[Cite as State v. Fonseca-Mora, 2026-Ohio-2385.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-25-017
Appellee Trial Court No. 2024 CR 0417
v.
Santiago Fonseca-Mora DECISION AND JUDGMENT
Appellant Decided: June 23, 2026
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Anthony J. Richardson, II, for appellant.
*****
ZMUDA, J.,
I. Introduction
{¶ 1} Appellant, Santiago Fonseca Mora, appeals from the April 28, 2025
judgment of the Erie County Court of Common Pleas convicting him of two counts of
gross sexual imposition and one count of forgery. The trial court ordered appellant to
serve the three prison terms it imposed on these offenses consecutively, resulting in an aggregate prison term of 45 months. For the following reasons, we affirm the trial court’s
judgment.
A. Facts and Procedural Background
{¶ 2} Appellant, a Colombian citizen without legal residency in the United States,
was initially charged with ten offenses in the Sandusky Municipal Court.1 Those offenses
were bound over to the Erie County Court of Common Pleas on October 22, 2024. While
the grand jury considered whether to indict appellant, federal immigration officials placed
a detainer hold2 on appellant. While out on bond from the municipal court offenses, the
“Border Patrol” detained appellant in the Erie County Jail.3
{¶ 3} On December 2, 2024, the grand jury indicted appellant on one count of rape
in violation of R.C. 2907.02(A)(2), a first-degree felony; one count of gross sexual
imposition in violation of R.C. 2907.05(A)(1), a fourth-degree felony; and one count of
forgery in violation of R.C. 2913.31(A)(3), a fifth-degree felony. The charges arose from
1
The ten counts were: two counts of forgery, violations of R.C. 2913.31; one count of identity fraud, a violation of R.C. 2913.49; two counts of sexual imposition, violations of R.C. 2907.06; two counts of unlawful restraint, violations of R.C. 2905.03; one count of rape, a violation of R.C. 2907.02; one count of attempted rape, a violation of R.C. 2907.02 and 2923.02; and one count of strangulation, a violation of R.C. 2903.18. 2
Appellant filed a notice of a removal order on December 1, 2024. The order was filed in case No. A-221021946 by an immigration judge in Cleveland, Ohio. The case included a detainer order in effect since October 2, 2024.
3
Neither party defines “Border Patrol,” which we infer from the context of the record is the United States Border Patrol, an arm of the U.S. Customs and Border Protection agency under the Department of Homeland Security.
2.
several incidents that occurred between August 1, 2024, and September 30, 2024. During
that time, appellant was a guest in the home of the victim’s parents awaiting an
immigration hearing to determine if he could legally reside in the United States. While
there, he committed the sexual offenses against the 17-year-old victim. At the time he
was arrested, he was found in possession of falsified documents containing the victim’s
brother’s identifying information, resulting in the forgery offense.
{¶ 4} Appellant was arraigned on December 10, 2024, and entered a not guilty
plea. Following negotiations with the State, he appeared for a change of plea hearing on
April 22, 2025. Pursuant to his agreement, appellant entered a guilty plea to two counts
of gross sexual imposition—one an amended charge from the original rape offense—and
one count of forgery. The trial court proceeded directly to sentencing and imposed a 17-month prison term on each count of gross sexual imposition and an 11-month prison term
on the single count of forgery. The trial court ordered appellant to serve the prison terms
consecutively, resulting in an aggregate prison term of 45 months. The trial court
memorialized appellant’s sentence in its April 28, 2025 judgment entry.
B. Assignment of Error
{¶ 5} Appellant timely appealed and asserts the following error for our review:
1. The trial court committed error by imposing consecutive prison terms without
necessary findings being supported by the record.
3.
II. Law and Analysis
a. Standard of review
{¶ 6} In his single assignment of error, appellant argues that the trial court erred
because the findings it made in order to impose consecutive sentences pursuant to R.C.
2929.14(C)(4) were not supported by the record. Before addressing the merits of
appellant’s assigned error, we note that the parties have identified different standards of
review they believe are applicable in this appeal. Appellant argues that our review is
guided by R.C. 2953.08(G)(2), the statutory standard of review enacted by the Ohio
General Assembly. The State, however, argues that because appellant did not offer an
express objection to the sentence imposed that he has waived all but plain error review.
For the following reasons, we find that the statutory standard of review described in R.C.
2953.08(G)(2) is applicable.
{¶ 7} Initially, we note that R.C. 2953.08(A)(4) provides defendants with a right to
appeal sentences that are contrary to law. The statute further provides the standard of
review under which felony sentences are reviewed. R.C. 2953.08(G)(2). This court has
consistently held that felony sentences are reviewed pursuant to this standard. See State
v. Szozda, 2022-Ohio-2294 (6th Dist.); State v. Symington, 2026-Ohio-1431 (6th Dist.);
State v. Wilson, 2026-Ohio-1166 (6th Dist.); State v. Betz, 2026-Ohio-1158 (6th Dist.).4
4
We note that this court has also previously applied plain error review to felony sentences. See State v. Ratcliffe, 2019-Ohio-308, ¶ 10 (6th Dist.). For the reasons described below, we find that those instances are limited to alleged errors outside the scope of R.C. 2953.08.
4.
The State now seeks a deviation from this standard based on appellant’s purported failure
to object.
{¶ 8} We acknowledge that the State is correct that if a party fails to raise an issue
with the trial court, that they waive that argument and are limited to plain error review on
appeal. State v. Ratcliffe, 2019-Ohio-308, ¶ 10 (6th Dist.). Such a general principle is not
applicable here. The purpose of this waiver is “founded on the desire to avoid
unnecessary delay and to discourage defendants from making erroneous records which
would allow them an option to take advantage of favorable verdicts or to avoid
unfavorable ones.” State v. Awan, 22 Ohio St.3d 120, 123 (1986). Further, “justice is far
better served when [an appellate court] has the benefit of briefing, arguing, and lower
court consideration before making a final determination.” Sizemore v. Smith, 6 Ohio
St.3d 330, 333, fn. 2 (1983). Put simply, if a party seeks review of an issue on appeal,
that issue must have first been presented to and resolved by the trial court or they are
limited to plain error review.
{¶ 9} Here, it cannot be disputed that appellant’s argument regarding the
imposition of a prison term was resolved by the trial court. During the hearing, appellant
expressly requested that the trial court not impose any prison time for the offenses he
committed. He argued that since he would have to serve any sentence imposed prior to
his purportedly impending removal from the United States, that imposing a prison term
would only delay that removal. The victim, a minor at the time the offenses occurred,
stated that she suffered “permanent damage” as a result of appellant’s crimes against her.
5.
She described this damage as psychological, physical, and permanent in nature. She also
expressed her disagreement with the plea as it reduced the maximum prison terms that
could be imposed but stated that she was relieved appellant would be removed from the
United States at the end of his sentence. The State argued for the imposition of the
“maximum” sentence of four years, an amount that would require the sentences to be
served consecutively. These arguments placed the issue of the duration of his prison
terms, and whether the sentences should be served consecutively to achieve that end,
squarely before the trial court. The trial court resolved that issue by ordering appellant to
serve his prison terms consecutively. Therefore, the issue of whether to impose a prison
term, including an order to serve any terms consecutively, was argued and resolved by
the trial court. To find that this issue has been waived would be in direct contrast to the
purpose of the waiver doctrine’s preference that issues be raised and addressed by the
trial court.
{¶ 10} Despite this, the State argues that appellant waived all but plain error in this
appeal because he did not “object” to the imposition of consecutive sentences following
the trial court’s sentencing. Such an argument is faulty for several reasons. First, the
State offers no explanation as to what constitutes an objection. Under the State’s broad
application of the waiver doctrine, appellant would have been required to state some form
of an “objection” after the imposition of sentence in order to avoid waiving this issue on
appeal. As a practical matter, this would mean appellant had to “object” and make the
same argument he just made moments prior in the same hearing to preserve this issue on
6.
appeal. Accepting the State’s position, then, would require defendants to recite “magic”
or “talismanic” language at sentencing that necessarily includes the word “object” to
avoid waiving that argument on appeal. We have consistently held that trial courts are
not required to invoke specific language to impose consecutive sentences. State v.
