[Cite as State v. Phipps, 2014-Ohio-2905.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                        No. 13AP-640
v.                                                  :               (C.P.C. No. 12CR-12-6254)

Sharvess Phipps,                                    :              (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                             D E C I S I O N

                                       Rendered on June 30, 2014


                 Ron O'Brien, Prosecuting Attorney, and Barbara A.
                 Farnbacher, for appellee.

                 Timothy Young, Ohio Public Defender, and Carrie Wood, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

T. BRYANT, J.
        {¶ 1} Defendant-appellant, Sharvess Phipps, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas
following his guilty plea to seven counts of aggravated robbery, four counts of aggravated
burglary, five counts of burglary, three counts of kidnapping, one count of felonious
assault, one count of conspiracy, and accompanying firearm specifications.
No. 13AP-640                                                                              2

I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} On December 12, 2012, a Franklin County Grand Jury indicted appellant in
case No. 12CR-6254 on 41 felony counts arising from a series of robberies, burglaries and
home invasions occurring in southeast Columbus between May 18 and June 29, 2012. On
January 17, 2013, appellant, represented by counsel, entered guilty pleas to 21 counts of
the indictment. Specifically, appellant pleaded guilty to 7 counts of aggravated robbery in
violation of R.C. 2911.01, all with 3-year firearm specifications in violation of R.C.
2941.145, 4 counts of aggravated burglary in violation of 2911.11, 3 with 3-year firearm
specifications in violation of R.C. 2941.145, and 1 with a 1-year firearm specification in
violation of R.C. 2941.141, 5 counts of burglary in violation of R.C. 2911.12, 1 with a 1-year
firearm specification in violation of R.C. 2941.141, 3 counts of kidnapping in violation of
R.C. 2905.01, all with 3-year firearm specifications in violation of R.C. 2941.145, 1 count of
felonious assault in violation of R.C. 2903.11, with a 3-year firearm specification in
violation of R.C. 2941.145, and 1 count of conspiracy in violation of R.C. 2923.01. In
exchange for the guilty plea, the prosecutor recommended that the trial court enter a nolle
prosequi to the remaining 20 counts of the indictment. In addition, appellant entered
guilty pleas in 2 other felony cases, 12CR-3426 and 12CR-3573.
       {¶ 3} That same day, the trial court accepted appellant's guilty pleas in all three
cases, found him guilty, dismissed the remaining 20 counts in case No. 12CR-6254, and
set the matter for sentencing on January 25, 2013. The trial court did not order a
presentence investigation ("PSI") report, as one had already been prepared in July 2012
for another pending felony case, case No. 12CR-1628.
       {¶ 4} On January 25, 2013, appellant appeared with counsel for sentencing. In
case No. 12CR-6254, the trial court imposed prison terms for each of appellant's 21 felony
convictions and the accompanying firearm specifications. The court also imposed prison
terms for appellant's convictions in case Nos. 12CR-1628, 12CR-3426, and 12CR-3573.
Appellant's aggregate prison sentence totaled 172 years and 11 months.
       {¶ 5} Due to certain errors in the January 25, 2013 sentencing proceedings, the
trial court conducted a resentencing hearing on June 14, 2013, at which appellant again
appeared with counsel. In a "Corrected Re-Sentencing Judgment Entry" filed on July 23,
2013, the trial court imposed the following sentence:
No. 13AP-640                                                            3

           The Court hereby imposes the following sentence: EIGHT (8)
           YEARS CONSECUTIVE to THREE (3) YEARS for the Firearm
           Specification on Count One CONCURRENT to EIGHT (8)
           YEARS CONSECUTIVE to THREE (3) YEARS for the Firearm
           Specification on Count Two; CONSECUTIVE to FIVE (5)
           YEARS on Count Five; CONSECUTIVE to ELEVEN (11)
           YEARS on Count Seven and CONSECUTIVE to THREE (3)
           YEARS for the Firearm Specification; CONSECUTIVE TO
           ELEVEN (11) YEARS on Count Eight and CONSECUTIVE
           TO THREE (3) YEARS for the Firearm Specification;
           CONCURRENT to ELEVEN (11) YEARS on Count Ten;
           CONSECUTIVE to EIGHT (8) YEARS on Count Eleven and
           CONSECUTIVE TO ONE (1) YEAR for the Firearm
           Specification, CONSECUTIVE to FIVE (5) YEARS on Count
           Fifteen; CONSECUTIVE to ELEVEN (11) YEARS on Count
           Eighteen CONSECUTIVE to ONE (1) YEAR for the Firearm
           Specification; CONSECUTIVE to ELEVEN (11) YEARS on
           Count Twenty CONSECUTIVE to THREE (3) YEARS for
           the Firearm Specification; CONCURRENT to ELEVEN (11)
           YEARS on Count Twenty-One CONSECUTIVE to THREE
           (3) YEARS for the Firearm Specification; CONCURRENT TO
           ELEVEN       (11)   YEARS on        Count    Twenty-Two;
           CONCURRENT TO ELEVEN (11) YEARS on Count Twenty-
           Five; CONCURRENT TO ELEVEN (11) YEARS ON Count
           Twenty-Six; CONSECUTIVE to ELEVEN (11) YEARS on
           Count Twenty-Eight CONSECUTIVE to THREE (3) YEARS
           for the Firearm Specification; CONSECUTIVE to ELEVEN
           (11) YEARS on Count Twenty-Nine CONSECUTIVE to
           THREE (3) YEARS for the Firearm Specification;
           CONSECUTIVE to ELEVEN (11) YEARS on Count Thirty;
           CONSECUTIVE to EIGHT (8) YEARS on Count Thirty-
           One; CONSECUTIVE to FIVE (5) YEARS on Count Thirty-
           Three; CONSECUTIVE to FIVE (5) YEARS on Count
           Thirty-Four; and CONSECUTIVE to THREE (3) YEARS on
           Count Thirty-Five at the Ohio DEPARTMENT OF
           REHABILITATION AND CORRECTIONS. The total on all
           counts is 150 years. Sentence to be served CONSECUTIVE to
           Case Numbers 12CR-1628; 12CR-3426, and 12CR-3573. The
           Court elects not to impose the following: THREE (3) YEAR
           gun specification on Counts Ten, Twenty-Two, Twenty-Five,
           Twenty-Six, Thirty and Thirty-One.
No. 13AP-640                                                                            4

II. ASSIGNMENTS OF ERROR
       {¶ 6} Appellant filed a timely notice of appeal from his conviction and sentence in
case No. 12CR-6254; case Nos. 12CR-1628, 12CR-3426, and 12CR-3573 have not been
appealed. Appellant sets forth the following six assignments of error for our review:
              ASSIGNMENT OF ERROR I:

              The trial court's failure to ensure that Sharvess
              Phipps understood the maximum penalty for his
              plea, when the court failed to (1) ask Sharvess
              whether he understood that his plea could result in a
              "de facto" sentence of life without the possibility of
              parole, and (2) inform Sharvess that each gun
              specifications [sic] must be run consecutively to any
              other prison term or mandatory prison term
              previously or subsequently imposed, rendered
              Sharvess's guilty plea unknowing, unintelligent, and
              involuntary. Fourteenth Amendment to the United
              States Constitution; Section 10, Article I of the Ohio
              Constitution.

