Opinion
Case No. CT2018-0050
04-03-2019
STATE OF OHIO Plaintiff-Appellee v. COREY WOOD Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee GERALD V. ANDERSON II 27 North Fifth Street P.O. Box 189 Zanesville, OH 43702-0189 For Defendant-Appellant JAMES A. ANZELMO 446 Howland Drive Gahanna, OH 43230
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas Case No. CR2018-0276 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee GERALD V. ANDERSON II
27 North Fifth Street
P.O. Box 189
Zanesville, OH 43702-0189 For Defendant-Appellant JAMES A. ANZELMO
446 Howland Drive
Gahanna, OH 43230 Wise, Earle, J.
{¶ 1} Defendant-Appellant, Corey Wood, appeals the June 21, 2018 entry of the Court of Common Pleas of Muskingum County, Ohio, sentencing him to a consecutive sentence. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 9, 2017, the Muskingum County Grand Jury indicted appellant on six counts of pandering sexually oriented material involving a minor in violation of R.C. 2907.322, and one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04.
{¶ 3} On June 4, 2018, appellant pled guilty to an amended count of gross sexual imposition in violation of R.C. 2907.05. All the pandering counts were dismissed.
{¶ 4} By entry filed June 21, 2018, the trial court sentenced appellant to eighteen months in prison, to be served consecutively to a sentence he was already serving in an unrelated case. Appellant was also ordered to pay court costs.
{¶ 5} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶ 6} "THE TRIAL COURT UNLAWFULLY ORDERED COREY WOOD TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION."
II
{¶ 7} "COREY WOOD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
I
{¶ 8} In his first assignment of error, appellant claims the trial court erred in sentencing him to a consecutive sentence. We disagree.
{¶ 9} This court reviews felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. R.C. 2953.08(G)(2) states we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
{¶ 10} "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and 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.
{¶ 11} R.C. 2929.14(C)(4) governs consecutive sentences and states the following:
(4) 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 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.
{¶ 12} "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.
{¶ 13} In his appellate brief at 3, appellant argues the trial court made findings pursuant to R.C. 2929.14(C)(4), but the record does not support those findings. At the time of sentencing, appellant was incarcerated on an unrelated offense, to be released in 2023. June 20, 2018 T. at 4. The trial court ordered the sentence sub judice to be served consecutively to the sentence he was currently serving.
{¶ 14} In this case, appellant pled guilty to an amended count of gross sexual imposition. The six pandering counts were dismissed. The victim was fourteen years old. June 20, 2018 T. at 8. The prosecutor gave a recitation of the facts: while the victim was lying on a couch, appellant "knelt down on the floor, began to play with her hair, pulled her pants down, and then stuck his thing in her butt." Id. at 8-9. "Essentially, she just says that his thing is what he uses to pee and that she was facing the back of the couch away from Mr. Wood and that it felt weird, she wanted to get away but felt scared of him, and that was the extent." Id. at 9. The trial court noted appellant's "pretty significant felony record." Id. at 10. During the sentencing hearing at 10-11, the trial court found the following:
The Trial Court finds consecutive sentences are necessary to protect the public and punish this offender. Consecutive sentences are not disproportionate to the seriousness of the conduct and danger posed to the
public. Your history of criminal conduct also demonstrates consecutive sentences are necessary to protect the public from future crimes.
{¶ 15} In its entry filed June 21, 2018, the trial court noted it considered the factors set forth in R.C. 2929.11 and 2929.12, and included its findings on consecutive sentences:
[C]onsecutive 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.
The Defendant's history or criminal conduct demonstrates that consecutive sentences are necessary to protect the public form future crime by the offender.
{¶ 16} The trial court's findings are supported by the record. Appellant admitted to having a significant felony record. At the time of the offense sub judice, the victim was fourteen years old, and appellant was thirty-one. June 4, 2018 T. at 15. The victim knew appellant for several years, he was like a father to her, and she babysat his three children. Id. at 13-14. The harm caused to the minor victim, given the age difference and the relationship between the parties, with appellant being in a position of trust, is significant. The consecutive sentence is not disproportionate to the seriousness of appellant's conduct.
{¶ 17} Upon review, we find clear and convincing evidence to support the trial court's imposition of a consecutive sentence.
{¶ 18} Assignment of Error I is denied.
II
{¶ 19} In his second assignment of error, appellant claims he was denied the effective assistance of trial counsel. We disagree.
{¶ 20} The standard this issue must be measured against is set out in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Appellant must establish the following:
2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.
{¶ 21} Appellant argues his counsel was ineffective for failing to ask the trial court to waive court costs given that he is indigent.
{¶ 22} R.C. 2947.23 governs judgment for costs in criminal cases. Subsection (C) states: "The court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution, including any costs under section 2947.231 of the Revised Code, at the time of sentencing or at any time thereafter."
{¶ 23} In support of his argument, appellant cites the case of State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861. As appellant correctly points out in his appellate brief at 6, this court has specifically declined to accept Springer in State v. Davis, 5th Dist. Licking No. 17-CA-55 (Dec. 20, 2017), ¶ 27:
We find no merit in Appellant's allegation that he received ineffective assistance of counsel as a result of his attorney failing to request that the trial court waive court costs. Because R.C. 2947.23(C) grants appellant the ability to seek waiver of costs at any time, including after sentencing, Appellant has not been prejudiced by the failure of his counsel to request a waiver at sentencing.Accord State v. Ramsey, 5th Dist. Licking No. 17-CA-76, 2018-Ohio-2365, ¶ 44-47.
{¶ 24} We note this court's decision in Davis has been accepted for review by the Supreme Court of Ohio upon certification of a conflict with the decision in Springer, supra. Unless a decision is rendered on the issue to the contrary in the future, this court will continue to abide by its decision in Davis.
{¶ 25} Upon review, we do not find any ineffective assistance of counsel on this issue.
{¶ 26} Assignment of Error II is denied.
{¶ 27} The judgment of the Court of Common Pleas of Muskingum County, Ohio is hereby affirmed. By Wise, Earle, J. Gwin, P.J. and Delaney, J. concur. EEW/db 322