State v. Santamaria ( 2015 )


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  • [Cite as State v. Santamaria, 
    2015-Ohio-5097
    .]
    STATE OF OHIO                     )                      IN THE COURT OF APPEALS
    )ss:                   NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE OF OHIO                                            C.A. No.      27637
    Appellee
    v.                                               APPEAL FROM JUDGMENT
    ENTERED IN THE
    ANGELO SANTAMARIA JR.                                    COURT OF COMMON PLEAS
    COUNTY OF SUMMIT, OHIO
    Appellant                                        CASE No.   CR 11 06 1461B
    DECISION AND JOURNAL ENTRY
    Dated: December 9, 2015
    SCHAFER, Judge.
    {¶1}       Defendant-Appellant, Angelo J. Santamaria, Jr., appeals from his sentence in the
    Summit County Court of Common Pleas. For the reasons set forth below, we affirm in part and
    reverse in part.
    I.
    {¶2}       This is the third appeal Santamaria has filed involving his sentence for aggravated
    burglary and aggravated robbery. In the most recent appeal, State v. Santamaria, 9th Dist.
    Summit No. 26963, 
    2014-Ohio-4787
     (“Santamaria II”), this Court set forth the underlying
    factual and procedural history as follows:
    Mr. Santamaria, Jr., along with co-defendant Robert Linde, broke into Mr.
    George Nemeth's residence in order to rob him. The co-defendants did not realize
    that Mr. Nemeth was home, and Mr. Nemeth hid from them and called the police.
    Thinking that they had left the premises, Mr. Nemeth came out from hiding. At
    that time, Mr. Santamaria, Jr. and Mr. Linde physically assaulted Mr. Nemeth and
    threatened him with a knife.
    2
    In 2011, Mr. Santamaria, Jr. was indicted on one count of aggravated
    robbery, in violation of R.C. 2911.01(A)(1)/(3), one count of aggravated burglary,
    in violation of R.C. 2911.11(A)(1)/(3)1, and one count of possessing criminal
    tools, in violation of R.C. 2923.24. State v. Santamaria, 9th Dist. Summit No.
    26206, 
    2012-Ohio-2375
    , 2 (“Santamaria I”). He pleaded guilty to aggravated
    robbery and aggravated burglary, and the State dismissed the count for possessing
    criminal tools. 
    Id.
     The trial court sentenced him to eight years of imprisonment
    for aggravated robbery, and seven years of imprisonment for aggravated burglary,
    to be served consecutively, for a total of fifteen years. 
    Id.
     Mr. Santamaria, Jr.
    appealed to this Court, arguing that the trial court erred by (1) failing to merge the
    counts for aggravated robbery and aggravated burglary, and (2) ordering
    consecutive sentences.
    On appeal, we reversed Mr. Santamaria, Jr.'s convictions in order to allow
    the trial court to apply State v. Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , in
    the first instance and determine whether his convictions for aggravated robbery
    and aggravated burglary should merge as allied offenses of similar import.
    [Santamaria I] at ¶ 3–4. Upon remand, the trial court conducted a hearing and
    concluded that Mr. Santamaria, Jr.'s convictions should not merge under Johnson.
    The trial court then ordered a presentence investigation report * * * and set the
    matter for a sentencing hearing. Subsequently, at resentencing, the trial court
    ordered Mr. Santamaria, Jr.'s sentences for aggravated robbery and aggravated
    burglary to run consecutively, for a total of fifteen years of imprisonment.
    Id. at ¶ 2-4.
    {¶3}    In 2014, Santamaria again appealed, arguing that the trial court failed to properly
    determine jail-time credit, erred in its imposition of consecutive sentences, and erred in
    concluding that aggravated burglary and aggravated robbery were not allied offenses of similar
    import subject to merger. This Court affirmed the trial court’s determination regarding allied
    offenses, but reversed and remanded the matter to the trial court: (1) to properly calculate
    Santamaria’s jail-time credit at the resentencing hearing and include the calculation in the
    1
    In State v. Linde, 9th Dist. Summit No. 26714, 
    2013-Ohio-3503
    , ¶ 16, fn. 2, this Court noted
    that R.C. 2911.11(A)(3) does not exist and that the reference was probably a clerical error
    intended to refer to R.C. 2911.11(A)(2).
    3
    sentencing entry; and (2) to make the findings required by R.C. 2929.14(C)(4) when imposing
