue a nunc pro tunc
sentencing entry that includes the specific consecutive findings applicable to Lashley.

Donofrio, J., concurs.

Waite, J., concurs.
