State v. Stevens

[Cite as State v. Stevens, 2022-Ohio-2974.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-40
:
v. : Trial Court Case No. 2021-CR-193
:
CHRISTOPHER L. STEVENS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

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OPINION

Rendered on the 26th day of August, 2022.

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PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, Appellate Division, Safety Building, 201 West Main Street,
Troy, Ohio 45373
Attorney for Plaintiff-Appellee

ALAN D. GABEL, Atty. Reg. No. 0025034, P.O. Box 1423, Dayton, Ohio 45401
Attorney for Defendant-Appellant

.............

LEWIS, J.
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{¶ 1} Defendant-Appellant Christopher L. Stevens appeals his convictions in the

Miami County Common Pleas Court after entering guilty pleas to ten counts of rape under

13 years old and receiving an aggregate prison sentence of 20-years-to-life. Stevens

argues on appeal that his plea was not knowingly, intelligently, and voluntarily made, and

that his sentence was not supported by the record. For the reasons that follow, the trial

court’s judgment is affirmed.

I. Facts and Procedural History

{¶ 2} On May 20, 2021, Stevens was indicted by the Miami County Grand Jury on

10 counts of rape, in violation of R.C. 2907.02(A)(1)(b) (child under 13), felonies of the

first degree. Following plea discussions, Stevens entered a negotiated guilty plea

wherein he agreed to plead guilty to the indictment as charged and the parties agreed to

jointly recommend concurrent prison sentences, for an aggregate mandatory minimum

prison term of 10-years-to-life. The court sentenced Stevens to a mandatory term of 10-

years-to-life on all counts with Counts 1 through 5 to run concurrently to each other and

Counts 6 through 10 to run concurrently to each other, but Counts 1 through 5 were

ordered to be served consecutively to the concurrent sentences imposed for Counts 6

through 10, making the sentence an aggregate mandatory prison term of 20-years-to-life.

Stevens was designated a Tier III sex offender with life-time registration. Stevens timely

appealed.

II. First Assignment of Error

APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED THROUGH

THE TRIAL COURT’S IMPOSITION OF A SENTECE BASED ON A PLEA
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AGREEMENT THAT WAS UNKNOWINGLY, INVOLUNTARILY, AND

UNINTELLIGENTLY MADE.

{¶ 3} Stevens asserts that his plea was not knowingly, voluntarily, and intelligently

entered, because the trial court induced him to enter his plea by accepting the parties’

jointly-recommended sentence, but not imposing the jointly-recommended sentence.

We find no merit to Stevens’ argument.

{¶ 4} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.” State v. Barker, 129 Ohio St.3d 472, 2011-

Ohio-4130, 953 N.E.2d 826, ¶ 9. “A guilty plea that is not knowing, intelligent, and

voluntary does not comport with due process and violates the Ohio and United States

Constitutions.” State v. Gilroy, 195 Ohio App.3d. 173, 2011-Ohio-4163, 959 N.E.2d 19,

¶ 31 (2d Dist.), citing State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

{¶ 5} “[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or consideration, such

promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971). If the prosecutor fails to fulfill the promise, the defendant is entitled

to either withdraw his or her plea or enforce specific performance of the plea agreement.

Id. at 263. Likewise, if the trial court promises to impose a particular sentence that

induces a defendant to plea, absent a violation of any conditions placed on defendant

prior to sentencing, the plea is not voluntary unless that sentence is imposed. State v.

DeHart, 2018-Ohio-865, 106 N.E.3d 1267, ¶ 15 (2d Dist.).

{¶ 6} The trial court, however, “is not bound to accept the State's recommended
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sentence in a plea agreement.” State v. Downing, 2d Dist. Greene No. 2019-CA-74,

2020-Ohio-3984, ¶ 34, citing Akron v. Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d

119 (9th Dist.1978). “A trial court does not err by imposing a sentence greater than ‘that

forming the inducement for the defendant to plead guilty when the trial court forewarns

the defendant of the applicable penalties, including the possibility of imposing a greater

sentence than that recommended by the prosecutor.’ ” State ex rel. Duran v. Kelsey,

106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6, quoting State v. Buchanan,

154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dist.).

{¶ 7} In the present case, the trial court in no way promised Stevens that it would

impose the jointly-recommended sentence. Before the plea agreement was placed on

the record, the following discussion occurred:

The Court: All right. This matter comes on for a change of plea. [Defense

counsel], are there any plea bargains that need to be placed on the record?

Defense counsel: There are, Your Honor. The – there’s a joint agreement

of a recommendation of concurrent sentencing to the Court. My client

understands that the Court will carefully consider the joint recommendation,

but the Court has the right to sentence him under the law.

The Court: Thank you [Defense counsel]. [Prosecutor], is that your

understanding?

[Prosecutor]: Yes Your Honor.

The Court: And is this what you want to do Mr. Stevens?

Mr. Stevens: Yes Ma’am.
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Change of Plea Hrg. Tr. p. 2.

{¶ 8} The plea agreement was placed on the record and included that Stevens

would plead guilty to 10 counts of rape of a child less than 13 years of age, felonies of

the first degree, and the parties would jointly recommend that he serve a concurrent

sentence on all 10 counts. After Stevens acknowledged that that arrangement was the

entirety of the plea agreement, the following discussion occurred:

The Court: Okay. Thank you. Now as [Defense counsel] already went

over on the record, do you understand that [t]he Court is not bound by that

joint sentencing recommendation?

Mr. Stevens: Yes, yes Ma’am.

The Court: Okay. And that the Court can impose any penalties that the

Court deems appropriate within the relevant sentencing guidelines?

Mr. Stevens: Yes Ma’am.

Id. at 7.

{¶ 9} During the plea hearing, Stevens was advised that each offense carried a

mandatory prison sentence of 10-years-to-life. In discussing that Stevens was pleading

guilty to multiple offenses, the trial court confirmed that Stevens understood the difference

between concurrent and consecutive sentences. The following discussion occurred:

The Court: Okay. So you’re pleading guilty to more than one offense.

Do you understand that?

Mr. Stevens: Yes Ma’am.

The Court: All right. So the Court has to determine whether to run your
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sentences concurrent to one another or consecutive.

Mr. Stevens: Yes Ma’am.

The Court: And you know what those terms mean?

Mr. Stevens: Yes I do, Ma’am.

The Court: Okay. Concurrent being at the same time or consecutive

being one right after the other.

Mr. Stevens: Yes Ma’am.

Id. at 16-17.

{¶ 10} The trial court confirmed with Stevens during the plea hearing that he had

reviewed, understood, and signed the plea form. The form explicitly stated in numbered

paragraph 13, “I know that the sentence I will receive is a matter solely within the

discretion and control of the Judge, despite any and all recommendations made to the

Court. I request leniency, but I am prepared to accept any punishment permitted by law

which this Court sees fit to impose. I respectfully request the Court to consider, in

mitigation of punishment, that I have voluntarily entered a plea of Guilty.” Petition to

Enter Plea of Guilty (Felony).

{¶ 11} Having reviewed the record, the trial court made clear that it was not

required to follow the joint recommendation of the parties and did not in any way promise

that Stevens would receive the recommended sentence. The totality of the

circumstances, including the plea colloquy and the signed plea agreement, demonstrate

that Stevens’ pleas were knowingly, intelligently, and voluntarily entered. We therefore

overrule Stevens’ first assignment of error.
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III. Second Assignment of Error

THE TRIAL COURT ERRED IN BASING APPELLANT’S SENTENCE ON

ASSUMPTIONS WHICH WERE UNSUPPORTED BY THE RECORD

AND UPON INCOMPLETE FACTFINDING.

{¶ 12} In his second assignment of error, Stevens argues that the trial court’s

consecutive sentence findings were not supported by the record. We disagree.

{¶ 13} Generally, prison terms are presumed to be served concurrently. R.C.

2929.41(A). However, R.C. 2929.14(C)(4) permits a trial court to impose consecutive

sentences if it finds that (1) consecutive sentencing is necessary to protect the public from

future crime or to punish the offender, (2) consecutive sentences are not disproportionate

to the seriousness of the offender's conduct and to the danger the offender poses to the

public, and (3) at least one of the following applies:

(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.
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(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)(a)-(c).

{¶ 14} A trial court that imposes a consecutive sentence must make the findings

mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those findings

into its judgment entry, but it has no obligation to state reasons to support its findings.

State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. “[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. at ¶ 29.

{¶ 15} When reviewing felony sentences, appellate courts must apply the standard

of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 1 and ¶ 7. R.C. 2953.08(G)(2) directs appellate courts “to

review the record, including the findings underlying the sentence” and to modify or vacate

the sentence “if it clearly and convincingly finds either * * * [t]hat the record does not

support the sentencing court's findings under division * * * (C)(4) of section 2929.14 * * *

of the Revised Code * * * [or] the sentence is otherwise contrary to law.” “This is a very

deferential standard of review, as the question is not whether the trial court had clear and

convincing evidence to support its findings, but rather, whether we clearly and

convincingly find that the record fails to support the trial court's findings.” State v. Dover,

2d Dist. Clark Nos. 2018-CA-107, 2018-CA-108, 2019-Ohio-2462, ¶ 7, citing State v.
 -9-

Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 31 (2d Dist.). Clear and convincing

evidence is that evidence “which will produce 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.