    consecutive sentences. Id. at ¶ 10, ¶ 18, ¶ 29.
    {¶4}   On remand, the trial court conducted a resentencing hearing and again determined
    that Santamaria’s offenses are not allied offenses. The trial court also calculated jail-time credit
    and sentenced Santamaria to consecutive sentences, for an aggregate term of fifteen years of
    imprisonment. The trial court also ordered Santamaria to have no contact with the victim.
    {¶5}   Santamaria filed this timely appeal, raising four assignments of error for our
    review.
    Assignment of Error I
    The trial court committed plain error by failing to reflect the overriding
    purposes of felony sentencing or the seriousness and recidivism factors in the
    sentence at bar.
    Assignment of Error II
    The trial court erred by imposing consecutive sentences when the record did
    not contain evidence to support the findings.
    {¶6}   In his first and second assignments of error, Santamaria challenges the propriety
    of the trial court’s sentence. As both assignments implicate similar issues, this Court elects to
    address them together.
    {¶7}   In his first assignment of error, Santamaria argues that the trial court erred by
    imposing a prison sentence that is “strikingly inconsistent” with the overriding purposes of
    felony sentencing as articulated in R.C. 2929.11. Specifically, Santamaria contends that his 15-
    year prison sentence is inconsistent with the purposes of felony sentencing because the facts of
    his case do not warrant a 15-year prison sentence and also demonstrate that he is a low risk for
    recidivism. In his second assignment of error, Santamaria contends that the trial court erred by
    sentencing him to consecutive terms of imprisonment. Specifically, Santamaria maintains that
    4
    his prison sentence is disproportional to the gravity of his criminal conduct. This Court disagree
    on both points.
    {¶8}       This Court utilizes the test set forth by the Supreme Court of Ohio in State v.
    Kalish, 
    120 Ohio St.3d 23
    , 2008–Ohio–4912, when reviewing criminal sentences. See State v.
    Roper, 9th Dist. Summit No. 27025, 2014–Ohio–4786, ¶ 30, rev’d in part on other grounds, 
    143 Ohio St.3d 419
    , 
    2015-Ohio-3379
     (vacating no-contact order).
    First, [this Court] 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 first prong is
    satisfied, the trial court's decision in imposing the term of imprisonment is
    reviewed under the abuse-of-discretion standard.
    Kalish at ¶ 26. The Supreme Court of Ohio has held that “[t]rial courts have full discretion to
    impose a prison sentence within the [applicable] statutory range[.]” State v. Foster, 
    109 Ohio St.3d 1
    , 2006–Ohio–856, paragraph seven of the syllabus, abrogated in part on other grounds by
    Oregon v. Ice, 
    555 U.S. 160
     (2009). “In exercising that discretion, ‘[a] court must carefully
    consider the statutes that apply to every felony case[,] * * * includ[ing] R.C. 2929.11, which
    specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering
    factors relating to the seriousness of the offense and recidivism of the offender.’” (Alterations
    sic.) State v. Davison, 9th Dist. Lorain No. 10CA009803, 2011–Ohio–1528, ¶ 12, quoting State
    v. Mathis, 
    109 Ohio St.3d 54
    , 2006–Ohio–855, ¶ 38. “[W]here the trial court does not put on the
    record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is
    presumed that the trial court gave proper consideration to those statutes.” (Alterations sic.) State
    v. Steidl, 9th Dist. Medina No. 10CA0025-M, 
    2011-Ohio-2320
    , ¶ 13, quoting Kalish at ¶ 18, fn.
    4. “‘Unless the record shows that the court failed to consider the factors, or that the sentence is
    strikingly inconsistent with the factors, the court is presumed to have considered the statutory
    5
    factors if the sentence is within the statutory range.’” (Internal quotations and citations omitted.)
    State v. Fernandez, 9th Dist. Medina No. 13CA0054-M, 
    2014-Ohio-3651
    , ¶ 8, quoting State v.
    Boysel, 2d Dist. Clark No. 2013-CA-78, 
    2014-Ohio-1272
    , ¶ 13.
    {¶9}    “The overriding purposes of felony sentencing 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 or local government resources.” R.C. 2929.11(A). R.C. 2929.12 in turn provides that a
    sentencing judge has discretion to determine the most effective means of complying with the
