[Cite as State v. Flagg, 2011-Ohio-5386.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 95958 and 95986



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     DAKOTA FLAGG
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-509845 and CR-509831

        BEFORE: E. Gallagher, J., S. Gallagher, P.J., and Keough, J.

    RELEASED AND JOURNALIZED:                        October 20, 2011
ATTORNEYS FOR APPELLANT
                                            2


Robert Tobik
Chief Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

       {¶ 1} Defendant-appellant, Dakota Flagg, appeals his sentence from the

Cuyahoga County Court of Common Pleas. Appellant argues that the trial court erred

by failing to merge certain counts as allied offenses at his resentencing; that his sentence

constitutes cruel and unusual punishment; that his sentence is disproportionate to, and

inconsistent with, sentences imposed upon similarly situated defendants; and that the

trial court failed to make necessary findings prior to imposing consecutive sentences.
                                           3

For the following reasons we affirm the judgment of the trial court.

       {¶ 2} The facts of this case were previously set forth by this court in State v.

Flagg, Cuyahoga App. Nos. 93248 and 93279, 2010-Ohio-4247 (Flagg I), as follows:

       “On December 10, 2007, Flagg, age 15, robbed a Marathon gas station located at
       5321 Lee Road, in Maple Heights, Ohio. While committing this robbery, he shot
       and killed the owner of the gas station, Mohammad Khan (Khan). Flagg was
       positively identified by a gas station employee, Mohammad Rahman (Rahman),
       who was present when Khan was killed. Additionally, Flagg’s DNA was found on
       a live round of ammunition at the crime scene.

       On December 28, 2007, Flagg and an accomplice, Andre Dotson, robbed the
       Family Dollar Store located at 17000 Broadway Avenue, in Maple Heights, Ohio.
       Flagg was apprehended by Maple Heights police after a brief foot chase. When
       apprehended, Flagg was holding a loaded 9mm gun in one hand and a bullet in the
       other. An investigation and analysis of the gun by the Ohio Bureau of Criminal
       Investigation (BCI) revealed it was the same weapon used to kill Mohammad
       Khan on December 10, 2007. Based upon this forensic evidence and the
       subsequent DNA evidence implicating Flagg, he became the primary suspect in
       the gas station robbery and murder.

       On January 24, 2008, the State filed delinquency proceedings against Flagg in the
       Cuyahoga County Juvenile Court, Case No. 07111688, stemming from the
       aggravated robbery of the Family Dollar Store.

       That same day, the State filed delinquency proceedings against Flagg, Case No.
       08121060, for the aggravated robbery and aggravated murder of Khan.

       On February 14, 2008, the juvenile court conducted a joint probable cause hearing
       and found that probable cause existed to find Flagg delinquent in both cases. The
       court remanded Flagg to the juvenile detention center and ordered the Court
       Psychiatric Clinic to conduct physical and mental examinations with social history
       to aid the court in its determination at the amenability hearing.

       On April 8, 2008, the juvenile court conducted a joint amenability hearing and
       found that Flagg was not amenable to rehabilitation or care in the juvenile justice
                                            4

       system. That same day, the court issued an order binding Flagg over to the general
       division of the common pleas court for the aggravated murder of Kahn and
       aggravated robbery at the Marathon gas station.

       On April 9, 2008, the juvenile court issued an order binding Flagg over to the
       general division of the common pleas court to face kidnapping and aggravated
       robbery charges stemming from the Family Dollar Store incident.

       On April 23, 2008, a Cuyahoga County Grand Jury indicted Flagg in two separate
       cases. In CR-509831, Flagg was indicted on two counts of aggravated murder,
       unclassified felonies, in violation of R.C. 2903.01(A) and (B); four counts of
       aggravated robbery, first degree felonies, in violation of R.C. 2911.01(A)(1) and
       (A)(3); and one count of kidnapping, a first degree felony, in violation of R.C.
       2905.01(A)(2) and/or (A)(3). Each count carried one- and three-year firearm
       specifications, in violation of R.C. 2941.141 and 2941.145, stemming from the
       December 10, 2007 Marathon gas station incident.

       In CR-509845, Flagg was charged with eight counts of aggravated robbery, in
       violation of R.C. 2911.01(A)(1) and 2911.01(A)(3), and four counts of
       kidnapping, in violation of R.C. 2905.01(A)(2) and/or (A)(3). Each count
       contained one- and three-year firearm specifications, in violation of R.C.
       2941.141 and R.C. 2941.145, and a forfeiture specification, in violation of R.C.
       2941.147. Flagg was also charged with one count of carrying a concealed
       weapon, a fourth degree felony, in violation of R.C. 2923.12(A)(2), stemming
       from the December 28, 2007 Family Dollar Store incident.

       On March 10, 2009, Flagg pled guilty to all charges in each indictment.

       On April 9, 2009, the trial court sentenced Flagg to life imprisonment with the
       possibility of parole after 42 years in CR-509831 and CR-509845.” Id.

       {¶ 3} Appellant appealed his sentence and convictions in Flagg I, asserting that

the juvenile court erred in determining that he was not amenable to rehabilitation in the

juvenile justice system and binding him over to be tried as an adult, and that the trial

court erred in failing to merge certain counts as allied offenses.   Specifically, appellant
                                                 5

argued that his kidnapping counts in CR-509831 and CR-509845 should have merged as

allied offenses with their corresponding aggravated robbery counts.                  We sustained

appellant’s allied offense assignment of error, upholding appellant’s convictions but

vacating his sentences in both cases due to the trial court’s failure to merge the

kidnapping charges with their corresponding aggravated robbery counts. We further

rejected appellant’s challenges to his amenability determination and remanded both cases

to the trial court for the limited purpose of resentencing.

           {¶ 4} The trial court conducted a resentencing hearing on October 5, 2010.             In

each case the trial court found that a prison term was consistent with the purposes of

R.C. 2929.11. In CR-509831, appellant was sentenced to an aggregate sentence of 33

years to life after the trial court merged appellant’s two aggravated murder counts

(Counts 1 and 2), two aggravated robbery counts (Counts 3 and 4), two counts of

aggravated robbery along with a corresponding kidnapping count (Counts 5, 6, and 7),

and appellant’s firearm specifications. In CR-509845, appellant was sentenced to an

aggregate sentence of six years after the trial court merged the corresponding counts of

aggravated robbery and kidnapping.1 The trial court further ordered the 33 years to life


         Counts 1, 2, and 9 merged. Counts 3, 4, and 10 merged. Counts 5, 6, and 11 merged.
       1


Counts 7, 8, and 12 merged. The court also merged each of the three-year firearm specifications into
the original three-year specification in Count 1. Appellant was sentenced to three years on each of
the merged counts and one year on Count 13, carrying concealed weapons. The trial court ordered
these sentences to be served concurrently with one another but consecutively to the three-year merged
                                                  6

 sentence in CR- 509831 and the six- year sentence in CR-509845 to be served

 consecutively to one another for an aggregate sentence of 39 years to life.          Appellant

 brought the present appeal raising the four assignments of error contained in the

 appendix to this opinion.

         {¶ 5} Appellant argues in his first assignment of error that in CR-509831 the trial

 court erred in failing to merge as allied offenses the murder charge in Count 1 with the

 aggravated robbery charge in Count 3 as both applied to the same victim. We do not

 address the merits of this argument because we find the matter to be res judicata.

 Appellant brought a direct appeal from his convictions wherein he raised the issue of

 allied offenses regarding certain counts.         However, appellant failed to raise the allied

 offense argument he now presents.

         {¶ 6} Under the doctrine of res judicata, a final judgment of conviction bars the

 convicted defendant from raising and litigating in any proceeding, except an appeal from

 that judgment, any defense or any claimed lack of due process that was raised or could

 have been raised by the defendant at the trial that resulted in that judgment of conviction

 or on an appeal from that judgment.         State v. Perry (1967), 10 Ohio St.2d 175, 180, 226

 N.E.2d 104. It is well established that res judicata bars the consideration of issues that

 could have been raised on direct appeal.                State v. Saxon, 109 Ohio St.3d 176,


gun specification in Count 1, for an aggregate sentence of six years.
                                            7

2006-Ohio-1245, 846 N.E.2d 824, at ¶16-17.