McIntoush, 2024-Ohio-2284, ¶ 18 (6th Dist.), citing State v. Bonnell, 2014-Ohio-3177, ¶
29. We find no basis on which to require defendants to use certain language to preserve
their challenge to the imposition of a felony sentence when they have already raised the
issue, made their argument, and had it resolved by the trial court.5
{¶ 11} Secondly, notwithstanding the procedural aspect as to what constitutes an
objection, the more troubling concern with finding that defendant waived his challenge
and reviewing the imposition of sentence for plain error only, is that finding plain error is
discretionary. State v. Rogers, 2015-Ohio-2459, ¶ 23. The Ohio Supreme Court has
“admonished courts to notice plain error ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” Id., citing State v.
Barnes, 94 Ohio St. 21, 27 (2002) (Emphasis in original.) Even when an appellate court
notices plain error, it “is not required to correct it.” State v. West, 2022-Ohio-1556.
Applying plain error review to the imposition of consecutive sentences, then, could result
5
We used similar logic in State v. Messer, 2017-Ohio-1223 (6th Dist.), when we concluded that the defendant challenged the sufficiency of the evidence against him at the outset of the proceedings by entering a not guilty plea. We found that the defendant had not waived this issue by failing to make a Crim.R. 29 motion for acquittal due to insufficient evidence at the conclusion of his trial.
7.
in an appellate court finding that the record does not support the trial court’s consecutive
sentencing as described in R.C. 2953.08(G)(2)(a) but nevertheless finding that the
erroneous judgment is not reversible plain error because it would not result in manifest
miscarriage of justice. In that scenario, declining to find plain error would condone the
imposition of a sentence that is in violation of the law and which a trial court does not
have the authority to impose. State v. Anderson, 2015-Ohio-2089, ¶ 10-12 (holding that
trial courts are “duty-bound to apply sentencing laws as they are written” and can only
impose sentences that are “provided for by statute.”). However unlikely that may be, the
mere chance that it could occur constitutes an additional basis on which to preclude the
use of a plain error standard to review whether the trial court satisfied the statutory
requirements under R.C. 2929.14(C)(4) when it imposed consecutive sentences.
{¶ 12} This is not to say that appellate courts may never utilize plain error review
of a felony sentence. The Ohio Supreme Court previously recognized that a defendant
who fails to challenge a constitutional violation that occurs at sentencing waives all but
plain error on appeal. State v. Davis, 2008-Ohio-2, ¶ 377 (holding that appellant waived
all but plain error when he failed to object to consecutive sentences on “constitutional
grounds”); State v. Hunter, 2011-Ohio-6524, ¶ 151-152, citing Davis. Here, appellant’s
assignment of error is limited to review of the trial court’s statutory findings, not a
constitutional issue he raises for the first time in this appeal. As a result, we decline to
extend the holding in Davis to this appeal.
8.
{¶ 13} We are not the first court to recognize this distinction. In State v. Morris,
2023-Ohio-3412 (12th Dist.), the Twelfth District Court of Appeals traced the State’s
advocacy for plain error review of felony sentences when a defendant does not “object”
by citing State v. Whitaker, 2022-Ohio-2840. Morris at ¶ 26. It noted that Whitaker,
which cited Hunter and Davis, involved a constitutional challenge to the imposition of
consecutive sentences for the first time on appeal rather than a challenge to the trial
court’s statutory findings under R.C. 2929.14(C)(4). It found that this distinction, coupled
with the Ohio Supreme Court’s then-recent guidance in State v. Gwynne, 2022-Ohio4607 that a trial court’s factual findings under R.C. 2929.14(C)(4) are reviewed under the
statutory standard of review provided in R.C. 2953.08(G)(2), warranted review under that
statutory standard rather than plain error. Morris at ¶ 26-28, citing Gwynne at ¶ 1
(vacated on other grounds by State v. Gwynne, 2023-Ohio-3851).
{¶ 14} We reach the same conclusion here. Defendants have a right to appeal
sentences that are contrary to law pursuant to R.C. 2953.08(A)(4). It is logical that they
should be reviewed under the standard identified in that same section of the revised
code—that is, R.C. 2953.08(G)(2). To find otherwise would add an unnecessary
requirement on defendants to “object” to a sentence immediately after its imposition and
risk an illegal sentence being left in place following an appellate court’s discretionary
plain error review. For these reasons, we find that an appellant’s challenge to a trial
court’s findings under R.C. 2929.14(C)(4) are reviewed under the standard described in
9.
R.C. 2953.08(G)(2) and we apply that standard to appellant’s single assignment of error
below.
b. Appellant has not shown that the trial court’s findings under R.C. 2929.14(C)(4)
are not clearly and convincingly unsupported by the record.
{¶ 15} R.C. 2953.08(G)(2) provides that appellate courts may “increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing” if it finds, in relevant part, “that the record does
not support the sentencing court’s findings” under R.C. 2929.14(C)(4) or “that the
sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b). Under this
standard, we find that the trial court did not err in ordering appellant to serve his prison
terms consecutively.
{¶ 16} In order to impose consecutive sentences, a trial court must make three
separate findings under R.C. 2929.14(C)(4). McIntoush, 2024-Ohio-2284, at ¶ 16 (6th
Dist.). The trial court must find that:
(1) consecutive sentences are necessary to protect the public from future crime or
to punish the offender;
(2) consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the public; and
(3) one or more of the findings listed in R.C. 2929.14(C)(4)(a), (b), or (c).
Id.; R.C. 2929.14(C)(4). The additional finding or findings the trial court must make
under R.C. 2929.14(C)(4) include:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
10.
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, 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.
Id. at ¶ 17. When a trial court makes the requisite findings, our review is limited to
whether those findings are supported by the record. State v. Glover, 2024-Ohio-5195.
“Only when the court of appeals concludes that the record clearly and convincingly does
not support the trial court’s findings or it clearly and convincingly finds that the sentence
is contrary to law is it is permitted to modify the trial court’s sentence.” Id. at ¶ 44. It is
appellant’s “significant” burden to identify clear and convincing evidence in the record to
show that the trial court erred in imposing their sentence. State v. Anderson, 2025-Ohio5732, ¶ 19 (6th Dist.).
{¶ 17} Appellant challenges three of the trial court’s consecutive sentence
findings. First, he argues that the trial court’s finding under R.C. 2929.14(C)(4)(a) is not
supported by the record because there is nothing in the record “demonstrating that
consecutive sentences were necessary to protect the public from future crime committed
by appellant.” Specifically, he argues that his “inevitable” removal from the United States
eliminates all opportunities he would have to commit future crimes. We do not need to
address the merits of appellant’s arguments under R.C. 2929.14(C)(4) regarding the
11.
potential to commit future crimes because the trial court also found that consecutive
sentences were appropriate to “punish the defendant.” Appellant offers no argument as to
how the record clearly and convincingly does not support this finding under R.C.
2929.14(C)(4). As a result, we find that appellant has not met his burden to show that the
trial court erred in reaching its finding under R.C. 2929.14(C)(4).
{¶ 18} Next, appellant argues that the record does not support the trial court’s
finding that consecutive sentences were not disproportionate to the danger he posed to the
public as described in R.C. 2929.14(C)(4). He again argues that because he is subject to
removal from the United States that he cannot pose a danger to the public. This argument
is speculative. While appellant may be subject to immigration proceedings that could
result in his removal from the United States, there is nothing in the record to clearly and
convincingly show that he will indeed be removed from the country and, more
importantly, that these proceedings preclude him from being a danger to the public.
Indeed, appellant was subject to immigration proceedings at the time he committed the
underlying offenses. Also, notwithstanding his immigration status, the trial court was
obligated to impose, and appellant was obligated to serve, the sentence required under
Ohio law. See State v. Chambers, 2024-Ohio-3341, ¶ 211-214 (6th Dist.). Therefore, we
cannot say that the trial court’s finding that appellant was a danger to the public is clearly
and convincingly not supported by the record.
{¶ 19} Lastly, appellant argues that the trial court’s finding that he engaged in one
or more courses of conduct as described in R.C. 2929.14(C)(4)(b) is not supported by the
12.
record. He argues that “there is nothing in the record to suggest that the forgery and
sexual offenses were part of any ongoing course of conduct” and that the two instances of
illegal sexual conduct on which he was convicted could not be a course of conduct
because they happened in the same night.6 The record shows that appellant’s forgery
conviction was based on his use of false documentation containing the victim’s brother’s
personal information, suggesting that the commission of the offenses were related and
part of the same course of conduct. Appellant’s mere statement that forgery and gross
sexual imposition are unrelated offenses is insufficient to clearly and convincingly show
that the trial court’s finding was not supported by the record. Further, appellant’s
argument that two instances of gross sexual imposition cannot constitute a course of
conduct because they occurred the same night is unfounded as a matter of law. See
Anderson at ¶ 15 (holding that the commission of multiple offenses through the same
conduct, or offenses committed in close temporal proximity to one another, are not
precluded from properly constituting a “course of conduct” under R.C.
2929.14(C)(4)(b)). As a result, appellant has not shown that the trial court’s finding that
his offenses were part of one or more courses of conduct is not supported by the record.
6
The State argues that the incidents occurred over the course of time identified in the indictment. We do not need to resolve this dispute, however, as appellant’s argument fails as a matter of law as described below.
13.
{¶ 20} In sum, appellant has failed to clearly and convincingly show that the trial
court’s findings under R.C. 2929.14(C)(4) are not supported by the record. As a result,
we find his sole assignment of error not well-taken.
III. Conclusion
{¶ 21} For these reasons, we find appellant’s assignment of error not well-taken
and we affirm the April 28, 2025 judgment of the Erie County Court of Common Pleas.
{¶ 22} Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
CONCUR.
JUDGE
Thomas J. Osowik, P.J.
CONCURS IN JUDGMENT
AND WRITES SEPARATELY.
JUDGE
OSOWIK, P.J., concurring and writing separately,
{¶ 23} For the following reasons, I respectfully write separately while agreeing
with the majority to affirm the trial court’s judgment.
14.
FONSECA-MORA DID NOT OBJECT TO HIS SENTENCE
{¶ 24} The undisputed record of this proceeding establishes that neither FonsecaMora nor his counsel objected to the court’s pronouncement of sentence. It would be
helpful if there was a video of the sentencing hearing where, as a reviewing court, we
could discern something that could be interpreted as an objection to the court’s sentence,
such as an audible gasp, a facial grimace or even a random burp or air biscuit from the
courtroom gallery. Instead, the record is noxiously silent after pronouncement of the
sentence.
{¶ 25} The majority opinion places the burden on the State of Ohio to define
“objection.” The task in this case is indefinable, particularly in a record where none is
made. It cruelly invites the prosecution to play a game of “Where’s Waldo” when, in fact,
there is no Waldo to be found.
{¶ 26} Up until now, an objection was self-evident. It was a formal statement
taking exception to a ruling of the court and further articulating the basis for the
objection. Black's Law Dictionary (Revised Fourth Edition, 1968). It was the only
manner in which to preserve the right to appeal an adverse ruling. I would echo the
astute observation made by Justice Potter Stewart “I know it when I see it” and, in my
opinion, a pre-sentence plea to the court is not an objection to a pronounced sentence.
Jacobellis v. Ohio 378 U.S. 184 (1964). I can find no cited source of support for a rule
that a pre-sentence plea for mercy blossoms into an undefined perpetually self-preserved
objection to a sentence.
15.
