[Cite as State v. Finney, 2014-Ohio-1054.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99646




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    CORDELL FINNEY
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART; VACATED IN PART;
                      REMANDED FOR RESENTENCING



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-558152

        BEFORE: S. Gallagher, J., Jones, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: March 20, 2014
ATTORNEY FOR APPELLANT

Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jesse W. Canonico
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Defendant-appellant Cordell Finney appeals from his conviction on two

counts of sexual battery, following a guilty plea. For the following reasons, we affirm in

part, vacate in part, and remand for resentencing.

       {¶2} On May 22, 2012, Finney pleaded guilty to two counts of sexual battery in

violation of R.C. 2907.03(A)(1), both third-degree felonies, for sexual conduct with two

minors, who were 12 and 14 years old at the time of the incidents. On June 27, 2012, the

trial court sentenced Finney to a three-year term of imprisonment on each count, to be run

consecutively, classified Finney as a Tier III sex offender, and imposed a five-year

mandatory term of postrelease control. It is from this decision that Finney filed his

delayed appeal, raising three assignments of error, which provide as follows:

       I. The trial court erred when it imposed consecutive sentences.

       II. The trial court erred when it found both counts of sexual battery were not
       allied offenses of similar import and sentenced Finney on both counts.

       III. The trial court did not comply with Criminal Rule 11 before accepting
       Finney’s guilty plea and the guilty plea was not knowingly, intelligently,
       and voluntarily made.

We find merit only with respect to Finney’s first assignment of error.

       {¶3} In his first assignment of error, Finney claims the trial court erred in imposing

consecutive sentences because Finney did not have an extensive criminal history, and

therefore, according to him, the consecutive sentences were not necessary to protect the

public. Finney’s argument assumes that the trial court made the requisite finding that

consecutive sentences were necessary to protect the public. The trial court did not make
any findings before imposing consecutive sentences, and therefore, the case must be

remanded.

       {¶4} The effective date of H.B. No. 86 was September 30, 2011. When the trial

court sentenced Finney on June 27, 2012, the revived version of R.C. 2929.14(C)(4) was

in effect, and the court had to make certain findings before imposing consecutive

sentences. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 2 (8th Dist.), citing State

v. Jones, 8th Dist. Cuyahoga No. 98371, 2013-Ohio-489, ¶ 18; State v. Huber, 8th Dist.

Cuyahoga No. 98206, 2012-Ohio-6139, ¶ 25. At the time of Finney’s sentencing, neither

the parties nor the court had the benefit of this district’s decision in Venes.

       {¶5} Nevertheless, we are constrained to find that the trial court, in this case, failed

to make any of the R.C. 2929.14(C)(4) findings prior to imposing consecutive sentences.

Finney claims that the findings are not clearly and convincingly supported by the facts in

the record, pursuant to R.C. 2953.08(G)(2), in effect, putting the cart before the horse.

We cannot review the propriety of findings that were not made. The lack of the required

findings prior to imposing consecutive sentences is error, and we must vacate Finney’s

sentence and remand for resentencing. Venes. The state concedes this error.          Finney’s

first assignment of error is sustained, albeit on a different basis than was raised by Finney.



       {¶6} In his second assignment of error, Finney claims the trial court erred in

determining that the two counts of sexual battery, one for each victim, were not allied

offenses subject to merger at sentencing.          This raises a separate issue from the
consecutive sentencing. “The imposition of concurrent sentences is not the equivalent of

merging allied offenses.” State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950

N.E.2d 512, ¶ 17. Essentially, Finney claims that although there were two victims, the

sexual conduct was vaguely referenced in the indictment, and therefore he can be

convicted of only one sexual battery offense. We find no merit to Finney’s argument.

      {¶7}    Generally, multiple sentences, even if possibly considered a single act

committed against multiple victims, are constitutionally permissible if the offense is

defined in terms of conduct toward another. State v. Black, 8th Dist. Cuyahoga No.

99421, 2013-Ohio-4908, ¶ 22; State v. Patterson, 8th Dist. Cuyahoga No. 98127,

2012-Ohio-5511, ¶ 35; State v. Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716,

¶ 14; State v. Dix, 8th Dist. Cuyahoga No. 94791, 2011-Ohio-472, ¶ 22. Basically,

separate victims defined in terms of the conduct toward the victim will always equal a

separately punishable crime not subject to merger.1

      {¶8} Finney nonsensically claims that the state failed to adduce evidence

demonstrating acts committed against each of the child victims, based on the argument

that the allegations “vaguely” referenced the fact that Finney took both girls to his

residence and engaged in sexual activity with each of them. We find no merit to his

arguments. As Finney stated, the allegations to which he pleaded guilty indicated that he


      1
        Also, this district has held that “[s]eparate victims alone established a
separate animus for each offense.” State v. Rogers, 2013-Ohio-3235, 994 N.E.2d
499, ¶ 22 (8th Dist.). That case is pending before the Ohio Supreme Court. State v.
Rogers, 136 Ohio St.3d 1508, 2013-Ohio-4657, 995 N.E.2d 1212.
had sexual contact with each child, thereby establishing two separate crimes committed

against two separate victims. Finney’s second assignment of error is overruled.

       {¶9} Finally, in his third assignment of error, Finney claims his plea was not

knowingly, intelligently, or voluntarily entered because he was not adequately explained

his constitutional privilege against self-incrimination during the plea colloquy. We find

no merit to his claim.

       {¶10} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.”       State v. Engle, 74 Ohio St.3d 525, 527,

1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea

was knowing, intelligent, and voluntary within the meaning of Crim.R. 11 for

nonconstitutional issues is substantial compliance, and strict compliance for constitutional

issues. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v.

Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163 (1977).

       {¶11} In this case, the trial court stated that Finney could choose not to testify at

trial and that his silence could not be used against him “in any way.” Tr. 20:15-16.

Finney claims this admonishment was ineffective because he was not specifically told that

if he chose not to testify, nobody could comment on that fact and the jury could not use

the silence to infer guilt.    Finney seeks a scrupulous adherence to the language of

Crim.R. 11, not provided for under Ohio law. See State v. Ballard, 66 Ohio St.2d 473,

480, 423 N.E.2d 115 (1981) (“a rote recitation of Crim. R. 11(C) is not required, and

failure to use the exact language of the rule is not fatal to the plea”).
       {¶12} The trial court complied with Crim.R. 11. In State v. Bassett, 8th Dist.

Cuyahoga No. 90887, 2008-Ohio-5597, ¶ 18, for example, this court determined that the

trial court’s failure to specifically notify the defendant that the court could not infer guilt

from a defendant’s silence did not render the plea invalid. Id. Instead, that trial court

only mentioned that the defendant could choose not to testify and the prosecutor could not

comment on the resulting silence. Id. at ¶ 17. Accordingly, this court held that the trial

court strictly complied with Crim.R. 11. Id. at ¶ 18.

       {¶13} In this case, the trial court properly informed Finney that he had the right to

choose not to testify and that no one could use his silence in any way. This statement

describes his rights to a greater extent than the trial court’s attempt in Bassett, and

therefore, we must affirm. The trial court strictly complied with Crim.R. 11 in advising

Finney of his constitutional right against self-incrimination. Finney’s third and final

assignment of error is overruled.

       {¶14} Finney’s sentence is vacated, and this cause is remanded to the trial court to

consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and if

so, to enter the proper findings on the record.         All other assignments of error are

overruled.

       {¶15} Affirmed in part, vacated in part, and remanded to the lower court for

resentencing consistent with this opinion.

       It is ordered that appellant and appellee share 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 resentencing.

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

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