              ASSIGNMENT OF ERROR II:

              The trial court abused its discretion when it failed to
              consider statutory sentencing factors. Sent. Hrg. at
              pp. 3-4. R.C. 2929.11, R.C. 2929.12, Blakemore v.
              Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

              ASSIGNMENT OF ERROR III:

              The trial court abused its discretion when it
              sentenced Sharvess to a "de facto" life without parole
              sentence for aggravated burglaries. Sent. Hrg. at pp.
              3-4. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-
              4912, 896 N.E.2d 124, ¶ 19.

              ASSIGNMENT OF ERROR IV:

              The trial court erred by imposing consecutive
              sentences without making the findings required by
              R.C. 2929.14(C) and Crim.R. 32(A)(4) at the
              sentencing hearing, and without have the factual
              basis to make those findings. Sent. Hrg. 3-4, 32.
No. 13AP-640                                                                             5

               ASSIGNMENT OF ERROR V:

               The trial court erred when it imposed separate
               sentences for offenses that arose from the same
               conduct, were not committed separately or with a
               separate animus, and should have been merged for
               sentencing purposes under R.C. 2941.25. Re-Sent. at
               p. 11-12. State v. Johnson, 128 Ohio St.3d 153, 2010-
               Ohio-6314, 942 N.E.2d 1061; Amendment V, U.S.
               Constitution; Section 10, Article I of the Ohio
               Constitution.

               ASSIGNMENT OF ERROR VI:

               Sharvess Phipps was denied the effective assistance
               of counsel as guaranteed by the Sixth and Fourteenth
               Amendments to the United State[s] Constitution and
               Article I, Section Sixteen of the Ohio Constitution
               when defense counsel (1) failed to take any steps to
               ensure or support the sentence requested from the
               trial court; (2) failed to take any steps to cure this
               failure when he admitted he now had information to
               do so; and (3) failed to object when the trial court
               failed to merge allied offenses.

III. DISCUSSION
       A. First Assignment of Error – Guilty Plea
       {¶ 7}    In his first assignment of error, appellant contends his guilty plea was not
knowingly, intelligently, and voluntarily entered because the trial court failed to inform
him of the maximum penalty involved in contravention of Crim.R. 11(C)(2)(a). Appellant
raises two separate issues under this assignment of error: (1) the trial court failed to
ensure he understood that the maximum penalty amounted to "de facto" life
imprisonment, and (2) the trial court failed to inform him that the sentences on the
firearm specifications were statutorily required to be served consecutively to prison terms
imposed on the underlying offenses, and to any other prison term, or mandatory prison
term previously or subsequently imposed.
       {¶ 8} Crim.R. 11 sets forth the procedure a trial court must follow when accepting
a guilty plea in a felony matter. Crim.R. 11(C)(2)(a) through (c) provide that a trial court
must personally address the defendant and (a) determine that the defendant is making
the plea voluntarily, understanding the nature of the charges and the maximum penalty
No. 13AP-640                                                                               6

involved and potential ineligibility for probation or community control sanctions; (b)
inform the defendant of and determine that the defendant understands the effect of the
plea, including the trial court's ability, upon acceptance of the plea, to proceed with
judgment; and (c) inform the defendant of his rights and determine that the defendant
understands the nature of the rights he is waiving, including the right to a jury trial, the
right to confront witnesses against him, the right to have compulsory process for
obtaining witnesses, the right to require the state to prove the defendant's guilt beyond a
reasonable doubt, and the right against self-incrimination had the case gone to trial. State
v. Darks, 10th Dist. No. 05AP-982, 2006-Ohio-3144, ¶ 9.
       {¶ 9} A trial court must strictly comply with the mandates of Crim.R. 11(C)(2)(c)
regarding the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, syllabus. Strict compliance requires that the court expressly inform the
defendant of the constitutional rights he is waiving and make certain the defendant
understands them. Id. at ¶ 27. In contrast, a trial court must only substantially comply
with the requirements of Crim.R. 11(C)(2)(a) and (b) regarding nonconstitutional rights.
Id. at ¶ 14. "Substantial compliance means that under the totality of the circumstances,
the defendant subjectively understands the implications of his plea and the rights he is
waiving." State v. Nero, 56 Ohio St.3d 106, 108 (1990). "If it appears from the record
that the defendant appreciated the effect of his plea and his waiver of rights in spite of the
trial court's error, there is still substantial compliance." State v. Caplinger, 105 Ohio
App.3d 567, 572 (4th Dist.1995), citing Nero at 108-09.        Furthermore, "[a] defendant
must show prejudice before a plea will be vacated for a trial court's error involving
Crim.R. 11(C) procedure when nonconstitutional aspects of the colloquy are at issue."
Veney at ¶ 17. The test for prejudice is whether the plea would have otherwise been made.
Nero at 108.
       {¶ 10} Appellant first contends the trial court failed to satisfy Crim.R. 11(C)(2)(a)
because it did not ensure that he understood the maximum penalty involved, i.e., "de
facto" life imprisonment.     Specifically, appellant contends that under a multi-count
indictment, the trial court must ensure that a defendant understands the "maximum
exposure" for his plea, not just the maximum sentence for each individual count when
those counts can or must be run consecutively to each other. (Appellant's brief, at 13.)
No. 13AP-640                                                                              7

       {¶ 11} We note initially that the rights contained in Crim.R. 11(C)(2)(a) regarding
the defendant's understanding of the maximum penalty involved are nonconstitutional.
Thus, substantial compliance is sufficient. State v. Boggan, 8th Dist. No. 100096, 2014-
Ohio-1428, ¶ 8.
       {¶ 12} At the January 17, 2013 plea hearing, before accepting appellant's guilty
pleas, the trial court engaged in a Crim.R. 11 colloquy with appellant. The trial court first
noted that appellant was entering guilty pleas in three separate felony cases. Through
inquiry, the court determined that appellant was 20 years old, graduated from high
school, and could read, write, and understand English.
       {¶ 13} Thereafter, the court separately discussed each of the three felony cases to
which appellant was pleading guilty. Regarding case. No. 12CR-3426, the court explained
that appellant was pleading guilty to having a weapon under disability, a third-degree
felony, which carried a maximum possible penalty of three years in prison, a $10,000 fine,
and three years of post-release control. When asked if he understood the nature of the
case and the maximum penalty, defendant replied, "Yes, sir." (Jan. 17, 2013 Tr. 6.) Upon
the court's further inquiry, appellant averred that he had no questions regarding the case.
       {¶ 14} With respect to case No. 12CR-3573, the court explained that appellant was
pleading guilty to possession of criminal tools, a fifth-degree felony, which carried a
maximum possible penalty of 12 months in prison, a $2,500 fine, and three years of post-
release control. When asked if he understood "all of that," appellant replied, "Yes, I do."
(Jan. 17, 2013 Tr. 7.) Appellant further averred that he had no specific questions about
the case.
       {¶ 15} As to case No. 12CR-6254, the court explained that appellant was pleading
guilty to (1) seven counts of aggravated robbery, all first-degree felonies, all with
accompanying three-year firearm specifications; (2) four counts of aggravated burglary,
three with accompanying three-year firearm specifications and one with an accompanying
one-year firearm specification; (3) five counts of burglary, all second-degree felonies, one
with an accompanying one-year firearm specification; (4) three counts of kidnapping, all
first-degree felonies, all with accompanying three-year firearm specifications; (5) one
count of felonious assault, a second-degree felony, with an accompanying three-year
firearm specification; and (6) one count of conspiracy, a second-degree felony.
No. 13AP-640                                                                             8

