[Cite as State v. Baker, 2012-Ohio-1833.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97139


                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  NATHANIEL BAKER
                                                    DEFENDANT-APPELLANT



                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-545931

        BEFORE: S. Gallagher, J., Blackmon, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: April 26, 2012
ATTORNEY FOR APPELLANT

Rick Ferrara
2077 East 4th Street
Second Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Ronni Ducoff
       Mary McGrath
       Mark J. Mahoney
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} Appellant Nathaniel Baker appeals his conviction, entered after a plea of

guilty, on three counts of rape in violation of R.C. 2907.02(A)(2) and two counts of gross

sexual imposition (“GSI”) in violation of R.C. 2907.05(A)(4).          For the following

reasons, we affirm in part, reverse in part, and remand.

       {¶2} The record is nearly devoid of any facts.      From what can be gleaned from

the sparse record, Baker is accused of sexual activity with his daughter, who was under

13 years of age at the time of the acts.   The state indicted Baker on ten counts of rape

pursuant to R.C. 2907.02(A)(1)(b), ten counts of GSI in violation of R.C. 2907.05(A)(4),

and ten counts of kidnapping in violation of R.C. 2905.01(A)(4), all of which occurred

between July 1, 2009 and June 30, 2010. Baker was also indicted on one count of rape

in violation of R.C. 2907.02(A)(2), one count of GSI in violation of R.C. 2907.05(A)(1),

and one count of kidnapping in violation of R.C. 2905.01(A)(4), which were alleged to

have occurred on December 31, 2010.        As part of a plea deal brokered by Baker, the

state amended the R.C. 2907.02(A)(1)(b) rape charges to be violations of R.C.

2907.02(A)(2) and removed the sexually violent predator specifications.    Baker pleaded

guilty to all but three of the rape charges, as amended, and two of the R.C. 2907.05(A)(4)

GSI charges.   The trial court sentenced Baker to an aggregate term of imprisonment of

32 years: nine years on each count of rape, to be served consecutively, and five years on

each count of GSI, to be served concurrent to each other, but consecutive to the rape
counts. Baker raised four assignments of error in his delayed appeal. We will address

each in turn.

       {¶3} Baker’s first assignment of error challenges the trial court’s sentencing entry

that incorrectly memorialized the terms of the plea.    The state concedes the error.    At

Baker’s change of plea hearing, the state amended the rape counts to be violations of R.C.

2907.02(A)(2) rather than 2907.02(A)(1)(b).       At the change of plea and sentencing

hearings, all parties and the court correctly noted this amendment; however, the trial court

inadvertently misstated the amendment in the change of plea and sentencing journal

entries.   The trial court restated the rape charges as violations of R.C. 2907.02(A)(1)(b),

as originally indicted.   We, therefore, sustain Baker’s first assignment of error and

remand the case to the trial court for the limited purpose of issuing a nunc pro tunc entry

to correct the error.

       {¶4} In Baker’s second assignment of error, he argues the trial court failed to

comply with Crim.R. 11, and therefore, his plea was not knowingly, voluntarily, or

intelligently made. His second assignment of error is without merit.

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

knowingly, intelligently, and voluntarily.      Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660

N.E.2d 450. We will not reverse such a determination if the trial court substantially

complied with the nonconstitutional requirements of Crim.R. 11(C)(2)(b), which includes
the maximum penalties. 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).     “A plea is in

substantial compliance * * * when it can be inferred from the totality of the circumstances

that the defendant understands the charges against him.” State v. Walker, 8th Dist.

No. 65794, 1994 WL 530892, *2 (Sept. 29, 1994), citing State v. Rainey, 3 Ohio App.3d

441, 446 N.E.2d 188 (10th Dist.1982), paragraph one of the syllabus. Furthermore, a

defendant must show a prejudicial effect, or, in other words, whether the plea would have

otherwise been made. Id.

       {¶6} Baker argues that although the trial court correctly noted that any sentence

received would be mandatory, the court also stated that the prison sentence would only be

mandatory “if” imposed.     Baker argues that the trial court’s language implied that he

might not be sentenced to any prison term and he would not have entered the guilty plea

otherwise.   The court, however, used the “if the sentence is imposed” language when

offering hypothetical prison terms to clarify the mandatory nature of a consecutive

sentence. Such language does not lessen the court’s subsequent admonishment that it

was required to impose some prison term between three and ten years on each rape count.



       {¶7} The trial court stated that it was required to impose a prison term on the three

rape counts, which were the counts subject to the mandatory sentencing.         During the

plea colloquy, the trial court notified Baker that he faced a prison term ranging from three

to ten years and any sentence imposed within that range would be mandatory.
Immediately after discussing the prison term, the trial court stated:   “Now, as the court is

required to impose a prison term on [the three rape counts], these are felonies of the first

degree, [and] you’ll be subject to postrelease control * * *.”      (Tr. 14:22-24.)    Baker

thereafter affirmatively acknowledged the mandatory nature of the penalties and time

served once imposed.     The trial court thus notified Baker of the range of the potential

sentence, the mandatory nature of any time imposed, and the mandatory nature of the

imposition of a prison sentence. The trial court complied with the Crim.R. 11 mandates,

and Baker’s guilty plea was knowingly, voluntarily, and intelligently entered. Baker’s

second assignment of error is overruled.

       {¶8} In his third assignment of error, Baker argues that the trial court failed to

make and record findings substantiating the imposition of consecutive sentences as

required by the newly enacted version of R.C. 2929.14(C)(4) (eff. Sept. 30, 2011).

Baker’s third assignment of error is without merit.

       {¶9} The General Assembly recently amended R.C. 2929.14 and enacted new

language requiring fact-finding for consecutive sentences. State v. Sutton, 8th Dist. No.

97132, 2012-Ohio-1054, ¶ 14; R.C. 2929.14(C)(4) (eff. Sept. 30, 2011). This legislation

became effective September 30, 2011, and is not applicable to Baker.             Baker was

sentenced in May 2011.     At the time Baker was sentenced, it was well established that

“judicial fact-finding is not required before imposition of consecutive prison terms.”

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 99. The Foster

court declared R.C. 2929.14(E)(4) unconstitutional and severed the provision from the
statute.   The trial court complied with Ohio’s sentencing requirements as they existed at

the time Baker was sentenced, and Baker’s third assignment of error is overruled.

       {¶10} Finally, in his fourth assignment of error, Baker argues that the trial court

imposed sentences on allied offenses that were subject to merger.     Baker claims that the

imposition of sentences on the two rape and two GSI claims was based on conduct that

occurred during the same time period and the trial court was therefore required to review

the facts of the crimes to determine whether the offenses were allied.      Baker concedes

that the third rape charge, Count 31 of the indictment, occurred on a distinct date after the

period of time alleged for the other two rape charges.       Baker’s fourth assignment of

error has merit.

       {¶11} The record reflects that Baker never raised or affirmatively waived the issue

of merger in the trial court and therefore has waived all but plain error on appeal. State

v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. “Plain errors

or defects affecting substantial rights may be noticed although they were not brought to

the attention of the court.” Crim.R. 52(B). Plain error exists if the outcome of the

proceedings would have been otherwise.          State v. Harrison, 122 Ohio St.3d 512,

2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61.

       {¶12} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Supreme Court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999),

and established, through a two-tiered test, that the conduct of the accused must be

considered when determining whether offenses are allied offenses of similar import
subject to merger.     The Johnson test first relies on the facts of the criminal conduct in

order to determine whether the offenses are allied offenses of similar import. State v.

Hicks, 8th Dist. No. 95169, 2011-Ohio-2780, ¶ 10; State v. Snuffer, 8th Dist. Nos. 96480,

96481, 96482, and 96483, 2011-Ohio-6430.                “The second tier of the Johnson test

requires the court to look at the ‘state of mind’ of the offender to determine if the

offender acted with a separate animus or [a separate] purpose in committing two or more

offenses.”    Hicks at ¶ 11.         The Johnson test upholds the tenets of the Eighth

Amendment of the United States Constitution, which prohibits multiple punishments for

the same crime.

        {¶13} The shift from Rance to Johnson directly affected the sentencing process
and the issue raised in the current appeal. The Johnson test requires a factual inquiry
into the conduct of the defendant, while Rance called for a comparison of multiple
offenses “solely in the abstract.” Johnson at ¶ 44. Prior to Johnson, appellate review
of allied offense issues was aided by that fact. See State v. Banks, 8th Dist. No. 93880,
2010-Ohio-1762, ¶ 24-34 (vacating defendant’s sentences on involuntary manslaughter
and failure to comply with an order of the police as being allied offenses subject to
merger based on an abstract review). Johnson ushered in a new era where trial courts
are always required to delve into the factual underpinnings of the case in order to resolve
the allied offense issue, akin to the factual inquiries required under State v. Logan, 60
Ohio St.2d 126, 397 N.E.2d 1345 (1979).1



       1
        In Logan, the Ohio Supreme Court adopted guidelines for courts to determine whether
kidnapping and another offense had been committed with a separate animus, holding as follows:

       Where the restraint or movement of the victim is merely incidental to a separate
       underlying crime, there exists no separate animus sufficient to sustain separate
       convictions; however, where the restraint is prolonged, the confinement is secretive, or
       the movement is substantial so as to demonstrate a significance independent of the
       other offense, there exists a separate animus as to each offense sufficient to support
       separate convictions. Id. at syllabus.
       {¶14} Under Johnson, a factual inquiry must be made prior to sentencing.

Johnson at ¶ 47. This is true unless the issue has not otherwise been resolved by

stipulation as contemplated in Underwood.        It is not clear, however, that blanket

statements or stipulations to the offenses being separate, during the plea or sentencing

stages, will resolve the allied offense issue entirely. E.g., State v. Ward, 8th Dist. No.

97219, 2012-Ohio-1199 (finding the fact that the state and the defense counsel agreed

during the plea hearing to the offenses being separate offenses dispositive of the allied

offense issue).   A general agreement merely supplants an allied offense issue with an

ineffective assistance of counsel one — for mistakenly advising the defendant to agree to

multiple sentences for a single crime.   Without the facts of the defendant’s conduct in

the record, the reviewing court will be unable to resolve the ineffective assistance of

counsel claim either.   It seems the better course would be for the state to include in the

record the facts of the defendant’s conduct, satisfying the Johnson test, prior to

sentencing.

       {¶15} Nevertheless, the Underwood majority began with the presumption that the

offenses at issue were allied and subject to merger based on the state’s concession. Id.

at ¶ 30.   We also acknowledge that Underwood was decided under the Rance framework

and did not contemplate a purely conduct-based inquiry to resolve the allied offense issue.

 In simple terms, does Underwood apply to situations where the allied-offense issue was

left unresolved by the trial court and is incapable of being reviewed upon appeal for the
failure to include any evidence of the defendant’s conduct?               This court answered this

question in the affirmative. State v. Corrao, 8th Dist. No. 95167, 2011-Ohio-2517, ¶ 10.

         {¶16} In Corrao, this court extended Underwood and held that “the trial court’s

failure to make the necessary inquiry[, into the allied offense issue post-Johnson,]

constitutes plain error necessitating a remand.” 2             Id.     In Corrao, the trial court

sentenced a defendant on multiple counts of pandering sexually oriented matter involving

a minor and illegal use of a minor in nudity-oriented material without first inquiring into

whether those crimes were allied offenses subject to merger.                  Id.   The record was

devoid of any factual basis to resolve the allied offense question, and this court remanded

the case to the trial court. Id.

         {¶17} The trial court is therefore prohibited from imposing individual sentences

for counts that constitute allied offenses of similar import unless the defendant

specifically stipulates to a separate animus or separate acts, either during the plea or at the

sentencing hearing. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶

26-27.       Further,   “[a] defendant’s plea to multiple counts does not affect the court’s

duty to merge those allied counts at sentencing.”               Underwood at ¶ 26.         A plea to


         There is historical support for this proposition. In State v. Kent, 68 Ohio App.2d 151, 428
         2

N.E.2d (8th Dist.1980), this court held that the trial court has “an affirmative duty to make inquiry as
to whether the allied offense statute would be applicable” prior to sentencing the defendant. Id. at
156; see also State v. Latson, 133 Ohio App.3d 475, 728 N.E.2d 465 (8th Dist.1999). Kent was
implicitly overruled by State v. Comen, 50 Ohio St.3d 206, 211, 533 N.E.2d 640 (1990), which
overruled the defendant’s challenge on an allied offense issue for not being raised at the trial court
level during the plea and sentencing hearings. Of course, Comen has since been itself contradicted
by Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 29.
reduced charges, in and of itself, is not a stipulation to separate animus or separate acts.

Waiver of a fundamental, constitutional right must be an intentional relinquishment or

abandonment of a right.        Id. at ¶ 32.     Defendants cannot “acquiesce away” a

constitutional right. As recognized by then Justice O’Connor,

       [a] defendant may be indicted for multiple offenses that arise out of the

       same conduct, R.C. 2941.25(A), and the trier of fact may find the defendant

       guilty of multiple offenses that arise out of the same conduct without

       running afoul of R.C. 2941.25. The trial court does not consider a

       defendant’s merger argument until the state has proven all of the elements

       of each offense beyond a reasonable doubt. See State v. Whitfield, 124

       Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 18, citing Ohio v.

       Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), and

       quoting State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d

       1047, ¶ 135.   Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

       1061, ¶ 68 (O’Connor, J., concurring).

       {¶18} In the context of pleas, the state satisfies its burden to prove all elements of

each offense beyond a reasonable doubt through the guilty plea, which admits the

allegations in the indictment. However, if the indictment fails to identify the facts

supporting each count, the defendant cannot be said to waive the allied offense issue.

       {¶19} In short, there is no magic cleansing that occurs through the process of case

resolution that satisfies the constitutional prohibition against imposing individual
sentences for counts that constitute allied offenses.     Merger must be addressed and

resolved, or it remains outstanding. As noted in Underwood, “[a] trial court does not

have the discretion to exercise its jurisdiction in a manner that ignores mandatory

statutory provisions.”   Id.   Thus, the constitutional and Ohio statutory prohibition

against multiple punishments for the same conduct must always be addressed in the

absence of a stipulation to a separate animus or separate acts.

       {¶20} We acknowledge that for years appellate courts have declined to review

claims of plain error in other areas of the law where the record did not contain

information that would support reversal. See State v. Florence, 2d Dist. No. 20439,

2005-Ohio-4508 (concerning jury instructions); State v. O’Brien, 5th Dist. No.

2004-CA-00034, 2004-Ohio-7275 (concerning claims of prosecutorial misconduct).

This view has recently crept into the plain error analysis covering merger of offenses.

See State v. Lindsey, 8th Dist. No. 96601, 2012-Ohio-804.

       {¶21} In Lindsey, this court held that in order to demonstrate plain error to reverse

on allied offense issues, a defendant must offer evidence to make an obvious case for

plain error, relying on State v. Snuffer, 8th Dist. Nos. 96480, 96481, 96482, 96483,

2011-Ohio-6430. Snuffer is distinguishable. In Snuffer, the trial court addressed the

allied offense issue at sentencing and this court held that a defendant must offer more

than allegations on appeal to demonstrate error after the trial court determined at

sentencing that some, but not all, of the counts merge. Lindsey, on the other hand,

applied Snuffer in a situation where the trial court did not address the allied offense issue
at sentencing and there were no facts in the record on appeal to determine whether the

offenses were allied.

       {¶22} We acknowledge that Lindsey and Corrao conflict. Both cases dealt with

situations where the record was devoid of facts describing the defendant’s conduct, the

defendant did not stipulate to a separate animus or to separate acts forming the basis of

the crimes, and the defendant failed to raise the merger issue at sentencing.   In Corrao,

this court held that failure to resolve the allied offense issue in the absence of an

Underwood stipulation is plain error, while in Lindsey, this court held that a defendant

needs to proffer a factual basis to support plain error review.   For the current case, we

must adhere to the Corrao decision and the basic premise that the trial court’s failure to

inquire into the allied offense issue at the sentencing hearing is plain error.       R.C.

2941.25 obligates the trial court to determine whether the offenses are allied.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 29.

       {¶23} Before reaching a plain error conclusion in this case, we first must

determine whether there are sufficient facts to review the allied offense issue based on a

review of the limited record.    The current case involved a 33-count indictment that

includes a range of dates from July 1, 2009 to June 30, 2010, for the first 30 offenses

charged and a specific date of December 31, 2010, for the last three counts charged.

These so-called “range of date” indictments are particularly troublesome for allied

offense analysis because it is impossible to distinguish different conduct involving the

same type of offense without reference to distinct dates or facts.    In this instance, the
indictment does not distinguish conduct (such as vaginal or anal intercourse or

cunnilingus) or temporal differences that would aid in the analysis of the rape counts.

The same is true of the GSI counts. The 31st count involved a distinct date, so there is

no issue on the face of the indictment that the last rape count is a separate offense on its

face. The trial court had to find another way to distinguish Counts 1 and 3 involving

rape, as well as Counts 11 and 12 involving GSI to satisfy its burden to inquire into the

conduct of the defendant to resolve the allied offense issue.    The bill of particulars was

nothing more than a recitation of the indictment and offered no separate basis to resolve

the allied offense issue.   The state missed a third opportunity to establish a record to

resolve the allied offense issue in plea negotiations when it failed to secure a stipulation

to separate acts or a separate animus for each crime.    In other words, nothing prior to the

sentencing hearing could be used to resolve the allied offense issue.

       {¶24} It appears the trial court and the parties reviewed the presentence

investigation (“PSI”) report as a basis for determining these offenses were separate and

distinct. The defense counsel even stipulated to this document; however, the PSI report

did not indicate what conduct aligns with which allegation, nor did it allude to any

specific facts that distinguished the criminal acts.     Therefore, any reliance on the PSI

report to determine the allied offense issue is insufficient.

       {¶25}    After a thorough review of the record, we cannot resolve the allied offense

issue as to the two rape counts and the two GSI counts for the same time periods.        The

trial court erred by failing to inquire into the allied offense issue on those four counts
prior to sentencing Baker, and such error constitutes plain error.           Baker’s fourth

assignment of error is sustained, his sentences for rape on Counts 1 and 3 and GSI on

Counts 11 and 12 are vacated, and the case is remanded in order to resolve the allied

offense issue amongst those counts.

       {¶26} The trial court is affirmed in part, reversed in part, and the case remanded

for proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the 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.

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

the Rules of Appellate Procedure.




SEAN C. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, A.J., and
MARY EILEEN KILBANE, J., CONCUR
