State v. Parsons

[Cite as State v. Parsons, 2013-Ohio-1281.]
STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 BE 11
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
RANDALL WAYNE PARSONS, II )
)
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Belmont County, Ohio
Case No. 11CR227

JUDGMENT: Affirmed in Part.
Reversed and Remanded in Part.

APPEARANCES:

For Plaintiff-Appellee: Atty. Christopher Berhalter
Belmont County Prosecutor
Atty. Helen Yonak
Assistant Prosecuting Attorney
147-A West Main Street
St. Clairsville, Ohio 43950

For Defendant-Appellant: Atty. Thomas M. Ryncarz
3713 Central Avenue
Shadyside, Ohio 43947

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: March 27, 2013
[Cite as State v. Parsons, 2013-Ohio-1281.]
WAITE, J.

{¶1} Appellant Randall Wayne Parsons II appeals his sentence entered after

he pleaded guilty to gross sexual imposition and aggravated vehicular assault.

Appellant first argues that the trial court abused its discretion in imposing the

maximum prison term for aggravated vehicular assault. The record indicates that the

court considered all the pertinent sentencing factors, and that the court was

particularly concerned about Appellant's lack of remorse for the crime. The

prosecutor also stated that this was the worst assault she had ever seen. (2/17/12

Tr., p. 11.) The record further shows that Appellant was originally charged with rape

and felonious assault, and the sentencing judge was permitted to consider the

original charges in formulating a sentence. There is no abuse of discretion in

imposing the maximum five-year prison term, particularly since Appellant was

originally facing the possibility of 19 years in prison before the charges were reduced.

Appellant also challenges the imposition of consecutive sentences. The trial court

made the required statutory findings, and the record supports those findings. Finally,

Appellant has noted that a typographical error exists in the sentencing entry. The

court issued a fifteen-year license suspension when it could only suspend the license

for ten years. The case will be remanded for the limited and sole purpose of allowing

the trial court to issue a corrected sentencing entry with respect to the license

suspension. The judgment of the trial court is affirmed in part, and reversed and

remanded in part.

History of the Case
 -2-

{¶2} On August 23, 2011, Appellant was driving his Chevy pickup truck in

Wheeling Township, Belmont County. He had been smoking marijuana. Appellant

was married at the time, but the woman in the vehicle with him was not his wife. The

victim fell or was pushed out of the truck while it was moving. She sustained

numerous injuries, but it appeared that some of the injuries were not caused by

falling from the truck, indicating that she may have been the victim of a prior assault.

Appellant fled the scene. He was later arrested and indicted on one count of rape,

R.C. 2907.02(A)(1), a first-degree felony (maximum prison term of 11 years); and one

count of felonious assault, R.C. 2903.11(A)(1), a second-degree felony (maximum

prison term of 8 years). After lengthy plea negotiations, Appellant entered into a

Crim.R. 11 plea agreement on January 3, 2012. One of the main purposes of the

plea agreement was to spare the victim from having to testify. He pleaded guilty to

one count of aggravated vehicular assault, R.C. 2903.08(A)(1), a third-degree felony

(maximum prison term of five years in prison), and one count of gross sexual

imposition, R.C. 2907.05(A)(1), a fourth-degree felony (maximum prison term of 18

months in prison). The prosecutor agreed not to pursue domestic violence charges

pending in another court. The prosecutor made no promises as to sentencing

recommendations. A plea hearing was held on January 11, 2012, and the court

accepted the guilty pleas. Appellant also stipulated that he was a Tier I sexual

offender.

{¶3} Sentencing took place on February 17, 2012. Victim statements and a

presentence investigation were part of the materials relied on by the court at

sentencing. Appellant and his attorney also spoke at the sentencing hearing.
 -3-

Counsel told the court that the victim had a long acquaintance with Appellant, that

she had a prior sexual encounter with him, that she had driven through the middle of

the night to see him, and that she was under the influence of drugs and alcohol when

the crimes occurred. (2/17/12 Tr., p. 8.) Appellant's counsel also questioned

“whether the girl jumped out, whether she fell out, whether she was pushed out” of

the truck. (2/17/12 Tr., p. 8.)

