State v. Bush

[Cite as State v. Bush, 2018-Ohio-1032.]

COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 17-CA-00007
MICHAEL BUSH III :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Perry County
Common Pleas Court, Case No. 16-CR-
0071

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 19, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANGELA R. CANEPA JAMES SWEENEY
Ohio Attorney General’s Office 341 South Third Street, Suite 100
150 E. Gay St., 16th floor Columbus, OH 43215
Columbus, OH 43215
[Cite as State v. Bush, 2018-Ohio-1032.]

Gwin, P.J.

{¶1} Appellant, John Michael Bush, III, appeals from the imposition of

consecutive sentences in the Perry County Court of Common Pleas.

Facts and Procedural History

{¶2} On September 21, 2016, an Indictment was filed charging Bush with five

counts of rape felonies of the first degree in violation of R.C. 2907.02(A)(1)(b).

{¶3} On June 22, 2017, a written plea of guilty form signed by Bush, defense

counsel, and the prosecutor was filed. Bush pled guilty to two counts of Gross Sexual

Imposition, felonies of the third degree in violation of R.C. 2907.05(A)(4), as lesser-

included offenses of Count I and Count IV of the Indictment. In exchange for Bush’s guilty

pleas, the state agreed to dismiss Counts Two, Three and Five of the Indictment. The

written form included the following caveat:

There is a presumption in favor of prison for this offense.

Said sentences for both offenses could be run consecutive to

or concurrent with one another, for a potential maximum penalty of

ten (10) years in prison in a State Penal Institution.

Plea of Guilty, filed June 22, 107, at 1 (emphasis in original). Bush entered his guilty

pleas in open court on June 22, 2017. Before accepting his pleas, the trial court advised

Bush that the sentences could be run consecutive to each other for a total time of ten

years, Plea T., June 22, 2017 at 7.

{¶4} At sentencing on June 30, 2017, both of the minor victims and their mother

addressed the trial court. The trial court further reviewed a pre-sentence investigation
Perry County, Case No. 17-CA-00007 3

report. The trial court sentenced Bush to fifty-four months in prison on each count of Gross

Sexual Imposition, to be served consecutively for a total sentence of nine years in prison.

Assignment of Error

{¶5} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

SENTENCES ON APPELLANT.”

Law and Analysis.

Standard of Appellate Review.

{¶6} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

{¶7} Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the

record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law.

{¶8} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
Perry County, Case No. 17-CA-00007 4

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

{¶9} In addition, as has been noted,

If the court has properly made the required findings in order to

impose consecutive sentences, we must affirm those sentences unless we

“clearly and convincingly” find “[t]hat the record does not support the court's

findings[.]”

It is important to understand that the “clear and convincing” standard

applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.

2953.08(G)(2) makes it clear that “[t]he appellate court's standard for re-

view is not whether the sentencing court abused its discretion.” As a

practical consideration, this means that appellate courts are prohibited from

substituting their judgment for that of the trial judge.

It is also important to understand that the clear and convincing

standard used by R.C. 2953.08(G)(2) is written in the negative. It does not

say that the trial judge must have clear and convincing evidence to support

its findings. Instead, it is the court of appeals that must clearly and

convincingly find that the record does not support the court's findings. In

other words, the restriction is on the appellate court, not the trial judge. This

is an extremely deferential standard of review.
Perry County, Case No. 17-CA-00007 5

State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453,

¶19-21. Accord, State v. Creech, 4th Dist., Scioto No. 16CA3730, 2017-Ohio-

6951, ¶11; State v. Withrow, 2nd Dist. Clark No. 2015-CA-24, 2016-Ohio-24, ¶22;

State v. Mason, 12th Dist. Butler No. CA2014-10-217, 2015-Ohio-1931, ¶8; State

v. Taylor, 5th Dist. Holmes No. 12 CA 18, 2013-Ohio-5751, ¶69; State v.

Higginbotham, 10th Dist. Franklin Nos. 17AP-147, 17AP-150, 2017-Ohio-7618,

¶11; State v. Moss, 11th Dist. Ashtabula No. 2016-A-0046, 2017-Ohio-0046, ¶22.

R.C. 2929.13(B).

{¶10} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.

Bush pled guilty to felonies of the third degree. Accordingly, this section does not apply

to Bush’s case.

R.C. 2929.13(D).

{¶11} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or

second degree, for a felony drug offense that is a violation of any provision of Chapter

2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison

term is specified as being applicable, and for a violation of division (A)(4) or (B) of section

2907.05 of the Revised Code for which a presumption in favor of a prison term is specified

as being applicable.

