[Cite as State v. Santamaria, 2015-Ohio-5097.]


STATE OF OHIO                     )                      IN THE COURT OF APPEALS
                                  )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                            C.A. No.      27637

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
ANGELO SANTAMARIA JR.                                    COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellant                                        CASE No.   CR 11 06 1461B

                                 DECISION AND JOURNAL ENTRY

Dated: December 9, 2015



        SCHAFER, Judge.

        {¶1}       Defendant-Appellant, Angelo J. Santamaria, Jr., appeals from his sentence in the

Summit County Court of Common Pleas. For the reasons set forth below, we affirm in part and

reverse in part.

                                                    I.

        {¶2}       This is the third appeal Santamaria has filed involving his sentence for aggravated

burglary and aggravated robbery. In the most recent appeal, State v. Santamaria, 9th Dist.

Summit No. 26963, 2014-Ohio-4787 (“Santamaria II”), this Court set forth the underlying

factual and procedural history as follows:

                Mr. Santamaria, Jr., along with co-defendant Robert Linde, broke into Mr.
        George Nemeth's residence in order to rob him. The co-defendants did not realize
        that Mr. Nemeth was home, and Mr. Nemeth hid from them and called the police.
        Thinking that they had left the premises, Mr. Nemeth came out from hiding. At
        that time, Mr. Santamaria, Jr. and Mr. Linde physically assaulted Mr. Nemeth and
        threatened him with a knife.
                                                  2


                 In 2011, Mr. Santamaria, Jr. was indicted on one count of aggravated
        robbery, in violation of R.C. 2911.01(A)(1)/(3), one count of aggravated burglary,
        in violation of R.C. 2911.11(A)(1)/(3)1, and one count of possessing criminal
        tools, in violation of R.C. 2923.24. State v. Santamaria, 9th Dist. Summit No.
        26206, 2012-Ohio-2375, 2 (“Santamaria I”). He pleaded guilty to aggravated
        robbery and aggravated burglary, and the State dismissed the count for possessing
        criminal tools. Id. The trial court sentenced him to eight years of imprisonment
        for aggravated robbery, and seven years of imprisonment for aggravated burglary,
        to be served consecutively, for a total of fifteen years. Id. Mr. Santamaria, Jr.
        appealed to this Court, arguing that the trial court erred by (1) failing to merge the
        counts for aggravated robbery and aggravated burglary, and (2) ordering
        consecutive sentences.

                 On appeal, we reversed Mr. Santamaria, Jr.'s convictions in order to allow
        the trial court to apply State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, in
        the first instance and determine whether his convictions for aggravated robbery
        and aggravated burglary should merge as allied offenses of similar import.
        [Santamaria I] at ¶ 3–4. Upon remand, the trial court conducted a hearing and
        concluded that Mr. Santamaria, Jr.'s convictions should not merge under Johnson.
        The trial court then ordered a presentence investigation report * * * and set the
        matter for a sentencing hearing. Subsequently, at resentencing, the trial court
        ordered Mr. Santamaria, Jr.'s sentences for aggravated robbery and aggravated
        burglary to run consecutively, for a total of fifteen years of imprisonment.


Id. at ¶ 2-4.

        {¶3}    In 2014, Santamaria again appealed, arguing that the trial court failed to properly

determine jail-time credit, erred in its imposition of consecutive sentences, and erred in

concluding that aggravated burglary and aggravated robbery were not allied offenses of similar

import subject to merger. This Court affirmed the trial court’s determination regarding allied

offenses, but reversed and remanded the matter to the trial court: (1) to properly calculate

Santamaria’s jail-time credit at the resentencing hearing and include the calculation in the




1
  In State v. Linde, 9th Dist. Summit No. 26714, 2013-Ohio-3503, ¶ 16, fn. 2, this Court noted
that R.C. 2911.11(A)(3) does not exist and that the reference was probably a clerical error
intended to refer to R.C. 2911.11(A)(2).
                                                  3


sentencing entry; and (2) to make the findings required by R.C. 2929.14(C)(4) when imposing

consecutive sentences. Id. at ¶ 10, ¶ 18, ¶ 29.

