[Cite as State v. Santamaria, 2012-Ohio-2375.]


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

STATE OF OHIO                                         C.A. No.     26206

          Appellee

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

                                 DECISION AND JOURNAL ENTRY

Dated: May 30, 2012



          BELFANCE, Judge.

          {¶1}   Defendant-Appellant Angelo Santamaria, Jr. appeals from the judgment of the

Summit County Court of Common Pleas. For the reasons set forth below, we reverse.

                                                 I.

          {¶2}   In June 2011, Mr. Santamaria was indicted on one count of aggravated robbery in

violation of R.C. 2911.01(A)(1)/(3), a felony of the first degree, one count of aggravated

burglary in violation of R.C. 2911.11(A)(1)/(3), a felony of the first degree, and one count of

possessing criminal tools in violation of R.C. 2923.24, a felony of the fifth degree.        Mr.

Santamaria pleaded guilty to the aggravated robbery and aggravated burglary counts. The

possession of criminal tools charge was dismissed. Mr. Santamaria was sentenced to eight years

for aggravated robbery and seven years for aggravated burglary, to be served consecutively, for a

total of fifteen years. Mr. Santamaria has appealed, raising a single assignment of error for our

review.
                                                    2


                                                   II.

       THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE
       AGGRAVATED BURGLARY COUNT WITH THE AGGRAVATED
       ROBBERY COUNT AND IMPOSED CONSECUTIVE SENTENCES UPON
       MR. SANTAMARIA.

       {¶3}    Mr. Santamaria asserts that the trial court committed plain error when it failed at

sentencing to merge his convictions for aggravated robbery and aggravated burglary, asserting

that they are allied offenses of similar import.

       {¶4}    The resolution of this issue is controlled by State v. Johnson, 128 Ohio St.3d 153,

2010–Ohio–6314, in which the Supreme Court of Ohio outlined a new test for determining

whether offenses are allied and subject to merger. See id. at syllabus. Johnson was released

prior to Mr. Santamaria’s sentencing; however, the issue of allied offenses was not raised at

sentencing, and, thus, the trial court did not consider and apply R.C. 2941.25. In addition,

assuming the offenses are allied, the State did not have the opportunity to elect the offense for

which it wanted the trial court to sentence Mr. Santamaria. See State v. Edwards, 9th Dist. No.

25679, 2012-Ohio-901, ¶ 4. Since Johnson, this Court has consistently concluded that the trial

court should consider and apply Johnson in the first instance. See id. Thus, we do not reach the

merits of Mr. Santamaria’s argument and remand the matter to the trial court so that it can

consider and apply Johnson.

                                                   III.

       {¶5}    In light of the foregoing, we reverse the judgment of the Summit County Court of

Common Pleas and remand the matter for proceedings consistent with this opinion.

                                                                             Judgment reversed,
                                                                            and cause remanded.
                                                 3


       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 to Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

GEORGE G. KEITH, Attorney at Law, for Appellant.

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