{¶12} Bush was convicted of Gross Sexual Imposition in violation of R.C.

2907.05(A)(4). The legislature has mandated a prison term for this offense. R.C.

2929.13(F)(3)(b).

{¶13} Accordingly, the trial court was not required to make any findings before

imposing a prison sentence in Bush’s case.
Perry County, Case No. 17-CA-00007 6

R.C. 2929.14 (B)(2)(e).

{¶14} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Bush was not given an

additional prison sentence.

R.C. 2929.14 (C)(4) Consecutive Sentences.

{¶15} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences.

{¶16} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this

presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)

(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This

statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st

Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.

{¶17} R.C. 2929.14(C)(4) provides,

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
Perry County, Case No. 17-CA-00007 7

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.

{¶18} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while 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 offenses 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 would adequately reflect the

seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates
Perry County, Case No. 17-CA-00007 8

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.

{¶19} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16

N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:

In order to impose consecutive terms of imprisonment, a trial court

is required to make the findings mandated by R.C. 2929.14(C)(4) at the

sentencing hearing and incorporate its findings into its sentencing entry,

but it has no obligation to state reasons to support its findings.

{¶20} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Bonnell, ¶29. “[A]s long as the reviewing court

can discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C.

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing

entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the

statutory findings in the sentencing entry after properly making those findings at the

sentencing hearing does not render the sentence contrary to law; rather, such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what

actually occurred in open court. Bonnell, ¶30.

{¶21} In this case, the record does support a conclusion that the trial court made

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences. We note that we do not know the specific contents of the presentence
Perry County, Case No. 17-CA-00007 9

investigation report, nor any victim impact statements. Appellate review contemplates

that the entire record be presented. See, App.R. 9. Appellant has the responsibility of

providing the reviewing court with a record of the facts, testimony, and evidentiary matters

that are necessary to support the appellant's assignments of error. Wozniak v. Wozniak,

90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506 (9th 1993); Volodkevich v. Volodkevich,

48 Ohio App.3d 313, 314, 549 N.E.2d 1237, 1238-1239 (9th 1989). This principle is

recognized in App.R. 9(B), which provides, in part, that '***the appellant shall in writing

order from the reporter a complete transcript or a transcript of such parts of the

proceedings not already on file as he deems necessary for inclusion in the record.***.

"When portions of the transcript necessary for resolution of assigned errors are omitted

from the record, the reviewing court has nothing to pass upon and thus, as to the assigned

errors, the court has no choice but to presume the validity of the lower court's

proceedings, and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400

N.E.2d 384, 385(1980); State v. Untied, 5th Dist. Muskingum No. CT97-0018, 1998 WL

401768(Mar. 5, 1998). See, also, State ex rel. Hoag v. Lucas Cty. Bd. of Elections, 125

Ohio St.3d 49, 2010-Ohio-1629, 925 N.E.2d 984, ¶ 12, citing Christy v. Summit Cty. Bd.

of Elections, 77 Ohio St.3d 35, 39, 671 N.E.2d 1(1996); State ex rel. Duncan v. Portage

Cty. Bd. of Elections, 115 Ohio St.3d 405, 2007-Ohio-5346, 875 N.E.2d 578, ¶ 17. The

presentence investigation report could have been submitted “under seal” for review.

State v. Untied, supra.

R.C. 2929.14(C)(4): [T]he 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
Perry County, Case No. 17-CA-00007 10

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

and to the danger the offender poses to the public

{¶22} In the case at bar, the trial court made this finding on the record and in its

sentencing entry. Sent. T. at 11; Termination Judgment Entry, filed June 30, 2017.

R.C. 2929.14(C)(4)(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.

{¶23} This provision does not apply to Bush’s case.

R.C. 2929.14(C)(4)(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.

{¶24} The trial court heard from both of the minor victims and the victims’ mother.

The trial court made this finding on the record and in its sentencing entry. Sent. T. at 11;

Termination Judgment Entry, filed June 30, 2017.

R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶25} The Court made no findings concerning this factor in Bush’s case.

R.C. 2929.20.

{¶26} R.C. 2929.20 (I) is inapplicable, as Bush’s was not applying to the court for
Perry County, Case No. 17-CA-00007 11

judicial release.

R.C. 2929.11 and R.C. 2929.12.

{¶27} The Marcum court further noted,

We note that some sentences do not require the findings that R.C.

2953.08(G) specifically addresses. Nevertheless, it is fully consistent for

appellate courts to review those sentences that are imposed solely after

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard

that is equally deferential to the sentencing court. That is, an appellate court

may vacate or modify any sentence that is not clearly and convincingly

contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.

146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added).

{¶28} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes.

Further, the sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

{¶29} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a
Perry County, Case No. 17-CA-00007 12

non-exhaustive list of factors a trial court must consider when determining the

seriousness of the offense and the likelihood that the offender will commit future offenses.

{¶30} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

court discussed the effect of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts 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.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.

{¶31} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,

see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.

{¶32} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong,

4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are

still required to consider the general guidance factors in their sentencing decisions.

{¶33} There is no requirement in R.C. 2929.12 that the trial court states on the
Perry County, Case No. 17-CA-00007 13

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its

findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.

Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to

address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).

{¶34} In the case at bar, the trial court heard the two minor victims, heard from the

victims’ mother, heard arguments from the state and defense counsel, heard Bush’s

statement, and reviewed the presentence investigation report before imposing a

sentence.

{¶35} In the case at bar, the record supports that the harm caused to each of the

victims was “more serious” because of the age of the victims [2929.12(B)(1)]. The offense

was also more serious because Bush used his relationship with the victims to facilitate

the offenses. [2929.12(B)(6)]. None of the factors set forth in 2929.12(C) are applicable

to render the offenses “less serious.” Bush denied the allegations when confronted by

the police and his statements during sentencing could be perceived by the trial court as

showing no genuine remorse. [2929.12(D)(5]. The only mitigating factor was that Bush

had not been previously convicted of a criminal offense. R.C. 2929.12(E)(2).
Perry County, Case No. 17-CA-00007 14

{¶36} As already noted, the trial court was required to impose a prison sentence.

The trial court did not impose the maximum prison sentence for either offense. Three

counts of Rape, felonies of the first degree were dismissed in exchange for Bush’s pleas.

Bush was clearly advised in writing and in open court before he entered his pleas that the

trial court could impose consecutive sentences.

{¶37} In State v. Hairston, the Ohio Supreme Court held proportionality review of

sentences should focus on individual sentences rather than on the cumulative impact of

multiple sentences imposed consecutively. 118 Ohio St.3d 289, 2008-Ohio-2338, 888

N.E.2d 1073, ¶20. The sole issue before the court in Hairston concerned whether the

aggregate, 134–year prison term imposed on Hairston constituted cruel and unusual

punishment in violation of the Eighth Amendment to the United States Constitution and

Section 9, Article I of the Ohio Constitution. Hairston, ¶1. Because this aggregate term

of incarceration resulted from Hairston’s guilty pleas to four counts of aggravated robbery,

four counts of kidnapping, three counts of aggravated burglary, all with firearm

specifications, and three counts of having a weapon while under disability, and because

none of his individual sentences are grossly disproportionate to their respective offenses,

the Supreme Court concluded that his aggregate sentence is not unconstitutional.

Hairston, ¶22-23.

{¶38} Given that the trial court is not obligated to refer to every factor listed in R.C.

2929.12 as part of its sentencing analysis, “the defendant has the burden to affirmatively

show that the court did not consider the applicable sentencing criteria or that the sentence

imposed is ‘strikingly inconsistent’ with the applicable sentencing factors.” State v. Hull,

11th Dist. Lake No. 2016-L-035, 2017-Ohio- 157, ¶8. Bush has failed in this burden.
Perry County, Case No. 17-CA-00007 15

{¶39} Accordingly, the trial court considered the purposes and principles of

sentencing [R.C. 2929.11] as well as the factors that the court must consider when

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation

to state reasons to support its findings. Nor is it required to give a talismanic incantation

of the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.

{¶40} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. We also find that the record in the case at bar supports the

trial court’s findings under R.C. 2929.14(C)(4). Furthermore, the record reflects that the

trial court considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code

and advised Bush regarding post-release control. While Bush may disagree with the

weight given to these factors by the trial judge, Bush’s sentence was within the applicable

statutory range for a felony of the third degree and therefore, we have no basis for

concluding that it is contrary to law.

{¶41} Bush has failed to clearly and convincingly show that the trial court failed to

consider the principles of felony sentencing, or that the aggregate nine-year sentence is

otherwise contrary to law.
Perry County, Case No. 17-CA-00007 16

Conclusion.

{¶42} Bush’s sole assignment of error is overruled. The decision of the Perry

County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur