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State v. Baker

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 16, 2020

STATE OF OHIO, Plaintiff-Appellee,
ANTONIO BAKER, Defendant-Appellant.

          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

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

          Anna Markovich, for appellant.



         {¶ 1} 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.

         {¶ 2} 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

         {¶ 3} 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 RC. 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 RC. 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 RC. 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.

         {¶ 4} 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.

         {¶ 5} 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.

         {¶ 6} 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.

         {¶ 7} 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.

         {¶ 8} 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."

         {¶ 9} 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 ...

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