State v. Mathew

[Cite as State v. Mathew, 2018-Ohio-3405.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2017-0051
MICHAEL D. MATHEW

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas,Case No. CR2016-0415

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 23, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX ERIC J. ALLEN
PROSECUTING ATTORNEY THE ERIC J. ALLEN LAW OFFICE
GERALD V. ANDERSON II 4605 Morse Road
ASSISTANT PROSECUTOR Suite 201
27 North Fifth Street Gahanna, Ohio 43240
P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0051 2

Wise, John, P. J.

{¶1} Defendant-Appellant Michael D. Mathew appeals from his convictions, in

the Muskingum County Court of Common Pleas, on thirty-six felony counts connected to

the fraudulent sale of securities. Appellee is the State of Ohio. The relevant facts leading

to this appeal are as follows.

{¶2} Between the dates of August 8, 2014 and September 8, 2015, appellant

took responsibility for nearly $500,000.00 in investment funds provided by fifteen persons,

two of them elderly, in a company known as Mathew Investments, LLC, located in

Dresden, Ohio.

{¶3} Despite telling his investors he would hold their deposits in trust and make

investments for them in the stock market, appellant commingled the money, spent some

of it on himself, and transferred some to a personal E*Trade account for use in options

trading. By June 2016, appellant had sustained losses in the E*Trade account totaling

more than $266,000.00. At some point, appellant began issuing false account statements

to some of the investors. He also used incoming deposits to pay purported returns on

some of the accounts as a means of maintaining his investment scheme.

{¶4} The largest losses were sustained by the following investors: Marjorie D. –

$126,835.16; Jeffrey B. – $75,000.00; Stephen M. – $75,000.00; M.M. – $55,000.00; J.P.

– $40,000.00; Clarence S. – $33,849.47; David M. – $28,451.24; Jeffrey B. – $27,760.00.

{¶5} The remaining investors suffered losses ranging from $2,000.00 to

$12,000.00.

{¶6} On December 14, 2016, Appellant Mathew was indicted by the Muskingum

County Grand Jury on one count of theft (in the amount $150,000 - $750,000), a felony
Muskingum County, Case No. CT2017-0051 3

of the third degree; one count of acting as an unlicensed securities dealer (in an amount

of more than $150,000), a felony of the first degree; six counts of misrepresentation in

the sale of a security (in the amount of $37,500 - $150,000), felonies of the second

degree; ten counts of misrepresentation in the sale of a security (in the amount of $1,000

- $37,500), felonies of the fourth degree; six counts of securities fraud (in the amount of

$37,500 - $150,000), felonies of the second degree; eleven counts of securities fraud

($1,000 - $7,500), felonies of the fourth degree; two counts of theft (in the amount of

$37,500 - $150,000, elderly victim), felonies of the second degree; five counts of

publishing a false statement ($1,000 - $7,500), each a felony of the fourth degree; ten

counts of misrepresentation in the sale of a security ($7,500 - $37,500), each a felony of

the third degree; ten counts of securities fraud ($7,500 - $37,500), each a felony of the

third degree; and four counts of publishing a false statement ($7,500 - $37,500), felonies

of the fourth degree.

{¶7} A plea deal was thereafter negotiated wherein appellant pled guilty to thirty-

six of the counts, with numerous other counts amended, dismissed or merged with other

counts. Via a judgment entry issued on July 17, 2017, prison sentences were ordered on

all of the post-merger counts, with terms ranging from eleven months to four years. A

number of the counts were further ordered to be served consecutively, with an aggregate

sentence of twenty-one and one-half years in prison.

{¶8} On August 3, 2017, appellant filed a notice of appeal. He herein raises the

following three Assignments of Error:
Muskingum County, Case No. CT2017-0051 4

{¶9} “I. THE RECORD IN THIS MATTER DOES NOT SUPPORT THE

IMPOSITION OF CONSECUTIVE SENTENCES PURSUANT TO STATE LAW R.C.

2929.14.

{¶10} “II. THE IMPOSITION OF CONSECUTIVE SENTENCES VIOLATES THE

APPELLANT'S EIGHTH AMENDMENT RIGHT AGAINST CRUEL AND UNUSUAL

PUNISHMENT APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH

AMENDMENT.

{¶11} “III. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO

A CONSECUTIVE THIRTY MONTH PRISON TERM FOR A CRIME COMMITTED

AGAINST CLARENCE S.”

I.

{¶12} In his First Assignment of Error, appellant contends the trial court erred in

ordering consecutive sentences for certain of his offenses. We disagree.

{¶13} 2011 Am.Sub.H.B. No. 86 revived the language provided in former R.C.

2929.14(E) and moved it to R.C. 2929.14(C)(4). The General Assembly has thus

expressed its intent to revive the statutory fact-finding provisions pertaining to the

imposition of consecutive sentences that were effective in the pre–Foster era. See State

v. Wells, 8th Dist. Cuyahoga No. 98428, 2013–Ohio–1179, ¶ 11. The Ohio Supreme Court

has clearly held: “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.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,

2014–Ohio–3177, syllabus.
Muskingum County, Case No. CT2017-0051 5

{¶14} Furthermore, we no longer review sentences pursuant to the standard set

forth in State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, 896 N.E.2d 124. See State

v. Cox, 5th Dist. Licking No. 16–CA–80, 2017–Ohio–5550, ¶ 9. We now review felony

sentences using the standard of review set forth in R.C. 2953.08. See State v. Marcum,

146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22. Thus, under R.C.

2953.08(G)(2)(a), we will in this instance consider on appeal whether there is clear and

convincing evidence that the record in the case sub judice does not support the

sentencing court's findings under R.C. 2929.14(C)(4) to impose consecutive sentences.

See State v. Deeb, 6th Dist. Erie No. E–14–117, 2015–Ohio–2442, ¶ 27.

{¶15} We direct our attention to R.C. 2929.14(C)(4), which provides as follows:

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
Muskingum County, Case No. CT2017-0051 6

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.

{¶16} In a nutshell, “R.C. 2929.14(C)(4) provides that a trial court may require the

offender to serve multiple 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

one of three facts specified in subdivisions (a), (b), and (c).” State v. Leet, 2nd Dist.

Montgomery No. 25966, 2015–Ohio–1668, ¶ 15 (internal quotations and brackets

omitted).

{¶17} In the case sub judice, the trial court made the following written findings in

accordance with the language of R.C. 2929.14(C)(4), supra:

*** [T]he Court further found that the imposition of consecutive

sentences are necessary to protect the public from future crime or to punish

the Defendant, and that 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 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
Muskingum County, Case No. CT2017-0051 7

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.

The Defendant's criminal conduct in this case demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender and to punish the Defendant.

{¶18} Judgment Entry, July 17, 2017, at 5.

{¶19} The court also made oral findings under R.C. 2929.14(C)(4) on the record

at the end of the sentencing hearing. See Sentencing Tr. at 55-56.

{¶20} The record in this matter reveals that appellant’s acts of theft,

misrepresentation, and securities fraud cost some of his victims their entire life savings,

causing some to postpone their retirement plans indefinitely and remain in the workforce.

One of the victims and her husband were hoping to grow their investment for use in

funding their daughter’s education. Appellant falsely told his investors he held a valid

securities license in Florida and repeatedly produced fictionalized investment statements

to avoid inquiry into his activities. He also falsely assured his victims that he had

purchased a policy through Goldman Sachs to limit principal losses. Appellant presently

argues that the trial court failed to consider that he was a first-time offender, an honorably

discharged veteran, a former foster parent, and the married father of two adopted

children. He also points out that there was no indication of a substance abuse or gambling

issue in his life. However, a presumption of regularity attaches to all trial court

proceedings. See, e.g., Black v. Chiropractic Assocs. of Zanesville, L.L.C., 5th Dist.

Muskingum No. CT2013–0012, 2014–Ohio–192, ¶ 20, citing Chari v. Vore (2001), 91
Muskingum County, Case No. CT2017-0051 8

Ohio St.3d 323, 325, 744 N.E.2d 763. Upon review, we hold the trial court adequately

reviewed the matter of consecutive sentences, and we find no clear and convincing

evidence that the record does not support the trial court's findings under R.C.

2929.14(C)(4) for purposes of imposing consecutive sentences. Deeb, supra.

{¶21} Appellant's First Assignment of Error is therefore overruled.

II.

{¶22} In his Second Assignment of Error, appellant contends his consecutive

sentences are a form of cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution. We disagree.

{¶23} The Eighth Amendment to the United States Constitution prohibits

excessive sanctions by the government. It provides as follows: “Excessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

See, also, Section 9, Article I of the Ohio Constitution. It is well-established that sentences

do not violate these constitutional provisions against cruel and unusual punishment

unless the sentences are so grossly disproportionate to the offenses as to shock the

sense of justice in the community. See State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46

(1972). As a general rule, a sentence that falls within the terms of a valid statute cannot

amount to a cruel and unusual punishment. State v. Stevens, 5th Dist. Stark No.

2017CA00024, 2017-Ohio-8692, ¶ 10, quoting McDougle v. Maxwell, 1 Ohio St.2d 68,

69, 203 N.E.2d 334 (1964).

{¶24} Proportionality analysis under the Eighth Amendment should be guided by

objective criteria, including (i) the gravity of the offense and the harshness of the penalty;

(ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the
Muskingum County, Case No. CT2017-0051 9

sentences imposed for commission of the same crime in other jurisdictions. State v.

Morin, 5th Dist. Fairfield No. 2008–CA–10, 2008–Ohio–6707, ¶ 69, citing Solem v. Helm,

463 U.S. 277, 290–292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). However, in State v.

Hairston, 118 Ohio St.3d 289, 2008–Ohio–2338, ¶ 20, the Ohio Supreme Court held that

“[w]here none of the individual sentences imposed on an offender are grossly

disproportionate to their respective offenses, an aggregate prison term resulting from

consecutive imposition of those sentences does not constitute cruel and unusual

punishment.” Thus, Eighth Amendment proportionality review does not apply to

consecutive sentences. State v. Williams, 1st Dist. Hamilton No. C-160336, 2017-Ohio-

8898, 101 N.E.3d 547, ¶ 31, citing Hairston at ¶ 20.

{¶25} Under the circumstances of the case sub judice, while appellant cogently

contrasts his twenty-one and one-half year aggregate prison term with a number of Ohio,

out-of-state, and federal cases in his well-researched argument, we find appellant cannot

overcome the barrier of Hairston in regard to the consecutive nature of his overall

sentence.

{¶26} Appellant's Second Assignment of Error is therefore overruled.

III.

{¶27} In his Third Assignment of Error, appellant contends the trial court erred in

sentencing him to a consecutive thirty-month prison term under Count 51,

misrepresentation in the sale of a stock, involving the victim Clarence S. We disagree.

{¶28} Pursuant to Marcum, supra, 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
Muskingum County, Case No. CT2017-0051 10

sentence is otherwise contrary to law. State v. Harris, 5th Dist. Muskingum No. CT2018-

0005, 2018-Ohio-2257, ¶ 25. Clear and convincing evidence is that evidence which will

provide a firm belief or conviction as to the facts sought to be established. See State v.

Phillips, 5th Dist. Ashland No. 17 COA 012, 2018-Ohio-143, ¶ 19, citing Cross v. Ledford,

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

{¶29} Appellant first urges that the trial court’s issuance of a sentence on Count

51 ignored the recent Victims’ Rights Amendment to the Ohio Constitution. The

amendment provides, among other things, that a crime victim shall have the right, “which

shall be protected in a manner no less vigorous than the rights afforded to the accused,”

*** “to be heard in any public proceeding involving release, plea, sentencing, disposition,

or parole, or in any public proceeding in which a right of the victim is implicated[.]” Ohio

Constitution, Article I, Section 10a(A)(3).

{¶30} While appellant presents an interesting question of the impact of the

aforesaid constitutional provision on aspects of Ohio sentencing law, the new amendment

was not adopted until after appellant’s sentencing. We therefore find his constitutional

argument lacks merit.

{¶31} On more general grounds, we agree with the State’s responsive contention

that the existence of a victim’s request for mercy on a defendant does not amount to clear

and convincing evidence warranting appellate modification of a sentence. It appears

undisputed that the trial court read and considered a letter from Clarence S. (who is

married to a close relative of appellant) expressing that he did not want appellant to

receive an additional prison sentence. However, the court, in its discretion, did not accept
Muskingum County, Case No. CT2017-0051 11

the plea for mercy made by Clarence. Under these circumstances, we find no grounds to

reverse or alter appellant’s Count 51 sentence pursuant to the mandates of R.C. 2953.08.

{¶32} Appellant's Third Assignment of Error is overruled.

{¶33} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.

By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.

JWW/d 0809