Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
Markovich, for appellant.
JOURNAL ENTRY AND OPINION
A. GALLAGHER, J.
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
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.
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
• 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
• in 615423 - an amended count of burglary in violation
of R.C. 2911.12(A)(3), a third-degree felony.
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
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
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
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
• in 611862 - two years on the robbery count, to be
served concurrently with the sentences in 611860 and 615423
but consecutively to ...