[Cite as State v. Zanders, 2013-Ohio-3619.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99146



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     KELLY ZANDERS
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-560580

        BEFORE: Boyle, P.J., Rocco, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: August 22, 2013
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Kelly Zanders, appeals his sentence, raising four

assignments of error:

       I. The appellant was denied his right to counsel at the sentencing hearing
       in that counsel completely failed to advocate on his behalf and the appellant
       was denied counsel under Cronic, Strickland, and the Sixth and Fourteenth
       Amendments of the federal Constitution.

       II. The imposition of the maximum sentence available was an abuse of
       discretion under Ohio law.

       III. A de novo review requires the merger of all offenses in accordance
       with State v. Williams, 2012-Ohio-5699.

       IV. The trial court’s decision to impose consecutive sentences is not
       supported by the record.

       {¶2} Finding no merit to the appeal, we affirm.

                               Procedural History and Facts

       {¶3} In March 2012, Zanders was indicted on six counts after the state matched

his DNA with evidence collected in connection with a reported rape that occurred in

September 2009. According to Zanders, he engaged in consensual sex. He was indicted

on two counts of kidnapping, violations of R.C. 2905.01(A)(2) and (4); three counts of

rape, violations of R.C. 2907.02(A)(2); and one count of aggravated robbery, a violation

of R.C. 2911.01(A)(3). All the counts carried specifications — the rape and kidnapping

counts carried notice of prior conviction, a repeat violent offender specification, a sexual

motivation specification, and a sexually violent predator specification.
       {¶4} Zanders pleaded not guilty to the charges, and the matter proceeded to a

bench trial. The trial judge ultimately found Zanders guilty on all six counts of the

indictment and the repeat violent offender specifications, the sexual motivation

specifications, and the notice of prior conviction. The state had dismissed all of the

sexually violent predator specifications attached to the counts.

       {¶5} Prior to sentencing, the trial court ordered a presentence investigation

(“PSI”) and a psychological evaluation by the court psychiatric clinic, including a

mitigation of penalty report, for sentencing purposes.

       {¶6} At the sentencing hearing, the trial judge merged Count 5 (kidnapping) with

Count 6 (aggravated robbery); it further merged all of the rape counts into a single count.

The state elected to proceed on the aggravated robbery and the rape counts contained in

Count 3. The trial court then sentenced Zanders to ten years in prison on each of these

counts and ten years in prison on the kidnapping count contained in Count 1. The court

further imposed ten years in prison on the repeat violent offender specification attached to

the rape count, ordering all counts to be served consecutive, for a total prison term of 40

years. This appeal now follows.

                             Ineffective Assistance of Counsel

       {¶7} In his first assignment of error, Zanders argues that his trial counsel

completely failed to advocate on his behalf at the sentencing hearing. According to

Zanders, the PSI and the mitigation report revealed a myriad of grounds for a more

lenient sentence, which included a “life filled with violence, severe substance abuse from
age 11,” and a history of psychiatric treatment, especially during the time of the

underlying offenses. Zanders contends that his trial counsel’s failure to highlight these

issues in favor of a more lenient sentence denied him of his constitutional right to

effective assistance of counsel. We disagree.

       {¶8} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.           Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. There is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance, and that strategy and tactical decisions

exercised by defense counsel are well within the range of professionally reasonable

judgment. Strickland at 699.

       {¶9} While we acknowledge that Zanders’s counsel did not emphasize the

contents of the PSI or the mitigation report, it is clear that the trial judge reviewed these

materials prior to sentencing Zanders. Indeed, the trial judge specifically requested the

mitigation report from the court’s psychiatric division to assist in sentencing Zanders.

Thus, even assuming that the failure to specifically advocate the hardships evident in the

PSI and mitigation report constitutes deficient performance, we find no prejudice to

Zanders.    Further, the record reveals that Zanders’s trial counsel advocated for
concurrent sentences in this case, emphasizing that the offenses all occurred on a single

day.   We cannot say that the outcome of the sentencing hearing would have been

different had Zanders’s trial counsel emphasized the hardships in Zanders’s upbringing

as well as his battle with alcohol and substance abuse.

       {¶10} The first assignment of error is overruled.

                          Maximum and Consecutive Sentences

       {¶11} In his second and fourth assignments of error, Zanders challenges the trial

court’s imposition of maximum, consecutive sentences.

       Standard of Review

       {¶12} An appellate court must conduct a meaningful review of the trial court’s

sentencing decision. State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-Ohio-2508,

¶ 6, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 7.

