[Cite as State v. Stanislaw, 2020-Ohio-1324.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2019-L-105
- vs - : 2019-L-106
ROBERT W. STANISLAW, :
Defendant-Appellant. :
Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 2019 CR
000286 and 2019 CR 000629.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Brian A. Smith, Brian A. Smith Law Firm, LLC, 755 White Pond Drive, Suite 403,
Akron, OH 44320 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Robert W. Stanislaw, appeals from the judgment of the Lake
County Court of Common Pleas, sentencing him to serve two, 18-month terms of
imprisonment consecutively, for two counts of menacing by stalking. Appellant takes
issue with both the duration of each sentence as well as the consecutive nature of the
trial court’s sentencing order. We affirm.
{¶2} On May 23, 2019, in case number 2019 CR 000286, appellant was
charged by bill of information with one count of menacing by stalking, in violation of R.C.
2903.211(A)(1), a fourth-degree felony. On July 17, 2019, while out on bond, in case
number 2019 CR 000629, appellant was again charged by bill of information with one
count of menacing by stalking, in violation of R.C. 2903.211(A)(1), a fourth-degree
felony. The charges arose due to appellant contacting the same victim, who was a
victim in a previous menacing by stalking case of which appellant was convicted and
served prison time. Appellant pleaded guilty to both counts. Following a sentencing
hearing, the trial court sentenced appellant to 18 months on each count and ordered
each term to be served consecutively to one another. Appellant appeals and assigns
the following as error:
{¶3} “Appellant’s sentence was not supported by the record.”
{¶4} Appellant first takes issue with the court’s imposition of maximum terms of
imprisonment for each crime. Recently, in State v. Gwynne, ___ Ohio St.3d ___, 2019-
Ohio-4761, the Supreme Court of Ohio clarified that R.C. 2929.11 and R.C. 2929.12
apply to the review of the duration of individual sentences. Gwynne, supra, at ¶17-18.
R.C. 2929.11 addresses the purposes and principles of felony sentencing and R.C.
2929.12 sets forth “seriousness” and “recidivism” factors. A sentencing court is not
required to use specific language and render precise findings to satisfactorily “consider”
the relevant seriousness and recidivism factors. State v. Long, 11th Dist. Lake No.
2013-L-102, 2014-Ohio-4416, ¶79. Instead, 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 applicable sentencing factors.
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Id. Thus, we presume a trial court considered the statutory purposes, principles, and
factors from a silent record. State v. Morefield, 2d Dist. Clark No. 2013-CA-71, 2014-
Ohio-5170, ¶41.
{¶5} In State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, the Supreme
Court stated:
{¶6} 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. Marcum, supra, at
¶23.
{¶7} Appellant first asserts there was little evidence that appellant’s
communications caused the victim serious physical, psychological, or economic harm.
He notes that there was no physical contact between himself and the victim and resided
“quite a * * * distance” from her. Notwithstanding appellant’s arguable points, the record
demonstrates that the victim in each case was the victim in a previous menacing by
stalking case of which he was convicted. Upon being initially contacted by phone, the
victim contacted her victim advocate and then the police. Appellant later attempted to
contact her via email twice. After returning from a vacation, the victim noticed trim
around her house had been pulled away and a fence gate was open. According to the
official police version of the offenses, the victim became concerned for her safety and
feared appellant was again stalking her. These points are sufficient for the trial court to
base its finding that the contact appellant initiated caused the victim serious
psychological harm.
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{¶8} Next, appellant acknowledges that his relationship with the victim
facilitated the offense but seems to trivialize this factor. The trial court, however, was
entitled to place some emphasis on this point, especially because the victim in the two
cases sub judice, was same victim in a previous menacing-by-stalking matter of which
appellant was convicted. This demonstrates that appellant has a peculiar interest or
tendency to intentionally direct his unwanted attention at this individual. Furthermore,
appellant continued to do so in spite of the past conviction and a condition of post-
release control that necessitated a no-contact order. His relationship with the victim not
only facilitated the offenses, it was the essence of and trigger of the offenses.
{¶9} The trial court found no factors that would render appellant’s conduct less
serious. Appellant, however, notes he did not expect to cause physical harm to the
victim’s person or property; in contacting the victim via email, he asserted he was acting
only as a job recruiter; he was intoxicated when he sent the email; and he was not
acting maliciously in contacting the victim. Even if these points could arguably lessen
the seriousness of appellant’s actions, the trial court did not err in according them
weight. The lack of physical harm to person or property was not at issue; and the trial
court was not obligated to give any weight to appellant’s purported intent in contacting
the victim or his level of intoxication.