       {¶ 16} The court averred that each of the 7 aggravated robbery counts, the 4
aggravated burglary counts, and the 3 kidnapping counts carried maximum possible
prison terms of 11 years, and that each of the 5 burglary counts, the felonious assault
count, and the conspiracy count, carried maximum possible prison terms of 8 years. The
court further explained that the 3-year firearm specifications attached to the 7 aggravated
robbery counts, 3 of the 4 aggravated robbery counts, the 3 kidnapping counts, and the
felonious assault count were all to be served in addition to the prison terms on the
underlying offenses, and that the 1-year firearm specifications attached to one of the
aggravated burglary counts and one of the burglary counts were to be served in addition
to the prison terms on the underlying offenses. The court further averred that "[i]f all of
those were run consecutive to one another, the total sentence could be as high as 254
years." (Jan. 17, 2013, Tr. 11.)
       {¶ 17} The court also stated that each the first-degree felony counts carried a
maximum fine of $20,000 and a mandatory five-year period of post-release control, and
that each of the second-degree felony counts carried a maximum fine of $15,000 and a
mandatory three-year period of post-release control. Following this explanation, the
court inquired "do you have any questions with regard to which offenses you are pleading
guilty to and what the possible maximum penalty is?"              Appellant responded, "No."
(Jan. 17, 2013 Tr. 11.)
       {¶ 18} The court next stated:
               [I]n addition to those sentences that I have already gone over
               with the maximum possible, there are some mandatory prison
               terms involved here, and they are the firearm specifications.
               Firearm specifications come in two varieties here. One of
               them is a three-year specification. There is a three-year
               firearm specification on counts 1, 2, 7, 8, 10, 21, 22, 25, 26, 28,
               29, 30, 31 and 20. Now, each of those have [sic] a three-year
               firearm specification that must be served consecutive to the
               underlying sentence.

               In addition to that, there are two counts that have one-year
               firearm specifications and there are, therefore, required
               mandatory prison for that one year. And those counts are
               count 11 and count 18 that carry the one-year firearm
               specification.

When asked if he understood, appellant replied "Yes." (Jan. 17, 2013 Tr. 11-12.)
No. 13AP-640                                                                             9

       {¶ 19} Following the court's averment that the remaining charges in the
indictment would be dismissed in exchange for appellant's guilty plea, the court asked
appellant, "do you, sir, have any questions about any of these things that I just have gone
over that you would like to ask [defense counsel] about or you would like to ask me
about"? (Jan. 17, 2013 Tr. 13.) After conferring briefly with defense counsel, appellant
responded, "I don't have anymore [sic] questions." (Jan. 17, 2013 Tr. 13.)
       {¶ 20} The court also noted that it had before it appellant's signed guilty plea forms
in all three felony cases. In response to the court's questions, appellant averred that
(1) trial counsel had gone over the guilty plea forms with him prior to his signing them,
(2) he understood the guilty plea forms, (3) he signed the guilty plea forms voluntarily,
and (4) he understood that by signing the guilty plea forms he was waiving several
constitutional rights.   The guilty plea form in case No. 12CR-6254 stated that
constitutional and statutory rights were explained to appellant both by the court and
appellant's attorney, and that appellant had reviewed the facts and law of his case with his
attorney. In addition, the guilty plea form set forth each of the 21 counts to which
appellant pleaded guilty, along with the maximum possible prison term for each offense
and the accompanying firearm specifications, as well as the possible aggregate maximum
prison term of 254 years. The guilty plea form also indicated that R.C. 2929.13(F)
required mandatory prison terms for the one-year and three-year firearm specifications
and that appellant would not be eligible for community control sanctions, judicial release,
or earned days of credit regarding those prison terms.
       {¶ 21} After reviewing the totality of the circumstances, we conclude that appellant
subjectively understood that his guilty plea resulted in a potential sentence amounting to
life imprisonment. Although there is no simple or precise way to determine what a person
subjectively understands, if a defendant receives proper information, it can ordinarily be
assumed he understood that information. State v. Martin, 8th Dist. No. 63177 (Sept. 23,
1993). Here, the trial court, both in the guilty plea form and during the plea hearing,
informed appellant about the potential maximum prison term for each of the 21 offenses
and accompanying firearm specifications and that the maximum aggregate potential
prison term was 254 years. The court asked appellant if he had questions about the
offenses to which he was pleading guilty or the potential maximum penalty for those
No. 13AP-640                                                                           10

offenses, and he responded in the negative. Appellant averred at the plea hearing that he
could read and write and understood the English language.          Nothing in the record
suggests that appellant did not comprehend that a prison term of 254 years is tantamount
to life imprisonment.
       {¶ 22} Moreover, there is simply nothing in the record to suggest appellant's guilty
plea would have been different had the trial court expressly informed him that the
maximum penalty resulting from his guilty plea would amount to life imprisonment. In
exchange for his guilty plea to 21 counts, appellant avoided trial on an additional 20
counts. In addition, we note that appellant declined the state's initial plea offer of 33
years imprisonment in exchange for his testimony against other persons who may have
been involved in the crimes. Further, as noted above, the trial court correctly informed
appellant both in the guilty plea form and during the plea hearing that a guilty plea to the
21 offenses and the accompanying firearm specifications carried the potential maximum
penalty of 254 years imprisonment. The record is devoid of any evidence indicating
appellant misunderstood the ramifications of his decision. As a result, appellant has
failed to demonstrate that the trial court's failure to invoke the talismanic words "life
imprisonment" were critical to his decision to enter the guilty pleas. Accordingly, under
the totality of the circumstances, appellant has not demonstrated any prejudice resulting
from the trial court's failure to expressly inform appellant that his maximum prison
sentence of 254 years was tantamount to life imprisonment.
       {¶ 23} Appellant next contends the trial court failed to inform him that the
sentences on the firearm specifications were statutorily required to be served
consecutively to prison terms imposed on the underlying offenses and to any other prison
term    or   mandatory      prison    term    previously    or   subsequently     imposed.
R.C. 2929.14(C)(1)(a) provides, in relevant part:
              [I]f a mandatory prison term is imposed upon an offender
              pursuant to division (B)(1)(a) of this section for having a
              firearm on or about the offender's person or under the
              offender's control while committing a felony * * * the offender
              shall serve any mandatory prison term imposed * * *
              consecutively to and prior to any prison term imposed for the
              underlying felony pursuant to [R.C. 2929.14(A)], and
              consecutively to any other prison term or mandatory prison
              term previously or subsequently imposed upon the offender.
No. 13AP-640                                                                            11

       {¶ 24} Appellant maintains that in order for the trial court to substantially comply
with Crim.R. 11(C)(2)(a), it had to inform him that the firearm specifications to which he
was pleading guilty must be served consecutively: (1) to their underlying offenses, (2) to
each other, and (3) to sentences imposed in the other three felony cases to which
appellant entered guilty pleas. Appellant contends the trial court failed to do so, and that
such failure resulted in his not being informed of the maximum penalty involved in
contravention of Crim.R. 11(C)(2)(a).
       {¶ 25} Appellant's claim that he was not properly advised that the prison terms for
the firearm specifications were mandatory and were required to be served consecutively
to the sentences imposed for the underlying felony convictions and to each other is belied
by the record. As noted above, the trial court expressly informed appellant that the prison
terms imposed on each of the one- and three-year firearm specifications were mandatory
and required to be served consecutively to the sentence imposed on the underlying
offense. Further, the signed guilty plea form also specifically advised appellant that
R.C. 2929.13(F) required mandatory prison terms for each of the one- and three-year
firearm specifications.
       {¶ 26} Although appellant correctly notes that the trial court did not expressly
advise him that the firearm specifications in case No. 12CR-6254 must be served
consecutively to the prison terms imposed in the other three felony matters, appellant has
failed to demonstrate resulting prejudice. The record contains no evidence suggesting
that appellant would not have pleaded guilty had the trial court expressly informed him of
this consequence. We note, again, that appellant's guilty plea resulted in the dismissal of
20 additional felony counts, many of which carried firearm specifications. The record
contains no evidence indicating appellant did not understand the consequences of his
decision to plead guilty. As a result, appellant has failed to demonstrate that the trial
court's failure to expressly advise him that the firearm specifications in case No. 12CR-
6254 must be served consecutively to the prison terms imposed in the other three felony
matters affected his decision to enter the guilty pleas. Thus, appellant has failed to
demonstrate prejudice.
       {¶ 27} Appellant's first assignment of error is overruled.
No. 13AP-640                                                                           12

       B. Second, Third, Fourth, and Fifth Assignments of Error – Sentencing
       {¶ 28} In his second, third, fourth, and fifth assignments of error, appellant
essentially challenges the trial court's imposition of a 150-year sentence in 12CR-6254.
More specifically, in his second and third assignments of error, appellant asserts the trial
court abused its discretion in imposing a sentence amounting to "de facto" life
imprisonment without proper consideration and application of the sentencing factors set
forth in R.C. 2929.11 and 2929.12. In his fourth assignment of error, appellant argues the
trial court erred by imposing consecutive sentences without making the findings required
by R.C. 2929.14(C)(4) and Crim.R. 32(A). In his fifth assignment of error, appellant
contends the trial court erred in failing to merge certain convictions for sentencing
purposes in contravention of R.C. 2941.25.         Because these challenges all involve
sentencing issues, we address them together where appropriate.
       {¶ 29} Resolution of these assignments of error requires review both of the
uncontested facts underlying appellant's convictions and sentence as set forth by the
prosecutor at the plea hearing, and the statements made by appellant, defense counsel,
and the trial court at the sentencing hearings.
       {¶ 30} Facts pertaining to the May 2012 incidents are as follows. On May 18, 2012,
appellant robbed two women at gunpoint while they were seated in a car, taking from
them several items of property, including a laptop. Several hours later, appellant posted
on his Facebook account that he had a laptop for sale. On May 25, 2012, appellant
entered a residence through an open garage door and took a purse, wallet, credit card,
Social Security card, bottles of alcohol and identifications. Later that day, appellant
posted on his Facebook account that he needed to sell some items. On May 31, 2012,
appellant, wearing a black mask and black gloves, entered a woman's home, pointed a
firearm at her, covered her mouth with his hand, and demanded money. After the woman
gave him $350 in cash and a necklace, appellant instructed her not to call the police for
ten minutes. He then fled, taking with him the woman's garage door opener. Fifteen
minutes later, appellant posted a picture of himself on his Facebook account holding $352
in cash. Following appellant's arrest, police executed a valid search warrant at appellant's
residence and storage unit and recovered much of the property stolen in the three May
incidents.
No. 13AP-640                                                                          13

        {¶ 31} Facts regarding the June incidents are as follows. Between June 6 and 7,
2012, married homeowners left their garage door open slightly while they were away from
home.    Upon returning to their home, the homeowners discovered that numerous
firearms, jewelry, and other items had been stolen. On June 16, 2012, appellant entered a
residence through an unlocked garage door and stole a Wii game console and game,
jewelry, and a laptop. Appellant's co-defendant, Eddie Mims, admitted to committing this
offense with appellant. On June 20, 2012, at 1:30 a.m., a woman was seated in her living
room when appellant and Mims entered her residence using a garage door opener found
in the woman's car. One of the men told the woman not to move. After she screamed, the
men fled. Sometime later on June 20, 2012, appellant and Mims, wearing black ski masks
and gloves, entered a residence. They held one victim at gunpoint, got the second victim
out of bed at gunpoint, and led both victims around the house looking for items of value.
The two eventually took watches, a laptop, some iPods, and jewelry.
        {¶ 32} On June 23, 2012, at 3:10 a.m., appellant, wearing a dark mask and gloves
and carrying a flashlight and a firearm, entered a residence through a partially open
garage door. Appellant confronted one of the residents, a 79 year-old man. The man
resisted, and appellant struck him in the head with the firearm, causing a laceration which
required hospitalization.   Appellant stole two firearms from the residence.        When
appellant was arrested, gloves in his possession contained DNA which was subsequently
matched to the victim. On June 28, 2012, at approximately 1:30 a.m., appellant entered a
residence through a slightly-open garage door, removed a laptop, and fled when a dog
alerted the resident of the intrusion. On June 28, 2012, at approximately 3:20 a.m.,
appellant, wearing a black ski mask, broke a window in the victim's vehicle and used the
garage door opener to enter the residence. The victim woke to find appellant standing
next to her bed. The victim screamed, waking another person. The victims subsequently
discovered that an iPad was missing from a nightstand. On June 29, 2012, a person
observed appellant and Mims casing a house; both fled when the person shouted at them.
Police officers who were in the vicinity investigating the crime spree apprehended and
arrested appellant. Upon appellant's arrest, police found a firearm that subsequently
provided the basis for the charges in 12CR-3426, along with a mask, gloves and duct tape
that later provided the basis for the charges in 12CR-3573. Property stolen during the
No. 13AP-640                                                                          14

June incidents was recovered from appellant's residence and storage unit pursuant to a
valid search.
          {¶ 33} At the outset of the January 25, 2013 sentencing hearing, the trial court
stated:
                Before I begin, let me say that this is a vicious rampage. This
                is a vicious crime spree. This is a case that involves the most
                serious of offenses short of murder, I suppose. We are talking
                about multiple aggravated burglaries at different dates,
                different times, different places, different offenses.

                But more than that, more egregious perhaps than what we
                may refer to as a normal burglary, these were more serious.
                They were more serious because they were home invasions.
                The difference being apparently this group, they didn't care
                whether anybody was home or not. They just crashed in and
                held the home of people who lived there hostage and took
                everything they wanted and committed individual robberies
                on the people who lived there and on and on and on. It is not
                just a burglary; it is a home invasion. So I think that needs to
                be considered.

(Jan. 25, 2013 Tr. 3-4.)
          {¶ 34} The court continued:
                Also I have to consider that these were done with a firearm.
                These were not offenses in which the defendant was unarmed.
                In most of these cases, probably all, he was armed with a
                firearm. So, there again, that makes the case more serious. I
                am saying these things because these are things that I think I
                must take into consideration in the sentencing.

                Also we have multiple, I need to reiterate this, but we have
                multiple, multiple, multiple offenses. So that sentence that we
                are about to go over will be harsh and it should be [harsh]. If
                we cannot secure our own homes, if we cannot protect people
                in their own homes, then perhaps the Court should fold up
                and close up and quit. In other words, all I am saying is that is
                one of our most fundamental purposes for being here, for
                enforcing these laws, for punishing people who violate these
                laws so that you can have safety, peace of mind in your own
                home. And if we don't enforce the laws in order to provide
                that for you, we are not doing our job. So it is serious and I
                take it seriously, as I think I should.

