COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68125 STATE OF OHIO, : : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : WALTER SILSBY, JR., : OPINION : : PER CURIAM Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-297379 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: Ralph Kolasinski Assistant Prosecuting Attorney The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Albert A. Giuliani Elmer A. Giuliani 410 Leader Building Cleveland, Ohio 44114 -2- PER CURIAM: Defendant-appellant Walter Silsby, Jr. appeals from his convictions and sentences on three counts of violation of R.C. 2907.05, gross sexual imposition. He asserts in his two assignments of error that his convictions and sentences are improper pursuant to R.C. 2945.21(A). This court disagrees. Appellant was originally indicted on two counts of rape, two counts of felonious sexual penetration, and one count of gross sexual imposition. The indictment stated the victim was his son, who was born on June 21, 1987, and the date of offense on each count was stated as "November 1, 1990 to November 1991." As part of appellant's plea bargain, the first two counts were nolled and the second two counts were both amended to counts of gross sexual imposition. Appellant claims it cannot be determined from the record of either his plea or his sentencing hearing that the offenses were not committed at the same time, therefore, the trial court erred in imposing separate convictions and sentences. This claim is specious. The indictment specifies that the three offenses to which appellant pleaded guilty were separate offenses pursuant to R.C. 2945.21(B), viz., count three states appellant "inserted a part of the body, an instrument, apparatus or other object, to wit: popsicle stick, into the vaginal or anal cavity;" count four states appellant "inserted a part of the body, an instrument, apparatus or other object, to wit: piece of paper plate, into the vaginal or anal cavity;" and count five states appellant "had sexual contact" -3- with his son. In State v. Nicholas (1993), 66 Ohio St.3d 431, the supreme court made it clear that different types of sexual activity such as those specified in this case constitute separate offenses for purposes of R.C. 2945.21. See, also, R.C. 2907.01(B); State v. Mangnum (Mar. 21, 1994), Clemont App. No. CA93-08-062, unreported; State v. Mayhew (1991), 71 Ohio App.3d 622. The record thus belies appellant's claim; therefore, the trial court did not err in either convicting and sentencing appellant for all three counts of violation of R.C. 2907.05 or failing to hold a hearing pursuant to R.C. 2945.21. Appellant's assignments of error are accordingly overruled. Appellant's convictions and sentences are affirmed. -4- It is ordered that appellee recover of appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE; CONCURS. SARA J. HARPER, JUDGE; DISSENTS. (See attached dissenting opinion.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68125 STATE OF OHIO : : Plaintiff-appellee : : -vs- : DISSENTING : : OPINION WALTER SILSBY, JR. : : Defendant-appellant : : DATE: MAY 11, 1995 SARA J. HARPER, J., DISSENTING: I respectfully dissent from the majority. I take exception to the majority's decision to affirm the sentence imposed by the trial court given the principle of law that a defendant cannot receive multiple punishment unless all acts were committed separately or with separate "animus" as to each. State v. Prince (1979), 60 Ohio St.2d 136. Without a doubt, as the majority has pointed out, different types of sexual activity (such as the conduct for which the defendant was convicted) can constitute separate offenses pursuant to R.C. 2945.21. State v. Nichols (1993), 66 Ohio St.3d 431. In the instant case, the defendant pleaded guilty to three separate counts of gross sexual imposition in violation of R.C. 2945.21. At the sentencing hearing, the defense counsel raised the issue of sentencing pursuant to the allied offense statute R.C. - 2 - 2945.21. The trial court did not have a hearing subsequent to defendant's counsel raising this issue. Because defendant entered a guilty plea, however, does not in any way waive or preclude his right to have the trial court hold a hearing regarding sentencing once the defendant's counsel raises this issue. The question of whether a defendant should be sentenced pursuant to the allied offense statute is a legal issue for the court to determine. State v. Kent (1980), 68 Ohio App.2d 156, 164. Sentencing a defendant pursuant to the allied offense statute (R.C. 2941.25) does not mean that a defendant cannot be sentenced for a different offense, nor does this mean that the defendant's guilty plea will be invalidated. But rather, sentencing a defendant pursuant to the allied offense statue means that the court will have a separate hearing on the issue. During this hearing, the court will assess the defendant's conduct in light of the analysis set forth by the statute. The court will then be able to reach a determination regarding the appropriateness of sentencing a defendant pursuant to the statute. In the instant case, the court did not hold a hearing to determine whether the defendant should have been sentenced pursuant to this statute. Appellee contends that the trial court did not err in the sentencing because defense counsel waived the defendant's right to a hearing. However, the transcript does not indicate that the defense counsel's statement to the court constituted a waiver of defendant's right to a hearing. Therefore, - 3 - the trial court should have held a hearing on the issue of whether the defendant could be sentenced pursuant to R.C. 2941.25. I accordingly dissent. .