Opinion
WD-20-085
11-19-2021
STATE OF OHIO APPELLEE v. ROBERT FORD APPELLANT
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Brian C. Morrissey and Lorin J. Zaner, for appellant.
WD-20-085
TRIAL COURT NO. 2019CR0570
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Brian C. Morrissey and Lorin J. Zaner, for appellant.
DECISION AND JUDGMENT
OSOWIK, J.
{¶ 1} Defendant-appellant, Robert Ford, appeals the November 25, 2020 judgment of the Wood County Court of Common Pleas which, following guilty pleas to three counts of gross sexual imposition, third degree felonies, sentenced him to a consecutive sentence totaling nine years of imprisonment and classified him as a Tier II Sexual Offender. Because we find no error in the trial court's sentence, we affirm.
Background
{¶ 2} On December 19, 2019, appellant was indicted on one count of rape of a minor under the age of 13, and two counts of gross sexual imposition of a minor under the age of 13. The minor victim, appellant's granddaughter, was five during the alleged events which spanned January through November 2019.
{¶ 3} On October 6, 2020, appellant withdrew his not guilty pleas and entered pleas of guilty to three counts of gross sexual imposition, third degree felonies. The state provided a factual basis for the pleas. In summary, appellant, on multiple occasions, showered with his minor granddaughter and touched her genitals and chest. He inserted his fingers into her vagina.
{¶ 4} Appellant's sentencing hearing was held on November 20, 2020, and he was sentenced to three years of incarceration for each count, to be served consecutively. He was also classified as a Tier II Sexual Offender. This appeal followed.
Assignments of Error
I. The trial court erred in ordering the sentences to be served consecutively as the record does not support the findings required by R.C. 2929.14(C)(4).
II. The trial court's sentence is contrary to the purposes of felony sentencing pursuant to R.C. 2929.11 and 2929.12.
III. The trial court committed plain error in failing to merge the counts for sentencing purposes and failed to complete an allied offense analysis before sentencing.
Analysis
{¶ 5} Appellant's first and second assignments of error are related and will be jointly, and inversely, addressed. In appellant's second assignment of error he argues that the court failed to properly consider the principles and purposes of felony sentencing, R.C. 2929.11 and 2929.12, prior to imposing sentence. Appellant's first assignment of error argues that the court's findings in support of the imposition of a consecutive sentence are not supported by the record.
{¶ 6} Our review of a felony sentence is guided by R.C. 2953.08(G)(2) which provides that an appellate court may increase, reduce, or otherwise modify a sentence or may vacate the sentence and remand the matter to the sentencing court for resentencing 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.
{¶ 7} As to our review of the court's findings under R.C. 292911 and 292912, the Supreme Court of Ohio has recently held that "[n]othing in RC 295308(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with RC 292911 and 292912" State v Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 NE3d 649, ¶ 42 Stated otherwise, "RC 295308, as amended, precludes second-guessing a sentence imposed by a trial court based on its weighing of the considerations in RC 292911 and 292912" State v Toles, Slip Opinion No 2021-Ohio-3531, ¶ 10 (Brunner, J, concurring.)
{¶ 8} In addition to the considerations under R.C. 2929.11 and 2929.12, prior to imposing a consecutive sentence under R.C. 2929.14(C)(4), the court must find consecutive sentences are "necessary to protect the public from future crime or to punish the offender," "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public," and that one of the circumstances under R.C. 2929.14(C)(4) is present. Such circumstances include:
(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.
{¶ 9} Imposing a consecutive sentence, the trial court must engage in the correct analysis, state its statutory findings during the sentencing hearing, and incorporate those findings into its sentencing entry. (Emphasis added.) State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 253, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. A word-for-word recitation of the statutory language is not required so long as the record supports the trial court's findings. Beasley at ¶ 259.
{¶ 10} In the present case, at the November 20, 2020 sentencing hearing and in the November 25, 2020 sentencing judgment entry, the trial court stated that it had considered the purposes of sentencing under R.C. 2929.11, that the court should impose the least severe sanction necessary to achieve such purposes while not demeaning the seriousness of the conduct. The court then balanced the seriousness and recidivism factors under R.C. 2929.12. Under Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, at ¶ 42, we are not permitted to independently weigh the evidence behind the court's findings.
