[Cite as State v. Nunez, 2016-Ohio-812.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102946
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VICTOR NUNEZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-09-522573-A
BEFORE: S. Gallagher, J., Kilbane, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: March 3, 2016
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Victor Nunez appeals the sentence imposed upon his resentencing.
Upon review, we affirm the judgment of the trial court.
{¶2} In 2009, Nunez was found guilty of three counts of rape, two counts of kidnapping,
one count of aggravated burglary, and one count of intimidation. Nunez was sentenced to a total
aggregate prison term of 22 years on these counts. On appeal, this court found that Nunez was
improperly convicted and sentenced for allied offenses with regard to counts of rape and
kidnapping. State v. Nunez, 8th Dist. Cuyahoga No. 93971, 2010-Ohio-5589, ¶ 40-41 (“Nunez
I”). As a result, the case was remanded for a new sentencing hearing. Id. at ¶ 42.
{¶3} At the new sentencing hearing, the state elected to have the kidnapping under Count
10 merge into the rape under Count 9, and the kidnapping under Count 13 merge into the rape
under Count 12. Following merger of the allied offenses, the trial court sentenced appellant on
the remaining counts. Nunez’s total aggregate prison term remained 22 years. With regard to
running the sentences concurrently or consecutively, the trial court stated as follows:
As it relates on count seven, the aggravated burglary, a felony of the first
degree, the Court is sentencing the defendant to four years on that count.
On count eight, the rape, a felony of the first degree, the Court is
sentencing the defendant to eight years, and that will be consecutive to count
seven.
On count nine, also rape, a felony of the first degree, as well the merger of
count 10, the kidnapping, but the election is to count nine, the Court will sentence
the defendant to eight years, and that will be consecutive to count seven and count
eight.
In addition, on count 11, the intimidation, a felony of the third degree, the
Court sentences the defendant to two years, and that will be consecutive to counts
seven and nine.
On count 12, the rape, a felony of the first degree, the Court will sentence
the defendant to eight years, and that will be concurrent with all of the remaining
counts the Court has sentenced the defendant on. As well, I’ll note that the
kidnapping was merged with that count as well.
***
Your total aggregate sentence again is 22 years, which is the identical
sentence that I gave to you at your sentencing hearing.
(Emphasis added.) The trial court also imposed five years of mandatory postrelease control and
classified appellant as a Tier III sex offender.
{¶4} Nunez was granted a writ of habeas corpus in federal court, which instructed that
Nunez be granted leave to take a delayed appeal. Consistent therewith, this court granted
Nunez’s motion for leave to file a delayed appeal.
{¶5} Nunez raised two assignments of error in his appellate brief and an additional two
assignments of error in his supplemental brief that was filed with leave of court. Although the
supplemental assignments of error are represented as supplemental to the original assignments of
error, we shall address each assignment of error that has been raised in this appeal.
{¶6} Under his first assignment of error, Nunez argues that the trial court erred in
imposing consecutive sentences without making the required findings as required under R.C.
2929.14(C). Nunez relies on the current version of the statute as amended by Am.Sub.H.B. 86,
effective September 30, 2011. This version of the statute is simply not applicable in this case.
{¶7} The resentencing hearing occurred on December 28, 2010, prior to the effective date
of H.B. 86. The pre-H.B. 86 statutory requirement under R.C. 2929.14(E)(4) for trial courts to
make specific factual findings prior to imposing consecutive sentences was rendered
unconstitutional and severed from the statute in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, ¶ 99. In Foster, the court further stated, “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.” Id. at ¶ 100.
{¶8} The Ohio Supreme Court also held that the United States Supreme Court in Oregon
v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), did not revive the former
consecutive-sentencing statutory provisions that were held unconstitutional in Foster and that
“the consecutive-sentencing statutes severed by Foster * * * remain null and of no effect absent
an affirmative act of the General Assembly.” State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, 941 N.E.2d 768, ¶ 36-37. In response, the General Assembly enacted H.B. 86,
effective September 28, 2012, which revived the requirement for a trial court to make specific
findings on the record, as set forth in R.C. 2929.14(C)(4), when imposing consecutive sentences.
See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-23.
{¶9} In this case, Nunez’s resentencing hearing occurred on December 28, 2010, prior to
the effective date of H.B. 86. At that time, trial judges were not mandated to make statutory
findings as a prerequisite to imposing consecutive sentences. See Foster at ¶ 99; Hodge at ¶
36-37. The trial court therefore was not required to make the findings contained in R.C.
2929.14(C) before imposing consecutive sentences. See State v. Johnson, 2015-Ohio-96, 27
N.E.3d 9, ¶ 63 (8th Dist.); State v. Calliens, 8th Dist. Cuyahoga No. 97034, 2012-Ohio-703, ¶ 28
(recognizing that the provisions of H.B. 86 are not applicable to individuals who were sentenced
prior to the September 30, 2011 effective date). The first assignment of error is overruled.
{¶10} Under his second assignment of error, Nunez claims that the sentence imposed on
Count 11 must run concurrently with that imposed on Count 8 and that the trial court erred in
imposing a sentence via its journal entry that had not been pronounced in open court. We find
no merit to his argument.
{¶11} As an initial matter, we recognize that Nunez is challenging the consecutive nature
of a sentence imposed upon resentencing. In Ohio, appellate courts lack authority to vacate an
entire sentence when only a portion of that sentence is subject to being remanded. State v.
Huber, 8th Dist. Cuyahoga No. 98206, 2012-Ohio-6139, ¶ 17, citing State v. Wilson, 129 Ohio
St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15. Moreover, a court does not have authority to
review an entire multiple-offense sentence when only a portion of that sentence was found to be
in error. Wilson at ¶ 15. Thus, following a remand based only on an allied-offenses sentencing
error, the hearing on remand is limited to the issue found to be in error on appeal. See id. The
determination of guilt remains the law of the case, and the scope of a new sentencing hearing is
limited to the state’s selection of which offenses it wants to pursue for sentencing, merger of the
offenses accordingly, and the court’s imposition of a sentence that is appropriate for the
remaining offense or offenses. Id. at ¶ 18.
{¶12} Nevertheless, where a matter is remanded for the merger of allied offenses, the
consecutive nature of the sentence, if so imposed, is no longer intact because it is only after the
judge has imposed a separate prison term for each offense that the judge may consider whether
the offender shall serve those terms concurrently or consecutively. Huber at ¶ 24, citing State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9. Thus, at a resentencing
hearing in such a case, the trial court must first sentence the defendant on the merged offense or
offenses before it may consider whether the prison terms should be served consecutively or
concurrently. Huber at ¶ 24.
{¶13} In Nunez I, we remanded the matter for a new sentencing hearing with respect to
the allied offenses. Nunez, 8th Dist. Cuyahoga No. 93971, 2010-Ohio-5589, ¶ 44. At the
sentencing hearing, the trial court first had to impose a prison term upon the state’s elected
offenses before the court could determine whether Nunez should serve consecutive or concurrent
prison terms. Therefore, we shall review the challenge raised herein.
{¶14} Where a sentence is ambiguous as to whether a consecutive or concurrent term
applies, a court must resolve the ambiguity in favor of the defendant. State v. Downey, 8th Dist.
Cuyahoga No. 99685, 2013-Ohio-4924. However, the failure to explicitly use the word
“consecutive” does not necessarily create an ambiguity or require that a sentence run
concurrently. See State v. Bass, 10th Dist. Franklin Nos. 12AP-622 and 12AP-623,
2013-Ohio-4503, ¶ 36-37.
{¶15} Although the trial court did not specifically state in pronouncing its sentence that
the term on Count 11 was to run “consecutive” to the term on Count 8, it clearly indicated that it
was imposing a sentence consistent with the original sentencing, which ran those counts
consecutive. As stated by the trial court:
The State is asking for the same sentence that was imposed at the original
sentencing in the case. I think it’s important to note that for the kidnapping
sentences, that those run concurrent at the original sentencing, so by merging them
today, it does not affect the original sentence of the aggravated burglary
consecutive to the rapes consecutive to the intimidation.
The court further indicated:
Your total aggregate sentence again is 22 years, which is the identical
sentence that I gave to you at your sentencing hearing.
* * * [Y]ou are receiving an identical sentence to the sentence that I gave
to you at the time of your sentencing hearing.
{¶16} Consistent with the sentence imposed upon the record, the court’s journal entry
states in part:
THE COURT IMPOSES A PRISON SENTENCE AT THE LORAIN
CORRECTIONAL INSTITUTION OF 22 YEAR(S). 4 YEARS ON COUNT 7; 8
YEARS ON COUNTS 8, 9, AND 12; 2 YEARS ON COUNT 11. STATE OF
OHIO PURSUANT TO COURT OF APPEALS ELECTS TO MERGE COUNT
10 INTO COUNT 9 AND COUNT 13 INTO COUNT 12. COUNTS 7, 8, 9, AND
11 TO RUN CONSECUTIVE TO EACH OTHER; COUNT 12 TO RUN
CONCURRENT WITH ALL OTHER COUNTS. * * *
{¶17} After a thorough review, we find that there is no ambiguity in the record and that
the court’s sentencing entry is consistent with the court’s decision at the sentencing hearing.
The second assignment of error is overruled.
{¶18} Under his third assignment of error, Nunez claims the trial court erred in failing to
merge Counts 8 and 9, both of which were rape counts against the same victim, J.L. Appellant
maintains that in Nunez I, the court determined that these were allied offenses committed with a
single animus and that the determination is the law of the case. Our review reflects otherwise.
{¶19} In Nunez I, the court set forth the facts underlying the subject offenses involving
J.L. as follows:
J.L. and N.J. both testified that at around 3:30 a.m. on February 14, 2009,
they were sitting in J.L.’s apartment talking when J.L. received a phone call from
appellant, who indicated that he and his wife were outside and needed J.L. to let
them in. After opening the apartment door, J.L. saw appellant, but his wife was
not there. J.L. attempted to shut the door, but appellant forced his way inside the
apartment.
J.L. testified that she went to her bedroom to avoid appellant, but he
followed her. He came into her bedroom and began “ripping” her clothes off.
She told him to stop, but he threw her on the bed and held her there. He pulled
her hair and repeatedly asked whether she would like her cousin to watch what he
was doing. J.L. testified that, at one point, appellant used his knees to hold her
down and repeatedly shoved his penis into her mouth. She was unable to escape
because of the force appellant was exerting against her. Appellant then changed
positions and engaged in vaginal intercourse with her.
(Emphasis added.) Nunez I, 8th Dist. Cuyahoga No. 93971, 2010-Ohio-5589, ¶ 6-7.
{¶20} Counts 8 and 9 were charges of rape arising from the oral and vaginal rape of J.L.
Count 10 arose from appellant’s kidnapping of J.L. It has been recognized that rape involving
different types of sexual activity, such as vaginal intercourse, digital penetration, and oral rape,
arise from distinct conduct and are not considered allied offenses, even when committed during
the same sexual assault. See, e.g., State v. Williams, 1st Dist. Hamilton No. 140199,
2015-Ohio-3968, ¶ 59-60; State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶
33; State v. Adams, 10th Dist. Franklin No. 13AP-783, 2014-Ohio-1809, ¶ 11-12; State v.
Trotter, 8th Dist. Cuyahoga No. 97064, 2012-Ohio-2760, ¶ 45.
{¶21} In Nunez I, the court found only that the offenses of rape and kidnapping are allied
offenses:
We first address Counts 12 and 13, rape and kidnapping respectively,
related to the offense committed against N.J. It is well established that rape and
kidnapping are allied offenses. State v. Walton, Cuyahoga App. No. 93659,
2010-Ohio-3875, ¶ 8, citing [State v. Blankenship, 38 Ohio St.3d 116, 117, 526
N.E.2d (1988)]. There is nothing in the record that indicates appellant kidnapped
and raped N.J. with a separate animus. He engaged in one continuous course of
action, and thus he could be sentenced for only one of the two allied offenses.
Appellant was also convicted and sentenced for two counts of rape and
one count of kidnapping for the offenses committed against J.L. As addressed
above, rape and kidnapping are allied offenses. Similarly, the evidence reveals
that appellant committed these offenses with a single animus, and thus he was
improperly convicted and sentenced for allied offenses.
This matter must be remanded to the trial court for a new sentencing
hearing where the state shall choose which charge it wishes to proceed under.
(Emphasis added.) Nunez I at¶ 40-42.
{¶22} Contrary to appellant’s argument, there was no determination that the separate rape
counts constituted allied offenses of similar import. The court’s analysis and holding in Nunez I
related to the merger of rape and kidnapping. There was no discussion of merger of the multiple
rape counts. The court’s directive for the state to “choose which charge it wishes to proceed
under” followed from the determination that rape and kidnapping are allied offenses. Upon
remand, the state elected that the kidnapping under Count 10 merge into the rape under Count 9.
The trial court followed the directive of Nunez I and merged these offenses and proceeded to
sentencing on the remaining count. No objections were made. Finding no error occurred, we
overrule appellant’s third assignment of error.
{¶23} Under his fourth assignment of error, appellant claims trial counsel was ineffective
at the resentencing by failing to argue that Counts 8, 9, and 10 were allied to each other and must
merge into a single count. In order to substantiate a claim of ineffective assistance of counsel,
the appellant must show “(1) deficient performance by counsel, i.e., performance falling below
an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that but for counsel’s errors, the proceeding’s result would have been different.”
State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.
The defendant has the burden of proving his counsel rendered ineffective assistance. Perez at ¶
223.
{¶24} As determined above, in Nunez I, the court determined only that rape and
kidnapping are allied offenses subject to merger. The resentencing hearing was limited to the
state’s election of which of these offenses it wished to pursue for sentencing, the merger of the
allied offenses accordingly, the court’s imposition of a sentence for the remaining offenses, and
the court’s determination of whether the prison terms should be served consecutively or
concurrently. As appellant has shown neither deficient performance of counsel nor resulting
prejudice, he has failed to establish ineffective assistance of counsel. The fourth assignment of
error is overruled.
{¶25} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court
finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR