State v. Santamaria , 2012 Ohio 2375 ( 2012 )

[Cite as State v. Santamaria, 2012-Ohio-2375.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26206
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANGELO J. SANTAMARIA, JR. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 06 1461 (B)
DECISION AND JOURNAL ENTRY
Dated: May 30, 2012
BELFANCE, Judge.
{¶1} Defendant-Appellant Angelo Santamaria, Jr. appeals from the judgment of the
Summit County Court of Common Pleas. For the reasons set forth below, we reverse.
I.
{¶2} In June 2011, Mr. Santamaria was indicted on one count of aggravated robbery in
violation of R.C. 2911.01(A)(1)/(3), a felony of the first degree, one count of aggravated
burglary in violation of R.C. 2911.11(A)(1)/(3), a felony of the first degree, and one count of
possessing criminal tools in violation of R.C. 2923.24, a felony of the fifth degree. Mr.
Santamaria pleaded guilty to the aggravated robbery and aggravated burglary counts. The
possession of criminal tools charge was dismissed. Mr. Santamaria was sentenced to eight years
for aggravated robbery and seven years for aggravated burglary, to be served consecutively, for a
total of fifteen years. Mr. Santamaria has appealed, raising a single assignment of error for our
review.
2
II.
THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE
AGGRAVATED BURGLARY COUNT WITH THE AGGRAVATED
ROBBERY COUNT AND IMPOSED CONSECUTIVE SENTENCES UPON
MR. SANTAMARIA.
{¶3} Mr. Santamaria asserts that the trial court committed plain error when it failed at
sentencing to merge his convictions for aggravated robbery and aggravated burglary, asserting
that they are allied offenses of similar import.
{¶4} The resolution of this issue is controlled by State v. Johnson, 128 Ohio St.3d 153,
2010–Ohio–6314, in which the Supreme Court of Ohio outlined a new test for determining
whether offenses are allied and subject to merger. See id. at syllabus. Johnson was released
prior to Mr. Santamaria’s sentencing; however, the issue of allied offenses was not raised at
sentencing, and, thus, the trial court did not consider and apply R.C. 2941.25. In addition,
assuming the offenses are allied, the State did not have the opportunity to elect the offense for
which it wanted the trial court to sentence Mr. Santamaria. See State v. Edwards, 9th Dist. No.
25679, 2012-Ohio-901, ¶ 4. Since Johnson, this Court has consistently concluded that the trial
court should consider and apply Johnson in the first instance. See id. Thus, we do not reach the
merits of Mr. Santamaria’s argument and remand the matter to the trial court so that it can
consider and apply Johnson.
III.
{¶5} In light of the foregoing, we reverse the judgment of the Summit County Court of
Common Pleas and remand the matter for proceedings consistent with this opinion.
Judgment reversed,
and cause remanded.
3
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 to Appellee.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
GEORGE G. KEITH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.