[Cite as State v. Vitt, 2012-Ohio-4438.]


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

STATE OF OHIO                                         C.A. No.       11CA0071-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRIAN R. VITT                                         COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   08-CR-0495

                                   DECISION AND JOURNAL ENTRY

Dated: September 28, 2012



        MOORE, Judge.

        {¶1}     Defendant-Appellant, Brian R. Vitt, appeals from his conviction and sentence set

forth in the May 20, 2011 judgment entry of the Medina County Court of Common Pleas. For

the following reasons, we affirm in part and reverse in part.

                                                 I.

        {¶2}     Mr. Vitt was indicted for one count of kidnapping, in violation of R.C.

2905.01(A)(2), a felony of the first degree, two counts of rape, in violation of R.C.

2907.02(A)(1)(b), felonies of the first degree, and a sexual motivation specification pursuant to

R.C. 2941.147.

        {¶3}     As part of a plea agreement, the State amended its indictment to change the age of

the victim listed in the rape counts from a victim less than ten years old, to a victim less than

thirteen years old, removing the sentencing option of a term of life without parole. In return, Mr.
                                                  2


Vitt pled guilty to one count of kidnapping, with a sexual motivation specification, and two

counts of rape.

       {¶4}       Prior to his sentencing hearing, Mr. Vitt filed a motion to merge the kidnapping

and rape convictions as allied offenses of similar import pursuant to R.C. 2941.25. On May 18,

2009, at Mr. Vitt’s first sentencing hearing, the trial court recited an accounting of facts taken

from the presentence investigation report (“PSI”). The trial court then denied Mr. Vitt’s motion

and sentenced him to 9 years for kidnapping, 10 years for the first count of rape, and 10 years for

the second count of rape, to run consecutively, for a total of 29 years of imprisonment. Mr. Vitt

appealed and we vacated his sentence due to an error in post-release control notification.

       {¶5}       At the resentencing hearing, Mr. Vitt again raised the issue of merging the

kidnapping and rape convictions as allied offenses. The trial court did not merge Mr. Vitt’s

convictions and resentenced him to the same prison term. Mr. Vitt appealed, and due to the

Supreme Court of Ohio’s decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, we

reversed and remanded for the trial court to have an opportunity to consider Johnson when

deciding whether his kidnapping and rape convictions should be merged as allied offenses. See

State v. Vitt, 9th Dist. No. 10CA0016-M, 2011-Ohio-1448, ¶ 8.

       {¶6}       On May 9, 2011, the trial court engaged in a lengthy discussion regarding

Johnson. Based upon its “fact specific analysis” taken from the PSI, the trial court determined

that the kidnapping and rapes were not allied offenses of similar import. Mr. Vitt then asked to

withdraw his plea. The trial court continued the matter in order for Mr. Vitt and his attorney to

have an opportunity to discuss this development.

       {¶7}       On May 16, 2011, Mr. Vitt’s counsel appeared on the record and withdrew the

motion to withdraw the plea. The trial court then stated that, pursuant to Johnson, it needed to
                                                3


make a factual determination as to what happened. After reciting the same version of facts that

had been given by Mr. Vitt and referenced at all previous sentencing hearings, the trial court

again acknowledged that the only statement of facts came from (1) statements Mr. Vitt made to

the police, and (2) statements Mr. Vitt made to the trial court’s presentence investigator.   The

trial court concluded that the kidnapping and rapes should not merge and proceeded to

sentencing as follows:

       [n]ine years of imprisonment on Count Number 1, kidnapping; ten years in prison
       on Count Number II, rape of a child less than thirteen years of age; ten years in
       prison on Count Number III, rape of a child less than thirteen years of age.

       These sentences are to run consecutively, with each other, for a total prison term
       of twenty-nine years in prison.

       {¶8}    Mr. Vitt timely appealed, and sets forth three assignments of error for our

consideration. In order to facilitate our discussion, we address Mr. Vitt’s first and second

assignments of error together.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY DENYING [MR. VITT’S] MOTION TO
       MERGE THE KIDNAPPING COUNT INTO THE TWO RAPE COUNTS,
       PURSUANT TO R.C. 2941.25 AND THE RELEVANT CASE LAW, FOR
       PURPOSES OF SENTENCING [MR. VITT] AND BY SEPARATELY
       CONVICTING AND SENTENCING [MR. VITT] TO A PRISON TERM OF
       NINE YEARS AS TO THAT KIDNAPPING COUNT.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY IMPOSING MAXIMUM CONSECUTIVE
       PRISON TERMS CONTRARY TO R.C. 2929.14(B) AND (E)(4), WHERE [MR.
       VITT] HAD NO PRIOR FELONY RECORD, HAD NOT PREVIOUSLY
       SERVED A PRISION SENTENCE, COOPERATED WITH LAW
       ENFORCEMENT, AND EXPRESSED GENUINE REMORSE FOR THE
       OFFENSES.
                                                  4


        {¶9}    In his first assignment of error, Mr. Vitt argues that, pursuant to R.C. 2941.25 and

relevant case law, the trial court erred in failing to merge the kidnapping and rape counts as

allied offenses of similar import.

        {¶10} At the sentencing hearings, the trial court openly acknowledged that it did not

believe Mr. Vitt’s version of events as taken from the PSI. However, because this case was

concluded by way of a negotiated guilty plea, the “facts” before the trial court were limited to

Mr. Vitt’s self-serving conversations with the police officers and the probation officer involved

with the PSI. This procedural posture highlights the challenges inherent in allowing a criminal

defendant to raise, on appeal, an allied offense attack to a negotiated guilty plea because the

reviewing court has a limited record of facts, if any, upon which to make an allied offenses

analysis. But see State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1; State v. Sawyer, 124

Ohio St.3d 547, 2010-Ohio-923.

        {¶11} Johnson requires the trial court to consider the conduct of the defendant in its

determination regarding whether certain offenses should be merged as allied offenses of similar

import. Here, the record clearly indicates that the trial court utilized the PSI at each of Mr. Vitt’s

sentencing hearings, and, in doing so, reached the same conclusion:             his convictions for

kidnapping and rape should not merge. On appeal, Mr. Vitt seeks to have this Court overturn the

sentence that was imposed but has neglected to provide us with the PSI upon which the trial

court relied.

        {¶12} In State v. Zeffer, 9th Dist. Nos. 19893, 19963, 2000 WL 1825092, *7 (Dec. 13,

2000), quoting State v. Cox, 9th Dist. No. 19773, 2000 WL 372317, *4-5 (Apr. 12, 2000), this

Court stated that:

        Pursuant to App.R. 9, [a] [d]efendant has the burden of providing an adequate
        record of the trial court’s proceedings, including all the necessary transcripts and
                                                5


       documents, for this Court’s review. In reviewing the transcript of the sentencing
       proceeding, it appears that the trial court had before it a presentence investigation
       report. However, this report has not been forwarded to this Court on appeal.
       Because a presentence investigation report was requested in this case, there is a
       presumption that the trial court utilized it in imposing a sentence. Because [the]
       [d]efendant failed to include the presentence investigation report in the record,
       this Court cannot properly review the trial court’s decision. [The] [d]efendant has
       not provided this Court with sufficient evidence, therefore, this Court has no
       choice but to presume the validity of the trial court’s sentencing proceeding and
       affirm.

(Internal citations omitted.)

       {¶13} Here, similar to Zeffer and Cox, the trial court, in its factual analysis, very clearly

relied upon the PSI which Mr. Vitt failed to provide to this Court for its review. Pursuant to R.C.

2951.03(A)(1), if ordered by the trial court, a PSI shall include the following information: (1) an

inquiry into the circumstances of the offense and the criminal record, social history, and present

condition of the defendant, (2) all information available regarding any prior adjudications of the

defendant as a delinquent child and regarding the dispositions made relative to those

adjudications, and (3) any other matter specified in Crim.R. 32.2. Additionally, a PSI may

include: (1) a physical and mental examination of the defendant, including a drug test, and (2) a

victim impact statement. Because Mr. Vitt has not provided this Court with an adequate record,

we cannot properly review the sentence imposed by the trial court. Therefore, we must presume

the validity of the trial court’s sentencing with regard to its determination that, pursuant to

Johnson, the kidnapping and rapes should not merge.

       {¶14} Further, in his second assignment of error, Mr. Vitt argues that the trial court

erred by imposing maximum consecutive prison terms of 10 years each as to his convictions for

two counts of rape, and an additional consecutive prison term of 9 years as to his conviction for

kidnapping, where he (1) had no prior felony record, (2) had not previously served a prison term,
                                                6


(3) cooperated with law enforcement, and (4) pleaded guilty and expressed genuine remorse for

the offenses.

       {¶15} For the reasons stated above, we must also presume the validity of the trial court’s

sentencing with regard to imposing maximum consecutive prison terms of 10 years each for the

rapes, and an additional consecutive prison term for the kidnapping offense.

       {¶16} Mr. Vitt’s first and second assignments of error are overruled.

                               ASSIGNMENT OF ERROR III

       THE IMPOSITION OF MAXIMUM CONSECUTIVE PRISON SENTENCES
       AS TO THE STATUTORY RAPE COUNTS, PLUS A NEAR-MAXIMUM
       PRISON SENTENCE AS TO THE KIDNAPPING COUNT, TOTALING
       TWENTY-NINE YEARS, WAS DISPROPORTIONATE TO THE CRIMES
       COMMITTED—ESPECIALLY IN LIGHT OF SENTENCES IMPOSED ON
       OTHER SIMILAR OFFENDERS—AND CONSTITUTES CRUEL AND
       UNUSUAL PUNISHMENT IN VIOLATION OF THE UNITED STATES AND
       OHIO CONSITUTIONS UNDER THE FACTUAL CIRCUMSTANCES OF
       THIS CASE.

       {¶17} In his third assignment of error, Mr. Vitt argues that the above-stated sentence is

disproportionate to his crimes and constitutes cruel and unusual punishment in violation of the

United States and Ohio constitutions. Specifically, he argues disproportionality because: (1) the

charged offenses did not involve actual physical harm to the victim, or actual physical

penetration of or sexual intercourse with the victim, (2) he had no prior criminal convictions and

had not previously served a prison term; (3) he demonstrated genuine remorse and accepted

responsibility for his actions by cooperating with law enforcement, seeking counseling for his

problems, and pleading guilty to all three counts of the amended indictment; and (4) other

similarly situated and charged offenders in Ohio, including Medina County, in the past decade

have been sentenced to much lower prison terms than 29 years.             We disagree with his

contentions, but on other grounds set forth below, we must reverse and remand.
                                                7


        {¶18} In State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, ¶ 12, the Supreme

Court of Ohio discussed the issue of disproportionality in sentencing with regard to the Eighth

Amendment to the United States and Ohio Constitutions. The Court stated that, “[t]he Eighth

Amendment to the United States Constitution applies to the states pursuant to the Fourteenth

Amendment. The [Eighth] [A]mendment provides: ‘Excessive bail shall not be required; nor

excessive fines imposed; nor cruel and unusual punishments inflicted.’” (Internal citations

omitted.) In concluding that Mr. Hairston’s aggregate prison term of 134 years for pleading

guilty to four counts of aggravated robbery, four counts of kidnapping, and three counts of

aggravated burglary, all with firearm specifications, did not amount to cruel and unusual

punishment, the Court held, “[b]ecause the individual sentences imposed by the [trial] court are

within the range of penalties authorized by the legislature, they are not grossly disproportionate

or shocking to a reasonable person or to the community’s sense of justice and do not constitute

cruel and unusual punishment.” (Emphasis added.) Id. at ¶ 23.

        {¶19}   Further, in State v. Jones, 9th Dist. No. 24469, 2010-Ohio-879, ¶ 39, we stated

that:

        ‘Trial courts have full discretion to impose a prison sentence within the statutory
        range and are no longer required to make findings or give their reasons for
        imposing maximum, consecutive, or more than the minimum sentences.’ State v.
        Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus.
        Therefore, post-Foster, trial courts are still required to consider the general
        guidance factors in their sentencing decisions. R.C. 2929.12(A) sets forth the
        general guidance factors associated with felony sentencing, including the
        seriousness of the conduct, the likelihood of recidivism, and ‘any other factors
        that are relevant to achieving those purposes and principles of sentencing.’ It
        does not, however, require the trial court to make a record of its rationale for
        imposing one sentence over another. See State v. Estright, 9th Dist. No. 24401,
        2009-Ohio-5676, ¶ 60.

        {¶20} Here, the record before us reveals that Mr. Vitt received consecutive sentences of

10 years each for the two rapes, and a consecutive sentence of 9 years for the kidnapping, with a
                                                8


sexual motivation specification, totaling 29 years. Because Mr. Vitt’s consecutive sentences of

10 years each for both rapes fall properly within the range of penalties provided in the sentencing

guidelines, we conclude, as in Hairston, that Mr. Vitt’s aggregate sentence of 20 years for the

rapes is not disproportionate or shocking to a reasonable person or to the community’s sense of

justice, and does not amount to cruel and unusual punishment.

       {¶21} However, in examining Mr. Vitt’s sentence of 9 years for kidnapping, with a

sexual motivation specification pursuant to R.C. 2941.147, to run consecutive with the sentence

for the rapes, we acknowledge that the trial court issued a lesser sentence than required by the

sentencing guidelines. Pursuant to R.C. 2971.03(B)(3)(a), at minimum, the trial court should

have imposed “[a]n indefinite prison term consisting of a minimum of ten years and a maximum

term of life imprisonment.” Although neither party raised this issue below or on appeal, we raise

it sua sponte because Mr. Vitt’s sentence for kidnapping is contrary to law.

       {¶22} “R.C. 2953.08(G)(2) permits an appellate court to ‘increase, reduce, or otherwise

modify a [felony] sentence that is appealed under this section’ or to ‘vacate the sentence and

remand the matter to the sentencing court for resentencing’ if the sentence is contrary to law.”

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 4. Because “[a] sentence is the sanction

or combination of sanctions imposed for each separate, individual offense,” a reviewing court

can remand one offense, of a multiple-offense sentence, for resentencing without vacating the

entire sentence. Saxon at paragraphs one, two, and three of syllabus.

       {¶23} In the present matter, Mr. Vitt appealed his sentences for the rapes and

kidnapping by alleging that they amounted to cruel and unusual punishment. In examining the

merits of Mr. Vitt’s third assignment of error, it came to our attention that, based upon the

sentencing guidelines, the trial court’s sentence of 9 years for kidnapping, with a sexual
                                                 9


motivation specification, is contrary to law. Therefore, pursuant to the sentencing guidelines set

forth in R.C. 2971.03(B)(3)(a), we remand this matter to the trial court in order for it to

resentence Mr. Vitt on the offense of kidnapping, with a sexual motivation specification, so as to

comply with the sentencing guidelines. The trial court’s sentence with respect to the counts of

rape is upheld.

       {¶24} Mr. Vitt’s third assignment of error is overruled, in part, and sustained, in part.

                                                III.

       {¶25} Based upon the foregoing, Mr. Vitt’s first and second assignments of error are

overruled, and Mr. Vitt’s third assignment of error is overruled, in part, and sustained, in part.

Therefore, the judgment of the Medina County Court of Common Pleas is affirmed, in part, and

reversed, in part, and we remand for further proceedings consistent with this decision.

                                                                       Judgment affirmed, in part,
                                                                                reversed, in part,
                                                                            and cause remanded.




       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 Medina, 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.
                                                10


        Costs taxed equally to both parties.




                                                     CARLA MOOORE
                                                     FOR THE COURT



DICKINSON, J.
CONCURS.

WHITMORE, P. J.
DISSENTING.

        {¶26} Although I agree that Vitt’s sentence is contrary to law, I do not agree that the

trial court simply may resentence Vitt. Upon review of the record, it is evident that there are

“other substantial and foundational problems in this matter.” State v. McPherson, 9th Dist. No.

11CA0024-M, 2012-Ohio-859, ¶ 6. And while this Court generally confines its review to the

assignments of error raised on appeal, it is within our discretion to “sua sponte notice plain

error.” Id. I would conclude that this case presents an instance where the sua sponte recognition

of a plain error is appropriate.

        {¶27} Vitt pleaded guilty to one count of kidnapping, in violation of R.C. 2905.01(A)(2)

with an accompanying sexual motivation specification, and two counts of rape, in violation of

R.C. 2907.02(A)(1)(b). Both before and after this Court’s two remands for resentencing, the trial

court sentenced Vitt to nine years on his kidnapping count, ten years on each rape count, and

ordered the sentences to be served consecutively for a total of twenty-nine years in prison. Vitt’s

crime took place after January 2008, and the victim was under the age of thirteen at the time of

the commission of the offense. The kidnapping statute provides, in relevant part, as follows:

        If the victim of the offense is less than thirteen years of age and if the offender
        also * * * pleads guilty to a sexual motivation specification that was included in
                                               11


       the indictment, count in the indictment, or information charging the offense,
       kidnapping is a felony of the first degree, and, notwithstanding the definite
       sentence provided for a felony of the first degree in section 2929.14 of the
       Revised Code, the offender shall be sentenced pursuant to section 2971.03 of the
       Revised Code as follows:

       **

       If the offender releases the victim in a safe place unharmed, the offender shall be
       sentenced pursuant to that section to an indefinite term consisting of a minimum
       term of ten years and a maximum term of life imprisonment.

R.C. 2905.01(C)(3)(b). Consistent with the foregoing language, R.C. 2971.03 provides that if an

offender commits the offense of kidnapping after January 1, 2008, against a victim under the age

of thirteen who he released in a safe place unharmed, and pleads guilty to a sexual motivation

specification, the court shall impose “[a]n indefinite prison term consisting of a minimum of ten

years and a maximum term of life imprisonment.” R.C. 2971.03(B)(3)(a).

       {¶28} The trial court here did not impose an indefinite prison term consisting of ten

years to life in prison on Vitt’s kidnapping charge. Rather, the trial court imposed a nine-year

prison sentence; one year less than the trial court was statutorily obligated to impose. “Judges

have no inherent power to create sentences * * * [and lack] the authority to impose a sentence

that is contrary to law.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 22-23. If a trial

court’s sentence falls “outside the permissible statutory range, the sentence is clearly and

convincingly contrary to law * * *.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 15.

The court here offended the foregoing principles in sentencing Vitt because it disregarded the

statutorily mandated prison term set forth in R.C. 2905.01(C)(3)(b) and R.C. 2971.03(B)(3)(a).

       {¶29} Moreover, in accepting Vitt’s plea, the court informed Vitt that the maximum

possible sentence for his kidnapping charge was ten years.        That statement was incorrect

because, if Vitt pleaded guilty to the sexual motivation specification, the court was required to

impose an indefinite sentence of ten years to life imprisonment. Compounding the issue, the
                                                 12


State also amended Vitt’s indictment on his rape counts in exchange for his guilty plea.

Specifically, the State amended the age of the victim on both charges so that the maximum

possible sentence on each count would be ten years. Vitt’s entire plea was based on his

understanding that he only could receive a maximum of ten years on each individual count to

which he pleaded guilty. Both the trial court and the State informed Vitt that a ten-year term on

each count was the maximum. In reality, the trial court was required to impose a minimum of ten

years on the kidnapping count due to Vitt’s pleading guilty to the sexual motivation

specification. R.C. 2905.01(C)(3)(b); R.C. 2971.03(B)(3)(a).

       {¶30} The enforcement of a plea is unconstitutional if it is not knowingly, voluntarily,

and intelligently entered. State v. Engle, 74 Ohio St.3d 525, 527 (1996). This Court previously

has addressed, sua sponte, plain error arising from the invalidity of a plea when the plea’s

invalidity is discovered on appeal. McPherson, 2012-Ohio-859, at ¶ 6-9. Having reviewed the

record, I would conclude that Vitt’s plea was not knowingly, voluntarily, and intelligently

entered. See State v. Brown, 9th Dist. No. 25103, 2010-Ohio-3387, ¶ 4-13 (concluding that

defendant’s plea was invalid when both his counsel and the trial court had counseled him that he

would be able to appeal from a motion to dismiss after pleading guilty); State v. Smith, 9th Dist.

No. 08CA009338, 2008-Ohio-6942, ¶ 3-12 (vacating defendant’s plea when defense counsel, the

prosecutor, and the trial court all indicated that the defendant would be able to appeal from a

mid-trial evidentiary ruling after pleading no contest).

       {¶31} Vitt argues on appeal that the court abused its discretion in imposing his sentence

and that the duration of his sentence is cruel and unusual punishment. His other assignment of

error addresses the issue of allied offenses of similar import. Yet, in all three assignments of

error, Vitt essentially makes one argument: he should have received less than twenty-nine years
                                                13


in prison. In actuality, Vitt should have received a longer sentence, at least with regard to his

kidnapping count. The difficulty is that the error did not simply taint Vitt’s sentence, it tainted

his plea as well. I would not address any arguments stemming from Vitt’s sentence, as the very

foundation upon which it is premised does not pass constitutional muster. Vitt’s plea was not

knowingly, intelligently, and voluntarily entered. See Engle, 74 Ohio St.3d at 527. Therefore,

Vitt’s plea is invalid. I would vacate Vitt’s sentence and plea and remand the cause to the trial

court for further proceedings. As such, I dissent.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MICHAEL P. MCNAMARA, Assistant
Prosecuting Attorney, for Appellee.
