State v. Baker

[Cite as State v. Baker, 2020-Ohio-107.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 108301
v. :

ANTONIO BAKER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; VACATED IN PART;
REMANDED
RELEASED AND JOURNALIZED: January 16, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-16-611860-A, CR-16-611862-A, CR-16-611863-A,
CR-17-615143-A, CR-17-615423-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey and Hannah Smith, Assistant
Prosecuting Attorneys, for appellee.

Anna Markovich, for appellant.

EILEEN A. GALLAGHER, J.:

This consolidated appeal arises from defendant-appellant Antonio

Baker’s convictions in five cases: Cuyahoga C.P. Nos. CR-16-611860-A (“611860”),

CR-16-611862-A (“611862”), CR-16-611863-A (“611863”), CR-17-615143-A
(“615143”) and CR-17-615423-A (“615423”). Baker contends that his guilty plea to

rape in 611863 was not knowing, intelligent and voluntary and should be vacated

because it subjected him to classification and registration requirements, community

notification requirements and residential restrictions as a Tier III sex offender of

which the trial court failed to inform him during the Crim.R. 11(C)(2)

plea colloquy. Baker further contends that the trial court erred in ordering that his

sentences in 611863 and 615143 be served consecutively to one another and to the

sentences imposed in 611860, 611862 and 615423 because it failed to make the

findings required under R.C. 2929.14(C)(4) for the imposition of consecutive

sentences at the sentencing hearing.

For the reasons that follow, in 611863, we vacate Baker’s guilty plea

to the rape count (Count 1) and the sentence imposed on the felonious assault count

(Count 5) (which was found to have merged with a kidnapping count (Count 7)) and

remand for further proceedings as to the rape count. With respect to all five cases,

we vacate the trial court’s imposition of consecutive sentences and remand for the

trial court to consider whether consecutive sentences are appropriate under R.C.

2929.14(C)(4) and if so, to (1) make all of the required findings on the record and

(2) incorporate those findings in its sentencing journal entries.

Procedural History and Factual Background

In December 2016 and March 2017, Baker was indicted on 22 counts

in five cases in connection with a series of thefts, assaults and sexual offenses that

occurred from April 2015 through November 2016. Baker initially pled not guilty to
all charges. The parties thereafter reached a plea agreement with respect to the

charges in all five cases. Pursuant to the plea agreement, Baker agreed to plead

guilty to the following counts:

• in 611860 — one count of felonious assault in violation of R.C.
2903.11(A)(1), a second-degree felony;

• in 611862 — one count of robbery in violation of R.C. 2911.02, a third-
degree felony;

• in 611863 — one count of rape in violation of R.C. 2907.02(A)(2), a
first-degree felony, with one-year and three-year firearm
specifications; an amended count of kidnapping in violation of R.C.
2905.01(A)(4), a first-degree felony, with a sexual motivation
specification; an amended count of felonious assault in violation of R.C.
2903.11(A)(1), a second-degree felony; an amended count of
kidnapping in violation of R.C. 2905.01(A)(3), a first-degree felony;
two counts of endangering children in violation of R.C. 2919.22(A), a
first-degree misdemeanor; and one count of having weapons while
under disability in violation of R.C. 2923.13(A)(2), a third-degree
felony; the parties agreed that the firearm specifications would merge
and that the felonious assault count would merge with the second
kidnapping count, with the state electing to sentence Baker on the
kidnapping count;

• in 615143 — one count of aggravated robbery in violation of R.C.
2911.01(A)(3), a first-degree felony; one count of disrupting public
service in violation of R.C. 2909.04(A)(1), a fourth-degree felony; and
one count of assault in violation of R.C. 2903.13(A), a first-degree
misdemeanor.

• in 615423 — an amended count of burglary in violation of R.C.
2911.12(A)(3), a third-degree felony.

In exchange for these guilty pleas, the remaining counts against Baker were to be

dismissed.

On November 6, 2017, the trial court held a change-of-plea hearing.

