Opinion
L-22-1225
06-30-2023
State of Ohio Appellee v. Daniel Blanton Appellant
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee. Mallorie A. Thomas and Catherine R. Meehan, for appellant.
Trial Court No. CR0202102221
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Mallorie A. Thomas and Catherine R. Meehan, for appellant.
DECISION AND JUDGMENT
MAYLE, J.
{¶ 1} Appellant, Daniel Blanton, appeals the September 2, 2022 judgment of the Lucas County Court of Common Pleas sentencing him to an aggregate prison term of 13 to 18 years. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} In August 2021, Blanton was indicted on one count of rape in violation of R.C. 2907.02(A)(2), a first-degree felony; two counts of abduction in violation of R.C. 2905.02(A)(2), each a third-degree felony; and one count of attempted rape in violation of R.C. 2907.02(A)(2) and 2923.02, a second-degree felony. The rape charge involved victim K.G. and the attempted rape charge involved victim A.H.
{¶ 3} Blanton and the state reached a plea agreement under which Blanton would plead guilty to the counts of rape and attempted rape under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In exchange, the state agreed to dismiss the abduction counts and not make a sentencing recommendation.
{¶ 4} At the plea hearing, following the trial court's Crim.R. 11 colloquy with Blanton, the state provided the factual basis for the charges.
{¶ 5} Regarding the rape charge, the state said that Blanton (using his own phone number and the name Daniel Coy) met K.G. on a dating app and invited her to his home. While K.G. was at Blanton's home, she had several alcoholic beverages. She decided to sleep there because she did not think that she could safely drive home. K.G. intended to sleep on Blanton's couch, but accepted when Blanton invited her to sleep in his bedroom. K.G. made it clear to Blanton that she did not want to have sex. However, Blanton forcibly removed K.G.'s shorts and underwear and engaged in vaginal sex with her. K.G. tried to get Blanton off of her, but could not move his weight, went limp hoping that Blanton would stop because he thought that she had passed out, and repeatedly told him to stop and get off of her. Blanton also forced K.G. into performing oral sex on him. After Blanton finished, K.G., who had been sobbing, asked Blanton to let her leave, but he would not. When Blanton went to use the bathroom, K.G. grabbed her clothes and ran to her car. Blanton followed her. K.G. told him that she was going to her car for her medication, but she actually drove away. As K.G. left, Blanton "stood on his porch naked and yelling at her * * *." K.G. went to the hospital for a sexual assault examination the next morning.
{¶ 6} Regarding the attempted rape charge, the state said that Blanton met A.H. through the same dating app. The day of the assault, A.H. invited Blanton to her home. Blanton drank alcohol while at A.H.'s home and "became touchy with" A.H. When A.H. rebuffed Blanton's advances, Blanton "became angry and off-put and was repeatedly asking [A.H.] * * * if he could stay overnight at her home." A.H. told him to leave, but he claimed that he was too drunk to drive home. A.H. "was surprised by the request, because she did not think [Blanton] had consumed that much alcohol, but she drove him home anyways." When they reached his home, Blanton told A.H. that he needed assistance to walk to his door, fumbled with his keys, and acted like he could not open the door. A.H. believed that Blanton did not appear that intoxicated, but she helped him anyway. Once the door to Blanton's home was open, Blanton grabbed A.H. by the arm and tried to pull her inside; grabbed her by her neck, cutting off her airway; and, when A.H. fell to the porch, grabbed her feet and tried to drag her inside. During this, Blanton told A.H. that "we can either do this the easy way or the hard way." A.H. believed that Blanton was going to drag her inside his home and rape her. She was able to break free of Blanton and run to her car, where she "locked it just in time as [Blanton] chased her." She reported the incident to the police after she got home.
{¶ 7} Based on this information, the trial court found Blanton guilty of rape and attempted rape. The court ordered a presentence investigation report and set the case for sentencing.
{¶ 8} At the sentencing hearing, the trial court heard statements from Blanton, his attorney, and K.G., and considered the PSI and letters of support from Blanton's family and friends. Blanton's attorney explained to the court that Blanton's situation "seem[ed] to be a bit of a Dr. Jekyll and Mr. Hyde scenario where the very smart, sharp, and well intended Dr. Jekyll does all the good things in polite society, but Mr. Hyde drinks or otherwise engages in the worst kind of behavior, and this is kind of worst kind of behavior." He said that Blanton was "truly remorseful[,]" had a social support system, had a clean criminal record, and had a record of online dating without "engaging] in such adverse conduct * * *." Regardless, counsel acknowledged that "there's no getting away from this and the impact it had on the victims * * *."
{¶ 9} When Blanton addressed the court, he said that he "was blacked out beyond the point of intoxication * * *" the night to K.G.'s rape, so he did not remember anything he did that night. Blanton claimed that his "normal self would never hurt a woman * * *" and that "these were isolated incidents that will never, ever happen again, as [he] would never intentionally cause harm to anyone." He recognized that he should not have been on a dating app because he was married and had two young children. Blanton also told the court that he owned a business and was the sole income-provider for his family.
{¶ 10} When K.G. spoke, she explained the long-lasting, far-reaching effects that the rape had on her, including a posttraumatic stress disorder diagnosis, moving back to her parents' house that is several hours from her old apartment, delaying her application to graduate school because the effects of the rape caused her to miss too many work-experience hours, crying and vomiting every time she received mail from the court with Blanton's name on it, and living in fear that Blanton would find her.
{¶ 11} After hearing the statements, the court told Blanton that it did not "subscribe to this notion that you were drunk beyond recognition of what you were doing" and believed that Blanton had set up the "fake" dating-app profile for the purpose of sexually assaulting women. The court also believed that Blanton was "not truly willing to admit to the fact that you have a deviant mind, that you have this deviant desire to assault women in a sexual way * * *" and that Blanton's actions did not "in any way lin[e] up with just somebody who is on a dating app looking to find somebody to be unfaithful with." The court concluded that "[t]he fact that people like [Blanton] are in our midst and most of us don't know it is probably the scariest thing about it."
{¶ 12} Before imposing sentence, the court noted that it had considered the record, the statements made at sentencing, the victim impact statement, the PSI, and the factors in R.C. 2929.11 and 2929.12. The court sentenced Blanton to an indefinite term of ten to 15 years in prison on the rape conviction and three to four and one-half years on the attempted rape conviction. The court ordered the sentences to be served consecutively, for an aggregate term of 13 to 18 years.
{¶ 13} In imposing consecutive sentences, the trial court determined that (1) consecutive sentences were "necessary to fulfill the purposes of 2929.11 and 2929.14(E) [sic]"; (2) consecutive sentences were necessary to protect the public from future crime or punish Blanton; (3) consecutive sentences were not disproportionate to the seriousness of Blanton's conduct and the danger that he poses to the public; and (4) two or more of Blanton's offenses were committed as part of a course of conduct and the harm Blanton caused was so great or unusual that no single prison term would adequately reflect the seriousness of Blanton's conduct.
{¶ 14} In its sentencing entry, the trial court noted that it had considered the principles and purposes of felony sentence in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12. It also repeated its reasons for imposing consecutive sentences: consecutive sentence [sic] are necessary to protect the public from future crime and to punish [Blanton] and are not disproportionate to the
seriousness of [Blanton's] conduct and to the danger [Blanton] poses to the public. The Court further finds 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 [Blanton's] conduct.
{¶ 15} Blanton now appeals, raising three assignments of error:
ASSIGNMENT OF ERROR 1: THE TRIAL COURT ERRED WHEN IT SENTENCED MR. BLANTON TO AN AGGREGATE TERM OF THIRTEEN (13) TO EIGHTEEN (18) YEARS IN PRISON.
ASSIGNMENT OF ERROR 2: THE TRIAL COURT ERRED IN SENTENCING MR. BLANTON TO SERVE CONSECUTIVE SENTENCES.
ASSIGNMENT OF ERROR 3: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE THE ISSUE OF UNCONSTITUTIONAL SENTENCING UNDER THE REAGAN TOKES ACT, THUS PRECLUDING MR. BLANTON FROM RAISING THE ISSUE ON APPEAL.
II. Law and Analysis
A. Blanton's challenge to the trial court's consideration of the factors in R.C.
2929.12 is precluded by Jones.
{¶ 16} In his first assignment of error, Blanton argues that "the trial court did not make proper findings as required by relevant statutes, namely R.C. 2929.12." He contends that the trial court's statements on the record show that the court did not consider the seriousness and recidivism factors in R.C. 2929.12. In response, the state primarily argues that Blanton's arguments are not reviewable under State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, and, even if they were reviewable, the record shows that the trial court complied with the statute.