{¶ 11} Imposing a consecutive sentence, the court then stated:
This court has reviewed the requirements under R.C. 2929.14(C)(4). It does believe these are multiple offenses and that it is necessary to punish the offender because this is a crime against a grandchild, that it is not disproportionate because of the seriousness of the offender's conduct and the danger that he poses to the public, that at least these [sic] offenses were committed as part of a course of conduct, and the harm caused by this course of conduct was so great or unusual that no single prison term for any of the offenses committed as part of this course of conduct reflects the seriousness of the offender's conduct. Therefore, the Court will order that Count One, Two, and Three be served consecutive to each other.
The sentencing judgment entry reflects the above findings.
{¶ 12} Appellant's central argument is that the court erroneously found that appellant posed a danger to the public based upon statements of family acquaintances that they were uncomfortable and had a "very creepy feeling" around him. A family friend also stated that appellant acted "too familiar" with young children and that he would grab little girls and put them on his lap. Appellant contends that there is nothing illegal about his actions and that these facts do not evidence any increased risk to the public. Further, appellant asserts that the events at issue took place in private and involved a family member.
{¶ 13} As set forth above, in order to impose a consecutive sentence the trial court must find under that, inter alia, such sentence is necessary "to protect the public or to punish the offender" and that the consecutive sentence is not disproportionate to the defendant's conduct and the danger he or she poses to the public. R.C. 2929.14(C). To refute such a finding, a defendant must show by "clear and convincing evidence that the trial court erred in finding that the consecutive [sentence was] not disproportionate to the danger he posed to the public, not that he had a low risk of committing future offenses." State v. Kiefer, 6th Dist. Ottawa No. OT-21-005, 2021-Ohio-3059, ¶ 18.
{¶ 14} Here, a discussion was had regarding the danger that appellant posed to the public and the record supports the fact that appellant was able to commit crimes against his granddaughter while his family members were present. The court also focused on the seriousness of appellant's conduct- sexually molesting his young granddaughter over several months and showing no remorse for his actions- as further support for the imposition of a consecutive sentence. The court then specifically found that appellant had engaged in a course of conduct over several months.
{¶ 15} Reviewing the sentencing hearing and judgment entry, we find that the trial court recited the necessary statutory language and found that the course of appellant's conduct, R.C. 2929.14(C)(4)(b), supported the imposition of consecutive sentences. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 253. Further, the sentence imposed was within the statutorily permissible range. Thus, appellant's sentence was not clearly and convincingly contrary to law. Appellant's first and second assignments of error are not well-taken.
{¶ 16} In appellant's third and final assignment of error, he argues that he was prejudiced by the court's failure to conduct an inquiry as to whether his convictions should have merged at sentencing. Appellant states that it is unclear how many times appellant showered with the victim or whether there was an "uninterrupted" sequence in the prohibited touching.
{¶ 17} Initially we note that because appellant failed to raise the issue of merger at sentencing, he waived the argument absent plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Thus, appellant must "demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus * * *." Id
{¶ 18} R.C. 2941.25 prohibits multiple convictions for "allied offenses of similar import" arising from the same conduct. "[W]henever a court considers whether there are allied offenses that merge into a single conviction, the court 'must first take into account the conduct of the defendant. In other words, how were the offenses committed.'" State v. Tellis, 6th Dist. Wood No. WD-19-050, 2020-Ohio-6982, ¶ 74, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. In determining whether multiple convictions constitute allied offenses, the court must address three questions: (1) did the offenses involve either separate victims or "separate and identifiable harm, (2) were the offenses committed separately, and (3) were the offenses committed with separate animus?" Ruff at ¶ 25. "An affirmative answer to any of the above will permit separate convictions." Tellis at ¶ 74; Ruff at ¶ 31.
{¶ 19} Reviewing the recitation of the facts as presented by the state at the plea hearing and agreed to by appellant, it is clear that the victim suffered separate, identifiable harm. The state indicated appellant showered with his granddaughter "several times" during the relevant time period and would touch her vaginal area and chest with his hands. Accordingly, appellant has failed to demonstrate a reasonable probability that the gross sexual imposition convictions were allied offenses. Appellant's third assignment of error is not well-taken.
Conclusion
{¶ 20} For the forgoing reasons, we affirm the November 25, 2020 judgment of the Wood County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J., Thomas J. Osowik, J., Myron C. Duhart, J. Concur