          {¶4}   On remand, the trial court conducted a resentencing hearing and again determined

that Santamaria’s offenses are not allied offenses. The trial court also calculated jail-time credit

and sentenced Santamaria to consecutive sentences, for an aggregate term of fifteen years of

imprisonment. The trial court also ordered Santamaria to have no contact with the victim.

          {¶5}   Santamaria filed this timely appeal, raising four assignments of error for our

review.

                                      Assignment of Error I

          The trial court committed plain error by failing to reflect the overriding
          purposes of felony sentencing or the seriousness and recidivism factors in the
          sentence at bar.

                                      Assignment of Error II

          The trial court erred by imposing consecutive sentences when the record did
          not contain evidence to support the findings.

          {¶6}   In his first and second assignments of error, Santamaria challenges the propriety

of the trial court’s sentence. As both assignments implicate similar issues, this Court elects to

address them together.

          {¶7}   In his first assignment of error, Santamaria argues that the trial court erred by

imposing a prison sentence that is “strikingly inconsistent” with the overriding purposes of

felony sentencing as articulated in R.C. 2929.11. Specifically, Santamaria contends that his 15-

year prison sentence is inconsistent with the purposes of felony sentencing because the facts of

his case do not warrant a 15-year prison sentence and also demonstrate that he is a low risk for

recidivism. In his second assignment of error, Santamaria contends that the trial court erred by

sentencing him to consecutive terms of imprisonment. Specifically, Santamaria maintains that
                                                 4


his prison sentence is disproportional to the gravity of his criminal conduct. This Court disagree

on both points.

       {¶8}       This Court utilizes the test set forth by the Supreme Court of Ohio in State v.

Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, when reviewing criminal sentences. See State v.

Roper, 9th Dist. Summit No. 27025, 2014–Ohio–4786, ¶ 30, rev’d in part on other grounds, 143

Ohio St.3d 419, 2015-Ohio-3379 (vacating no-contact order).

       First, [this Court] must examine the sentencing court's compliance with all
       applicable rules and statutes in imposing the sentence to determine whether the
       sentence is clearly and convincingly contrary to law. If this first prong is
       satisfied, the trial court's decision in imposing the term of imprisonment is
       reviewed under the abuse-of-discretion standard.


Kalish at ¶ 26. The Supreme Court of Ohio has held that “[t]rial courts have full discretion to

impose a prison sentence within the [applicable] statutory range[.]” State v. Foster, 109 Ohio

St.3d 1, 2006–Ohio–856, paragraph seven of the syllabus, abrogated in part on other grounds by

Oregon v. Ice, 555 U.S. 160 (2009). “In exercising that discretion, ‘[a] court must carefully

consider the statutes that apply to every felony case[,] * * * includ[ing] R.C. 2929.11, which

specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering

factors relating to the seriousness of the offense and recidivism of the offender.’” (Alterations

sic.) State v. Davison, 9th Dist. Lorain No. 10CA009803, 2011–Ohio–1528, ¶ 12, quoting State

v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, ¶ 38. “[W]here the trial court does not put on the

record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is

presumed that the trial court gave proper consideration to those statutes.” (Alterations sic.) State

v. Steidl, 9th Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting Kalish at ¶ 18, fn.

4. “‘Unless the record shows that the court failed to consider the factors, or that the sentence is

strikingly inconsistent with the factors, the court is presumed to have considered the statutory
                                                 5


factors if the sentence is within the statutory range.’” (Internal quotations and citations omitted.)

State v. Fernandez, 9th Dist. Medina No. 13CA0054-M, 2014-Ohio-3651, ¶ 8, quoting State v.

Boysel, 2d Dist. Clark No. 2013-CA-78, 2014-Ohio-1272, ¶ 13.

       {¶9}    “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others and to punish the offender using the minimum sanctions

that the court determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.” R.C. 2929.11(A). R.C. 2929.12 in turn provides that a

sentencing judge has discretion to determine the most effective means of complying with the

purposes and principles of sentencing. R.C. 2929.12(B) includes factors that suggest that the

offense is more serious. R.C. 2929.12(C) includes factors suggesting the offense is less serious.

The recidivism factors—factors indicating an offender is more or less likely to commit future

crimes—are set forth in R.C. 2929.12(D) and (E).

       {¶10} In the instant case, the trial court sentenced Santamaria to seven years in prison

for aggravated burglary, a first degree felony, and eight years in prison for aggravated robbery,

also a first degree felony, with those sentences to be served consecutively. These respective

sentences fall within the prescribed statutory range. R.C. 2929.14(A)(1). As the sentence is not

contrary to law, the first prong of the Kalish analysis is satisfied. This Court now moves on to

consider whether the trial court abused its discretion in imposing a seven-year and eight-year

prison sentence on the aggravated burglary and aggravated robbery counts, respectively. An

abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).
                                                  6


       {¶11} Although the trial court did not explicitly mention R.C. 2929.12 during the

sentencing hearing on remand, it is presumed that the trial court considered these factors when,

as is the case here, a sentence falls within the statutory range. See Steidl, 2011-Ohio-2320, at ¶

13. Moreover, the trial court, who had previously reviewed the presentence investigation,

explicitly articulated its reasoning for imposing its sentence as follows:

       [T]he court will reiterate so the Court of Appeals is clear that I considered all the
       appropriate factors by reiterating that this was a case where a homeowner noticed
       two individuals outside of his home acting suspiciously. What they were doing
       was casing his house before breaking into it. Based on that [the homeowner]
       called 911. The defendants thinking, I suppose, that the house was empty, entered
       the house, burglarized it. The victim came out of the back bedroom where he was
       told to hide and was confronted by the defendants. The defendants both attacked
       the victim, assaulted the victim, threatened the victim with a knife.

In view of the trial court’s rationale, this Court determines that the trial court did not abuse its

discretion by imposing a seven-year term of imprisonment on the aggravated burglary count and

an eight-year term of imprisonment on the aggravated robbery count. Accordingly, even though

Santamaria had not previously served jail time and purported to feel remorse for his actions,

there is no basis here to conclude that the trial court abused its discretion in sentencing

Santamaria.

       {¶12} Turning to Santamaria’s challenge to the trial court’s imposition of consecutive

sentences in this case, R.C. 2929.14(C)(4) states:

       If multiple prison terms are imposed on an offender for convictions of multiple
       offenses, the court may require the offender to serve the prison terms
       consecutively if the court finds that the consecutive service is necessary to protect
       the public from future crime or to punish the offender and that consecutive
       sentences are not disproportionate to the seriousness of the offender's conduct and
       to the danger the offender poses to the public, and if the court also finds any of the
       following:

       (a) The offender committed one or more of the multiple offenses while the
           offender was awaiting trial or sentencing, was under a sanction imposed
                                                  7


            pursuant to [R.C.] 2929.16, 2929.17, or 2929.18 * * * , or was under post-
            release 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.

The Supreme Court of Ohio has held that, “[i]n order to impose consecutive terms of

imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at

the sentencing hearing and incorporate its findings into its sentencing entry, but it has no

obligation to state reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014–

Ohio–3177, syllabus.

       {¶13} A review of the transcript from the resentencing hearing reveals that after

imposing sentences for aggravated burglary and aggravated robbery, the trial court determined

that it was necessary to run the sentences consecutively. Specifically, the trial court stated:

       Clearly the court feels that a consecutive sentence is necessary to protect the
       public from future crimes and to punish the defendant. I do not feel that the
       consecutive sentences – or the consecutive sentence is not disproportionate to the
       seriousness of the defendant’s conduct here or to the danger he poses to the
       public. And as I noted, at least two of the multiple offenses were committed as
       part of one or more courses of conduct. Harm caused by two or more multiple
       offenses was so great that a single prison term does not adequately reflect the
       seriousness of the defendant’s conduct here.

Given these findings made at the resentencing hearing, as well as the nature of the crimes

committed, this Court can find no error in the trial court’s imposition of consecutive sentences.

       {¶14} Santamaria’s first and second assignments of error are overruled.
                                                 8


                                    Assignment of Error III

       The aggravated robbery and aggravated burglary are allied offenses of
       similar import as Mr. Santamaria Jr.’s sole animus was to unlawfully gain
       drug money from another. [Sic.]

       {¶15} In his third assignment of error, Santamaria argues that the trial court erred by

failing to merge his convictions for aggravated burglary and aggravated robbery because both are

allied offenses of similar import. Specifically, Santamaria contends that he committed both

offenses on the same day, in the same location, within a very shorty time-span, and with a single

animus. This Court disagrees, as Santamaria’s argument is barred by the doctrine of res judicata.

       {¶16} “The doctrine of res judicata prevents repeated attacks on a final judgment and

applies to all issues that were or might have been previously litigated.” (Internal quotations and

citation omitted.) State v. Sanders, 9th Dist. Summit No. 27189, 2014-Ohio-5115, ¶ 6. In

Santamaria II, this Court held that Santamaria’s aggravated burglary and aggravated robbery

offenses were not allied offenses of similar import because Santamaria had completed both

offenses with separate animi.     Santamaria II at ¶ 28.      However, this Court subsequently

remanded the matter so that the trial court could correct a sentencing issue and calculate jail-time

credit. Id. at ¶ 10, ¶ 18. In the present appeal, Santamaria now attempts to reargue the trial

court’s refusal to merge the aggravated burglary and aggravated robbery offenses for purposes of

sentencing. As this Court has already addressed Santamaria’s argument on this point in his prior

appeal, Santamaria’s argument is now barred by the doctrine of res judicata.

       {¶17} Santamaria’s third assignment of error is overruled.

                                    Assignment of Error IV

       The trial court erred by imposing a “no-contact” order between Santamaria
       Jr. and the prosecuting witness.
                                                  9


          {¶18} In his fourth assignment of error, Santamaria contends that the trial court erred by

issuing a no-contact order in addition to a term of imprisonment. This Court agrees.

          {¶19} After the trial court’s November 24, 2014 resentencing hearing, the Supreme

Court of Ohio released its opinion in State v. Anderson, 143 Ohio St.3d 173, 2015–Ohio–2089,

where it held that “[a] trial court cannot impose a prison term and a no-contact order for the same

felony offense.” Id. at ¶ 1. In reaching this decision, the Court noted that the General Assembly

intended prison and community-control sanctions as alternative sentences for a felony offense,

and a trial court must impose either a prison term or a community control sanction absent an

express exception. Id. at ¶ 31.

          {¶20} In this case, the trial court erred by imposing both a prison sentence and a no-

contact order for the felony offenses of aggravated burglary and aggravated robbery.

Accordingly, this matter is hereby remanded with instructions that the trial court vacate the no-

contact order.     See State v. Clayton, 9th Dist. Summit No. 27515, 2015-Ohio-2499, ¶ 12

(instructing the trial court to vacate its no-contact order while keeping its prison sentence in

place).

          {¶21} Santamaria’s fourth assignment of error is sustained.

                                                 III.

          {¶22} In sustaining Santamaria’s fourth assignment of error, and overruling his first,

second, and third assignments of error, the judgment of the Summit County Court of Common

Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with

this opinion.

                                                                         Judgment affirmed in part,
                                                                                  reversed in part,
                                                                              and cause remanded.
                                                10




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



HENSAL, P. J.
CONCURS IN JUDGMENT ONLY.

MOORE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

SARAH MARGARET HULBURT, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