{¶ 16} In his brief, Stevens does not contend that his sentence is contrary to law.

Rather, he claims the trial court’s findings under R.C. 2929.12 are not supported by the

record and do not justify consecutive sentences. However, while a trial court must

consider the statutory criteria that apply to every felony offense, including those set forth

in R.C. 2929.11 and R.C. 2929.12, R.C. 2953.08(G)(2)(a) does not provide a basis to

modify or vacate a sentence because it is not supported under R.C. 2929.11 or R.C.

2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39.

Thus, our review is limited to whether the trial court complied with the necessary findings

under R.C. 2929.14(C)(4) before imposing consecutive sentences and, if done, whether

we clearly and convincingly find that the record fails to support the trial court's consecutive

sentence findings.

{¶ 17} Prior to imposing sentence, the trial court advised on the record that it had

considered the written statements of the victim and Stevens’ mother, the oral statements

made at the time of sentencing, and the presentence investigation report (“PSI”). The

trial court stated that it had considered the purposes and principles of sentencing in R.C.

2929.11, and the seriousness and recidivism factors under R.C. 2929.12. The trial court

made the required consecutive-sentencing findings under R.C. 2929.14(C)(4), both on

the record and in the termination entry. Specifically, in accordance with R.C.
 -10-

2929.14(C)(4)(b), the trial court found that “[a]t least two of [the counts] were committed

as a part of a course of conduct. * * * And the harm caused by these multiple offenses

was so great and unusual and violates all decency and morals and – of our community,

that no single prison term adequately reflects the Defendant’s conduct.” Sentencing Hrg.

Tr. p. 16.

{¶ 18} As the trial court made the requisite findings before imposing consecutive

sentences, our review now turns to whether we clearly and convincingly find that the

record fails to support those findings. The record reflects that Stevens pled guilty to 10

separate counts of rape of a child under 13 years old. The charges arose as a result of

Stevens’ minor daughter performing fellatio on him an “estimated ten times” between

“Thanksgiving and Christmas of 2020,” with the most recent incident occurring “several

weeks” before March 26, 2021. PSI. In exchange for the fellatio, Stevens supplied his

daughter with candy and marijuana. Id. Although he had asked her to have vaginal sex

with him, she refused. Id. In the victim’s statement to the court, she stated that “my

father made me think it was okay to rape - that he raped me, made me touch him, and let

him touch me. This went on since I was eleven years old for about a year.” Sentencing

Hrg. Tr. p. 6. The victim explained that Stevens took away her innocence and she was

very sad as a result of these offenses. Id. at 6-7. She also indicated that because of

Stevens’ actions, she had lost her friends and siblings. Id.

{¶ 19} The trial court concluded that Stevens had groomed his daughter and

identified him as a “manipulator and predator,” explaining to Stevens that he “betrayed

the most fundamental obligation you have as a parent, and that is to protect your child.”
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Id. at 12. The trial court found that Stevens minimized his conduct by claiming it was not

forced rape and attempted to blame his actions on his drug use. This excuse was

provided in contrast to the repeated incestuous conduct that occurred over a lengthy

period of time and Stevens’ admissions that he “got into taboo porn, which led [him] to

father daughter porn.” PSI. He also repeatedly encouraged the victim to send

inappropriate photos of herself to him, telling her not to show them to anyone else, and

tried to progress from oral sex to vaginal sex with the minor victim over the course of a

year. PSI. The trial court’s additional statements on the record indicate it spent a great

deal of time explaining its rationale for the consecutive sentence it ultimately imposed.

Although the trial court stated it “gave great weight to” the joint recommendation for

concurrent sentencing, the trial court found that concurrent sentences were not warranted

because it ignored the seriousness of Stevens’ conduct. Sentencing Hrg. Tr. p. 13.

{¶ 20} Upon review of the record, we conclude that the trial court engaged in the

correct analysis, made the necessary findings required by R.C. 2929.14(C)(4), and

incorporated those findings into its judgment entry. We further conclude that the record

contains evidence to support the statutory findings for imposing consecutive sentences.

Thus, we are unable to clearly and convincingly find that the record fails to support the

trial court’s consecutive sentence findings. Accordingly, we overrule Stevens’ second

assignment of error.

IV. Conclusion

{¶ 21} Having overruled both assignments of error, the judgment of the trial court

is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Paul M. Watkins
Alan D. Gabel
Hon. Jeannine N. Pratt