Specifically, R.C. 2953.08(G)(2) provides that our review of a defendant’s sentence is not

an abuse of discretion.     An appellate court must “review the record, including the

findings underlying the sentence or modification given by the sentencing court.” Id. If

an appellate court clearly and convincingly finds either that (a) “the record does not

support the sentencing court’s findings under division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the

Revised Code, whichever, if any, is relevant”; or (b) “the sentence is otherwise contrary

to law,” then “the appellate court may increase, reduce, or otherwise modify a sentence *
* * or may vacate the sentence and remand the matter to the sentencing court for

resentencing.” Id.

       Maximum Sentence

       {¶13} Zanders first argues that the trial court’s imposition of a maximum sentence

is not supported by the record given the “substantial” grounds for a lesser sentence based

on the mitigating factors outlined in the mitigation report and PSI. Because the trial

court imposed a maximum sentence in this case, Zanders broadly argues that “the race of

the victim [(white)] and [himself (black)] played a role in the trial court’s decision.”

       {¶14} Initially, we note that there is absolutely no evidence in the record to support

Zanders’s blanket assertion that his sentence was improperly imposed based on his race.

Nor does Zanders point to any evidence in the record to support his claim. Absent any

evidence, we refuse to entertain such an inflammatory and speculative argument.

       {¶15} While we acknowledge that 40 years is a harsh sentence, the trial court’s

findings related to maximum, consecutive sentences are supported by the record. Indeed,

prior to imposing the maximum sentence, the trial court detailed Zanders’s extensive

criminal history as outlined in the PSI, emphasizing Zanders’s pattern of repeatedly

committing offenses upon being released from prison or placed on probation. With

respect to the underlying crimes in this case, the trial court found that there were no

mitigating factors to warrant a lower sentence. Specifically, the trial court stated the

following:

              And in looking at the factors with regard to seriousness, this Court
       does find that it was clear that this victim suffered serious physical, and at
      the time psychological, as well as ongoing psychological harm, and the
      Court finds that it is serious in nature as to both of those.

      The Court finds that as far as a less serious count, that none of those counts
      apply in this matter.

      In looking at recidivism, the Court finds that this defendant obviously, just
      detailed everything, has a history of criminal convictions and juvenile
      adjudication delinquencies. He did not respond favorably to sanction.

      The defendant was not only sent to ODYS in his past, but was given
      judicial release by two separate courts and responded to that judicial release
      by committing new offenses while being released from prison on judicial
      release.

      The defendant through his demonstration in this matter shows no remorse
      for his actions here. The Court finds not a single one of those factors
      applies to the defendant in this case, the less likely factors.

      In this matter the Court finds that the defendant, through his actions,
      committed a physical assault upon this victim for the purpose of subduing
      her, and took her to a place exactly behind a building where he knew that he
      could be concealed. A little cubbyhole in the back of a building, based on
      the evidence that was here.

      So the defendant, in this Court’s mind, was hunting a victim, found the
      victim, incapacitated her, dragged her behind a building where he
      committed the sexual assault, terrorized the victim in this matter with
      threats. This was a stranger, based on the evidence that I see.

      There was no provocation whatsoever that this victim did to cause this
      defendant to engage in the acts that he did; and therefore, clearly there is no
      mitigation involved in the sentencing here. And I already stated, it’s this
      Court’s position based on the nature of the testimony, that this defendant
      has no remorse at all in this matter.

      {¶16} Zanders contends, however, that the trial court did not give enough

consideration to the mitigating factors in his childhood to warrant the imposition of

maximum, consecutive sentences. We disagree. Here, it is clear that the trial court
considered all factors prior to sentencing Zanders. To the extent that Zanders believes

that his unfortunate and difficult childhood mandated a lower sentence, there is no

support for this assertion under the law. Notably, at the time of sentencing, Zanders was

42 years old. In sentencing Zanders to the maximum, it is clear that the trial judge

believed that Zanders’s repeated unsuccessful response to the penal system coupled with

the severity of the crime in this case warranted a maximum sentence. As stated by the

trial judge:

              The Court already outlined that the more serious factors outweigh
       the less serious factors, and the Court already outlined for the record, based
       on the facts in this case, the Court believes this defendant was out that night
       looking for a victim, and discarded the victim like a piece of trash and went
       on his way. Clearly, no remorse whatsoever, not only through his
       testimony in court, or on the night of the behavior in question. * * * He
       humiliated this victim and continues to haunt her mentally to this day.

       {¶17} Because we find that the sentence is supported by the record, the second

assignment of error is overruled.

       Consecutive Sentences

       {¶18} In his fourth assignment of error, Zanders argues that the trial court’s

decision to impose consecutive sentences is not supported by the record. We disagree.

       {¶19} R.C. 2929.14(C)(4) provides that a court may issue consecutive prison terms

if the court finds (1) “the consecutive service is 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) one of three enumerated factors applies to the

offender. R.C. 2929.14(C)(4)(a)-(c).

       {¶20} In each step of this analysis, the statutory language directs that the trial court

must “find” the relevant sentencing factors before imposing consecutive sentences. R.C.

2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic

words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st

Dist. Hamilton No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). But

it must be clear from the record that the trial court actually made the findings required by

statute. See State v. Pierson, 1st Dist. Hamilton No. C-970935, 1998 Ohio App. LEXIS

3812 (Aug. 21, 1998). A trial court satisfies this statutory requirement when the record

reflects that the court has engaged in the required analysis and has selected the

appropriate statutory criteria. See State v. Edmonson, 86 Ohio St.3d 324, 326, 715

N.E.2d 131 (1999).

       {¶21} The record reveals that the trial court explicitly made the three required

findings to impose consecutive sentences.          Specifically, the trial court stated the

following:

              With regard to count 1, count 6, and count 3, the Court does find that
       a consecutive sentence in this matter is necessary to protect the public from
       future crime, as well as punish the offender. And the consecutive sentences
       in this case are not disproportionate to the seriousness of the defendant’s
       conduct and to the danger this defendant poses to the public, given the
       violent and random nature of this act.

              The Court finds the defendant’s history of criminal conduct outlined

       on the record demonstrates consecutive sentences are necessary to protect
       the public from future crime from the offender; and therefore, it’s the

       finding of the Court that all three sentences in this matter as imposed shall

       run consecutive to one another.

       {¶22} Despite the trial court complying with R.C. 2929.14(C)(4), Zanders urges

this court to vacate the consecutive sentences because the record does not support the trial

court’s findings. As outlined above, however, this court clearly and convincingly finds

support in the record for the consecutive sentences.        The trial judge believed that

Zanders’s history of criminal offenses, including a prior conviction for aggravated

burglary, the severity of the crime in this case, along with Zanders’s complete lack of

remorse, compelled consecutive sentences. We cannot second-guess the trial judge when

he has complied with R.C. 2929.14(C)(4), and the record contains support for such

findings.

       {¶23} The fourth assignment of error is overruled.

                                     Allied Offenses

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

failing to merge all the offenses as allied offenses. He contends that all three offenses

were “in essence one criminal act.” We disagree.

       {¶25} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court established the proper analysis for determining whether offenses

qualify as allied offenses subject to merger pursuant to R.C. 2941.25:

       In determining whether offenses are allied offenses of similar import under
       R.C. 2941.25(A), the question is whether it is possible to commit one
         offense and commit the other with the same conduct, not whether it is
         possible to commit one without committing the other. * * * If the offenses
         correspond to such a degree that the conduct of the defendant constituting
         commission of one offense constitutes commission of the other, then the
         offenses are of similar import.

         If the multiple offenses can be committed by the same conduct, then the
         court must determine whether the offenses were committed by the same
         conduct, i.e., “a single act, committed with a single state of mind.” [State
         v.] Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50
         (Lanzinger, J., dissenting).

         If the answer to both questions is yes, then the offenses are allied offenses
         of similar import and will be merged.

         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 ¶ 48-51.

         {¶26} Our review of an allied offenses question is de novo. State v. Williams, 134

Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

         Rape and Kidnapping

         {¶27} It is possible to commit rape and kidnapping with the same conduct. State

v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-3170, ¶ 104. These offenses,

therefore, are of similar import and may be subject to merger if committed with a single

animus. But here, the trial court found that a separate animus existed for each one. We

agree.
       {¶28} In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), syllabus, the

Ohio Supreme Court set forth the following test to determine what constitutes a separate

animus for kidnapping and a related offense. Specifically, the court stated:

              In establishing whether kidnapping and another offense of the same
       or similar kind are committed with a separate animus as to each pursuant to
       R.C. 2941.25(B), this court adopts the following guidelines:

              (a) Where the restraint or movement of the victim is merely
       incidental to a separate underlying crime, there exists no separate animus
       sufficient to sustain separate convictions; however, where the restraint is
       prolonged, the confinement is secretive, or the movement is substantial so
       as to demonstrate a significance independent of the other offense, there
       exists a separate animus as to each offense sufficient to support separate
       convictions;

              (b) Where the asportation or restraint of the victim subjects the
       victim to a substantial increase in risk of harm separate and apart from that
       involved in the underlying crime, there exists a separate animus as to each
       offense sufficient to support separate convictions.

       {¶29} The record reveals that Zanders dragged the victim by the back of her hair

from a pay phone across the street and then through an open field to a secluded

“cubbyhole” in the rear yard behind a building. This restraint and movement was not

incidental to the rape. Instead, the restraint and force used to drag the victim to a

secluded location was separate and distinct from the force exercised during acts of the

rape. Indeed, the removal of the victim from the public pay phone to a secluded area

behind a building subjected the victim to a substantial increase in risk of harm separate

and apart from that involved in the rape.

       {¶30} Notably, after Zanders removed the victim from a public location to a more

secluded area, he punched her in the face and the back of her neck, removed her pants,
forced her to suck his testicles, and then forced his penis inside her vagina. Zanders then

further forced the victim to suck his penis, punched and kicked her again, pushed her to

the ground, and ordered her to count to a million. Prior to Zanders fleeing the scene, he

grabbed the victim’s pants and took her money out of her pocket. The victim had

multiple injuries (contusions, bleeding, and abrasions) to her face and abrasions to her

knees — all of which were visible to the paramedic arriving on the scene. The victim

further had bruising on both of her hands, consistent with her testimony that she tried to

break loose from Zanders.

      {¶31} Applying the standard set forth in Logan, 60 Ohio St.2d 126, 397 N.E.2d

1345, the trial court properly concluded that Zanders had a separate animus for the

kidnapping and rape.

      Rape and Aggravated Robbery

      {¶32} Next, Zanders contends that the trial court should have merged the rape and

aggravated robbery counts. Zanders was convicted of rape under R.C. 2907.02(A)(2),

which provides that “[n]o person shall engage in sexual conduct with another when the

offender purposely compels the other person to submit by force or threat of force.”

Aggravated robbery, a violation of R.C. 2911.01(A)(3), is defined as:

      (A) No person, in attempting or committing a theft offense, as defined in
      section 2913.01 of the Revised Code, or in fleeing immediately after the
      attempt or offense, shall do any of the following:

      ***

      (3) Inflict, or attempt to inflict, serious physical harm on another.
      {¶33} Zanders fails to offer any explanation as to how these two offenses could be

committed by the same conduct. Nor does he offer any authority in support of his broad

claim that all the offenses should merge.    The aggravated robbery offense involves a

necessary element of a theft.   Conversely, the rape offense requires a showing of sexual

conduct.   These offenses are not of similar import, and therefore not subject to merger.

      Kidnapping and Aggravated Robbery

      {¶34} Lastly, Zanders contends that the trial court should have merged the

kidnapping and aggravated robbery counts.         We note, however, that Zanders was

convicted of two counts of kidnapping — violations of R.C. 2905.01(A)(2) and (4).

These two counts differ as to the purpose of the removal or restraint of the victim. R.C.

2905.01(A)(2) prohibits the removal or restraint of a person for the purpose “[t]o

facilitate the commission of any felony or flight thereafter.” Conversely, R.C.

2905.01(A)(4) prohibits the removal or restraint of a person for the purpose “[t]o engage

in sexual activity * * * with the victim against the victim’s will.” With respect to the

kidnapping count charged in Count 5, R.C. 2905.01(A)(2), the trial court properly merged

this count into the aggravated robbery count, recognizing that the two offenses are of

similar import and that Zanders acted with the same animus.

      {¶35} The other kidnapping count, however, R.C. 2905.01(A)(4), as contained in

Count 1, does not merge with the aggravated robbery count for the same reasons

discussed above — Zanders committed this offense with a separate animus from the other

offenses. Here, the kidnapping count specifically involved dragging the victim to a
secluded area for the purpose of engaging in sexual activity — not for the purpose of

committing the aggravated robbery. Indeed, there is a break in the chain of events

between this kidnapping count and the aggravated robbery. The record reveals that the

aggravated robbery did not occur until after Zanders had removed the victim from the

public pay phone and after the rape had occurred. Prior to fleeing the scene, he took

approximately $200 from the victim’s pockets and her clothes.           Because there is a

distinct break in the chain of events and a different animus with these two offenses, the

trial court properly sentenced Zanders on each offense.

      {¶36} The third assignment of error is overruled.

      {¶37} Judgment affirmed.

      It is ordered that appellee recover of appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR
