         [Cite as State v. Gerth, 2014-Ohio-4569.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-120392
                                                         TRIAL NO. B-1101792
        Plaintiff-Appellee,                          :

  vs.                                                :     O P I N I O N.

MARK GERTH,                                          :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: October 17, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

J. Thomas Hodges, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Presiding Judge.


       {¶1}       Defendant-appellant Mark Gerth brings a second appeal of the

judgment of the Hamilton County Court of Common Pleas convicting him of two

counts of murder, one count of aggravated vehicular assault, one count of failing to

comply with an order of a police officer, two counts of failing to stop after an

accident, and one count of receiving stolen property.

       {¶2}       Gerth was convicted of the offenses after a jury trial. The trial

court ordered the sentences for each of the convictions to be served consecutively, for

an aggregate prison term of 48 and one-half years to life.

       {¶3}       Gerth appealed the convictions, and this court affirmed the

judgment of the trial court in State v. Gerth, 1st Dist. Hamilton No. C-120392, 2013-

Ohio-1751. Gerth then filed a motion, under App.R. 26(B), to reopen his direct

appeal on the basis that he had been denied the effective assistance of appellate

counsel.

       {¶4}       This court granted Gerth’s motion, finding that there was a genuine

issue as to whether appellate counsel had been ineffective for failing to argue that the

two counts of failing to stop after an accident were allied offenses of similar import.

Accordingly, we appointed new appellate counsel and ordered that counsel brief the

issue of allied offenses and any other nonfrivolous assignments of error not

previously considered.

       {¶5}       A complete statement of the facts in this case is set forth in our

previous opinion. See Gerth, supra. Briefly, Gerth was driving a stolen car while

intoxicated. He crashed into a taxicab and then fled. The crash resulted in the

deaths of both of the taxi’s occupants, and in severe injury to Gerth’s passenger,

Donald Evans.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



                          Allied Offenses of Similar Import

       {¶6}       In his first assignment of error, Gerth contends that previous

appellate counsel was ineffective in failing to assert that the two counts of failing to

stop after an accident under R.C. 4549.02 were allied offenses.

       {¶7}       In a reopened appeal under App.R. 26, our inquiry is whether “the

performance of appellate counsel was deficient and the applicant was prejudiced by

that deficiency.” App.R. 26(B)(9); see State v. Haynes, 1st Dist. Hamilton No. C-

960794, 1999 Ohio App. LEXIS 809 (Mar. 5, 1999).

       {¶8}       In this case, we agree that appellate counsel was deficient. Under

R.C. 2941.25, a defendant may be sentenced for only one of multiple counts of failing

to stop after an accident even where there are multiple victims in a single collision, as

“[t]he unit of prosecution [under R.C. 4549.02] is not the number of victims, but the

number of collisions.” State v. Hundley, 1st Dist. Hamilton No. C-060374, 2007-

Ohio-3556, ¶ 15, overruled on other grounds, State v. Moore, 1st Dist. Hamilton No.

C-070421, 2008-Ohio-4116. Our holding in Hundley was unaffected by the Ohio

Supreme Court’s adoption of a conduct-based test for determining allied offenses in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. See State v.

Temaj-Felix, 1st Dist. Hamilton No. C-120040, 2013-Ohio-4463, ¶ 10.

       {¶9}       Here, it was undisputed that the two counts of failing to stop

related to the same collision, and the state concedes that the trial court erred in

imposing multiple sentences for the offenses.       Accordingly, we sustain the first

assignment of error.

                               Consecutive Sentences

       {¶10}      In his second assignment of error, Gerth argues that appellate

counsel was ineffective for failing to assign as error the trial court’s failure to make

the requisite statutory findings for imposing consecutive sentences.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11}      Under R.C. 2929.14(C)(4), the court must first find that

consecutive sentences are necessary to protect the public or to punish the offender.

Second, the court must find that consecutive sentences are not disproportionate to

the offender’s conduct and to the danger the offender poses to the public. Finally,

the court must find that at least one of the following applies: (1) the offender

committed one or more of the offenses while awaiting trial or sentencing, while

under a community-control sanction, or on postrelease control; (2) 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 offenses was so great or unusual that no single

prison term would adequately reflect the seriousness of the offender’s conduct; or

(3) the offender’s criminal history demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender. See State v.

Alexander, 1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 15.

       {¶12}      Here, we agree with Gerth that previous appellate counsel was

ineffective. At the sentencing hearing, the trial court made numerous comments

about Gerth’s abysmal criminal record, his lack of remorse, and other aggravating

factors.   But the court did not make any findings under R.C. 2929.14.             We

acknowledge that a “talismanic” recitation of the statutory findings is not required.

See State v. Roebuck, 1st Dist. Hamilton No. C-130350, 2014-Ohio-1708, ¶ 3.

Nonetheless, the comments in the instant case cannot be construed as sufficient.

       {¶13}      Moreover, during the pendency of this appeal, the Supreme Court

of Ohio held that a trial court must not only make the statutory findings at the

sentencing hearing, but must also incorporate those findings into its sentencing

entry. State v. Bonnell, __Ohio St.3d __, 2014-Ohio-3177, __ N.E.3d __, syllabus.

This court has applied Bonnell to pending appeals. See, e.g., State v. Woods, 1st Dist.

Hamilton Nos. C-130413 and C-130414, 2014-Ohio-3892, ¶ 76.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14}       Consecutive sentences were certainly warranted in this case. But

because the trial court did not adhere to R.C. 2929.14(C)(4), we must sustain the

second assignment of error.

                           Gerth’s Right of Confrontation

       {¶15}       In his third and final assignment of error, Gerth maintains that the

trial court erred when it admitted into evidence the medical records of Donald Evans.

Therefore, he contends that his previous appellate attorney was remiss in failing to

raise the issue.

       {¶16}       We are not persuaded. The records were admissible under Evid.R.

803(6), the hearsay exception for business records, and under R.C. 2317.422, which

provides that the records of a licensed medical facility may be authenticated without

live testimony if properly endorsed by a qualified representative of the facility.

       {¶17}       But Gerth contends that, even if the admission of the records was

proper under the rules of evidence and the statute, their admission still violated his

right to confront his accusers.

       {¶18}       We find no merit in this argument. The Supreme Court of Ohio has

held that the admission of medical records under R.C. 2317.422 does not violate a

defendant’s Sixth Amendment right of confrontation in light of the trustworthiness

of such records. See State v. Spikes, 67 Ohio St.2d 405, 410, 423 N.E.2d 1122 (1981).

We recognize that Spikes was decided long before the United States Supreme Court

clarified the definition of a “testimonial” statement under the Confrontation Clause

in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

But in the case at bar, Gerth’s trial counsel conceded that any testimonial statements

of Evans had been redacted prior to the admission of the records into evidence.

Accordingly, previous appellate counsel was not derelict in failing to raise the issue,

and we overrule the third assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                      Conclusion

       {¶19}      We vacate the sentences in part and remand the cause for the trial

court to sentence Gerth, at the option of the state, on one count of failing to stop after

an accident; to make the requisite findings for consecutive sentences; and to

incorporate those findings into its sentencing entry. In all other respects, we affirm

the judgment of the trial court.

          Judgment affirmed in part, sentences vacated in part, and cause remanded.



HENDON and DINKELACKER, JJ., concur.




Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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