(Jan. 25, 2013 Tr. 4.)
No. 13AP-640                                                                            15

       {¶ 35} Following these statements, the trial court permitted several of the victims
to discuss the nature of the crimes committed against them and the impact appellant's
actions had on their lives. Without exception, the victims emphasized that appellant's
crime spree terrorized their formerly quiet, safe neighborhood for a five-week period and
that many persons in the neighborhood, including themselves, remained unable to fully
resume normal activities due to ongoing fears and safety concerns.          The 79-year-old
victim noted that appellant struck him with a firearm when he attempted to defend his
home and family.      Another victim averred that he researched Facebook accounts
belonging to appellant and his associates following appellant's arrest and discovered
several postings describing appellant as a gang leader and depicting him brandishing
firearms and using drugs. All of these victims implored the court to impose a sentence
resulting in appellant's lifetime imprisonment.
       {¶ 36} Following the victim impact statements, the prosecutor noted that appellant
was a known gang member and crack addict, and that the PSI prepared in case No. 12CR-
1628 revealed juvenile adjudications on burglary, theft and receiving stolen property
charges, and adult convictions on attempted assault, obstructing justice, drug abuse, and
having a weapon under disability charges.          In addition, the prosecutor averred that
appellant's Facebook account postings revealed that he boasted about his crimes to his
peers and showed no remorse for his actions. The prosecutor further noted that in
telephone calls appellant made from jail five days after his arrest, he stated that he would
not stop committing crimes and that if he was ever caught again, the police would have to
shoot him because he refused to go back to jail.
       {¶ 37} Thereafter, the court provided defense counsel the opportunity to make a
statement in allocution.     Counsel noted that the evidence against appellant was
overwhelming, making it virtually impossible to construct a plausible defense. Counsel
averred that appellant understood the overwhelming nature of the amassed evidence,
cooperated fully with defense counsel and the prosecution, and made the decision to
plead guilty and avoid trial. Counsel noted that appellant's decision to forego a trial saved
the county time and money, saved the victims from a prolonged trial, and brought closure
to the proceedings. Counsel further averred that he did not believe appellant to be "an
evil person," that he was "very engaging, direct * * * [and] healthy" and "could have had a
No. 13AP-640                                                                            16

fabulous life" before committing these offenses. (Jan. 25, 2013 Tr. 31.) Defense counsel
requested that the court impose a sentence that would provide appellant "some hope for a
future outside the institution." (Jan. 25, 2013 Tr. 31.)
       {¶ 38} In addition, defense counsel read appellant's prepared statement. In that
statement, appellant accepted responsibility and expressed remorse for his actions. He
also averred that he did not accept the state's initial plea offer because it required him to
provide potentially damaging information about Mims and others, and he did not think
he would survive prison if labeled a "snitch." (Jan. 25, 2013 Tr. 29.) He stated that at the
time he committed the offenses, he was homeless and using multiple drugs "to help keep
the stress level down and keep the voices out of my head." (Jan. 25, 2013 Tr. 29.) He
further indicated that he believed time in prison would provide the help he needed, that
he was a "good person at heart," and that he "just got caught up in the wrong crowd."
(Jan. 25, 2013 Tr. 30.)
       {¶ 39} Appellant then addressed the court. He apologized to the victims, pledged
that he would never again commit such crimes, and indicated his intention to rehabilitate
himself in prison.
       {¶ 40} Thereafter, the court stated:
              This case is truly a tragedy. It is one of the saddest parts of
              this job in a sense because we come across cases like this
              where you see a young person ruin their whole life, and that is
              the case here.

              This young person has committed these horrendous crimes
              that we have heard about and he can't stay on the streets, can't
              put him on the street. He can't function. That gives me no
              particular pleasure, but that is what has got to be done. * * *

              So the sad side of this is not only the terror and horror that
              the victims have went through, but also the waste of a very
              young life, which is really over at this point; but we have to do
              what needs to be done.

(Jan. 25, 2013 Tr. 32.)
       {¶ 41} At the June 14, 2013 resentencing hearing, the trial court again provided
appellant the opportunity to make a statement in allocution. Appellant averred that he
had nothing to add to the statements he made at the initial sentencing hearing. Defense
No. 13AP-640                                                                            17

counsel urged the court to consider the statements he made on appellant's behalf at the
initial sentencing hearing. He further averred that a recent conversation with appellant's
mother brought to light certain factors in appellant's background that were not articulated
in the PSI, including "a series of abuses" appellant suffered at a young age at the hands of
his father. (June 14, 2013 Tr. 4.)      Counsel asserted that these factors might explain
appellant's mental condition at the time he committed the offenses, and, to that end,
counsel "may end up filing some motion in this case asking for maybe a reconsideration of
the sentence or something." (June 14, 2013 Tr. 5.) Counsel also stated he had advised
appellant about his conduct in prison and that he should take advantage of opportunities
to improve both mentally and physically in an effort to overcome whatever issues caused
him "to go haywire in such a serious way in such a short time." (June 14, 2013 Tr. 6.)
Counsel averred that the case was "completely untriable because of the evidence, the
testimony that would have been presented against him, the physical evidence that was out
there as well as, I think, a confession." (June 14, 2013 Tr. 6.)
       {¶ 42} After acknowledging the lengthy sentence imposed at the original
sentencing hearing, the court stated:
              I can only say that if you review these charges, they are
              multiple, multiple, multiple, and this was tantamount to
              terrorizing the entire neighborhood, a lot of homes. And
              every one of them I dare say without exception are most
              serious charges. So, I understand, but I don't know that I
              have ever had a case that had this many charges, serious
              charges in such short order.

(June 14, 2014 Tr. 6-7.)
       {¶ 43} We note initially that appellant failed to object to his sentence during the
initial or resentencing hearings on any of the grounds he now asserts as error. Thus, he
has forfeited all but plain error. See Crim.R. 52(B); State v. Cochran, 10th Dist. No. 11AP-
408, 2012-Ohio-5899, ¶ 51, citing State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio-
666, ¶ 84. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court." For
an error to be "plain" within the meaning of Crim.R. 52(B), it " 'must be an "obvious"
defect in the trial proceedings.' " State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,
¶ 16, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Reviewing courts notice plain
No. 13AP-640                                                                             18

error " 'with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.' " Barnes at 27, quoting State v. Long, 53 Ohio St.2d 91
(1978), paragraph three of the syllabus. "The burden of demonstrating plain error is on
the party asserting it." Payne at ¶ 17.
       {¶ 44} In State v. Ibrahim, 10th Dist. No. 13AP-167, 2014-Ohio-666, ¶ 16-17, this
court discussed the standard of review applicable to felony sentencing decisions:
              This court reviews a trial court's sentence to determine if it is
              clearly and convincingly contrary to law. State v. Green, 10th
              Dist. No. 10AP-934, 2011-Ohio-6451, ¶ 7, citing State v.
              Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19;
              R.C. 2953.08(B). "In applying this standard, we look to the
              record to determine whether the sentencing court considered
              and properly applied the [non-excised] statutory guidelines
              and whether the sentence is otherwise contrary to law."
              Green at ¶ 7, citing State v. Carse, 10th Dist. No. 09AP-932,
              2010-Ohio-4513, ¶ 60; Burton.

              After Burton, the Supreme Court of Ohio issued a plurality
              decision in State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124,
              2008-Ohio-4912, finding appellate courts must apply a two-
              step approach when reviewing felony sentences. First,
              appellate courts must examine the sentencing court's
              compliance with all applicable rules and statutes in imposing
              the sentence to determine whether the sentence is clearly and
              convincingly contrary to law. If this factor is satisfied, then
              the appellate court reviews the trial court's decision to impose
              a term of imprisonment under the abuse of discretion
              standard. Id. at ¶ 26, 896 N.E.2d 124; State v. Vaughn, 10th
              Dist. No. 09AP-73, 2009-Ohio-4970, ¶ 13.

       {¶ 45} Having preliminarily set forth the pertinent facts and standard of review
applicable to appellant's sentencing challenges, we now turn to a discussion of the
individual assignments of error. Appellant contends in his second and third assignments
of error that the trial court failed to properly consider and apply the sentencing factors set
forth in R.C. 2929.11 and 2929.12.
       {¶ 46} In sentencing a felony offender, the trial court must consider the overriding
purposes of sentencing, which are "to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
No. 13AP-640                                                                            19

or local government." R.C. 2929.11(A). This requires consideration of "the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both." R.C. 2929.11(A). Further, pursuant to R.C. 2929.12(A), the court must consider
the factors set forth R.C. 2929.12(B) and (C) relating to the seriousness of the offender's
conduct, as well as the factors set forth in R.C. 2929.12(D) and (E) relating to the
likelihood of recidivism, along with any other relevant factors. State v. Patrick, 10th Dist.
No. 10AP-26, 2011-Ohio-1592, ¶ 24.
       {¶ 47} In Patrick, this court discussed a trial court's duty with regard to
R.C. 2929.11 and 2929.12, at ¶ 25:
              [T]he failure to indicate at the sentencing hearing that the
              court has considered the factors in R.C. 2929.11 and 2929.12
              does not automatically require reversal. State v. Reed, 10th
              Dist. No. 09AP-1163, 2010-Ohio-5819, ¶ 8. "When the trial
              court does not put on the record its consideration of
              R.C. 2929.11 and 2929.12, it is presumed that the trial court
              gave proper consideration to those statutes." Id., citing Kalish
              at ¶ 18, fn. 4. "A trial court's rote recitation that it has
              considered applicable factors satisfies the court's duty to
              follow the relevant statutes in sentencing an offender." State
              v. Easley, 10th Dist. No. 08AP-755, 2009-Ohio-2984, ¶ 19
              (citations omitted). "The Code does not specify that the
              sentencing judge must use specific language or make specific
              findings on the record in order to evince the requisite
              consideration of the applicable seriousness and recidivism
              factors." State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-
              302.

       {¶ 48} In the present case, the trial court's judgment entry states that it
"considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the
factors set forth in R.C. 2929.12." This court has previously held that such language in the
judgment entry defeats a claim that the trial court failed to consider statutory sentencing
guidelines. Patrick at ¶ 26, citing State v. Reeves, 10th Dist. No. 09AP-493, 2010-Ohio-
4018, ¶ 16; Cochran, 2012-Ohio-5899, ¶ 53, citing State v. Green, 10th Dist. No. 10AP-
934, 2011-Ohio-6451, ¶ 8.
       {¶ 49} Appellant contends that none of the factors enumerated in R.C. 2929.12(B)
indicated that his conduct was more serious than conduct normally constituting the
No. 13AP-640                                                                             20

offense. In considering the factors set forth in R.C. 2929.12, the trial court has the
discretion "to determine the weight to assign a particular statutory factor." State v.
Arnett, 88 Ohio St.3d 208, 215 (2000), citing State v. Fox, 69 Ohio St.3d 183, 193 (1994).
Further, in addition to considering the seriousness and recidivism factors, the trial court
may consider any other factors which are relevant to achieving the purposes and
principles of sentencing. See R.C. 2929.12(A).
          {¶ 50} Here, the trial court emphasized that appellant committed multiple home
invasions in the same neighborhood over a very short period of time.         Indeed, the trial
court characterized appellant's five-week crime spree as "tantamount to terrorizing the
entire neighborhood," (June 14, 2013 Tr. 7) and as a "vicious rampage." (Jan. 25, 2013
Tr. 3.)    The trial court also referenced the apparent "terror and horror" the victims
suffered by appellant's "horrendous crimes." (Jan. 25, 2013 Tr. 32.) The trial court noted
that appellant entered the victims' homes without regard for whether they were present
and that those victims who were present were held hostage. The court further noted that
the vast majority of the crimes were committed with a firearm.
          {¶ 51} The court clearly believed that appellant's actions warranted a harsh
sentence, averring that to do otherwise would afford persons little sense of security in
their homes. Upon review of the record, we find no abuse of discretion in the trial court's
imposition of a lengthy prison sentence on appellant, as he pled guilty to a number of
offenses resulting from multiple home invasions involving a firearm. "The more crimes
an individual commits, the more likely it is that the ultimate prison sentence will indeed
be a lengthy one." State v. Watkins, 10th Dist. No. 13AP-133, 2013-Ohio-5544, ¶ 19
(noting that the severity of sentence resulted in part from the number of crimes
committed).
          {¶ 52} Appellant also contends the trial court failed to consider rehabilitation and
that only three of the recidivism factors in R.C. 2929.12(D) pertain to appellant. The trial
court clearly determined that appellant was not a candidate for rehabilitation. The trial
court implicitly lamented appellant's lack of rehabilitative potential, stating that
appellant, a young man, had "ruin[ed] and "waste[d]" his life. (Jan. 25, 2013, Tr. 32.)
Further, as to the recidivism factors in R.C. 2929.12(D), we note that appellant appears to
concede that three of the five factors apply to him.
No. 13AP-640                                                                             21

       {¶ 53} For the foregoing reasons, we overrule appellant's second and third
assignments of error.
       {¶ 54} In his fourth assignment of error, appellant contends the trial court erred by
failing to make the findings required under Crim.R. 32(A)(4) and R.C. 2929.14(C)(4)
before imposing consecutive sentences.
       {¶ 55} Crim.R. 32(A)(4) provides, in part, that "[a]t the time of imposing sentence,
the court shall * * * [i]n serious offenses, state its statutory findings." R.C. 2929.14(C)(4)
provides:
              (4) If multiple prison terms are imposed on an offender for
              convictions of multiple offenses, the court may require the
              offender to serve the prison terms consecutively if the court
              finds that the consecutive service is necessary to protect the
              public from future crime or to punish the offer and that
              consecutive sentences are not disproportionate to the
              seriousness of the offender's conduct and to the danger the
              offender poses to the public and if the court also finds any of
              the following:

              (a) The offender committed one or more of the multiple
              offenses while the offender was awaiting trial or sentencing,
              was under a sanction imposed pursuant to section 2929.16,
              2929.17, or 292918 of the Revised Code, or was under post-
              release control for a prior offense.

              (b) 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 multiple offenses so committed was so
              great or unusual that no single prison term for any of the
              offenses committed as part of any of the courses of conduct
              adequately reflects the seriousness of the offender's conduct.

              (c) The offender's history of criminal conduct demonstrates
              that consecutive sentences are necessary to protect the public
              from future crime by the offender.

       {¶ 56} "R.C. 2929.14(C)(4) now requires the trial court to make three findings
before imposing consecutive sentences: (1) that consecutive sentences are necessary to
protect the public from * * * future crime or to punish the offender; (2) that consecutive
sentences are not disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public; and (3) that one of the subsections (a), (b), or (c)
No. 13AP-640                                                                          22

apply." State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 76. While the trial
court is not required to use talismanic words to comply with R.C. 2929.14(C)(4) before
imposing consecutive sentences, the trial court must make clear on the record that it
made the required findings. State v. Boynton, 10th Dist. No. 12AP-975, 2013-Ohio-3794,
¶ 9, citing State v. Marton, 8th Dist. No. 99253, 2013-Ohio-3430, ¶ 13 ("it must be clear
from the record that the trial court actually made the findings required by statute").
(Emphasis sic.)
       {¶ 57} The record reveals that although the court discussed the seriousness of
appellant's offenses, the need to protect the public and punish appellant, and that the
offenses were committed as part of a "crime spree," the court's statements were not made
expressly in the context of imposing consecutive sentences. Further, the court did not
make the specific findings required by R.C. 2929.14(C)(4). This court has consistently
held that "when the record demonstrates that the trial court failed to make the findings
required by R.C. 2929.14(C)(4) before imposing consecutive sentences on multiple
offenses, 'appellant's sentence is contrary to law and constitutes plain error.' " State v.
Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 15, quoting State v. Wilson, 10th Dist.
No. 12AP-551, 2013-Ohio-1520, ¶ 18; Boynton at ¶ 12; see also State v. Bailey, 10th Dist.
No. 12AP-699, 2013-Ohio-3596, ¶ 46. Although the state disagrees with the plain-error-
as-a-matter-of-law standard employed in these cases, we are bound by the doctrine of
stare decisis and will follow this court's precedent. Consistent with the holdings in the
above-cited cases, we conclude that the trial court's failure to make the findings required
by R.C. 2929.14(C)(4) before imposing consecutive sentences on appellant's multiple
offenses is contrary to law and constitutes plain error. Accordingly, we must remand this
matter to the trial court to consider whether consecutive sentences are appropriate
pursuant to R.C. 2929.14(C)(4) and, if so, to enter the proper findings on the record.
Boynton at ¶ 12; State v. Corker, 10th Dist. No. 13AP-264, 2013-Ohio-5446, ¶ 28, citing
State v. Bass, 10th Dist. No. 12AP-622, 2013-Ohio-4503, ¶ 44.          Appellant's fourth
assignment of error is sustained.
       {¶ 58} In his fifth assignment of error, appellant contends the trial court erred in
failing to merge the convictions for kidnapping and aggravated robbery stemming from
the June 20, 2012 incident involving two victims. As noted above, the prosecutor's factual
No. 13AP-640                                                                           23

summary of this incident established that appellant and Mims entered a residence, held
one victim at gunpoint, got a second victim out of bed at gunpoint, led both victims
around the house looking for items of value, and ultimately stole several items. Appellant
pled guilty to one count of aggravated burglary, two counts of aggravated robbery (one for
each victim) and two counts of kidnapping (one for each victim). The trial court imposed
concurrent sentences on the aggravated robberies, concurrent sentences on the
kidnappings, and ordered that they be served consecutively to each other and to the
aggravated burglary.      Appellant contends the trial court should have merged the
kidnapping and aggravated robbery convictions for each victim because "the conduct with
respect to each victim was the same for the aggravated robbery and the kidnapping."
(Appellant's brief, at 44.)
       {¶ 59} Pursuant to R.C. 2941.25(A), where a defendant's conduct " 'can be
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be convicted
of only one.' " Roush, 2013-Ohio-3162, ¶ 66, quoting R.C. 2941.25(A) Where, however,
" 'the defendant's conduct constitutes two or more offenses of dissimilar import, or where
his conduct results in two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be convicted of all of them.' "
Id., quoting R.C. 2941.25(B).
       {¶ 60} In State v. Rance, 85 Ohio St.3d 632 (1999), the Supreme Court of Ohio
held that crimes are allied offenses of similar import "[i]f the elements of the crimes
'correspond to such a degree that the commission of one crime will result in the
commission of the other.' " Id. at 636, quoting State v. Jones, 78 Ohio St.3d 12, 13 (1997).
The Supreme Court stated that this analysis requires courts to compare the statutory
elements of the offenses in the "abstract." Rance at 636. Subsequently, the Supreme
Court clarified Rance to hold that, "if, in comparing the elements of the offenses in the
abstract, the offenses are so similar that the commission of one offense will necessarily
result in commission of the other, then the offenses are allied offenses of similar import."
State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, paragraph one of the syllabus.
No. 13AP-640                                                                           24

       {¶ 61} The Supreme Court established a new allied-offense analysis in State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. There, the Supreme Court averred that a
trial court "must determine prior to sentencing whether the offenses were committed by
the same conduct," and therefore "the court need not perform any hypothetical or abstract
comparison of the offenses at issue in order to conclude that the offenses are subject to
merger." Id. at ¶ 47. Accordingly, "[w]hen determining whether two offenses are allied
offenses of similar import subject to merger under R.C. 2941.25, the conduct of the
accused must be considered." Id. at syllabus.
       {¶ 62} Initially, we swiftly dispose of the state's argument that the Johnson
decision left untouched earlier decisions standing for the proposition that, in determining
whether multiple offenses share a similar import, courts are to compare the elements to
determine whether the commission of one offense "will necessarily result" in commission
of the other offense. This court has previously rejected this argument and "we have
consistently applied the two-part test set forth in the Johnson plurality opinion when
conducting allied-offense analysis." State v. Damron, 10th Dist. No. 12AP-209, 2012-
Ohio-5977, ¶ 11, citing State v. Carson, 10th Dist. No. 11AP-809, 2012-Ohio-4501, ¶ 16.
       {¶ 63} Under the two-part Johnson analysis, "we first examine whether the
offenses are able to be committed with the same conduct." Damron at ¶ 11. See also State
v. Rivera, 10th Dist. No. 10AP-945, 2012-Ohio-1915, ¶ 59, citing Johnson at ¶ 48 ("The
first question is whether it is possible to commit one offense and commit the other with
the same conduct."). If it is possible to commit both offenses with the same conduct, the
test then requires the court to determine whether the offenses were, in fact, committed by
the same conduct, "i.e., 'a single act, committed with a single state of mind.' " Johnson at
¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the answer to
both inquiries is yes, the court must merge the allied offense prior to sentencing. Johnson
at ¶ 50. "Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed separately, or
if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B),
the offenses will not merge." (Emphasis sic.) Id. at ¶ 51. "As an appellate court, we must
employ a de novo standard in reviewing the trial court's determination whether
No. 13AP-640                                                                            25

R.C. 2941.25 requires merger of multiple convictions." Corker, 2013-Ohio-5446, ¶ 28,
citing Roush at ¶ 47, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1.
       {¶ 64} Turning to the offenses at issue in the present case, a conviction for
aggravated robbery, as defined in R.C. 2911.01(A), requires proof that an offender, "in
* * * committing a theft offense * * * [had] a deadly weapon on or about the offender's
person or under the offender's control and either display[ed] the weapon, brandish[ed] it,
indicate[ed] that the offender possess[ed] it, or use[d] it."   Kidnapping, in accordance
with R.C. 2905.01, requires proof that an offender "by force, threat, or deception * * *
remove[d] another person from the place where the other person [was] found or
restrain[ed] the liberty of the other person * * * [t]o facilitate the commission of any
felony."
       {¶ 65} "The Supreme Court has recognized that the commission of aggravated
robbery necessarily involves the restraint of the victim." Corker at ¶ 29, citing State v.
Jenkins, 15 Ohio St.3d 164, 198 (1984), fn. 29. Thus, while it is possible to commit
aggravated robbery and kidnapping with the same conduct, the further inquiry under
Johnson is whether the offenses were in fact committed by the same conduct. "Whether a
defendant has established the 'same conduct' requirement of R.C. 2941.25(A) inherently
depends on " ' "the particular facts of each case. " ' " State v. Cochran, 2012-Ohio-5899,
¶ 62, quoting State v. Cooper, 104 Ohio St.3d 293, 2004-Ohio-6553, ¶ 19, quoting Jones
at 14. In this case, the merger issue was not discussed at either of the sentencing hearings,
and the record does not indicate that the trial court considered or applied Johnson. This
court has held that " 'where the record suggests that multiple offenses to which a
defendant has pled guilty or no contest may be allied offenses of similar import, but the
record is inconclusive in that regard, the trial court has a duty to conduct inquiry
concerning the circumstances of the offenses, and the trial court's failure to do so is plain
error.' " State v. Bryant, 10th Dist. No. 12AP-703, 2013-Ohio-5105, ¶ 18, quoting State v.
Cleveland, 2d Dist. No. 24379, 2011-Ohio-4868, ¶ 19.
       {¶ 66} In the instant case, the prosecutor's summary statement at the plea hearing
contains the only factual background regarding the incident. While the limited facts as
recited by the prosecutor raise an issue as to whether the offenses are subject to merger,
the record on appeal is not developed sufficiently to determine whether the offenses were
No. 13AP-640                                                                            26

committed by the same conduct, i.e., "a single act, committed with a single state of mind."
Johnson at ¶ 49. We thus conclude that the matter should be remanded to the trial court
to "apply Johnson [and] to consider appellant's conduct" and determine whether
appellant's offenses should merge. Bryant at ¶ 19, quoting State v. Rivera, 2012-Ohio-
1915, ¶ 66. "[E]ven though offenses may be of similar import, [a defendant] 'can be
sentenced for both if he committed the crimes separately or with a separate animus.' "
Bryant at ¶ 19, quoting State v. Nguyen, 4th Dist. No. 12CA14, 2013-Ohio-3170, ¶ 108.
Appellant's fifth assignment of error is sustained.
       C. Sixth Assignment of Error – Ineffective Assistance of Counsel
       {¶ 67} In his sixth assignment of error, appellant argues his defense counsel
rendered ineffective assistance.    In Ohio, a properly licensed attorney is presumed
competent and the burden is upon appellant to demonstrate counsel's ineffectiveness.
State v. Davis, 10th Dist. No. 13AP-98, 2014-Ohio-90, ¶ 20, citing Vaughn v. Maxwell, 2
Ohio St.2d 299, 301 (1965). In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court of the United States established a two-prong test for ineffective assistance
of counsel. Under Strickland, the defendant first must demonstrate that counsel's
performance was outside the range of professionally competent assistance and, therefore,
deficient. Id. at 687. Second, the defendant must demonstrate that counsel's deficient
performance prejudiced the defense and deprived the defendant of a fair trial. Id. A
defendant establishes prejudice if "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.               A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Id. at 694. In the context of convictions based upon guilty pleas, the prejudice
element of an ineffective assistance of counsel claim generally requires a showing that
there is a reasonable probability that, but for counsel's errors, the defendant would not
have pleaded guilty and would have insisted on going to trial. State v. Bonnet, 12th Dist.
No. CA96-07-059 (Mar. 3, 1997), citing Hill v. Lockhart, 474 U.S. 52, 59 (1985).
       {¶ 68} Appellant first contends his defense counsel was ineffective because he
failed to conduct a reasonable investigation into relevant mitigation factors prior to
sentencing. Appellant particularly notes defense counsel's averments at the resentencing
hearing regarding the discussion he had with appellant's mother about alleged childhood
No. 13AP-640                                                                            27

abuse inflicted on appellant by his father and that he might file a motion for
reconsideration based upon this newly discovered information. Appellant argues that
defense counsel did not reveal the substance of the mother's statement, did not request a
continuance to conduct further investigation, did not have the mother provide a
statement at the sentencing hearing, and did not file a motion for reconsideration of the
sentence.   Appellant maintains that had defense counsel properly prepared for the
sentencing hearings, the outcome of the sentencing proceeding would have been different.
       {¶ 69} "An attorney who fails to conduct a reasonable investigation into a
defendant's history and background provides ineffective assistance." State v. Hunter, 131
Ohio St.3d 67, 2011-Ohio-6524, ¶ 104. However, appellant's arguments regarding defense
counsel's alleged failure to conduct a satisfactory investigation are purely speculative and
would require resort to evidence outside the record.       "When affidavits or other proof
outside the record are necessary to support an ineffective assistance claim, however, it is
not appropriate for consideration on direct appeal." State v. Zupancic, 9th Dist. No.
12CA0065, 2013-Ohio-3072, ¶ 4, citing State v. Madrigal, 87 Ohio St.3d 378, 390-91
(2000). " '[A] claim of ineffective assistance of counsel on direct appeal cannot be
premised on decisions of trial counsel that are not reflected in the record of proceedings
* * * [and] [s]peculation regarding the prejudicial effects of counsel's performance will not
establish ineffective assistance of counsel.' " Zupancic at ¶ 4, quoting State v. Leyland,
9th Dist. No. 23833, 2008-Ohio-777, ¶ 7.
       {¶ 70} Appellant cites nothing in the record to demonstrate that his counsel
conducted a less than adequate investigation into appellant's background. We note that
defense counsel spoke on appellant's behalf and read appellant's prepared statement,
which included mitigating factors pertaining to his homelessness, drug use, and mental
health issues as a purported explanation for his criminal behavior. In addition, defense
counsel provided appellant the opportunity to speak at the sentencing hearing, and
appellant expressed remorse for his actions. Further, we have no way of knowing whether
revelation of the substance of the mother's statement, allowing the mother to speak at the
sentencing hearing, requesting a continuance of the hearing, or filing a motion for
reconsideration would have been beneficial.
No. 13AP-640                                                                           28

       {¶ 71} Moreover, even if defense counsel performed deficiently, appellant has
failed to establish prejudice, as nothing in the record suggests that his sentence would
have been different had defense counsel more fully developed the alleged childhood abuse
mitigation evidence. Appellant was convicted of 21 felony offenses involving use of a
firearm, resulting in a 150-year sentence. Appellant fails to identify any reason why the
trial court would have imposed a lesser sentence even if defense counsel had done what
appellant now contends should have been done.
       {¶ 72} Appellant also argues that his defense counsel was ineffective for not
objecting to the trial court's failure to merge the kidnapping offenses and the aggravated
robbery offenses pertaining to the June 20, 2012 incident involving two victims. We note
initially that appellant makes no separate argument in support of this claim in
contravention of App.R. 16(A)(7). Accordingly, this court may disregard this portion of
the assignment of error. App.R. 12(A)(2). Moreover, as previously determined in our
disposition of appellant's fifth assignment of error, the merger issue must be remanded
for resolution by the trial court in the first instance.   Accordingly, the issue whether
appellant's defense counsel was ineffective in failing to object is moot, and we need not
address it. App.R. 12(A)(1)(c).
       {¶ 73} Thus, we overrule in part and render moot in part appellant's sixth
assignment of error.
       {¶ 74} For the foregoing reasons, appellant's first, second, and third assignments
of error are overruled, appellant's fourth and fifth assignments of error are sustained, and
appellant's sixth assignment of error is overruled in part and moot in part. Accordingly,
the judgment of the Franklin County Court of Common Pleas is affirmed in part and
reversed in part and remanded to that court for further proceedings in accordance with
law and consistent with this decision.
                          Judgment affirmed in part; reversed in part; cause remanded.

                            KLATT and CONNOR, JJ., concur.

              T. BRYANT, J., retired, of the Third Appellate District,
              assigned to active duty under authority of Ohio Constitution,
              Article IV, Section 6(C).