       {¶ 7} This court has consistently held that “the time to challenge a conviction

based on allied offenses is through a direct appeal—not at a resentencing.” State v.

Poole, Cuyahoga App. No. 94759, 2011-Ohio-716, at ¶13; State v. Padgett, Cuyahoga

App. No. 95065, 2011-Ohio-1927, at ¶8; State v. Ballou, Cuyahoga App. No. 95733,

2011-Ohio-2925.

       {¶ 8} “The issue of whether two offenses constitute allied offenses of similar

import subject to merger has been recognized as an issue that is required to be raised on

direct appeal from a conviction, or else res judicata will bar a subsequent attempt to raise

the issue.” State v. Goldsmith, Cuyahoga App. No. 95073, 2011-Ohio-840, at ¶6, citing

State v. Abuhilwa, Summit App. No. 25300, 2010-Ohio-5997; State v. Rodriquez,

Cuyahoga App. No. 95055, 2010-Ohio-4902.

       {¶ 9} In the present instance, the proper avenue for appellant’s merger challenge

would have been in his earlier appeal.    Therefore, we find appellant’s first assignment

of error to be res judicata.

       {¶ 10} Appellant’s first assignment of error is overruled.

       {¶ 11} Appellant argues in his second assignment of error that his sentence of 39

years to life constitutes cruel and unusual punishment in violation of the Eighth

Amendment and Section 9, Article I of the Ohio Constitution.
                                           8

       {¶ 12} Appellant bases his argument in large part upon the fact that he was 15

years of age when he committed the above offenses.      Appellant cites the United States

Supreme Court’s decision in Roper v. Simmons (2005), 543 U.S. 551, 125 S.Ct. 1183,

161 L.Ed.2d 1, wherein the Supreme Court held that the cruel and unusual punishment

clause of the Eighth Amendment prohibits the states from imposing the death penalty on

juveniles.

       {¶ 13} More recently in Graham v. Florida (2010), 560 U.S. ____ , 130 S.Ct.

2011, 2030, 176 L.Ed.2d 825, the Supreme Court held that the Eighth Amendment

prohibits the states from sentencing juveniles to life imprisonment without possibility of

parole for non-homicide offenses.       The Court reasoned that, “while the Eighth

Amendment forbids a State from imposing a life without parole sentence on a juvenile

nonhomicide offender, it does not require the State to release that offender during his

natural life. Those who commit truly horrifying crimes as juveniles may turn out to be

irredeemable, and thus deserving of incarceration for the duration of their lives. The

Eighth Amendment does not foreclose the possibility that persons convicted of

nonhomicide crimes committed before adulthood will remain behind bars for life. It does

forbid States from making the judgment at the outset that those offenders never will be

fit to reenter society.”   Id.

       {¶ 14} Outside the death penalty context, the Eighth Amendment does not require
                                           9

strict proportionality between crime and sentence but forbids only extreme sentences that

are grossly disproportionate to the crime. State v. Warren, 168 Ohio App.3d 288,

2006-Ohio-4104, 859 N.E.2d 998, ¶29, citing Harmelin v. Michigan (1991), 501 U.S.

957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836. The Ohio Supreme Court has stated that,

“‘[c]ases in which cruel and unusual punishments have been found are limited to those

involving sanctions which under the circumstances would be considered shocking to any

reasonable person,’” and furthermore that “‘the penalty must be so greatly

disproportionate to the offense as to shock the sense of justice of the community.’”

State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶14, citing

State v. Weitbrecht, 86 Ohio St.3d 368, 371, 1999-Ohio-113, 715 N.E.2d 167, quoting

McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 70, 203 N.E.2d 334.

      {¶ 15} Appellant’s prison term of 39 years to life is a cumulative sentence

composed of multiple, individual sentences for a myriad of crimes committed weeks

apart. In such a situation the Ohio Supreme Court has stated, “[F]or purposes of the

Eighth Amendment and Section 9, Article I of the Ohio Constitution, proportionality

review should focus on individual sentences rather than on the cumulative impact of

multiple sentences imposed consecutively. Where none of the individual sentences

imposed on an offender are grossly disproportionate to their respective offenses, an

aggregate prison term resulting from consecutive imposition of those sentences does not
                                            10

constitute cruel and unusual punishment.” State v. Moon, Cuyahoga App. No. 93673,

2010-Ohio-4483, at ¶25, quoting Hairston at ¶20.

          {¶ 16} Appellant does not argue that any particular individual sentence is cruel

and unusual. In fact, each of appellant’s individual prison terms is within the range

authorized by the General Assembly.        Trial courts have discretion to impose a prison

sentence within the statutory range for the offense. Hairston at ¶21, citing State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the

syllabus.     “As a general rule, a sentence that falls within the terms of a valid statute

cannot amount to a cruel and unusual punishment.” Id.

          {¶ 17} Even if we ignored the fact that appellant does not challenge any of his

individual sentences as cruel and unusual, appellant’s argument would still fail. Unlike

the situation presented in Graham, appellant pled guilty and was found to be guilty of a

homicide offense and received a life sentence with parole eligibility after 33 years for

that crime and an additional 6 years for other crimes which he committed.       In State v.

Warren, 118 Ohio St.3d 200, 2008-Ohio-2011, 887 N.E.2d 1145, the Ohio Supreme

Court upheld the mandatory life sentence with the possibility of parole2 of a 15-year-old


         The possibility of parole was noted in State v. Warren, 168 Ohio App.3d 288,
      2


2006-Ohio-4104, 859 N.E.2d 998, at ¶29.
                                            11

convicted of forcibly raping a 9-year-old.      In State v. Hairston, Franklin App. No.

08AP-735, 2009-Ohio-2346, the Tenth District Court of Appeals upheld a sentence of 58

years to life for a juvenile convicted of aggravated murder amongst other crimes.       The

Tenth District, citing the Ohio Supreme Court’s decision in Warren, stated, “[i]f a

15-year-old can be sentenced to life in prison for rape, it should go without saying that a

17-year-old can be sentenced to 58 years for murder.      There is nothing shocking to us

about a young man going to prison for 58 years as punishment for shooting two others,

one to death, without provocation and in cold blood. The sentence is not cruel or

unusual.”   Id. at ¶65.   Similarly, appellant’s sentence of 39 years to life for aggravated

murder amongst other crimes is not cruel or unusual.

       {¶ 18} Appellant’s second assignment of error is overruled.

       {¶ 19} Appellant argues in his third assignment of error that his sentence is

disproportionate to, and inconsistent with, sentences imposed for similarly situated

defendants in violation of R.C. 2929.11. R.C. 2929.11(B) states in pertinent part, “[a]

sentence imposed for a felony shall be * * * commensurate with and not demeaning to

the seriousness of the offender’s conduct and its impact upon the victim, and consistent

with sentences imposed for similar crimes committed by similar offenders.”

       {¶ 20} “A felony sentence should be proportionate to the severity of the offense

committed, so as not to ‘shock the sense of justice in the community.’” State v. Smith,
                                           12

Cuyahoga App. No. 95243, 2011-Ohio-3051, at ¶66, quoting State v. Chafin (1972), 30

Ohio St.2d 13, 17, 282 N.E.2d 46.

       {¶ 21} “A defendant alleging disproportionality in felony sentencing has the

burden of producing evidence to ‘indicate that his sentence is directly disproportionate to

sentences given to other offenders with similar records who have committed these

offenses * * *.’”      Id., quoting State v. Breeden, Cuyahoga App. No. 84663,

2005-Ohio-510, ¶81.     In order to support a contention that his or her sentence is

disproportionate to sentences imposed upon other offenders, a defendant must raise this

issue before the trial court and present some evidence, however minimal, in order to

provide a starting point for analysis and to preserve the issue for appeal. State v. Cole,

Cuyahoga App. No. 93271, 2010-Ohio-3408, at ¶31, citing State v. Edwards, Cuyahoga

App. No. 89181, 2008-Ohio-2068; State v. Nettles, Cuyahoga App. No. 85637,

2005-Ohio-4990; State v. Woods, Cuyahoga App. No. 82789, 2004-Ohio-2700; State v.

Mercado, Cuyahoga App. No. 84559, 2005-Ohio-3429; Breeden; State v. Austin,

Cuyahoga App. No. 84142, 2004-Ohio-5736.

       {¶ 22} Appellant argues that his six-year sentence in CR-509845 violates R.C.

2929.11(B).   The record reveals that at appellant’s resentencing on October 5, 2010, he

noted for the record that his co-defendant in CR-509845 was 17 years of age at the time

of the crime and was not bound over from juvenile court to be tried as an adult as
                                             13

appellant was.    Appellant’s counsel stated, “He was treated in juvenile court.        He’s

three years senior to [appellant], did the exact same conduct.           Nobody got hurt.”

October 5, 2010 tr. 36.

       {¶ 23} Appellant argues that he is similarly situated to his co-defendant.        We

disagree.   In Warren, the Ohio Supreme Court drew a distinction between juveniles

bound over for trial as an adult and juveniles who are found to be amenable to

rehabilitation in the juvenile justice system. Warren, at 211-212.      The Supreme Court

rejected the argument that such offenders are similarly situated for proportionality

purposes. Id. Appellant is not “similarly situated” to his co-defendant in CR-509845

who was not bound over for trial as an adult.       Therefore, appellant cannot rely upon his

co-defendant’s juvenile sentence for the purposes of raising a proportionality challenge.

       {¶ 24} As appellant failed to produce any evidence to indicate that his sentence is

disproportionate to sentences given to other offenders with similar records who have

committed the same offenses we find that appellant failed to meet his burden and

properly raise the issue of proportionality before the trial court.

       {¶ 25} Appellant’s third assignment of error is overruled.

       {¶ 26} In his fourth assignment of error, appellant argues that the trial court erred

in imposing consecutive sentences without making the specific judicial findings required

by R.C. 2929.14(E)(4). Appellant acknowledges that State v. Foster, 109 Ohio St.3d 1,
                                           14

2006-Ohio-856, 845 N.E.2d 470, held that such findings were no longer required but

argues that the Foster remedy of excising sentencing sections that require findings is no

longer necessary as a result of the United States Supreme Court’s decision in Oregon v.

Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, which held that judicial

fact-finding with respect to consecutive terms of imprisonment does not violate the Sixth

Amendment.       Appellant contends that the judicial findings mandated by R.C.

2929.14(E) are still operative and absent such findings his consecutive sentences must be

vacated.

       {¶ 27} The Ohio Supreme Court has rejected this argument.       State v. Hodge, 128

Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. In Hodge, the court held that, “[a]fter

Ice, it is now settled law * * * that the jury-trial guarantee of the Sixth Amendment to the

United States Constitution does not preclude states from requiring trial court judges to

engage in judicial fact-finding prior to imposing consecutive sentences.”       Id. at ¶19.

However, the court went on to hold that the decision in Ice “does not revive Ohio’s

former consecutive-sentencing statutory provisions * * * which were held

unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.”

Hodge at paragraph two of the syllabus. Accordingly, appellant’s fourth assignment of

error is overruled.

       {¶ 28} The judgment of the trial court is affirmed.
                                           15

      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.



EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR



                                        Appendix


Assignment of Error No. 1:
      “In CR-509831, the trial court failed to merge as allied the murder charge (Count
      1) with the aggravated robbery charge in Count 3, where both applied to the same
      victim.”

Assignment of Error No. 2:
      “A sentence of life imprisonment with first parole eligibility at 39 years
      constitutes cruel and unusual punishment.”

Assignment of Error No. 3:
                                        16

      “A sentence of life imprisonment with first parole eligibility at 39 years is
      disproportionate to, and inconsistent with, sentences imposed for similarly
      situated defendants.”

Assignment of Error No. 4:
      “Appellant’s consecutive sentences are contrary to law and violative of due
      process because the trial court failed to make and articulate the findings and
      reasons necessary to justify it.”