After the state and defense counsel set forth the terms of the plea agreement on the
record, the trial judge proceeded with the plea colloquy. In response to the trial

judge’s preliminary questions, Baker indicated that he understood what had been

stated on the record regarding the plea agreement, that he was a United States

citizen, that he had attended school through the ninth grade and that he was not

under the influence of any alcohol, narcotic drugs or medication. Baker further

acknowledged that he was satisfied with the representation he had received from his

counsel.

The trial court advised Baker of his constitutional rights and

confirmed that he understood the rights he would be waiving by entering his guilty

pleas. The trial court then identified each of the counts to which Baker would be

pleading guilty and set forth the potential penalties he would face on each count by

pleading guilty. Specifically, with respect to the rape count in 611863, the trial court

stated:

611863, Count 1 is a felony of the first degree. That’s 3 to 10 years
on the underlying charge with a fine up to $20,000. There are two
firearm specifications which, as you heard, will be merged. So there’s
an additional 3 years that must be served in addition to and prior to
that 3 to 11 years.

Furthermore, that is a Tier 3 sex offense, and we’ll go into that
later.

The trial judge further stated that in 611683, “Count 7 [the second

kidnapping count] would merge with Count 5 [the felonious assault count], so for

sentencing purposes it will be as though you only have Count 7 to deal with.” The

trial judge informed Baker that all of his sentences could be imposed consecutively
and explained that his sentences would also include five years of mandatory

postrelease control. The trial judge also informed Baker that, because he was on

postrelease control when he committed these offenses, he could be subject to

additional sanctions for violating postrelease control based on the new convictions.

Once again, Baker confirmed that he understood.

After the trial court concluded its advisements, Baker pled guilty to

each of the charges above in accordance with the plea agreement. He confirmed that

no one had made any threats or promises to induce him to enter his guilty pleas

other than as set forth on the record. The trial court found that Baker understood

his constitutional rights and that he had voluntarily and willingly waived those

rights. The trial court accepted Baker’s guilty pleas and dismissed the remaining

counts with which he had been charged in the five cases.

The court scheduled the sentencing hearing for later that week and

stated that “[w]e will go into the details of the Tier 3 sex offender registration * * *

at that time.”

Baker was sentenced on November 9, 2017. At the outset of the

hearing, the trial judge explained the registration requirements associated with

Baker’s classification as a Tier III sex offender. After hearing from Baker, defense

counsel and the assistant prosecuting attorney (who read statements from several

of Baker’s victims), the trial court sentenced Baker to an aggregate sentence of 15

years as follows:
 • in 611860 — two years on the felonious assault count, to be served
concurrently with the sentences in 611862 and 615423 but
consecutively to the sentences in 611863 and 615143;

• in 611862 — two years on the robbery count, to be served concurrently
with the sentences in 611860 and 615423 but consecutively to the
sentences in 611863 and 615143;

• in 611863 — an aggregate sentence of eight years: five years on the
underlying rape charge plus three years on the firearm specifications
(merging the one-year and three-year firearm specifications) to be
served prior to and consecutively with the five-year sentence on the
rape charge; five years on each of the kidnapping counts; three years
on the felonious assault count; six months on each of the endangering
children counts and two years on the having weapons while under
disability count, with the sentences on each count to run concurrently
with one another but consecutively to the sentences in 611860, 611862,
615143 and 615423;

• in 615143 — an aggregate sentence of five years: five years on the
aggravated robbery count, one year on the disrupting public service
count, and six months on the assault count, with the sentences on each
count to run concurrently with one another but consecutively to the
sentences in 611860, 611862, 611863 and 615423; and

• in 615423 — two years on the amended burglary count to be served
concurrently with the sentences in 611860 and 611862 and
consecutively to the sentences in 611863 and 615143.

The trial judge made no consecutive sentencing findings at the

sentencing hearing but set forth findings in support of the imposition of consecutive

sentences in its sentencing journal entries in each of the five cases as follows:

The court imposes prison terms consecutively finding that consecutive
service is necessary to protect the public from future crime or to punish
defendant; that the consecutive sentences are not disproportionate to
the seriousness of defendant’s conduct and to the danger defendant
poses to the public; and that, at least two of the multiple offenses were
committed in this case as part of one or more courses of conduct, and
the harm caused by said multiple offenses 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
defendant’s conduct, or defendant’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crime by defendant.