{¶4} The prosecutor stated that “this is the worst assault I've ever seen” and

recommended the maximum sentence. (2/17/12 Tr., p. 11.) The prosecutor

chastised Appellant's counsel for blaming the victim for her injuries: “To say that they

were lovers * * * and that she wanted this is insulting to her and to this Court. * * * For

him to say this was something she wanted to do is beyond the pale.” (2/17/12 Tr., p.

11.)

{¶5} Appellant spoke of his military service, his long acquaintance with the

victim, and asked for forgiveness. He blamed the crime on his drug problem. He

talked about how he enjoyed reading books in prison and about becoming a better

person due to his imprisonment. (2/17/12 Tr., pp. 12-13.)

{¶6} The victim did not give a statement at the hearing.

{¶7} At the hearing, the court stated that it considered the oral statements,

the criminal incident report, the presentence investigation report, the victim impact

statements, the purposes and principles of sentencing under R.C. 2929.11, the

seriousness and recidivism factors in R.C. 2929.12, and the need for deterrence,

incapacitation, rehabilitation and restitution. (2/17/12 Tr., pp. 13-14.) The court

noted that Appellant had a history of criminal convictions, including using a weapon
 -4-

while intoxicated, as well as domestic battery and speeding offenses. The court

found that the victim suffered serious physical, psychological and emotional harm

arising from the offense. The court found that Appellant exhibited reckless disregard

for the victim. The court found that Appellant failed to express genuine remorse,

minimized his behavior, and failed to understand and appreciate the seriousness of

his forced sexual acts on the victim. The court stated that “he has demonstrated an

abject failure to accept accountability and responsibility for his violent criminal

actions, as well as a failure to express genuine concern for the victim * * *.” (2/17/12

Tr., p. 17.) The court found that Appellant's prior relationship with the victim

facilitated the crime. The court found that Appellant's reckless course of conduct

placed the citizens of the county at risk of harm and put them in fear of harm. The

court found that Appellant had not responded to sanctions previously imposed. The

court found that Appellant refused to acknowledge his past pattern of drug and

alcohol abuse, and failed to face his problems or seek treatment.

{¶8} The court noted that Appellant did not have any juvenile delinquency

adjudications or any felony convictions, but that no other factors suggested that

recidivism would be less likely. The court found that community control sanctions

would not adequately punish the offender and protect the public from future crime,

and that community control sanctions would demean the seriousness of the offense.

The court found that Appellant had not spent time in prison. The court found that

consecutive prison terms were reasonable and appropriate to protect the public from

future crime and punish the offender; that consecutive prison terms were not

disproportionate to the seriousness of the conduct and the danger Appellant posed to
 -5-

the public; that consecutive prison terms were reasonable and appropriate because

the crimes were part of a course of conduct, and the harm to the victim and public

was so great and unusual that no single prison term adequately reflected the

seriousness of the conduct.

{¶9} The court found the following factors made consecutive sentences

necessary to protect the public from future crime: the serious nature of the present

offenses; Appellant's past crimes, including violent crimes and crimes committed

while Appellant was under the influence of drug and alcohol abuse; the revocation of

his bond as a result of an instance of alleged domestic violence in the presence of a

minor child; an escalating pattern of crimes; deviant sexual behavior; and failure to

acknowledge his drug and alcohol abuse problems.

{¶10} The court sentenced Appellant to 12 months in prison for gross sexual

imposition. The court also sentenced him to five years in prison for aggravated

vehicular assault. These sentences were to be served consecutively, for a total

prison term of six years. He was classified as a Tier I sex offender. The judgment

entry of sentence, filed on February 21, 2012, suspended Appellant's driver's license

for 15 years. This was apparently a clerical error, and it was corrected to 10 years in

a nunc pro tunc entry filed on May 31, 2012. Appellant, though, filed this appeal on

February 28, 2012. Hence, the trial court had been divested of jurisdiction to issue a

nunc pro tunc entry on the date the appeal was filed. This problem will be dealt with

in Appellant’s third assignment of error, below.

ASSIGNMENT OF ERROR NO. 1
 -6-

THE TRIAL COURT COMMITTED ERROR IN IMPOSING THE

MAXIMUM SENTENCE FOR THE CRIME OF AGGRAVATED

VEHICULAR ASSAULT BECAUSE THE TRIAL COURT ABUSED ITS

DISCRETION IN IMPOSING SAID SENTENCE UPON THE

APPELLANT.

{¶11} Appellant argues that the court erred in imposing the maximum prison

term of five years for the crime of aggravated vehicular assault. Appellate courts

review felony sentences using a two-fold analysis: “First, they 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 shall be reviewed under an

abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, ¶4 (O'Connor, J., plurality opinion), citing State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

{¶12} A sentencing court must consider the principles and purposes of

sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C.

2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38. The sentencing

court need not make findings regarding these statutes in order to impose the

maximum prison term. We have held that a silent record raises the rebuttable

presumption that the sentencing court considered the statutory sentencing criteria.

State v. James, 7th Dist. No. 07CO47, 2009-Ohio-4392, ¶50. Only if the record

affirmatively shows that the trial court failed to consider the principles and purposes
 -7-

of sentencing will a sentence be reversed on this basis, unless the sentence is

strikingly inconsistent with relevant considerations. Id.

{¶13} Appellant does not argue that the sentence is contrary to law, but only

that it constitutes an abuse of discretion. An abuse of discretion means more than an

error of judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E .2d 144 (1980).

Thus, in the felony sentencing context, “[a]n abuse of discretion can be found if the

sentencing court unreasonably or arbitrarily weighs the factors in R.C. 2929.11 and

R.C. 2929.12.” State v. Heverly, 7th Dist. No. 09 CO 4, 2010-Ohio-1005, ¶34.

{¶14} Although a sentencing judge was formerly required to engage in

detailed judicial fact-finding in order to justify imposing maximum sentences, this is

no longer the case. Foster, supra, paragraph seven of the syllabus. The decision to

impose the maximum sentence is simply part of the trial court's overall discretion in

issuing a felony sentence and is no longer tied to mandatory fact-finding provisions.

{¶15} Appellant's interpretation of the evidence provided at sentencing is that

it did not support a maximum sentence. Appellant notes that many of the factors that

might have supported a longer than average sentence were not applicable to this

case. Appellant did not hold public office or a position of trust; his occupation was

not used to facilitate the offense; he did not commit the offense as part of organized

criminal activity; he was not motivated by prejudice; etc. Appellant minimizes the

equally important consideration that most of the remaining factors that favor a longer

than normal sentence were established at the sentencing hearing. Simply because
 -8-

some of the sentencing factors did not apply does not mean that a maximum

sentence could not be imposed.

{¶16} A number of the enhancing factors were mentioned by the judge as

reasons for imposing the maximum sentence: the victim suffered serious physical,

psychological, or economic harm as a result of the offense (R.C. 2929.12(B)(2);

Appellant's relationship with the victim facilitated the offense (R.C. 2929.12(B)(6);

Appellant showed no genuine remorse for the offense (R.C. 2929.12(D)(4); and

Appellant had a history of prior offenses, including using a weapon while intoxicated

and domestic battery (R.C. 2929.12(D)(2). The prosecutor made a special point to

mention that this was the worst assault she had ever seen. (2/17/11 Tr., p. 11.) Any

of these factors could justify the sentence meted out in this case.

{¶17} Both at sentencing and in this appeal, Appellant argues that the victim

facilitated the offense. R.C. 2929.12(C)(1) states as a mitigating factor that “[t]he

victim induced or facilitated the offense.” Appellant argued that the victim drove

many hours through the night to see him, and that she was under the influence of

drugs and alcohol at the time. The trial court was offended by this line of argument,

and instead of helping Appellant's cause, the judge interpreted it as a sign that

Appellant had no sense of remorse for what he had done. The facts cited by

Appellant in no way indicate that the victim induced the assault and are only an

attempt to blame the victim for Appellant's violent behavior.

{¶18} It should also be kept in mind that a sentencing court may consider

charges that have been dismissed or reduced pursuant to a plea agreement. State

v. Starkey, 7th Dist. No. 06MA110, 2007-Ohio-6702, ¶2; State v. Cooey, 46 Ohio
 -9-

St.3d 20, 35, 544 N.E.2d 895 (1989). This matter began as a rape and felonious

assault case, but the charges were eventually reduced to avoid the need for the

victim to have to testify at trial. The fact that the charges were dramatically reduced

also is a factor in support of the court's decision to impose the maximum sentence.

For all the aforementioned reasons, Appellant's first assignment of error is overruled.

ASSIGNMENT OF ERROR NO.2

THE TRIAL COURT COMMITTED ERROR IN IMPOSING

CONSECUTIVE SENTENCES BECAUSE THE TRIAL COURT

ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE

SENTENCES UPON THE APPELLANT.

{¶19} Appellant argues that consecutive sentences should not have been

imposed in this case. The law regarding consecutive sentences has recently

changed. R.C. 2929.14, effective September 30, 2011, applies to this case. R.C.

2929.14(C)(4) states:

(4) 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:
 -10-

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed 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.

{¶20} Prior to 2006, Ohio sentencing law created presumptions that offenders

be given minimum, concurrent terms of incarceration. See former R.C. 2929.14(B),

2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome

if the court made specific factual findings regarding the nature of the offense and the

need to protect the public. This judicial fact-finding was called into question by

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in

which the United States Supreme Court held that judicial fact-finding could infringe

upon a defendant's Sixth Amendment right to a jury trial because it invaded the fact-
 -11-

finding function of the jury. In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, the Ohio Supreme Court held that under Apprendi and Blakely, Ohio's

sentencing statutes that required a judge to make factual findings in order to increase

a sentence beyond presumptive minimum or concurrent terms unconstitutionally

infringed upon the jury's fact-finding function in violation of the Sixth Amendment.

The Ohio Supreme Court severed those sections and held that courts have full

discretion to sentence within the applicable statutory range and likewise have

discretion to order sentences to be served consecutively. Foster at ¶99-100.

{¶21} The reasoning in Foster was partially called into question by Oregon v.

Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), in which the United States

Supreme Court later ruled that neither Apprendi nor Blakely implicated a sentencing

judge's long-understood authority to order sentences to be served consecutively.

The Ohio Supreme Court later acknowledged that Foster erroneously applied

Apprendi and Blakely to ban judicial fact-finding in support of consecutive sentences,

but held that the Ice ruling could not revive that which had previously been severed

as unconstitutional in Foster. See State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-

6320, 941 N.E.2d 768, paragraph two of the syllabus. In other words, the former

consecutive sentencing law contained in R.C. 2929.14(E)(4), which had been

declared unconstitutional and severed in Foster, remained severed and could not be

applied. Thus, Ice did not revive any requirement for courts to make findings prior to

imposing consecutive sentences. Even after Ice, a trial court still has “the discretion

and inherent authority to determine whether a prison sentence within the statutory
 -12-

range shall run consecutively or concurrently * * *.” State v. Bates, 118 Ohio St.3d

174, 2008-Ohio-1983, 887 N.E.2d 328, ¶19.

{¶22} The newly enacted amendment to the consecutive sentencing statute,

though, has reestablished the requirement that the sentencing judge make certain

findings before imposing consecutive sentences. See, e.g., State v. Wilson, 8th Dist.

No. 97657, 2012-Ohio-4153, ¶13 (court must again state its findings to support

consecutive sentences at the sentencing hearing and in the judgment entry pursuant

to the new statute, citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793

N.E.2d 473, paragraph one of the syllabus); State v. Just, 9th Dist. No. 12CA0002,

2012-Ohio-4094, ¶48-49 (court need not explain its reasons for making the

consecutive sentencing findings, as the new statute does not require it); State v.

Stalnaker, 11th Dist. No.2011-L-151, 2012-Ohio-3028, ¶15 (trial court must again

state the required findings on the record to impose consecutive sentences, but not its

reasons supporting those findings).