{¶ 27} At the sentencing hearing and before the court’s pronouncement of
sentencing, counsel was an advocate for his client. Counsel prayed for leniency like
every lawyer does in courtrooms across America every day. Appellant argued that since
his removal from the United States was “inevitable” upon his release from state custody,
and since appellee was in communication with “ICE”,7 he was no danger to “the
American or local public” and had no “opportunity to commit crime.” In response,
appellee raised the following issue for the trial court’s consideration:
I am not going to represent that I have any idea what life in
Columbia (sic.) is like, but I believe that simply saying “you’ve done
enough by way of the consequence, now you get to go back to your home
country” sounds to me like more of a reward than a punishment. It removes
him from what I believe to be probably a much better lifestyle than he
would otherwise have if he returns to Columbia (sic.), but I don’t think it
meets the requirements of justice from the victim’s perspective. Had she
been raped by somebody who was a U.S. citizen, that opportunity to leave
would not be made available.
{¶ 28} When the trial court asked appellant’s counsel for evidence to support his
claim that appellant “would leave tomorrow escorted,” he simply referred to the removal
order. The trial court specifically asked appellant’s counsel, “I understand that’s what
you’re saying, but I’m just saying, do you have any indication like when that would
happen or how that would happen?” Appellant’s counsel had no response, so appellee
explained the lack of concrete information:
7
Neither party defines “ICE,” which we infer from the context of the record is the United States Immigration and Customs Enforcement agency under the Department of Homeland Security.
16.
Your Honor, it is my understanding in speaking with the Border
Patrol agencies and ICE, that they requested that the State continue with the
prosecution, and upon conclusion of the prosecution, which would include
any sentencing either based on the plea, then the federal government has an
order to take physical possession of the Defendant, but they do not have a
date certain for that.
So my intention would be, at the conclusion of today, to notify them
that this matter is concluded, and then based upon whatever sentence this
Court imposes, they will then schedule . . . taking physical possession of
the Defendant, whether it’s tomorrow, four years from now, or somewhere
in between . . . is how that would work.
{¶ 29} After the trial court announced appellant’s sentence, appellant made no
contemporaneous objection to the trial court’s determination for consecutive sentences,
which is also reflected in the trial court’s sentencing judgment entry journalized on April
28, 2025. Appellant’s failure in the record to interpose any type of objection after the
pronouncement of his sentence is a forfeited error and squarely leaves us with Crim.R.
52(B) plain error as the appropriate standard of review. State v. Rogers, 2015-Ohio-2459,
¶ 21-22; State v. Payne, 2007-Ohio-4642, ¶ 20.
{¶ 30} The contemporaneous-objection requirement imposes a duty on appellant to
raise the error with the trial court before presenting that error on appeal. State v.
Wintermeyer, 2019-Ohio-5156, ¶ 10. “The Rules of Criminal Procedure make but one
exception to the contemporaneous-objection requirement: ‘Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court.’” State v. Murphy, 91 Ohio St.3d 516, 532 (2001), quoting Crim.R. 52(B).
{¶ 31} Specifically, the Ohio Supreme Court is clear that appellant’s failure to
raise an issue with his consecutive sentences at the time of sentencing forfeits all but
17.
plain error. Rogers at ¶ 28; State v. Beasley, 2018-Ohio-493, ¶ 272 (Dewine, J.,
concurring in judgment only) (“The rule that the failure to raise an error forfeits all but
plain error extends to errors that occur during sentencing hearings.”). Further, in State v.
Whitaker, 2022-Ohio-2840, ¶ 166, citing State v. Hunter, 2011-Ohio-6524, ¶ 152, the
Ohio Supreme Court could not have been unmistakably clearer: “[B]ecause Whitaker
failed to object to the imposition of consecutive sentences at the sentencing hearing, he
has forfeited this issue, absent plain error.” The Ohio Supreme Court has been
consistently clear on the plain-error standard of review of forfeited-error. State v. Grate,
2020-Ohio-5584, ¶ 204; State v. West, 2022-Ohio-1556, ¶ 22, citing Rogers at ¶ 21-22.
{¶ 32} It is a separate issue whether an appellate court notices the plain error to
correct it. Id., citing Rogers at ¶ 23. Therefore, plain-error remains the appropriate
standard of review for appellant’s forfeited error.
{¶ 33} This court follows Ohio Supreme Court guidance on forfeited error. State v.
Ratcliffe, 2019-Ohio-308, ¶ 10 (6th Dist.); State v. Heath, 2026-Ohio-1163, ¶ 18 (6th
Dist.); State v. Magee, 2019-Ohio-1921, ¶ 24-25 (6th Dist.); State v. Hopings, 2022-Ohio-1532, ¶ 69 (6th Dist.), citing State v. McKinney, 2020-Ohio-3547, ¶ 27 (6th Dist.).
{¶ 34} A majority of Ohio’s courts of appeals also follow Ohio Supreme Court
guidance on forfeited error. State v. Gill, 2024-Ohio-2792, ¶ 44 (1st Dist.), appeal not
allowed, 2024-Ohio-5529; State v. Byrd, 2008-Ohio-5515, ¶ 35-36 (2d Dist.); State v.
Grashel, 2025-Ohio-580, ¶ 22 (4th Dist.), appeal not allowed, 2025-Ohio-2048; State v.
Wade, 2024-Ohio-4556, ¶ 61 (5th Dist.); State v. Masson, 2017-Ohio-7705, ¶ 22 (7th
18.
Dist.); State v. Saxon, 2023-Ohio-306, ¶ 15 (8th Dist.); State v. Revels, 2014-Ohio-795, ¶
8 (10th Dist.); State v. Jirousek, 2013-Ohio-5267, ¶ 38 (11th Dist.); and State v. Gray,
2023-Ohio-338, ¶ 57 (12th Dist.).
APPELLANT DOES NOT PRESENT AN ARGUMENT FOR PLAIN ERROR REVIEW
{¶ 35} Regardless, in this instance, appellant does not argue plain error in his
appeal to this court. Rather, appellant argues his consecutive sentences are contrary to
law under R.C. 2953.08(G)(2)(b), despite conceding “that the trial court went through the
motions in saying what it needed to say to seemingly impose consecutive sentences on
appellant properly.”
{¶ 36} Appellant has the burden of demonstrating the plain-error doctrine’s threepart test: “(1) an error occurred, (2) the error was obvious, and (3) the error affected the
outcome of the trial.” Id. “We take notice of plain error with the utmost of caution, under
exceptional circumstances, and only to prevent a manifest miscarriage of justice.” Id.
{¶ 37} In an aspired world of appellant advocacy, it would be minimally
efficacious if appellant at least unartfully made reference to an “obvious error” made by
the trial court even if not by using the proper nomenclature or “talismanic” words. As
noted, appellant does not argue that the sentence imposed by the trial court was plain
error. Since appellant has failed to claim nor even remotely develop this argument, I
would not create an argument on his behalf. As such, in my opinion, this court need not
address the merits of appellant’s claimed assignment of error. State v. Henning, (6th
Dist.), 2023-Ohio-2905, ¶ 65.
19.
THE FUTURE OF SENTENCING REVIEW
{¶ 38} Nevertheless, from this day forward, utilizing the rubric created by the
majority opinion, all misdemeanor and felony sentences will now be statutorily reviewed
in an Anders-like fashion by this court despite the absence of even a hint of
dissatisfaction (objection) after pronouncement of sentence by the trial court. A defendant
or their counsel no longer has the obligation to contemporaneously object to the
correctness of a court’s finding actually made at the sentencing hearing. A defendant and
their counsel need not make any more of an expression than that of a potted plant after
imposition of sentence. The great philosopher Yogi Berra prognosticated correctly that
“the future ain’t what is used to be.”
{¶ 39} For the foregoing reasons and only those reasons, I find appellant’s sole
assignment of error not well-taken and join the majority in affirming the trial court’s
judgment.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
20.