This court granted Baker leave to file a delayed appeal. He raises the

following two assignments of error for review:

Assignment of Error I
The trial court erred in imposing consecutive sentences without
making the requisite findings under R.C. 2929.14(C)(4) at sentencing
hearing.

Assignment of Error II
The appellant’s guilty plea to rape with firearm specifications was
invalid, where guilty plea subjected him to sex offender registration and
community notification and residential restrictions as Tier III sex
offender, but the trial court failed to inform appellant of those
implications during plea colloquy.

We address Baker’s second assignment of error first.

Law and Analysis

Sex Offender Classification and Crim.R. 11(C)(2)(a)

In his second assignment of error, Baker contends that his guilty plea

to the rape count (Count 1) in 611863 was invalid because the trial court failed to

advise him during the Crim.R. 11(C)(2) plea colloquy that his guilty plea would

subject him to registration requirements, community notification requirements and

residency restrictions as a Tier III sex offender. As such, Baker requests that we

vacate his rape conviction.

“Due process requires that a defendant’s plea be made knowingly,

intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.” State v.
Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10, citing State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; see also State v.

Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996) (“When a defendant enters a

plea in a criminal case, the plea must be made knowingly, intelligently, and

voluntarily. Failure on any of those points renders enforcement of the plea

unconstitutional under both the United States Constitution and the Ohio

Constitution.”).

In considering whether a criminal defendant knowingly, intelligently

and voluntarily entered a guilty plea, we first review the record to determine whether

the trial court complied with Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128-

129, 566 N.E.2d 658 (1991); State v. Davner, 2017-Ohio-8862, 100 N.E.3d 1247,

¶ 41 (8th Dist.). Crim.R. 11(C) prescribes the process a trial court must follow before

accepting a guilty plea to a felony. Bishop at ¶ 11, citing State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. Under Crim.R. 11(C)(2), a trial

court shall not accept a guilty plea in a felony case without personally addressing the

defendant and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and, if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.

(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
 (c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury
trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require
the state to prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify against
himself or herself.

The trial court must strictly comply with those provisions of Crim.R.

11(C)(2) that relate to the waiver of constitutional rights. Veney at syllabus. As to

the nonconstitutional aspects of Crim.R. 11(C)(2), which includes a defendant’s right

to have an understanding of “the maximum penalty involved,” substantial

compliance is required. Veney at ¶ 14; State v. Moore, 8th Dist. Cuyahoga No.

105240, 2017-Ohio-8483, ¶ 18, 23. “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, 564 N.E.2d 474 (1990). If a trial court fails to substantially comply with a

nonconstitutional aspect of Crim.R. 11(C)(2), a determination must be made as to

whether the trial court partially complied or completely failed to comply with the

requirement at issue. Clark at ¶ 32. If the trial court partially complied, the plea is

properly vacated only if the defendant demonstrates prejudice, i.e., that the plea

would not have otherwise been made. Id.; Nero at 108. If the trial court completely

failed to comply with the requirement, the plea must be vacated; a showing of

prejudice is not required. Clark at ¶ 32. Whether the trial court accepted a plea in

compliance with Crim.R. 11(C)(2) is subject to de novo review, based on the totality
of the circumstances. See, e.g., State v. Jackson, 8th Dist. Cuyahoga No. 99985,

2014-Ohio-706, ¶ 6.

R.C. Chapter 2950 sets forth the registration requirements,

community notification requirements and residency restrictions that apply to Tier

III sex offenders. Because sexual offender classification under R.C. Chapter 2950 is

punitive in nature, it must be addressed during a Crim.R. 11(C)(2) plea colloquy as

part of “the maximum penalty involved.” State v. Brown, 8th Dist. Cuyahoga No.

106410, 2019-Ohio-527, ¶ 7; State v. Allen, 8th Dist. Cuyahoga No. 97820, 2013-

Ohio-258, ¶ 11; State v. Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, ¶ 15-

16.

The state urges us to find that the trial court substantially complied

with its obligations to inform Baker of his sex offender status and the consequences

of that status prior to accepting his guilty plea based on: (1) the trial court’s

description of the rape count as a “Tier 3 sex offense” during the plea colloquy; (2)

statements the assistant prosecuting attorney made regarding the rape count at an

August 22, 2018 hearing when describing a plea offer the state had offered but Baker

had rejected and (3) the notifications the trial court provided Baker regarding his

status as sex offender at the sentencing hearing, claiming that the parties had

“agreed to discuss the details of the Tier III sex offender registration * * * at

sentencing.”

As it relates to a defendant’s classification as a sex offender, this court

has previously found substantial compliance with Crim.R. 11(C)(2)(a) where a
defendant was advised, during the plea colloquy, that the defendant would be

classified as a sexual offender and informed of some, but not all, of the penalties

associated with that classification. See, e.g., Creed, 2012-Ohio-2627, at ¶ 17; Allen,

2013-Ohio-258, at ¶ 13-15 (substantial compliance with Crim.R. 11(C)(2)(a) where

trial court advised defendant during plea colloquy that, as a Tier III sex offender, he

would be required to register every 90 days for the result of his life); State v.

Johnson, 8th Dist. Cuyahoga No. 106322, 2018-Ohio-5029, ¶ 14-20 (trial court

substantially complied with Crim.R. 11(C)(2)(a) notwithstanding failure to notify

defendant of residential restrictions and community notification requirements

where record reflected that defendant was informed, prior to the entry of his guilty

plea, that he would be classified as a Tier III sex offender and that, as a Tier III sex

offender, would be subject to various reporting requirements for life); State v. Jones,

8th Dist. Cuyahoga No. 107275, 2019-Ohio-993, ¶ 14-15 (substantial compliance

with Crim.R. 11(C)(2)(a) where trial court mentioned defendant’s Tier III sex

offender classification and advised him he would be subject to the attendant

registration requirements for life).

In Creed, for example, the trial court informed the defendant during

the plea colloquy that he would be classified as a Tier III sex offender by operation

of his plea and that he would be subject to various reporting and notification

requirements for life. Creed, 2012-Ohio-2627, ¶ 16. The trial court, however, did

not inform the defendant that he would be prohibited from living within 1,000 feet

of a school. Id. at ¶ 13, 17. This court held that the trial court was not “required to
review each of the numerous individual restrictions and requirements set forth in

R.C. Chapter 2950” in advising the defendant regarding his or her sexual offender

classification during the plea colloquy in order to substantially comply with Crim.R.

11(C)(2)(a). Creed at ¶ 16. This court found that the trial court’s advisement

substantially complied with Crim.R. 11(C)(2)(a) because “[t]he totality of the

circumstances indicates that [the defendant] subjectively understood that by

pleading guilty to a sexually oriented offense, he would be subjected to certain

restrictions as a Tier III sex offender” and that the fact that he “was not specifically

informed” that he would be prohibited from living within 1,000 feet of a school did

not “invalidate his plea.” Id. at ¶ 17. 1

This is not that case. Rather, this case is more akin to our decision in

Brown, 2019-Ohio-527. In Brown, the trial court found the defendant to be a Tier

II sex offender after he pled guilty to conspiracy to commit trafficking in persons.

Id. at ¶ 2. The trial court had failed to inform the defendant that he would be

1We note that the Ohio Supreme Court is currently considering a certified conflict
between (1) this court’s decision in Creed, 2012-Ohio-2627, and the Second District’s
decision in State v. Young, 2d Dist. Greene No. 2013-CA-22, 2014-Ohio-2213, and (2) the
Sixth District’s decision in State v. Dangler, 6th Dist. Williams No. WM-16-010, 2017-
Ohio-7981. The Sixth District certified the following question for review by the court:

During a plea proceeding, does the failure of the sentencing court to inform a
defendant of all of the penalties associated with a sex offender classification
imposed by R.C. Chapter 2950 constitute a complete failure to comply with
Crim.R. 11 and render the plea void without the need to show prejudice
resulted?