{¶23} Prior to Foster, the sentencing statutes required both findings and

reasons supporting those findings in order for a consecutive sentence to be imposed.

Foster eliminated both requirements. However, simply because there is a newly

enacted consecutive sentencing statute does not mean Foster once again governs

the review of consecutive sentences. The amended law is not simply a reenactment

of the pre-Foster statute, but is an entirely rewritten law. The new sentencing code

only requires the trial court to make findings to support consecutive sentences. It

does not require the court to give reasons in support of those findings. A court may

impose consecutive sentences under R.C. 2929.14(C)(4) if it makes the following
 -13-

findings: (1) consecutive sentences are necessary to protect the public from future

crime or to punish the offender and (2) 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 (3) one 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 pursuant to section 2929.16, 2929.17, or

2929.18 of the Revised Code, or was under post-release control for a prior offense,

or (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, or (c) the offender's history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶24} This record reflects that the court made the findings required by R.C.

2929.14(C)(4). For this reason, the court had the authority to impose consecutive

sentences, and Appellant's second assignment of error is overruled.

ASSIGNMENT OF ERROR NO.3

THE TRIAL COURT COMMITTED ERROR IN SUSPENDING THE

APPELLANT’S DRIVING PRIVILEGES FOR A PERIOD OF FIFTEEN

(15) YEARS BECAUSE SAID SUSPENSION IS CONTRARY TO LAW.
 -14-

{¶25} In this assignment of error, Appellant argues that the court had no

authority to impose a 15-year license suspension. This case involved a class three

license suspension, and the maximum suspension allowed is ten years. R.C.

2903.08(B)(2); R.C. 4510.02(A)(3). The prosecutor agrees with Appellant, and in

fact, the trial court issued a nunc pro tunc entry correcting the clerical error on May

31, 2012. A trial court has authority to correct clerical errors in its judgments.

Crim.R. 36. “Although trial courts generally lack authority to reconsider their own

valid final judgments in criminal cases, they retain continuing jurisdiction to correct

clerical errors in judgments by nunc pro tunc entry to reflect what the court actually

decided. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856

N.E.2d 263, ¶18-19; Crim.R. 36.” State ex rel. Womack v. Marsh, 128 Ohio St.3d

303, 2011-Ohio-229, 943 N.E.2d 1010, ¶13. In the nunc pro tunc entry, the court

imposes a ten-year license suspension.

{¶26} Unfortunately, the trial court issued its nunc pro tunc entry after the

notice of appeal was filed. A trial court does not have jurisdiction to amend its

judgment entries after a notice of appeal has been filed. “Although a court generally

may issue a nunc pro tunc entry any time * * * a notice of appeal divests a trial court

of jurisdiction to do so.” (Footnote omitted.) State v. Smith, 2d Dist. No. 2010-CA-63,

2011-Ohio-5986, ¶7; see, also State v. Biondo, 11th Dist. No. 2009-P-0009, 2009-

Ohio-7005, ¶18; State v. Erlandsen, 3d Dist. No. 1-02-46, 2002-Ohio-4884; State v.

Reid, 6th Dist. No. L-97-1150, 1998 WL 636789 (Sept. 18, 1998). Since the parties

agree that the error took place, and Appellant asks for nothing more than that the

error be corrected, we sustain Appellant's third assignment and remand the case to
 -15-

the trial court so that it may issue another nunc pro tunc entry correcting the license

suspension.

{¶27} In conclusion, the record fully supports the imposition of maximum

consecutive sentences, and we overrule Appellant's first and second assignments of

error. The trial court did commit an error by imposing a fifteen-year license

suspension. The court attempted to correct this error in a nunc pro tunc entry and

change the suspension to ten-years, but this correction was made after the appeal

was filed and is a nullity. Therefore, we sustain Appellant's third assignment of error

and reverse the portion of the sentence imposing a fifteen-year license suspension.

The case is remanded for the limited and sole purpose of allowing the court to file

another nunc pro tunc entry imposing a ten-year license suspension. In all other

respects, the conviction and sentence are affirmed.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.