[Cite as State v. Harvey, 2010-Ohio-5408.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-10-05
v.
BRIAN K. HARVEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009-CR-00166
Judgment Affirmed
Date of Decision: November 8, 2010
APPEARANCES:
Andrew R. Schuman for Appellant
Mark C. Miller for Appellee
Case No. 5-10-05
SHAW, J.
{¶1} Defendant-appellant, Brian Harvey (“Harvey”), appeals the February
16, 2010 judgment of the Common Pleas Court of Hancock County, Ohio, finding
him guilty of four counts of gross sexual imposition (“GSI”) in violation of R.C.
2907.05(A)(4), each a felony of the third degree, and eight counts of rape in
violation of R.C. 2907.02(A)(1)(b), each a felony of the first degree and each
containing a sexually violent predator specification pursuant to R.C. 2941.148, and
sentencing him to an aggregate prison term of 100 years to life.
{¶2} The facts relevant to this appeal are as follows.1 On August 6, 2009,
Harvey’s ex-wife met with Detective Tuttle of the Findlay Police Department to
discuss a video she had surreptitiously made of Harvey. Mrs. Harvey explained
that she and Harvey were divorced. However, during the school year, Harvey
watched their two daughters, K.H., who was eleven at the time, and M.H., who
was ten at the time, in the early morning hours at her apartment until they left for
school because Mrs. Harvey was working. However, during the summer break,
Harvey did not watch the girls during the morning. Mrs. Harvey further stated that
shortly before contacting Det. Tuttle she saw a text message on K.H.’s phone from
1
These facts are derived from the pre-sentence investigation, the sentencing hearing, the exhibits admitted
into evidence for purposes of sentencing, and various other filings contained in the record. During the
sentencing hearing, counsel for Harvey objected to a number of statements made by the prosecutor, some
of which he maintained were inaccurate representations of the facts but did not object to any of the facts
contained in the pre-sentence investigation. None of the prosecutor’s statements to which counsel for
Harvey objected is contained in this Court’s representation of the facts.
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Harvey that read, “can’t wait to see you in the morning,” which she thought was
strange because he was not supposed to be there. As a result, Mrs. Harvey set up a
camera in her living room to record the interaction between Harvey and the girls.
{¶3} Mrs. Harvey gave the video recording to Det. Tuttle, who then
watched it. This video depicted Harvey giving K.H. a long kiss on the lips,
squeezing her buttocks over her pants, and then placing his hand inside of her
pants and grabbing her buttocks again. The video also showed Harvey using his
mouth on K.H.’s breasts and rubbing her vagina.
{¶4} Mrs. Harvey informed Det. Tuttle that her ex-husband was with the
children at their gymnastics class and that he was scheduled to keep them
overnight. Det. Tuttle, Det. Domme, Sergeant Blunk of the Hancock County
Sheriff’s Office, and a caseworker from Hancock County Children’s Services
went to the gymnastics class and asked Harvey to come with them to the police
department for an interview. Harvey agreed and went to the police department
while the children were taken to the Crimes Against Children Center in Findlay,
Ohio, to be interviewed.
{¶5} In her interview, K.H. revealed that Harvey had vaginal intercourse
with her on August 4, 2009, during bedtime, and that a similar incident that also
involved vaginal intercourse occurred the week prior on July 28 or July 30, 2009.
K.H. also stated that Harvey had anal intercourse with her approximately one
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month prior. She further told the investigators that Harvey had penetrated her
vagina with his fingers on more than one occasion, usually before having vaginal
intercourse with her, and that he had put his mouth on her breasts and vagina on
prior occasions. She also informed them that she had witnessed her sister, M.H.,
put her mouth on Harvey’s penis.
{¶6} During his interview, Harvey admitted that he had been engaging in
inappropriate activities with his daughters since 2008. More specifically, Harvey
admitted to touching K.H.’s breasts and rubbing her vagina on more than one
occasion, having vaginal intercourse with K.H. on more than one occasion,
performing oral sex on K.H. and having her perform oral sex on him, digitally
penetrating K.H.’s vagina, and having anal intercourse with K.H. Harvey also
admitted to touching M.H.’s breasts and rubbing her vagina and digitally
penetrating M.H.’s vagina. In addition, Harvey informed the investigators that he
had inappropriate photographs of young girls on his personal computer. At some
point in the interview, Harvey consented to a search of his home and accompanied
the officers there, where various items including his computers were seized.
{¶7} A few days after the interviews with K.H. and Harvey, Det. Domme
interviewed M.H. In this interview, M.H. revealed that Harvey had touched her
“private parts” on more than one occasion and that she had used her mouth “a few
times on his privates.”
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{¶8} Harvey’s computer hard drives were seized and a number of
photographs of his daughters in the nude were discovered. Some of these
photographs also depicted his daughters engaged in sexual activity with an
unknown adult male. The computer hard drives also contained video files. Two
of these videos showed Harvey engaged in sexual activity with one of his
daughters on a boat out in the open. There were five other videos where Harvey’s
daughters were engaged in sexual activity with an unknown adult male. However,
in these recordings, the girls refer to this adult male several times as “Daddy.” On
one video, K.H. is shown performing fellatio on Harvey and tells him, “Daddy, it’s
choking me,” but Harvey has her continue. According to the victims, Harvey
often had M.H. photograph the sexual acts between him and K.H., and often times
he had the victims watch one another engage in sexual activity with him.
{¶9} On August 11, 2009, Harvey was indicted for the following
offenses:
Count 1: GSI – victim: K.H.– Date of Offense: July 15, 2009-
August 6, 2009;
Count 2: GSI – victim: K.H.– Date of Offense: July 15, 2009-
August 6, 2009;
Count 3: GSI – victim: K.H.– Date of Offense: July 15, 2009-
August 6, 2009;
Count 4: Rape (vaginal intercourse) – victim: K.H. – Date of
Offense: August 4, 2009 – Sexually Violent Predator Specification;
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Count 5: Rape (vaginal intercourse) – victim: K.H. – Date of
Offense: July 28, 2009-July 30, 2009 – Sexually Violent Predator
Specification;
Count 6: Rape (vaginal intercourse) – victim: K.H. – Date of
Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator
Specification;
Count 7: Rape (oral sex) – victim: K.H. – Date of Offense:
August 6, 2008-August 6, 2009 – Sexually Violent Predator
Specification;
Count 8: Rape (oral sex) – victim: K.H. – Date of Offense:
August 6, 2008-August 6, 2009 – Sexually Violent Predator
Specification;
Count 9: Rape (digital penetration) – victim: K.H. – Date of
Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator
Specification;
Count 10: Rape (anal penetration) – victim: K.H. – Date of
Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator
Specification;
Count 11: GSI – victim: M.H. – Date of Offense: August 6, 2008-
August 6, 2009; and
Count 12: Rape (digital penetration) – victim: M.H. – Date of
Offense: April 30, 2009-August 6, 2009 – Sexually Violent Predator
Specification.
Each count of GSI was charged under R.C. 2907.05(A)(4) and each count of rape
was charged under R.C. 2907.02(A)(1)(b) because both victims were under
thirteen at the time of the alleged offenses.
{¶10} Initially, Harvey entered pleas of not guilty to each count and
eventually entered pleas of not guilty by reason of insanity. Throughout the next
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few months, counsel for Harvey filed a number of motions, including motions to
suppress Harvey’s statements and the evidence seized from the search of his home
and a motion to have Harvey’s competency to stand trial evaluated. Harvey was
found competent to stand trial on January 4, 2010.
{¶11} On January 11, 2010, Harvey withdrew all pending motions,
withdrew his previously tendered pleas of not guilty and not guilty by reason of
insanity, and entered pleas of guilty on each count and each specification. In
exchange, the State agreed not to pursue charges against Harvey for the images
and recordings found on his computer hard drives. However, the images and
recordings from the computer hard drives were placed on a compact disc, marked
State’s Exhibit 2, and submitted to the trial court for its review for purposes of
sentencing. The court accepted Harvey’s guilty pleas and ordered a pre-sentence
investigation.
{¶12} On January 25, 2010, Harvey was sentenced on each count as
follows:
Counts 1, 2, 3, & 11: Five years; ordered served consecutively
to each other;
Counts 4, 5, & 6: Twenty-five years to life; ordered served
concurrently to each other and concurrently to Counts 1-3 & 11;
Counts 7, 8, & 9: Twenty-five years to life; ordered served
concurrently to each other but consecutively to Counts 1-6 & 11;
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Count 10: Twenty-five years to life; ordered served consecutively
to Counts 1-9 & 11; and
Count 12: Twenty-five years to life; ordered served consecutively
to Counts 1-11.
The trial court noted that its specific intention was that Harvey be sentenced to an
aggregate sentence of 100 years to life in prison.
{¶13} This appeal followed, and Harvey now asserts eight assignments of
error.
ASSIGNMENT OF ERROR I
HARVEY RECEIVED PREJUDICIALLY INEFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH
AND FOURTEENTH AMENDMENT RIGHTS, AS WELL AS
HIS RIGHTS UNDER ARTICLE I, SECTION 10 OF THE
OHIO CONSTITUTION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT FAILED TO MERGE THE
CONVICTIONS PURSUANT TO R.C. 2941.25 AND
ERRONEOUSLY IMPOSED A SENTENCE FOR EACH
CONVICTION, WHEN IT SHOULD HAVE IMPOSED ONE
SENTENCE FOR THE MOST SERIOUS OFFENSE, RAPE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN IMPOSING ANY PRISON
TERM FOR THE GROSS SEXUAL IMPOSITION
CONVICTIONS BECAUSE IT DID NOT MAKE THE
FINDINGS REQUIRED BY R.C. 2907.05(C)(2).
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ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN IMPOSING PRISON
SENTENCES ON ANY OF THE CONVICTIONS BECAUSE
IT FAILED TO COMPLY WITH THE REQUIREMENTS OF
R.C. 2929.19(B)(3).
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN IMPOSING MAXIMUM
SENTENCES FOR THE GROSS SEXUAL IMPOSITION
CONVICTIONS, IN VIOLATION OF R.C. 2929.14.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED IN IMPOSING MAXIMUM
SENTENCES FOR THE GROSS SEXUAL IMPOSITION
CONVICTIONS BECAUSE IT DID NOT STATE ITS
REASONING FOR DOING SO AS REQUIRED BY R.C.
2929.19(B)(2) AND (B)(2)(d).
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES BECAUSE IT FAILED TO MAKE THE
FINDINGS REQUIRED BY R.C. 2929.14(E)(4).
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT ERRED IN IMPOSING AN
AGGREGATE SENTENCE OF 100 YEARS TO LIFE IN
PRISON, WHICH SENTENCE IS DISPROPORTIONATE IN
COMPARISON WITH OTHER SENTENCES IMPOSED FOR
SIMILAR OFFENSES.
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First and Second Assignments of Error
{¶14} Harvey’s first two assignments of error involve whether his offenses
constituted allied offenses of similar import, which should have been merged. As
such, we elect to address these assignments of error together.
{¶15} In his first assignment of error, Harvey contends that he received
ineffective assistance of counsel when his attorney failed to request that his counts
be merged and that he be sentenced to one sentence rather than twelve individual
sentences. In his second assignment of error, Harvey contends that the trial court
erred in not merging all of his offenses and imposing only one sentence for rape.
{¶16} Initially we note that attorneys licensed by the State of Ohio are
presumed to provide competent representation. State v. Hoffman (1998), 129 Ohio
App.3d 403, 407, 717 N.E.2d 1149. An ineffective assistance of counsel claim
requires proof that trial counsel’s performance fell below objective standards of
reasonable representation and that the defendant was prejudiced as a result. State
v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the
syllabus. In reviewing such a claim, courts are to afford a high level of deference
to the performance of trial counsel. Id. at 142. Also, in order to show that a
defendant has been prejudiced by counsel’s deficient performance, the defendant
must prove that there exists a reasonable probability that, but for counsel’s errors,
the outcome at trial or in his legal proceedings would have been different. Id. at
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paragraph three of the syllabus. “Reasonable probability” is a probability
sufficient to undermine confidence in the result. Id. at 142.
{¶17} When a defendant maintains that he received ineffective assistance
of counsel based upon a claim that his counsel failed to make a motion to the
court, he must also show a reasonable probability that the motion would have been
successful in order for such failure to rise to the level of ineffective assistance of
counsel. See State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721
N.E.2d 52; State v. Robinson (1996), 108 Ohio App.3d 428, 433, 670 N.E.2d
1077. Thus, this Court’s determination of whether counsel for Harvey was
ineffective depends upon whether there was a reasonable probability that a motion
to merge the offenses in this case would have been successful.
{¶18} The Revised Code provides that “[w]here the same conduct by
defendant can be construed to constitute two or more allied offenses of similar
import, the indictment or information may contain counts for all such offenses, but
the defendant may be convicted of only one.” R.C. 2941.25(A). However, when
the “defendant’s conduct constitutes two or more offenses of dissimilar import, or
where his conduct results in two or more offenses of the same or similar kind
committed separately or with a separate animus as to each, * * * the defendant
may be convicted of all of them.” R.C. 2941.25(B).
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{¶19} Determining whether two or more offenses are allied offenses of
similar import requires a two-step process. The first step requires the court to
compare the elements of the two offenses to determine whether they “correspond
to such a degree that the commission of one crime will result in the commission of
the other[.]” State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d
816. The second step requires a court to determine whether the crimes were
committed separately or with a separate animus. Id.
{¶20} As for the first step, all the offenses of rape and the sexually violent
predator specifications charged against Harvey were identical in their elements, as
were all of the offenses of GSI. Thus, all the counts of rape and the sexually
violent predator specifications satisfied the first step of Blankenship, as did all the
counts of GSI. In addition, the Ohio Supreme Court has held that GSI is a lesser
included offense of rape so a defendant may not be convicted of both GSI and rape
“when the counts arise out of the same conduct.” State v. Foust, 105 Ohio St.3d
137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 143, citing State v. Johnson (1988), 36
Ohio St.3d 224, 522 N.E.2d 1082, paragraph one of the syllabus. However, this
does not mean that Harvey cannot be convicted on all counts as this Court must
proceed to the second step. See State v. Lowd, 3rd Dist. No. 5-09-16, 2010-Ohio-
193.
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{¶21} Crimes involving distinct sexual activity, i.e., vaginal intercourse,
cunnilingus, and digital penetration, each constitute a separate crime with a
separate animus, and they do not constitute allied offenses of similar import. State
v. Nicholas (1993), 66 Ohio St.3d 431, 435, 613 N.E.2d 225. This Court has
previously followed the rationale of Nicholas, and applied it to the offense of GSI.
See State v. Austin, 138 Ohio App.3d 547, 549-550, 2000-Ohio-1728, 741 N.E.2d
927.
{¶22} In Austin, the defendant was found guilty of two counts of GSI, one
in which the defendant touched the victim’s breast with his hand and one in which
he kissed the victim’s breast with his mouth. Id. at 550. This Court found that the
record did not demonstrate that these acts occurred “in a single, simultaneous
instance; rather [these] acts occurred separately but in close proximity of time
during the same extended assault of the victim.” Id. Thus, we concluded that
“these acts were of sufficiently separate character * * * so as to constitute separate
crimes that do not constitute allied offenses of similar import. Therefore, the trial
court acted properly in not treating these offenses as allied offenses of similar
import and sentencing defendant for both.” Id.
{¶23} At the sentencing hearing in the case sub judice, the prosecutor
noted that the charges of GSI that listed K.H. as the victim were based on the
video that Mrs. Harvey provided to Det. Tuttle. As previously noted, the video
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showed Harvey grabbing K.H.’s buttocks, rubbing her vagina, and using his
mouth on her breasts. Similarly to the facts in Austin, the record in this case did
not demonstrate that these acts occurred in a single, simultaneous instance; rather
these acts occurred separately but in close proximity of time during the same
extended assault of the victim. Thus, they are not allied offenses of similar
import.
{¶24} Further, the fourth GSI charge was committed against M.H. Both
M.H. and Harvey informed the detectives that he had touched her breasts and
rubbed her vagina. Clearly, a defendant can be convicted for more than one
offense if each offense involves a different victim, even though the offenses
charged are identical, i.e. two counts of GSI. See State v. Jones (1985), 18 Ohio
St.3d 116, 117, 480 N.E.2d 408 (holding a defendant may be convicted of two
counts of aggravated vehicular homicide when two people are killed as the result
of a single instance of a defendant’s reckless operation of a motor vehicle); State
v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48 (holding a
defendant who set only one fire that killed six people committed six counts of
aggravated arson because defendant knowingly set a fire that created a substantial
risk of serious harm or injury to six people). Thus, Count 11, the GSI offense
naming M.H. as the victim, was not an allied offense of similar import to the other
three counts of GSI naming K.H. as the victim.
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{¶25} As to the rape counts, the rape in Count 4 was of K.H. and occurred
on August 4, 2009. This is one of the specific dates that K.H. could recall that her
father had vaginal intercourse with her. Count 5 was for the rape of K.H. and
occurred between July 28, 2009, and July 30, 2009. This was another specific
time period that K.H. could recall that her father had vaginal intercourse with her.
Count 6 was for the rape of K.H. and occurred between August 6, 2008, and
August 6, 2009. Harvey was arrested on August 6, 2009. He admitted having
vaginal intercourse with his daughter on multiple occasions beginning
approximately a year earlier in 2008. Counts 7 and 8 were for acts of oral sex
between K.H. and Harvey from August 6, 2008, until August 6, 2009. Harvey
admitted that he performed cunnilingus on K.H. and had her perform fellatio on
him. Count 9 was for the rape of K.H. via digital penetration committed during
the same one-year time frame as Counts 6-8. Both K.H. and Harvey informed
investigators that he penetrated K.H.’s vagina with his fingers. K.H. further stated
that Harvey would usually do this before he had vaginal intercourse with her.
Count 10 was the anal rape of K.H. committed during the same one-year time
frame. Both K.H. and Harvey told the detectives that he had anal intercourse with
K.H. during the year that he performed multiple acts of sexual abuse upon K.H.
and M.H. Lastly, the rape in Count 12 was based upon the digital penetration of
M.H.’s vagina by Harvey during this time, which Harvey also admitted doing.
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{¶26} The acts of vaginal intercourse (Counts 4-6), anal intercourse (Count
10), and digital penetration (Counts 9 & 12) each involve distinct sexual activity.
Hence, they each constituted a separate crime with a separate animus, and they do
not constitute allied offenses of similar import. These acts are also separate and
distinct from the acts of fellatio and cunnilingus (Counts 7 & 8). Moreover, the
acts of vaginal intercourse occurred on separate dates, each with a separate animus
and not simply incidental to one another. In addition, Count 12 was committed
against M.H. while the others were committed against K.H. Thus, each of these
offenses was separate and distinct. Likewise, the acts of rape were separate and
distinct from each of the GSI counts, as the acts of GSI were not simply incidental
to the commission of the rapes but were separate acts with a separate animus.
Therefore, pursuant to R.C. 2941.25(B), Harvey could be convicted for each of the
twelve counts and given separate sentences for each, and the trial court did not err
in failing to merge any of these offenses. Accordingly, if Harvey’s trial counsel
would have raised the issue of merger, there was not a reasonable probability that
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he would have been successful.2
{¶27} For all of these reasons, the first and second assignments of error are
overruled.
Third Assignment of Error
{¶28} Harvey next asserts that the trial court erred in sentencing him to
prison on any of the four counts of GSI because it did not make any of the
necessary findings pursuant to R.C. 2907.05(C)(2). This section states:
Whoever violates this section is guilty of gross sexual imposition.
***
(2) Gross sexual imposition committed in violation of division
(A)(4) or (B) of this section is a felony of the third degree.
Except as otherwise provided in this division, for gross sexual
imposition committed in violation of division (A)(4) or (B) of this
section there is a presumption that a prison term shall be
imposed for the offense. The court shall impose on an offender
convicted of gross sexual imposition in violation of division
(A)(4) or (B) of this section a mandatory prison term equal to
2
We also note that during the plea hearing, counsel for Harvey informed the trial court, in Harvey’s
presence, that he “devoted a lot of time visiting Mr. Harvey” at the jail, visited and consulted with him over
a dozen times, reviewed the indictment, the nature of the allegations, and what the State would have to
prove beyond a reasonable doubt, reviewed each motion with Harvey, the ramifications of the motions and
several different ways the case could turn depending upon the court’s rulings on those motions, the insanity
defense and how that would impact the case, and reviewed the conversations he had with the detectives and
what his own investigation of the case revealed. As noted, trial counsel filed a number of motions with
supporting memorandums on Harvey’s behalf: a request for discovery, a request for a bill of particulars, a
motion to suppress his statements, a motion to suppress evidence seized from Harvey’s home and
computers, a motion in limine to prevent the admission of Mrs. Harvey’s surreptitious videotape, a motion
to bifurcate the charges related to K.H. from those related to M.H., a motion for an in camera inspection of
children services’ records in this case, a motion to bar the testimony of the caseworker, a motion to
suppress the results of the testing of the buccal swabs taken from the defendant, and a motion for a
competency evaluation of the defendant. All of these filings and their contents evidence an attorney who
was very active on his client’s behalf, was addressing every possible issue with the case, was well aware of
the factual allegations against Harvey, including Harvey’s own admissions, and was providing competent
representation.
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one of the prison terms prescribed in section 2929.14 of the
Revised Code for a felony of the third degree if either of the
following applies:
(a) Evidence other than the testimony of the victim was
admitted in the case corroborating the violation;
(b) The offender previously was convicted of or pleaded guilty
to a violation of this section, rape, the former offense of felonious
sexual penetration, or sexual battery, and the victim of the
previous offense was less than thirteen years of age.
R.C. 2907.05(C)(2). Harvey contends that the trial court could not sentence him
to prison for his GSI charges unless either sub-section (a) or (b) applied. He
further contends that no evidence was presented to support a finding that one of
these sub-sections applied and that the trial court, consequently, did not make the
required finding before sentencing him to a term of imprisonment. We disagree
with Harvey’s interpretation of R.C. 2907.05(C)(2) and what the trial court was
required to find before imposing a prison term in this instance.
{¶29} Harvey was convicted of four counts of GSI in violation of R.C.
2907.05(A)(4). Division (C) specifically states that a violation of division (A)(4)
carries a presumption that a prison term shall be imposed. Therefore, Harvey’s
contention that any prison term for these offenses was prohibited by this statute is
baseless. Further, the sub-divisions with which Harvey is concerned require a trial
court to impose a mandatory prison term within the range proscribed by R.C.
2929.14 if either of those sub-sections applies. In this case, the trial court never
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referenced R.C. 2907.05(C)(2)(a) or (b) and did not impose a mandatory prison
term for any of these offenses. The trial court merely exercised the discretion
afforded to it by R.C. 2929.14(A)(3) in imposing a five-year-prison term for each
of these four counts and in accordance with the presumption that a prison term
must be imposed for violations of R.C. 2907.05(A)(4). Thus, Harvey’s third
assignment of error is overruled.
Fourth Assignment of Error
{¶30} Harvey contends in his fourth assignment of error that the trial court
erred in sentencing Harvey to a term of imprisonment for his rape convictions
because it failed to follow the requirements of R.C. 2929.19(B)(3). This section of
the Revised Code states: “Subject to division (B)(4) of this section, if the
sentencing court determines at the sentencing hearing that a prison term is
necessary or required, the court shall do all of the following: (a) Impose a stated
prison term and, if the court imposes a mandatory prison term, notify the offender
that the prison term is a mandatory prison term[.]” R.C. 2929.19(B)(3). Harvey
maintains that the trial court failed to inform him that his sentence was mandatory
and that this failure renders his sentence void.3 We disagree.
3
Other than the statute at issue, Harvey cites no authority nor has this Court found any authority for his
position that a failure to use the exact term “mandatory” to inform a defendant that his sentence of twenty-
five years to life for a count of rape with a sexually violent predator specification is mandatory renders the
sentence void ab initio.
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{¶31} Although Harvey correctly notes that the trial court did not
specifically use the magic word that his sentences for rape were “mandatory,” the
trial court informed Harvey in other ways that these sentences were mandatory.
For example, the court told Harvey, “with respect then to counts four, five, six,
seven, eight, nine, ten, and twelve, the Defendant having pled guilty to a charge of
rape with a sexual predator specification, the Court is required for each of these
offenses to impose an indefinite term. With the minimum sentence being 25 years
to a maximum sentence of life.” (Emphasis added.) (Sent. Hrg., 1/25/10, pp. 31-
32.) Later, the trial court told Harvey in regards to Counts 7, 8, and 9 that he
“must serve a period of 25 years to life[.]” (Emphasis added.) (id. at p. 33.)
Eventually the court informed Harvey, “[n]ow based upon this Court’s finding, the
Defendant is obviously not eligible for any prison program that could possibly
shorten his sentence.” (id. at pp. 34-35.) Moreover, throughout the sentencing
hearing, the court, the prosecutor, counsel for Harvey, and Harvey, himself, during
his allocution, spoke in terms that evidenced that all involved knew the rape
sentences were mandatory.4 Although the better practice would be to simply use
4
The trial court also specifically discussed the sentencing possibilities with Harvey during the plea
colloquy on January 11, 2010. At that time the trial court informed Harvey that the least amount of time he
could possibly serve would be twenty-five years, that he would be subject to a mandatory term of twenty-
five years, and then explained what a mandatory term of twenty-five years meant: “[w]hat that means is,
it’s a minimum term that must be served prior to any consideration of release.” (Plea Hrg., 1/11/10, pp. 28-
29.) The court also informed Harvey that he could serve up to a maximum of 200 years to life for the rape
counts, if they were ordered to be served consecutively. Thus, Harvey certainly knew prior to changing his
pleas of guilty that his rape sentences would be mandatory.
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the exact wording of the statute, in this case we find that the information provided
by the trial court and the language it employed throughout the sentencing was
sufficient to notify Harvey that his sentences for the eight counts of rape were
mandatory. Accordingly, the fourth assignment of error is overruled.
Fifth, Sixth, and Seventh Assignments of Error
{¶32} In his fifth and sixth assignments of error, Harvey maintains that the
trial court erred by ordering that he serve the maximum sentence of five years on
each of his counts of GSI without making the findings required by R.C.
2929.14(B) and 2929.19(B)(2). Similarly, in his seventh assignment of error,
Harvey maintains that the trial court erred by ordering that a number of his
sentences be served consecutively to one another without making the findings
required by R.C. 2929.14(E)(4).
{¶33} The Ohio Supreme Court has previously held,
The following sections, because they either create presumptive
minimum or concurrent terms or require judicial fact-finding to
overcome the presumption, have no meaning now that judicial
findings are unconstitutional: R.C. 2929.14(B), 2929.19(B)(2),
and 2929.41. These sections are severed and excised in their
entirety, as is R.C. 2929.14(C), which requires judicial fact-
finding for maximum prison terms, and 2929.14(E)(4), which
requires judicial findings for consecutive terms.
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 97. Each
section of the Revised Code relied upon by Harvey in these three assignments of
error was specifically severed from the sentencing statutes in Foster. Therefore,
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Harvey’s fifth, sixth, and seventh assignments of error are without merit, and,
accordingly, each is overruled.
Eighth Assignment of Error
{¶34} In Harvey’s eighth assignment of error, he asserts that the trial court
erred in imposing an aggregate sentence of 100 years to life in prison. In support
of this assertion, Harvey cites to two other cases wherein the defendants were
convicted of sexual offenses and claims that his sentences were disproportionate to
other sentences imposed for similar offenses in other cases.
{¶35} An appellate court must conduct a meaningful review of the trial
court’s sentencing decision. State v. Daughenbaugh, 3rd Dist. No. 16-07-07, 2007-
Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-
1181. A meaningful review means “that an appellate court hearing an appeal of a
felony sentence may modify or vacate the sentence and remand the matter to the
trial court for re-sentencing if the court clearly and convincingly finds that the
record does not support the sentence or that the sentence is otherwise contrary to
law.” Daughenbaugh, 2007-Ohio-5774, at ¶ 8, citing Carter, 2004-Ohio-1181, at
¶ 44; R.C. 2953.08(G).5 Clear and convincing evidence is “[t]he measure or
5
We note that the Supreme Court of Ohio’s recent plurality opinion in State v. Kalish, 120 Ohio St.3d 23,
896 N.E.2d 124, 2008-Ohio-4912, establishes a two-part test utilizing an abuse of discretion standard for
appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court’s
precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note
that the outcome of our decision in this case would be identical under the Kalish plurality’s two-part test.
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degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the allegations sought to be established. It is intermediate, being
more than a mere preponderance, but not to the extent of such certainty as required
beyond a reasonable doubt as in criminal cases. It does not mean clear and
unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-04, 495
N.E.2d 23.
{¶36} As previously noted, in Foster the Supreme Court of Ohio found
those portions of the felony sentencing statute requiring judicial fact-finding
before the imposition of a sentence to be unconstitutional. The Court stated,
“[t]rial courts [now] have full discretion to impose a prison sentence within the
statutory range and are no longer required to make findings or give their reasons
for imposing maximum, consecutive, or more than the minimum sentences.” Id. at
paragraph seven of the syllabus.
{¶37} Although the trial court is given full discretion in sentencing
pursuant to Foster, the trial court must consider the overriding purposes of felony
sentencing, which are to protect the public from future crimes by the offender and
to punish the offender. R.C. 2929.11(A); State v. Scott, 3rd Dist. No. 6-07-17,
2008-Ohio-86, ¶ 49, citing State v. Foust, 3rd Dist. No. 3-07-11, 2007-Ohio-5767,
¶ 27. Additionally, “[a] sentence imposed for a felony shall be reasonably
calculated to achieve the two overriding purposes of felony sentencing * * *
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commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim, and consistent with sentences imposed for
similar crimes committed by similar offenders.” R.C. 2929.11(B).
{¶38} Here, each of the four counts of GSI was punishable by one to five
years in prison. See R.C. 2907.05(C)(2), 2929.14(A)(3). In addition, Harvey’s
convictions for rape each contained a specification that he was a sexually violent
predator pursuant to R.C. 2941.148. Due to these specifications on the eight
counts of rape, the trial court was required to sentence Harvey to “an indefinite
prison term consisting of a minimum term of twenty-five years and a maximum
term of life imprisonment.” R.C. 2971.03(A)(3)(d)(i). Thus, Harvey was facing a
possible sentence of 220 years to life.
{¶39} The trial court sentenced Harvey to five years on each count of GSI
to be served consecutively to one another for an aggregate term of twenty years.
As to Counts 4, 5, and 6, the rape counts based upon the acts of vaginal
intercourse Harvey perpetrated upon K.H., the trial court imposed the required
sentences of twenty-five years to life. However, he ordered that these three
offenses be served concurrently with one another and concurrently with the GSI
counts. Thus, these seven counts resulted in an aggregate sentence of twenty-five
years to life. The trial court also imposed the required sentences of twenty-five
years to life for Counts 7, 8, and 9. These offenses were also rapes, two of which
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were for the acts of oral sex involving K.H. and one for the digital penetration of
K.H. The trial court also ordered these to be served concurrently to one another
but consecutively to Counts 1-6 and 11. The court also imposed the required
sentence of twenty-five years to life for Count 10, the rape of K.H. by anal
penetration, and for Count 12, the rape of M.H. by digital penetration. However,
the court ordered that these sentences run consecutively to each other and all other
counts, resulting in an aggregate sentence of 100 years to life.
{¶40} Clearly, the trial court grouped similar offenses together for
purposes of sentencing and chose to sentence according to each grouping and
victim: (1) all GSI counts; (2) vaginal rapes of K.H.; (3) oral and digital rapes of
K.H.; (4) anal rape of K.H.; and (5) the digital rape of M.H. In fact, the trial court
acknowledged its decision in this regard was based upon the “different forms of
conduct, * * * [and] as to count 12, which involves a separate victim, the Court
feels obligated to impose a consecutive sentence there because it is necessary to
vindicate the rights of another daughter.” (Sent. Hrg., 1/25/10, pp. 33-34.) In so
doing, the trial court structured a sentence that addressed the purposes and
principles of sentencing for the various types of criminal behavior in which
Harvey engaged.
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{¶41} At the sentencing hearing, the trial court noted on the record that it
had considered the sentencing statutes and relevant case law. The court also
stated,
Never in my 21 plus years on the bench have I been forced to
witness such graphic and disturbing conduct. The Defendant’s
manipulation and molestation of his children is unspeakable and
foremost unimaginable. I choose today not to detail the
Defendant’s many transgressions, only to say that what occurred
must have been the product of a deeply twisted and disturbed
mind.