The court has also accepted State v. Johnson, 8th Dist. Cuyahoga No. 106322, 2018-Ohio-
5029, for review and it is being held for the decision in Dangler.
classified as a sexual offender by reason of his guilty plea or regarding any of the

penalties associated with his sex offender classification. Id. at ¶ 6-7, 12. This court

found that the trial court’s “omission of any reference to sexual offender

classification” at the defendant’s change-of-plea hearing constituted a complete

failure to comply with Crim.R. 11(C)(2)(a) and that the defendant’s guilty plea was,

therefore, void. Id. at ¶ 13-14; see also State v. Wallace, 10th Dist. Franklin No.

17AP-818, 2019-Ohio-1005, ¶ 9-19 (trial court completely failed to comply with

Crim.R. 11(C)(2)(a) where it did not inform defendant that as a result of his guilty

plea he would be classified as a Tier III sex offender and would be subject to

registration, community notification and verification requirements); State v. Huff,

7th Dist. Belmont No. 13 BE 37, 2014-Ohio-5513, ¶ 2, 15, 20-22, 27 (defendant’s no

contest plea vacated based on trial court’s complete failure to comply with Crim.R.

11(C)(2)(a) where trial court failed to inform defendant during plea colloquy that he

would be required to register as a sex offender as a consequence of his plea).

Based on the record before us, considering the totality of the

circumstances, we find that the trial court did not substantially comply, and

completely failed to comply, with its obligations under Crim.R. 11(C)(2)(a) as it

relates to Baker’s classification as a sex offender. The record reflects that, prior to

the entry of Baker’s guilty pleas, the trial court informed Baker only that the rape

count to which he would be pleading guilty was a “Tier 3 sex offense.” The trial court

provided no explanation of what that meant or any indication that the fact that Baker

would be pleading guilty to a “Tier 3 sex offense” had any additional penalties or
consequences for Baker beyond those the trial court had already identified, stating

only “we’ll go into that later.” However, the trial court did not “go into that” before

Baker entered, and the trial court accepted, his guilty plea. There is no indication

on the record that the trial court or anyone else informed Baker prior to the entry

and acceptance of his guilty plea that the fact that the rape count was a “Tier 3 sex

offense” meant that by pleading guilty to the rape count (1) he would be classified as

a Tier III sex offender and (2) based on that classification, he would be subject to

various requirements and restrictions, including lifetime registration requirements,

community notification requirements and residency restrictions, in addition to any

other penalties he might receive by pleading guilty to that offense.

Although the trial court notified Baker of his Tier III sex offender

status and the registration requirements to which he was subject as a Tier III sex

offender at the sentencing hearing, Crim.R. 11(C)(2)(a) requires that the trial court

“ensure during the plea hearing that the defendant is entering his guilty plea ‘with

understanding of the nature of the charges and of the maximum penalty involved.’”

(Emphasis added.) Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, at

¶ 14, quoting Crim.R. 11(C)(2)(a). Contrary to the state’s assertion, there is nothing

in the record to indicate that “the parties agreed to discuss the details of the Tier III

sex offender registration * * * at sentencing.”

Likewise, we cannot say that the assistant prosecutor’s comments on

August 22, 2018, two-and-one-half months before the change-of-plea hearing,

describing a plea offer Baker rejected, were sufficient to satisfy the trial court’s
obligations under Crim.R. 11(C)(2)(a) with respect to Baker’s classification as a sex

offender. At that hearing the assistant prosecuting attorney stated, with respect to

the rape count in 611863:

[ASSISTANT PROSECUTING ATTORNEY]: And then starting
with 611863.

THE COURT: Okay.

[ASSISTANT PROSECUTING ATTORNEY]: The State would
accept a plea to Count 1, a felony of the first degree tier-three rape, as
indicted including the one- and three-year firearm specifications as
indicted. * * * And then just for purposes of the record, with the tier —
with the rape being tier three, that is a registration every 90 days, but I
believe that’s just one of the tier III — it were life. Tier II would be for
20 years.

Because we find that there was a complete failure to comply with

Crim.R. 11(C)(2)(a) as it relates to Baker’s sex offender status, Baker was not

required to show that he was prejudiced by the trial court’s failure to comply. Clark,

119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 32. Baker’s guilty plea

to the rape count must be vacated. Brown, 2019-Ohio-527, ¶ 13-14, citing State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 25. We sustain

Baker’s second assignment of error.

Sentencing on Merged Offense

With respect to 611863, we also note, sua sponte, that although the

parties agreed as part of their plea agreement that the felonious assault count (Count

5) would merge with the second kidnapping count (Count 7), and the trial court

informed Baker during the plea colloquy that the felonious assault count would
merge with the second kidnapping count, the trial court imposed concurrent

sentences on the felonious assault count and the second kidnapping count instead

of sentencing him only on the second kidnapping count as elected by the state.

“[T]he imposition of concurrent sentences is not the equivalent of merging allied

offenses[.]” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234,

¶ 3. A sentence is void where the trial court determines that multiple counts should

be merged but then proceeds to impose separate sentences in disregard of its own

ruling. Id. at ¶ 28-29; see also State ex rel. Cowan v. Gallagher, 153 Ohio St.3d 13,

2018-Ohio-1463, 100 N.E.3d 407, ¶ 20. Accordingly, we vacate Baker’s sentence on

the felonious assault count (Count 5) in 611863.

Imposition of Consecutive Sentences

In his first assignment of error, Baker contends that his consecutive

sentences should be vacated because the trial court failed to make the findings

necessary for the imposition of consecutive sentences under R.C. 2929.14(C)(4) at

the sentencing hearing. We agree.2

2 The state asserts that the sentences imposed in this case are not reviewable
because “[a] trial court’s imposition of non-mandatory consecutive sentences within an
agreed sentencing range is a jointly recommended sentence authorized by law and not
reviewable” and there was an “implicit agreement of the sentencing possibilities.” There
is no support for this assertion in the record. Although R.C. 2953.08(D)(1) states, “[a]
sentence imposed upon a defendant is not subject to review * * * if the sentence is
authorized by law, has been recommended jointly by the defendant and the prosecution
in the case, and is imposed by a sentencing judge,” there is nothing in the record to suggest
that the parties had agreed to a sentence or a sentencing range. To the contrary, the
record reflects that there was no such agreement. The trial judge stated at the outset of
the sentencing hearing: “[a]lthough there was some discussion about the sentencing
range to be imposed, there was no formal agreement between your attorney and you on
 To impose consecutive sentences, a trial court must find that (1)

consecutive sentences are necessary to protect the public from future crime or to

punish the offender, (2) 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) at least one of the following applies:

(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 2929.18 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.

R.C. 2929.14(C)(4).

The trial court must make the required statutory findings at the

sentencing hearing and incorporate those findings into its sentencing journal entry.

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. To

make the requisite “findings” under the statute, ‘“the [trial] court must note that it

engaged in the analysis’ and that it ‘has considered the statutory criteria and

specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26, quoting State

the one hand and the State of Ohio on the other. That matter was left to the discretion of
the Court.”
v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). When imposing

consecutive sentences, the trial court is not required to give a “talismanic

incantation of the words of the statute.” Bonnell at ¶ 37. “[A]s long as the reviewing

court can discern that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings, consecutive

sentences should be upheld.” Id. at ¶ 29.

In this case, although the trial court set forth all the requisite findings

for imposing consecutive sentences in its sentencing journal entries, it did not make

any of these findings at the sentencing hearing. As such, Baker’s consecutive

sentences are contrary to law. See, e.g., Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659, at ¶ 36-37; State v. Lariche, 8th Dist. Cuyahoga No. 106106,

2018-Ohio-3581, ¶ 25; see also State v. Hairston, 10th Dist. Franklin Nos. 17AP-416

and 17AP-417, 2017-Ohio-8719, ¶ 13-14.

We sustain Baker’s first assignment of error.

Conclusion

In 611863, we vacate Baker’s guilty plea to the rape count (Count 1)

and the sentence imposed on the felonious assault count (Count 5) and remand for

further proceedings as to the rape count. With respect to all five cases, we vacate the

trial court’s imposition of consecutive sentences and remand for the trial court to

consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4)

and if so, to (1) make all of the required findings on the record and (2) incorporate

those findings in its sentencing journal entries. We affirm in all other respects.
 Judgment affirmed in part; vacated in part; remanded.

It is ordered that appellant recover from appellee the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

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

of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR