State v. R.S.

[Cite as State v. R.S., 2015-Ohio-3194.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY

State of Ohio Court of Appeals No. E-14-099

Appellee Trial Court No. 2013 CR 0374

v.

R.S. DECISION AND JUDGMENT

Appellant Decided: August 7, 2015

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and
Mary Ann Barylski, Chief Assistant Prosecutor, for appellee.

Brian A. Smith, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Erie County Court of Common

Pleas, following a guilty plea, in which appellant, R.S., was found guilty of four counts of

sexual battery and sentenced to serve four consecutive, 54-month prison terms. The facts

relevant to the issues on appeal are as follows.
 {¶ 2} On August 21, 2013, Huron Police Detective Matthew A. Jacobs was

informed that appellant sexually abused one of his daughters from the time she was 12

years old, until she was 17 years old. In addition to the victim’s statement, Jacobs was

given a copy of a Facebook conversation between an adult female friend of the victim

and appellant, in which the female friend confronted appellant about the abuse.

Appellant responded to the confrontation by saying that he did not want to go jail and “its

not like I forced her not saying it wasn’t still wrong a serious lack of judgment at that

point and time.” The victim also stated that her younger siblings still resided in the home

with appellant, prompting an investigation by Erie County Children’s Services.

{¶ 3} On September 11, 2013, appellant was indicted by the Erie County Grand

Jury on six counts of rape pursuant to R.C. 2907.02(A)(1) (Counts 1, 3, 5, 7, 9 and 11)

and six counts of sexual battery pursuant to R.C. 2907.03(A)(5) (Counts 2, 4, 6, 8, 10 and

12). In addition, one count carried the specification that appellant “purposely compelled

the victim to submit by force or the threat of force during the commission of the offense.”

{¶ 4} A plea hearing was held on November 25, 2013, at which appellant entered a

guilty plea to four counts of sexual battery. During the hearing the prosecutor stated that,

pursuant to the plea, the state would dismiss the six rape counts, the specification, and

two of the sexual battery charges. Appellant’s attorney stated that appellant understood

both the nature of his plea and that he would be classified as a Tier III sexual offender.

{¶ 5} After counsels’ statements, the trial court questioned appellant and

ascertained that he was not under the influence of drugs or alcohol, had not been judged

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to be mentally incompetent, had no questions concerning the indictment or his plea, and

was satisfied with his attorney’s representation. The trial court advised appellant that his

plea was a complete admission of guilt, for which he could be immediately sentenced.

The trial court reviewed the sentencing options, which included prison sentences of up to

60 months for each count of sexual battery, community sanctions for up to five years, and

postrelease control sanctions. The trial court further stated that, by entering a plea,

appellant was giving up his right to appeal the evidentiary aspects of his conviction, and

he was limiting any appeal to only the plea and sentence. The trial court also told

appellant that he was required to file an appeal within 30 days of the date the judgment

was journalized.

{¶ 6} The trial court advised appellant that entering a plea would constitute a

waiver of his constitutional rights to a jury trial, a unanimous guilty verdict, the right to

cross-examine witnesses and to subpoena witnesses to testify on his behalf, and to testify

on his own behalf at trial. Appellant stated that he had no questions regarding his rights

or any other matters, he was not forced, coerced or threatened into to making his plea,

and that the plea was not made under duress. The trial court also informed appellant that,

as a result of his plea, other penalties might be invoked against him by another court or

agency. Appellant then entered his plea, after which the trial court stated that he

knowingly, intelligently and voluntarily waived his constitutional rights pursuant to

Crim.R. 11. Thereafter, the trial court found appellant guilty of four counts of sexual

battery and dismissed the remaining counts and the specification, ordered the preparation

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of a presentence investigation report, and scheduled a sentencing hearing for January 30,

2014.

{¶ 7} At the sentencing hearing, the trial court stated that it had reviewed the

presentence report, as well as the purposes and principles of sentencing and the

sentencing statute. Although the victim was not present, a victim’s impact statement and

letters from members of the victim’s family were read into the record. Thereafter, the

trial court further advised appellant of his rights to an appeal, to have appointed appellate

counsel, and to have costs associated with an appeal waived upon a showing of

indigency. The trial court then notified appellant as to the potential terms of postrelease

control, stated that no mandatory sentence was required, and that appellant could perform

community service to pay for any court costs and/or fines.

{¶ 8} During the course of the sentencing hearing, the trial court stated:

Okay. Mr. S., your juvenile [record is one violent offense.] Your

adult record, you have no adult record, per se, outside of this offense. You

have what this court deems attitude offenses. They’re not felonies.

They’re misdemeanors. You usually see them in traffic related offenses,

and let me say that everybody gets tickets for driving; speeding, running a

stop sign, those things kind of happen. But when someone continually gets

tickets all the time and the same type of behavior, it says, I know I should

wear my seatbelt, or I know I should have my driver license, but I want to

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 do it anyhow, and they do it, and that’s why they get caught and they get

these attitude offenses.

Ninety-three, driving on a suspended license and registration

violation; ‘98, driving on a suspended license; ‘98 failure to control; ‘99 no

seatbelt; ‘99, speeding; ‘99, speeding; ‘99, no seatbelt; 2000, speeding;

2005, speeding; 2011, speeding and improper passing; 2013, no seatbelt.

Once again, those kind of – not major crimes, but it says something about a

person.

{¶ 9} The trial court also stated it had reviewed the facts of the case in light of the

purposes and principles of sentencing set forth in R.C. 2929.11, which is to protect the

public from future crime and punish the offender, including the need to incapacitate and

deter an offender from committing future crimes, and for rehabilitation and/or restitution.

In addition, the trial court said it had considered the factors set forth in R.C. 2929.12 as to

the possibility of recidivism, and whether appellant’s crime was more or less serious than

conduct that normally constitutes the offense. In that regard, the trial court found that,

pursuant to R.C. 2929.12(B)(1), the physical and mental injury to the victim was

exacerbated by the victim’s age and the five-year period during which the offenses took

place. The trial court also found, pursuant to R.C. 2929.12(B)(6), that appellant’s

relationship with the victim facilitated the offense, and that the victim did not induce or

facilitate the offense, and appellant did not act “under a strong provocation.” The trial

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court said that, due to the age of the victim, appellant had to know that he was causing

harm. The court also found that no mitigating circumstances were present.

{¶ 10} As to the likelihood of recidivism pursuant to R.C. 2929.12(D)(1) and (2),

the trial court found that appellant was previously adjudicated a delinquent child for “a

crime of violence” and, although he has a history of traffic offenses as an adult, he does

not have previous criminal convictions. Pursuant to R.C. 2929.12(D)(5), the trial court

found that appellant showed no genuine remorse for his crimes, as evidenced by the text

message he sent the victim, and he did not lead a law abiding life for at least five years

before he was arrested in this case as evidenced by the crimes charged, which spanned

the course of five years. The trial court further stated: “The crimes were committed

under circumstances not likely to reoccur. That’s not true. I think the police reports

indicated that it was going on sometimes twice a week for five years.” For all the

foregoing reasons, the trial court found that “recidivism is likely.”

{¶ 11} The trial court said that appellant acted in contradiction to a natural

parent’s instinct to protect his own child from harm, and also contrary to his former

military training, and that appellant’s use of a condom indicates that he knew his conduct

could harm the victim. The court noted that the victim feels guilty, and yet, she does not

want to see appellant go to prison because of her younger siblings. The court also noted

that it was the mother of the victim’s boyfriend who went to police to report appellant’s

behavior. When appellant said that he “didn’t know how to ask for help,” the court

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replied: “You didn’t know how to ask for help, but it didn’t stop you from asking for

what you really wanted.”

{¶ 12} Appellant’s defense counsel asked the trial court to consider imposing

concurrent prison terms and finding that appellant is eligible for judicial release because

he has a wife and children other than the victim to support. Counsel also said that,

according to appellant’s counselor, appellant “takes responsibility” for his actions.

{¶ 13} The prosecutor stated that, although appellant apparently told his counselor

he was taking responsibility for his crimes, he refers to his actions as a “mistake,” he did

not seek help until he actually was charged with a crime, and he asked the victim to “do it

one more time for old time’s sake” after she went to the police. The prosecutor told the

court that consecutive sentences are necessary to protect the community and to punish

appellant, and asked that he be given a five-year sentence for each count, with three of

the four sentences to run concurrently. The court and the prosecutor then discussed

appellant’s juvenile record, which included an adjudication of delinquency, and probation

for a violent crime in 1993. Appellant declined to make a statement on his own behalf.

{¶ 14} After hearing the parties’ statements, the trial court informed appellant as

to the nature and consequences of a Tier III sexual offender classification, including

lifetime registration requirements for appellant and any vehicles he may own, and

notification requirements for any change in his residence or employment. Appellant

stated that he understood the requirements, and had no questions. The trial court noted

that all of appellant’s offenses in this case “took place on or after January 1st of 2008.

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Therefore, they all four fall under the Tier III Adam Walsh Act and none of them fall

under the Megan’s law, which was the previous sexual predator finding.”

{¶ 15} On February 4, 2014, the trial court journalized a judgment entry in which

it stated that appellant was notified at the sentencing hearing of his rights pursuant to

Crim.R. 32, and was advised that, upon his release from prison, he could be subjected to

up to five years of postrelease control. The trial court said that, in fashioning appellant’s

sentence, it considered the record and statements made at the hearing, the victim’s impact

statements, and the presentence investigation report. The trial court also said that it

“considered and weighed the principles and purposes of sentencing” pursuant to R.C.

2929.12, 2929.13, and 2929.22 and found that appellant “is not amenable to Community

Control Sanctions,” and “considered, weighed and made findings for sentencing of either

a Concurrent and/or Consecutive sentence” pursuant to R.C. 2929.14.

{¶ 16} The trial court found appellant guilty of four counts of sexual battery as

stated in the plea agreement, and dismissed the remaining counts and the specification.

The trial court sentenced appellant to serve four consecutive 54-month prison sentences,

designated him as a Tier III sex offender, subjected him to five years mandatory

postrelease control, and ordered him to pay court costs. On July 24, 2014, appellant,

acting pro se, filed a motion for delayed appeal in this court, which we granted on

September 9, 2014.

8.
 {¶ 17} On appeal, appellant sets forth the following two assignments of error:

Assignment of Error I

The record does not support the trial court’s imposition of

consecutive sentences upon Appellant.

Assignment of Error II

The trial court’s imposition of consecutive sentences was contrary to

law.

{¶ 18} In support of his first assignment of error, appellant argues that the record

does not contain “clear and convincing evidence” to support a finding that the imposition

of consecutive sentences was necessary to punish appellant and to protect the public from

future crimes. Specifically, appellant states that the trial court ignored his efforts to

attend counseling sessions and to “self-rehabilitate.” Appellant also argues that the trial

court erroneously concluded that his behavior in this instance could be repeated against a

different victim because it “looked solely at the length of time in which appellant’s

conduct took place, not prospectively, as is required under R.C. 2929.12.”

{¶ 19} Pursuant to R.C. 2953.08(G)(2), an appellate court hearing an appeal from

a judgment imposing consecutive sentences “may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing * * *” if it “clearly and convincingly

finds” that the sentence is either: (1) not supported by the record pursuant to R.C.

2929.14(C)(4), or (2) it is “otherwise contrary to law.”

9.
 {¶ 20} We note initially that, pursuant to R.C. 2929.14(A)(3)(a), the permissible

sentence for a third degree felony ranges between 12 to 60 months. Accordingly, the trial

court’s 54-month sentence for each individual charge of sexual battery falls within the

statutory range and therefore is not contrary to law.

{¶ 21} Under R.C. 2929.14(C)(4), the trial court must make its findings in support

of consecutive sentences on the record at the sentencing hearing.

{¶ 22} As to the factors to be considered, 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:

(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

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 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.

{¶ 23} In this case, the trial court found pursuant to R.C. 2929.14(C)(4), that:

[C]onsecutive sentences are necessary to protect the public from

future crimes by you and punish you for your behavior. If your own

daughter can be victimized by you, who else in society could? So it’s

necessary to protect the public from future crimes by you.

{¶ 24} The trial court further found that:

[Consecutive sentences] are not disproportionate to the seriousness

of your conduct and the danger that you pose to society. At least two of

these offenses were committed as part of a continuing course of conduct

and the harm caused was so great and so unusual that no single prison terms

would adequately reflect the seriousness of your conduct.

{¶ 25} After reviewing the entire record in light of the applicable statutory

requirements, we find that the trial court made the requisite findings to support the

imposition of consecutive sentences. Contrary to appellant’s assertion, those findings

included weighing appellant’s attempt to seek counseling after the victim reported the

abuse against his conscious decision to continue abusing his daughter for a period of five

11.
years. We further conclude that, even though no expert testimony was presented to

demonstrate that appellant was likely to commit more crimes in the future, the record

contains clear and convincing evidence to support the trial court’s findings pursuant to

R.C. 2929.14(C)(4) as to the seriousness of appellant’s conduct, the level of harm caused

to the victim, the need to punish appellant, and that the crimes were committed as part of

a continuing course of conduct. Accordingly, appellant’s first assignment of error is not

well-taken.

{¶ 26} In his second assignment of error, appellant asserts that the trial court’s

judgment entry is defective because it does not contain sufficient, mandatory findings

pursuant to R.C. 2929.14(C)(4) to support the imposition of consecutive sentences. We

disagree, for the following reasons.

{¶ 27} As stated above, pursuant to R.C. 2929.14(C)(4), before imposing

consecutive sentences, the trial court must perform a three-fold analysis. The statute first

requires a finding that consecutive sentences are “necessary to protect the public from

future crime or to punish the offender.” Second, the trial court must find that consecutive

sentences “are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public” by analyzing the facts in light of R.C. 2929.12.

Third, in addition to making those findings, the trial court must find that at least one of

the factors listed in R.C. 2929.14(C)(4)(a)-(c) applies. State v. Banks, 6th Dist. Lucas

No. L-13-1095, 2014-Ohio-1000, ¶ 11.

12.
 {¶ 28} When imposing consecutive sentences, the trial court is not required to

recite any “magic” or “talismanic” words provided it is “‘clear from the record that the

trial court engaged in the appropriate analysis.’” State v. Wright, 6th Dist. Lucas Nos.

L-13-1056, L-13-1057, L-13-1058, 2013-Ohio-5903, ¶ 33, quoting State v. Murrin, 8th

Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12. “‘While the trial court need not quote

the statute verbatim, the findings must be made in the sentencing entry.’” State v.

Trevino, 6th Dist. Erie No. E-13-022, 2014-Ohio-3363, ¶ 26, quoting State v. Jude, 6th

Dist. Wood No. WD-13-055, 2014-Ohio-2437, ¶ 10. Further, the findings made in the

sentencing entry “must be supported by the record from the sentencing hearing.” Jude,

supra, citing R.C. 2953.08(G)(2)(a).

{¶ 29} In this case, the sentencing judgment entry is preprinted. In the section

titled “Review of Applicable Sentencing Criteria and Findings,” the trial court indicated

that it considered the record and any statements made by the parties, including the

victim’s impact statement and the presentence investigation report. In addition, the

judgment entry indicates that the following relevant findings were made by the trial court

before appellant was found guilty and ordered to serve consecutive sentences:

This Court considered and weighed the principles and purposes of

sentencing (O.R.C. §2929.11 / §2929.21 et. seq.).

This Court considered, weighed, and made findings of the

sentencing factors for imposition of Community Control sanctions, or for

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 the imposition of a Prison / Jail term (O.R.C. §2929.12/ §2929.13/

§2929.22 et. seq). * * *

This Court considered, weighed and made findings for sentencing of

either a Concurrent and/or Consecutive sentence (O.R.C. §2929.12/

§2929.13/ §2929.14 et seq.).

{¶ 30} Under the section titled “Sentencing (Concurrent/Consecutive),” the

judgment entry contains the following relevant finding:

This Court finds that Consecutive sentences are applicable based on

O.R.C. 2929.14 et seq.

{¶ 31} This court has reviewed the entire record, including the transcript of the

plea hearing and the sentencing hearing and upon consideration thereof and the judgment

entry of sentencing we find that, while the judgment entry could have been more tailored

to reflect the exact findings made in this case, it was, nevertheless, sufficient to comply

with the statutory requirements of R.C. 2929.14(C)(4). Accordingly, appellant’s second

assignment of error is not well-taken.

{¶ 32} On consideration whereof, we find that substantial justice has been done in

this case, and the judgment of the Erie County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

14.
 State v. R.S.
C.A. No. E-14-099

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE

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.sconet.state.oh.us/rod/newpdf/?source=6.

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