(Id. at p. 27.) The court further noted that the defendant, as the father of the
victims, had a duty to protect his children from harm, that he betrayed the sacred
trust between a parent and child, deprived the children of a normal childhood, and
“[i]n all likelihood impair[ed] future relationships by confusing the parent/child
relationship and by fostering distrust with adults in general.” (id. at p. 28.)
{¶42} In explaining why it ordered the four terms of twenty-five years to
life imprisonment to be served consecutively, the trial court stated
Three reasons support the imposition of consecutive sentences.
One is a practical concern. Given the depravity of the
Defendant’s conduct and the unequivocal danger he poses to
children, consecutive sentences would never permit him to be in
a position of trust with or to have access to children again. To
this point, having read the Defendant’s statement in the pre-
sentence investigation, and listening today to his allocution, I am
again and remain shocked at his attempt to minimize his
conduct. I also remain shocked that he has a lack of insight into
his very deep sociopathology. I am highly suspicious that
rehabilitation would work, because I’m unconvinced that the
Defendant truly appreciates the wrongfulness of his conduct. * *
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* Secondly, a lengthy sentence would send a signal loud and
clear to the community that such horrific conduct will not be
tolerated. In fact, the law lists deterrence as an important goal
of sentencing. Third and finally, consecutive sentences are
necessary in the opinion of this Court, considering the breadth
of the Defendant’s unlawful conduct, and to rightly acknowledge
the devastating impact his conduct had on two separate victims.
When considering the imposition of consecutive sentences, the
Court must always be confident that the conduct at issue is so
egregious that consecutive sentences would not be
disproportionate to the harm caused. I’m confident that they
would not be out of line. Here the significance of the
Defendant’s aberrant behavior cannot be understated.
Moreover, the Court must also conclude that a lengthy sentence
is necessary to protect an unsuspecting public. And I do
conclude that.
(id. at pp. 29-30.)
{¶43} Given the facts previously outlined by this Court, including the
numerous video recordings of Harvey and his daughters engaging in sexual acts,
the trial court’s reasons for imposing consecutive sentences, and the requirements
of R.C. 2971.03(A)(3)(d)(i), we do not find by clear and convincing evidence that
the trial court’s sentence was contrary to law or unsupported by the record.
Further, in reviewing a number of other cases involving defendants who were
convicted of multiple counts of rape, including those cited by Harvey and the
State, we find a range of sentences from forty years to multiple terms of life
imprisonment. Also, one of the cases cited by Harvey occurred prior to
significant, recent amendments to R.C. 2971.03 and the other case did not involve
a sexually violent predator specification. Further, none of the cases cited by either
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party involved the video recording of sexual activity between a father and his two
biological children, the viewing of sexual activity between a parent and child by
the child’s sibling, having a younger sibling photograph the sexual acts between
parent and child, and the vaginal, anal, digital, and oral rape of a child by her
father. Thus, we cannot conclude under these circumstances that Harvey’s
sentences were disproportionate to other sentences imposed for similar offenses in
other cases.
{¶44} In short, each sentence imposed on Harvey was well within the
statutory range for sentencing, and eight of these sentences were required by law.
Further, the record demonstrated the particularly egregious, systematic sexual
abuse perpetrated on the ten and eleven-year-old victims by their father.
Therefore, the trial court did not err in imposing an aggregate sentence of 100
years to life upon Harvey, and the eighth assignment of error is overruled.
{¶45} For all of these reasons, we affirm the judgment of the Common
Pleas Court of Hancock County, Ohio.
Judgment Affirmed
PRESTON, J., concurs.
/jlr
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WILLAMOWSKI, P.J., Concurring Separately.
{¶46} I concur fully with the majority opinion, however write separately to
emphasize that the appropriate standard of review was applied. The standard of
review for sentences was set forth in the plurality opinion of Kalish, supra. In
Kalish, four panel members noted that R.C. 2953.08(G) requires that appellate
courts require appellants to meet a clearly and convincingly contrary to law
standard of review when reviewing a sentence.6 For example, if the sentencing
court imposed consecutive sentences, as in this case, the standard of review would
be whether appellant has shown that the sentence was clearly and convincingly
contrary to law. However, if the appeal is based upon the proper application of the
factors in R.C. 2929.12, four panel members in Kalish would require review using
an abuse of discretion standard as specifically set forth in R.C. 2929.12.7
{¶47} In his assignments of error, Harvey alleges that the trial court erred
by failing to make the findings required by R.C. 2929.14 and 2929.12(B)(2).
Harvey’s appeal of his felony sentence did not raise issue with the application of
the factors set forth in R.C. 2929.12, which would require a review using an abuse
of discretion standard. Thus, the clearly and convincingly standard used to review
6
Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
reached this conclusion.
7
Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this
position, although the first three would use both standards of review in all cases.
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this case, as set forth in R.C. 2953.08(G)(2) is the proper standard of review
herein.
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