{¶ 17} We review sentencing challenges under R.C. 2953.08(G)(2). The statute allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence and remand the matter for resentencing only 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.R.C. 2953.08(G)(2).
{¶ 18} Essentially, Blanton claims that his sentence is contrary to law under R.C. 2953.08(G)(2) because the trial court did not provide enough explanation regarding its consideration of the seriousness and recidivism factors in R.C. 2929.12. But a trial court is not required to give explanations regarding its consideration of R.C. 2929.11 or R.C. 2929.12 at the sentencing hearing or in the judgment entry. State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 10 (6th Dist).
{¶ 19} Regardless, as we have repeatedly held, "R.C. 2953.08(G)(2) does not permit 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 R.C. 2929.11 and 2929.12.'" State v. Bowles, 2021-Ohio-4401, 181 N.E.3d. 1226, ¶ 7 (6th Dist.), quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42; see also, e.g., State v. Johnson, 6th Dist. Wood No. WD-20-056, 2021-Ohio-2139, ¶ 14, citing State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 10; State v. Woodmore, 6th Dist. Lucas No. L-20-1088, 2021-Ohio-1677, ¶ 17. Indeed, we may summarily deny an appeal of a sentence that is based only on the trial court's consideration of the factors in R.C. 2929.11 and 2929.12. Bowles at ¶ 8, citing State v. Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶ 1.
{¶ 20} Although Blanton does not argue that the trial court misapplied the factors in R.C. 2929.12, he claims that the court completely failed to consider that most of the seriousness factors do not apply to him and that several mitigating factors do. Whether we are asked to review the trial court's "application" of the factors in R.C. 2929.12 or the "consideration" that it gave to those factors is immaterial-either way, we are asked to determine whether the information in the record supports the trial court's decision, which is forbidden by Jones. That is, we cannot "independently weigh the evidence in the record and substitute [our] judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12." Id. at ¶ 42. Because this issue is not subject to our review, we find Blanton's first assignment of error not well-taken.
B. The trial court's imposition of consecutive sentences is not clearly and convincingly unsupported by the record.
{¶ 21} In his second assignment of error, Blanton argues that the trial court erred by imposing consecutive sentences because the record lacks evidentiary support for the trial court's conclusions. Specifically, he claims that the trial court's recitation of the language of R.C. 2929.14(C)(4) is not sufficient to support the court's findings and the court's failure to incorporate the evidentiary basis for consecutive sentences in the sentencing entry was error. The state responds that the record contains support for the trial court's findings and that the court was not required to state the evidence supporting consecutive sentences in the sentencing entry.
{¶ 22} We review a trial court's findings related to consecutive sentences de novo. State v. Gwynne, Slip Opinion No. 2022-Ohio-4607, ___ N.E.3d ___, ¶ 27.
We note that a motion for reconsideration of this decision is pending before the Ohio Supreme Court.
{¶ 23} In determining whether consecutive sentences are clearly and convincingly contrary to law under R.C. 2953.08(G)(2), the appellate court must first ensure that the trial court made each of the findings required by R.C. 2929.14(C)(4). Id. at ¶ 25. To impose consecutive sentences, a trial court is required to make three findings: (1) consecutive sentences are "necessary to protect the public from future crime or to punish the offender * * *;" (2) imposition of consecutive sentences is not "disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public * * *;" and (3) one of the factors in R.C. 2929.14(C)(4)(a) to (c) applies. R.C. 2929.14(C)(4); State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252. As relevant here, R.C. 2929.14(C)(4)(b) requires the trial court to find that "[a]t 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 * * * adequately reflects the seriousness of the offender's conduct." If the trial court fails to make these findings, the sentence is contrary to law. Gwynne at ¶ 25.
{¶ 24} The second step the appellate court must take is determining if the trial court's findings are clearly and convincingly supported by the record. Id. at ¶ 26. This requires the appellate court to have "a firm conviction or belief that the evidence in the record does not support the trial court's findings before vacating or modifying consecutive sentences. Id. at ¶ 26-27. Reviewing the record for clear and convincing evidence requires the appellate court to (1) determine if there is some evidentiary support in the record for the trial court's consecutive sentence findings, and (2) ensure that whatever evidentiary basis exists is "adequate to fully support the trial court's consecutive-sentence findings." Id. at ¶ 29.
{¶ 25} A sentencing court must make its findings under R.C. 2929.14(C)(4) at the sentencing hearing and incorporate them into the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The trial court is not required to state the reasons behind its findings, however. Id. Moreover, "a word-for-word recitation of the language of the statute is not required * * *" as 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 * * *." Id. at ¶ 29.
{¶ 26} In this case, the trial court made all three findings at both the sentencing hearing and in the judgment entry. Although Blanton complains-without citing any case law-that consecutive sentences were inappropriate because the court failed to state the evidentiary basis for its decision either on the record or in the sentencing entry, it was not required to do so. See id.
{¶ 27} Blanton's only substantive challenge to the imposition of consecutive sentences amounts to his belief that the serious nature of his convictions (i.e., that they were first- and second-degree felonies), and the available prison terms for each, would have adequately punished him, protected the public, reflected the seriousness of his crimes, and accounted for the nature of the harm that he caused. This position ignores the evidence of the predatory nature of Blanton's conduct (i.e., using a dating app and a fake name to meet his victims) and the serious and lasting mental and emotional harm Blanton's action caused to K.G. Taking this into consideration, we cannot say that consecutive sentences are clearly and convincingly unsupported by the record. Therefore, Blanton's second assignment of error is not well-taken.
C. Blanton received effective assistance of trial counsel.
{¶ 28} In his final assignment of error, Blanton contends that his trial counsel was ineffective by failing to challenge the constitutionality of the Reagan Tokes Law in the trial court. He claims that he was prejudiced by trial counsel's failure because it precludes him from raising the constitutionality of Ohio's indefinite sentencing scheme on appeal, "thus depriving Mr. Blanton of an opportunity for a full appeal [sic] review." In making his ineffective-assistance argument, Blanton argues that the Reagan Tokes Law violates separation of powers and his right to due process.
{¶ 29} The state counters that the majority of Ohio's appellate districts-including this one-have determined that the Reagan Tokes Law is constitutional, so counsel's failure to raise the issue in the trial court did not prejudice Blanton.
{¶ 30} To establish ineffective assistance of counsel, an appellant must show "(1) deficient performance of counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's result would have been different." State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, 204, citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).
{¶ 31} This court (along with nearly every appellate district in Ohio) has determined that the Reagan Tokes Law is constitutional. As relevant to Blanton's case, we have repeatedly rejected challenges to the Reagan Tokes Law based on separation of powers and due process. See, e.g., State v. Williams, 6th Dist. Lucas No. L-21-1152, 2022-Ohio-2812, ¶ 10-12, 20-23, citing State v. Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620; State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072; and State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2022-Ohio-2606. See also State v. Eaton, 2022-Ohio-2432, 192 N.E.3d 1236 (6th Dist.) (where, on issue of due process, lead decision analogized additional term hearings to parole/probation release decisions and found that procedural safeguards afforded defendants under Reagan Tokes Law are sufficient to pass constitutional muster, and concurring decision analogized additional term hearings to parole/probation revocation decisions and found that while failing to set forth adequate process in the statute itself, Reagan Tokes Law is nevertheless capable of being enforced in a manner consistent with process due an offender); and State v. Lamar, 6th Dist. Wood No. WD-21-055, 2022-Ohio-2979, ¶ 125 (adopting due process analysis set forth in Eaton's concurring decision).
{¶ 32} Blanton does not raise any novel challenges to the constitutionality of the Reagan Tokes Law in his ineffective-assistance argument. See Williams at ¶ 10-12, 20-23. Thus, the probability of a different result if trial counsel had objected to the law in the trial court is not "sufficient to undermine confidence in the outcome." Sanders at 151. Accordingly, Blanton cannot show that trial counsel was ineffective. See Williams at ¶ 13 ("Given our conclusion that Williams has failed to demonstrate that the Reagan Tokes Law is unconstitutional, we find that counsel was not ineffective for failing to challenge its constitutionality in the trial court."); State v. Garza, 6th Dist. Fulton No. F-22-006, 2023-Ohio-395, ¶ 13 ("Considering our established precedent, * * * trial counsel's challenge [to the Reagan Tokes Law] would have been a futile act. * * * [T]he the failure to perform a 'futile act' does not satisfy the standard of deficiency and prejudice.").
{¶ 33} Blanton's third assignment of error is not well-taken.
III. Conclusion
{¶ 34} The September 2, 2022 judgment of the Lucas County Court of Common Pleas is affirmed. Blanton 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.
Christine E. Mayle, J., Gene A. Zmuda, J., Myron C. Duhart P.J. CONCUR.