{¶10} Appellant contends there are substantial grounds to mitigate his conduct;
to wit, there was no evidence of threats; he fully cooperated with police; and he
struggled with alcohol and mental health issues. While these points could have been
considered as mitigating factors, the trial court did not err in overtly addressing them as
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such. Actually, the trial court found appellant’s alcohol and mental health issues to
enhance appellant’s likely recidivism. The court stated:
{¶11} There is a lengthy previous criminal history, very similar conduct, at
least three or four other victims. It’s the same response every time
he gets into a relationship. The doctor said that treatment would be
futile. There’s no way this court can order the defendant to do
anything about curbing his behavior, not even post release control.
And he’s got three violations on post release control. The
defendant is not amenable to any available community control
sanctions. There’s a pattern of drug or alcohol abuse and the
offender refuses to acknowledge a problem or to accept treatment
or to seek out and avail himself of treatment. The defendant has a
psychological problem and he has done nothing to address it and
his history going back two decades would put somebody on notice
that they need to get treatment to avoid prison. The court finds the
offense were committed under circumstances extremely likely to
recur.
{¶12} The court’s observations demonstrate that appellant’s alcohol problem
and mental health issues, while worthy of some consideration in mitigation, also create
a reasonable concern for recidivism. We recognize that appellant, at the time of the
hearing, had enrolled in Alcoholics Anonymous and was seeing a therapist or
psychologist for his mental health issues. Still, the trial court’s points focus on
appellant’s history of similar conduct, which stretches back at least to 2007. In this
respect, appellant’s more recent efforts to address his problems do not militate heavily
in his favor.
{¶13} Finally, appellant argues at least one factor supports the conclusion that
recidivism is unlikely: he showed genuine remorse. As with certain other points, the
court was not obligated to give weight to appellant’s apologies, especially in light of the
repeated attempts at contacting the victim, particularly while on bond for previous
attempts. The repetitious nature of the contact weighs against the authenticity of
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appellant’s remorse. We therefore conclude appellant has failed to demonstrate that
the record clearly and convincingly does not support the sentence.
{¶14} Next, appellant challenges the basis of the trial court’s findings supporting
its imposition of consecutive sentences. We review consecutive sentences imposed
pursuant to R.C. 2929.14(C)(4) under R.C. 2953.08(G)(2), which states:
{¶15} 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.
{¶16} 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:
{¶17} (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;
{¶18} (b) That the sentence is otherwise contrary to law.
{¶19} Appellate courts “‘may vacate or modify any sentence that is not clearly
and convincingly contrary to law’” only when the appellate court clearly and convincingly
finds that the record does not support the sentence. State v. Wilson, 11th Dist. Lake
No. 2017-L-028, 2017-Ohio-7127, ¶8, quoting State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶23.
{¶20} Further, R.C. 2929.14(C)(4) provides, in relevant part, as follows regarding
consecutive felony sentences:
{¶21} 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
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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:
{¶22} (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} (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} (c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender. R.C. 2929.14(C)(4).
{¶25} Appellant does not dispute the trial court made the necessary findings to
support consecutive sentences; rather, he maintains that the record does not support
certain findings. He initially argues that the trial court’s finding that consecutive
sentences are not proportionate to his conduct and the danger he poses to the public
was not supported by the record. We do not agree. In light of appellant’s criminal
history (particularly with the victim), the trial court could reasonably find that consecutive
sentences were not disproportionate to the conduct or the danger he posed to her or
other potential victims.
{¶26} Next, appellant takes issue with the court’s finding that consecutive
sentences were necessary to protect the public from future crime and punish him.
Again, appellant has repeatedly been charged and convicted of menacing by stalking of
more than one victim. In order to interrupt or potentially stop this pattern of criminal
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activity, the trial court reasonably concluded consecutive sentences were necessary to
protect the public and punish appellant.
{¶27} Finally, he argues that the court’s finding that at least two of the multiple
offenses were committed as one or more courses of conduct, pursuant to R.C.
2929.14(C)(4)(b), was unsupported by the record. Even assuming this finding is
problematic, the trial court additionally found that “[t]he crimes were committed while
awaiting trial or sentencing or on post release control or on bond,” pursuant to R.C.
2929.14(C)(4)(a). Because the finding under that subsection is sufficient to complete
the trial court’s imposition of consecutive sentences, any potential error under R.C.
2929.14(C)(4)(b) is therefore harmless.
{¶28} In light of the foregoing, we conclude the trial court did not err when it
imposed the maximum term of imprisonment of 18 months for each crime nor did it err
in running those terms consecutively to one another.
{¶29} Appellant’s assignment of error lacks merit.
{¶30} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
MATT LYNCH, J.,
concur.
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