    purposes and principles of sentencing. R.C. 2929.12(B) includes factors that suggest that the
    offense is more serious. R.C. 2929.12(C) includes factors suggesting the offense is less serious.
    The recidivism factors—factors indicating an offender is more or less likely to commit future
    crimes—are set forth in R.C. 2929.12(D) and (E).
    {¶10} In the instant case, the trial court sentenced Santamaria to seven years in prison
    for aggravated burglary, a first degree felony, and eight years in prison for aggravated robbery,
    also a first degree felony, with those sentences to be served consecutively. These respective
    sentences fall within the prescribed statutory range. R.C. 2929.14(A)(1). As the sentence is not
    contrary to law, the first prong of the Kalish analysis is satisfied. This Court now moves on to
    consider whether the trial court abused its discretion in imposing a seven-year and eight-year
    prison sentence on the aggravated burglary and aggravated robbery counts, respectively. An
    abuse of discretion is more than an error of judgment; it means that the trial court was
    unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219 (1983).
    6
    {¶11} Although the trial court did not explicitly mention R.C. 2929.12 during the
    sentencing hearing on remand, it is presumed that the trial court considered these factors when,
    as is the case here, a sentence falls within the statutory range. See Steidl, 
    2011-Ohio-2320
    , at ¶
    13. Moreover, the trial court, who had previously reviewed the presentence investigation,
    explicitly articulated its reasoning for imposing its sentence as follows:
    [T]he court will reiterate so the Court of Appeals is clear that I considered all the
    appropriate factors by reiterating that this was a case where a homeowner noticed
    two individuals outside of his home acting suspiciously. What they were doing
    was casing his house before breaking into it. Based on that [the homeowner]
    called 911. The defendants thinking, I suppose, that the house was empty, entered
    the house, burglarized it. The victim came out of the back bedroom where he was
    told to hide and was confronted by the defendants. The defendants both attacked
    the victim, assaulted the victim, threatened the victim with a knife.
    In view of the trial court’s rationale, this Court determines that the trial court did not abuse its
    discretion by imposing a seven-year term of imprisonment on the aggravated burglary count and
    an eight-year term of imprisonment on the aggravated robbery count. Accordingly, even though
    Santamaria had not previously served jail time and purported to feel remorse for his actions,
    there is no basis here to conclude that the trial court abused its discretion in sentencing
    Santamaria.
    {¶12} Turning to Santamaria’s challenge to the trial court’s imposition of consecutive
    sentences in this case, R.C. 2929.14(C)(4) states:
    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 offender 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
    7
    pursuant to [R.C.] 2929.16, 2929.17, or 2929.18 * * * , 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.
    The Supreme Court of Ohio has held that, “[i]n order to impose consecutive terms of
    imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at
    the sentencing hearing and incorporate its findings into its sentencing entry, but it has no
    obligation to state reasons to support its findings.” State v. Bonnell, 
    140 Ohio St.3d 209
    , 2014–
    Ohio–3177, syllabus.
    {¶13} A review of the transcript from the resentencing hearing reveals that after
    imposing sentences for aggravated burglary and aggravated robbery, the trial court determined
    that it was necessary to run the sentences consecutively. Specifically, the trial court stated:
    Clearly the court feels that a consecutive sentence is necessary to protect the
    public from future crimes and to punish the defendant. I do not feel that the
    consecutive sentences – or the consecutive sentence is not disproportionate to the
    seriousness of the defendant’s conduct here or to the danger he poses to the
    public. And as I noted, at least two of the multiple offenses were committed as
    part of one or more courses of conduct. Harm caused by two or more multiple
    offenses was so great that a single prison term does not adequately reflect the
    seriousness of the defendant’s conduct here.
    Given these findings made at the resentencing hearing, as well as the nature of the crimes
    committed, this Court can find no error in the trial court’s imposition of consecutive sentences.
    {¶14} Santamaria’s first and second assignments of error are overruled.
    8
    Assignment of Error III
    The aggravated robbery and aggravated burglary are allied offenses of
    similar import as Mr. Santamaria Jr.’s sole animus was to unlawfully gain
    drug money from another. [Sic.]
    {¶15} In his third assignment of error, Santamaria argues that the trial court erred by
    failing to merge his convictions for aggravated burglary and aggravated robbery because both are
    allied offenses of similar import. Specifically, Santamaria contends that he committed both
    offenses on the same day, in the same location, within a very shorty time-span, and with a single
    animus. This Court disagrees, as Santamaria’s argument is barred by the doctrine of res judicata.
    {¶16} “The doctrine of res judicata prevents repeated attacks on a final judgment and
    applies to all issues that were or might have been previously litigated.” (Internal quotations and
    citation omitted.) State v. Sanders, 9th Dist. Summit No. 27189, 
    2014-Ohio-5115
    , ¶ 6. In
    Santamaria II, this Court held that Santamaria’s aggravated burglary and aggravated robbery
    offenses were not allied offenses of similar import because Santamaria had completed both
    offenses with separate animi.     Santamaria II at ¶ 28.      However, this Court subsequently
    remanded the matter so that the trial court could correct a sentencing issue and calculate jail-time
    credit. Id. at ¶ 10, ¶ 18. In the present appeal, Santamaria now attempts to reargue the trial
    court’s refusal to merge the aggravated burglary and aggravated robbery offenses for purposes of
    sentencing. As this Court has already addressed Santamaria’s argument on this point in his prior
    appeal, Santamaria’s argument is now barred by the doctrine of res judicata.
    {¶17} Santamaria’s third assignment of error is overruled.
    Assignment of Error IV
    The trial court erred by imposing a “no-contact” order between Santamaria
    Jr. and the prosecuting witness.
    9
    {¶18} In his fourth assignment of error, Santamaria contends that the trial court erred by
    issuing a no-contact order in addition to a term of imprisonment. This Court agrees.
    {¶19} After the trial court’s November 24, 2014 resentencing hearing, the Supreme
    Court of Ohio released its opinion in State v. Anderson, 
    143 Ohio St.3d 173
    , 2015–Ohio–2089,
    where it held that “[a] trial court cannot impose a prison term and a no-contact order for the same
    felony offense.” Id. at ¶ 1. In reaching this decision, the Court noted that the General Assembly
    intended prison and community-control sanctions as alternative sentences for a felony offense,
    and a trial court must impose either a prison term or a community control sanction absent an
    express exception. Id. at ¶ 31.
    {¶20} In this case, the trial court erred by imposing both a prison sentence and a no-
    contact order for the felony offenses of aggravated burglary and aggravated robbery.
    Accordingly, this matter is hereby remanded with instructions that the trial court vacate the no-
    contact order.     See State v. Clayton, 9th Dist. Summit No. 27515, 
    2015-Ohio-2499
    , ¶ 12
    (instructing the trial court to vacate its no-contact order while keeping its prison sentence in
    place).
    {¶21} Santamaria’s fourth assignment of error is sustained.
    III.
    {¶22} In sustaining Santamaria’s fourth assignment of error, and overruling his first,
    second, and third assignments of error, the judgment of the Summit County Court of Common
    Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with
    this opinion.
    Judgment affirmed in part,
    reversed in part,
    and cause remanded.
    10
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed equally to both parties.
    JULIE A. SCHAFER
    FOR THE COURT
    HENSAL, P. J.
    CONCURS IN JUDGMENT ONLY.
    MOORE, J.
    CONCURS IN JUDGMENT ONLY.
    APPEARANCES:
    SARAH MARGARET HULBURT, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
    Prosecuting Attorney, for Appellee.
    

Document Info

Docket Number: 27637

Judges: Schafer

Filed Date: 12/9/2015

Precedential Status: Precedential

Modified Date: 12/9/2015