[Cite as State v. Fowler , 2018-Ohio-3110.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-P-0046
- vs - :
MICHAEL D. FOWLER, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas.
Case No. 2016 CR 00826.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Erik E. Jones, 137 South Main Street, Suite 102, Akron, OH 44308 (For Defendant-
Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Michael D. Fowler, appeals from the August 2, 2017 sentencing
entry of the Portage County Court of Common Pleas. Appellant takes issue with the
trial court’s imposition of consecutive sentences. For the following reasons, the trial
court’s judgment is affirmed.
{¶2} On November 22, 2016, the Portage County Grand Jury indicted appellant
on ten counts of Rape, first-degree felonies, in violation of R.C. 2907.02(A)(1)(b) and
(B) and R.C. 2971.03 (Counts 1-10); and eleven counts of Gross Sexual Imposition,
third-degree felonies, in violation of R.C. 2907.05(A)(4) and (C)(2) (Counts 11-21).
Counts 1 through 20 pertained to conduct that took place between June 7, 2014, and
November 15, 2016, against one victim (DOB: 6-7-2004) (“Victim 1”). Count 21
involved conduct that took place between November 14, 2016, and November 15, 2016,
against a second victim (DOB: 2-19-2004) (“Victim 2”). Both victims were under 13
years old. Appellant pled not guilty.
{¶3} On June 15, 2017, appellant entered a written plea of guilty to Counts 1
through 3 and Count 21. The remaining charges were dismissed. After accepting his
guilty plea, the trial court found appellant guilty and ordered a presentence investigation
report (“PSI”).
{¶4} A sentencing hearing was held on July 31, 2017. The trial court heard
three victim impact statements. Victim 1’s father stated his family took appellant in and
considered him a friend. He conveyed the family felt betrayed, and it would take a
lifetime for them to heal. Victim 2 stated she trusted appellant, and her life was turned
upside down after he abused her. Victim 2’s mother stated she had known appellant for
eight years, and her family opened their home to him when he needed a place to stay.
During that time, appellant abused her daughter, even though he knew her daughter
struggled with a past abuse. The prosecutor explained appellant abused both victims
while he was staying with their families and made comments to them about being his
girlfriend. Appellant’s abuse of Victim 2 stopped only after she reported it to her mother;
his abuse of Victim 1 was subsequently uncovered. Appellant also addressed the court
during the sentencing hearing. The following exchange took place:
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Appellant: I have nothing to say. Drugs make you do stupid shit - -
stupid things. I’m sorry. * * * I did a lot of pain pills and everything.
One day he says one day he’s gonna do heroin and that’s what I
did. That’s one - -
The court: So you’re blaming it all on drugs?
Appellant: No. It - -
The court: You groomed this family - - these families.
Appellant: Yes, I did.
The court: You prepared them for this.
Appellant: I - - no. I don’t think I prepared them. I just - - they said
I was a nice guy, then I got into the drug scene and it just - - one
time after that and thought after that what the hell, so up to you
now, so - -
The trial court found appellant was a Tier III sex offender and notified him of his
registration requirements. Appellant was sentenced to a term of life imprisonment with
parole eligibility after ten years on each count of Rape and a term of imprisonment of
five years for Gross Sexual Imposition, all to be served consecutive to each other, or
until such time as he is otherwise legally released. Appellant was notified of mandatory
post-release control for the charge of Gross Sexual Imposition. He received 259 days
of jail-time credit. Regarding the consecutive sentences, the trial court stated:
The Court finds that consecutive sentences are necessary to
protect the public from future crimes, or to punish the Defendant.
These consecutive sentences are not disproportionate to the
seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public.
At least two or more of the offenses were committed as part of one
or more courses of conduct. And the harm caused by the two or
more of the multiple offenses committed was so great or unusual
that no single prison term adequately reflects the seriousness of the
conduct.
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{¶5} On August 2, 2017, the trial court filed its sentencing entry. The trial
court’s entry states:
The Court finds that the consecutive sentence is necessary to
protect the public from future crime or to punish the Defendant and
consecutive sentences are not disproportionate to the seriousness
of the Defendant’s conduct and to the danger the defendant poses
to the public. The Court also finds 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 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 Defendant’s
conduct.
{¶6} Appellant noticed a timely appeal. He asserts one assignment of error on
appeal:
{¶7} “The trial court erred in imposing consecutive terms of incarceration for
appellant’s charges.”
{¶8} We generally review felony sentences under the standard of review set
forth in R.C. 2953.08(G)(2), which states:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court 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. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
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{¶9} There is a statutory presumption in favor of concurrent sentences. See
R.C. 2929.41(A). Pursuant to R.C. 2929.14(C)(4), a court may require an offender to
serve multiple prison terms consecutively only if it 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 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.
{¶10} A trial court must make the statutory findings to support its decision to
impose consecutive sentences, but the trial court is not required to engage in a “word-
for-word” recitation of the statutory findings. State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, ¶29. The record reflects the trial court made findings under R.C.
2929.14(C)(4) and (C)(4)(b) at the sentencing hearing and in the judgment entry of
sentence.
{¶11} Appellant argues his sentence is contrary to law because the trial court did
not state its reasons for imposing consecutive sentences on the record. Appellant
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maintains that “when the trial court does not sufficiently state reasons for consecutive
sentences, the matter should be remanded to the trial court for clarification.”
{¶12} In Bonnell, however, the Ohio Supreme Court held that “a trial court is not
required by Crim.R. 32(A)(4) to give reasons supporting its decision to impose
consecutive sentences” because “no statute directs a sentencing court to give or state
reasons supporting imposition of consecutive sentences.” Bonnell, supra, at ¶27.
Consecutive sentences should be upheld if the trial court engaged in the correct
analysis and the record supports its findings. Id. at ¶29. Appellant’s argument is not
well taken.
{¶13} The trial court’s findings are supported by the record. Appellant’s crimes
were committed against minor children; Victim 1 was 10 years old at the time appellant
began abusing her, and Victim 2 was 12 years old when appellant abused her. At
appellant’s sentencing hearing, the trial court heard from three victims and the
prosecutor, all who indicated appellant took advantage of people who trusted him and
allowed him to stay in their homes. Appellant’s comments at the sentencing hearing
and in the PSI indicate he did not take responsibility for his actions or show genuine
remorse. We do not clearly and convincingly find that the record fails to support the trial
court’s findings.
{¶14} Appellant next argues the trial court’s imposition of consecutive sentences
was contrary to law because the findings and the reasons supporting those findings
were not found by a jury, and appellant did not make any factual admissions.
{¶15} In support of his argument appellant relies on Apprendi v. New Jersey, in
which the United States Supreme Court held that “[o]ther than the fact of a prior
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conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. 466, 490 (2000). Subsequently, however, in Oregon v. Ice, the United
States Supreme Court declined to extend its holding in Apprendi to state sentencing
statutes that require judicial factfinding before imposing consecutive sentences. 555
U.S. 160, 171-172 (2009). Further, in interpreting R.C. 2929.14(C)(4) after the
enactment of Am.Sub.H.B. No. 86, the Ohio Supreme Court in Bonnell held that R.C.
2929.41(A) and R.C. 2929.14(C)(4) require judicial factfinding to “overcome the
statutory presumption in favor of concurrent sentences.” Bonnell, supra, at ¶23.
Additionally, appellant’s conviction is based on his guilty plea, which is a “complete
admission of factual guilt” and “[constitutes] an admission of the truth of the facts
alleged in the indictment[.]” State v. Osborne, 11th Dist. Ashtabula No. 97-A-0002,
1997 WL 817837, *3 (Dec. 31, 1997), citing Crim.R. 11(B)(1) and State v. Wilson, 58
Ohio St.2d 52 (1979), paragraph one of the syllabus. Appellant’s argument is not well
taken.
{¶16} Appellant’s sole assignment of error is without merit.
{¶17} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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