[Cite as State v. Musacchio, 2019-Ohio-1413.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-L-076
- vs - :
PETER MUSACCHIO, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000629.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor; Karen A. Sheppert and Carolyn K.
Mulligan, Assistant Prosecutors, Lake County Administration Building, 105 Main Street,
P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Richard J. Perez, 4230 State Route 306, Suite 240, Willoughby, OH 44094; and Ian N.
Friedman and Brad S. Wolfe, Friedman & Nemecek, LLC, 1360 E. 9th Street, Suite
650, Cleveland, OH 44114 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Peter Musacchio, appeals from the judgment of the Lake
County Court of Common Pleas sentencing him to a total of 120 months imprisonment
for two counts of gross sexual imposition. Appellant contends this sentence is
inconsistent and disproportionate compared with similar Ohio cases. For the reasons
discussed in this opinion, we affirm the trial court’s judgment.
{¶2} In June 2017, appellant was indicted on three counts of rape in violation of
R.C. 2907.02(A)(1)(B), felonies of the first degree; three counts of rape in violation of
R.C. 2907.02(A)(2), felonies of the first degree; three counts of gross sexual imposition
in violation of R.C. 2907.05(A)(4), felonies of the third degree; and two counts of
disseminating material harmful to juveniles in violation of R.C. 2907.31(A)(4), felonies of
the fifth degree. In all but one count of disseminating material harmful to juveniles, the
victim was believed to be appellant’s biological daughter and were alleged to occur
between 2009 and 2012, when the victim was in grade school.
{¶3} In March 2018, appellant pled guilty to two counts of gross sexual
imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree. The state and
appellant jointly recommended a sentence of eight years. However, the Lake County
Court of Common Pleas sentenced appellant to 60 months prison on each count to be
served consecutively for a total of 10 years, the maximum sentence allowed by R.C.
2929.14(A)(3)(a). Appellant assigns the following error:
{¶4} “The trial court erred when it sentenced appellant in a manner inconsistent
and disproportionate with other, similar Ohio cases.”
{¶5} R.C. 2953.08(G)(2) permits an appellate court to review the record and
increase, reduce, or vacate the sentence, or remand the matter to the sentencing court
for resentencing if it finds the record does not clearly and convincingly support the
sentencing court’s findings or the sentence is otherwise contrary to law. Id. See also
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶1.
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{¶6} Appellant “respectfully submits that nothing about his conduct or the
offenses in this matter, [sic] supports a one hundred and twenty (120) month prison
term.” We respectfully disagree.
{¶7} Initially, we note a trial court is not required to abide by a joint
recommendation. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶28. In
sentencing a defendant for a felony, the trial court is merely required to consider the
purposes and principles of sentencing in R.C. 2929.11 and the statutory factors in R.C.
2929.12. State v. Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-3013, ¶44.
Consistency under Ohio’s sentencing code mandates equal consideration of these
factors; it does not mandate comparison of the current case to similar cases so as to
ensure equal sentences for similar offenses. State v. Delmanzo, 11th Dist. Lake No.
2007-L-218, 2008-Ohio-5856, ¶32. State v. Marker, 11th Dist. Portage No. 2006-P-
0014, 2007-Ohio-3379, ¶34. Moreover, equal consideration of the factors does not
require equal weight be given to each factor. “A trial court is not required to give any
particular weight or emphasis to a given set of circumstances, it is merely required to
consider the statutory factors in exercising its discretion.” Delmanzo, supra, at ¶23.
{¶8} Appellant argues the trial court did not “fairly consider the serious and
recidivism factors” of R.C. 2929.12. However, though the sentence is greater than the
joint recommendation, it cannot be reasonably argued the trial court did not consider the
necessary factors. The trial court expressly stated it considered the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and stated, “the sentence
should be commensurate with and not demeaning to the seriousness of the defendant’s
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conduct and its impact on the victim which is in these types of cases, always, always
the biggest issue.”
{¶9} At sentencing, the trial court also expressly stated it considered the
seriousness and recidivism factors in R.C. 2929.12. It acknowledged the likelihood of
recidivism was low and that appellant had no prior criminal history. The court stated
that it gave weight to the joint recommendation especially considering the victim had
approved of the recommended sentence. It also noted the 21 letters written in support
of appellant, including one from his eldest daughter. Appellant had expressed the
offenses had occurred during a “dark period” of his life while he was going through
marital problems and divorce. However, the court did not find this to be a mitigating
factor, stating: “a lot of people have marital problems, half the people that are married
now get divorced but * * * it doesn’t approach in almost all circumstances what
happened here. * * * [I]t doesn’t give you the right or license or excuse to do what you
did.”
{¶10} To the contrary, the trial court emphasized the seriousness of the offense,
appellant’s close familial relationship with the victim, the repeated nature of the
offenses, and the severe and life-long psychological impact on the victim, which it
considered to be the most heavily weighted factor. It concluded the maximum sentence
was “necessary to protect the public from future crime and for the appropriate
punishment and that sentence is not disproportionate to the seriousness of [appellant’s]
conduct and the danger that [appellant] pose[s]”.
{¶11} Our review of the record does not reveal any evidence the sentence was
contrary to law: the sentence is within the statutory range and the trial court expressly
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stated it considered the purposes and principles of sentencing in R.C. 2929.11 and the
statutory factors in R.C. 2929.12. As we have previously held, “to the extent the trial
court considered and applied the necessary statutory provisions, a sentence shall be
deemed consistent and proportionate to those imposed for similar crimes.” Marker,
supra, at ¶34. The court weighed the “more serious” factors, including the severe and
long-term impact on the victim, and determined to grant them greater weight than the
less serious and low likelihood of recidivism factors. This is within the trial court’s
purview and the court did not err in doing so.
{¶12} In light of the forgoing, we conclude the sentence is supported by the
record and is not clearly and convincingly contrary to law. Appellant’s sole assignment
of error lacks merit.
{¶13} The judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.
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