Opinion
OT-21-004
09-30-2021
State of Ohio Appellee v. Daniel S. Monhollen Appellant
James VanEerten, Ottawa County Prosecuting Attorney, and Daivia S. Kasper, Assistant Prosecuting Attorney, for appellee. Russell V. Leffler, for appellant.
Trial Court No. 20 CR 168
James VanEerten, Ottawa County Prosecuting Attorney, and Daivia S. Kasper, Assistant Prosecuting Attorney, for appellee.
Russell V. Leffler, for appellant.
DECISION AND JUDGMENT
MAYLE, J.
Introduction
{¶ 1} Following a guilty plea, the defendant-appellant, Daniel S. Monhollen, was convicted by the Ottawa County Court of Common Pleas of three counts of rape of a person less than thirteen years of age and sentenced to life in prison with the possibility of parole after 30 years. Monhollen appealed. For the following reasons, we affirm the judgment, but remand for the issuance of a nunc pro tunc sentencing entry.
Background
{¶ 2} On August 20, 2020, Monhollen was indicted on three counts of rape in connection with the assault of his nine year-old daughter and his eight year-old niece. According to the state, Monhollen committed the offense of vaginal rape against S.M. on or about August 12, 2020 (Count 1) and digital rape against A.M., between July 15 and 21, 2020 (Count 2) and again between July 27 and 29, 2020 (Count 3).
{¶ 3} At the change-of-plea hearing, Monhollen pled guilty to an amended charge of R.C. 2907.02(A)(1)(b) and (B), as to each count, all felonies of the first degree. The amended charges removed language from the indictment identifying the age of the victims (i.e. that the victims were also "less than ten years of age"), thereby eliminating a potential sentencing enhancement of life imprisonment without parole.
{¶ 4} The trial court engaged in an extensive colloquy with Monhollen. With regard to sentencing, it explained that he was subject to a mandatory sentence of life in prison with the possibility of parole after ten years, as to each count. The court explained that it could impose the sentences to run "concurrently or consecutively or part concurrently and part consecutively."
{¶ 5} The trial court found that Monhollen had been informed of his constitutional rights, that he understood the nature of the charge, the effect of the plea, as well as the penalties which could be imposed, and that he had made a knowing, intelligent and voluntary decision to withdraw his former plea of not guilty and to tender a guilty plea. The court then accepted Monhollen's plea, made findings of guilt, ordered the preparation of a presentence investigation ("PSI") and granted Monhollen's request for a court diagnostic report for purposes of mitigation at sentencing.
{¶ 6} In its January 8, 2021 sentencing entry, the trial court sentenced Monhollen to serve life in prison with the possibility of parole after ten years, as to each count, each sentence to be served consecutively to one another. Although not raised by either party, the sentencing entry incorrectly indicates that Monhollen was convicted of "R.C. 2907.07," which describes the offense of "Importuning" rather than the offense of rape, as set forth in R.C. 2907.02.
{¶ 7} Monhollen appealed and assigns the following error for our review:
It was error for the court to sentence the Defendant/Appellant to three life terms consecutively.
Law and Analysis
{¶ 8} We review a challenge to a felony sentence under R.C. 2953.08(G)(2). R.C. 2953.08(G)(2) 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.
{¶ 9} Monhollen's challenge on appeal is limited to the argument that the record does not support the trial court's decision to impose consecutive sentences under R.C. 2929.14(C)(4).
{¶ 10} In general, it is presumed that prison terms will be served concurrently. See R.C. 2929.41(A). However, after determining the sentence for a particular crime, a sentencing judge has discretion to order a defendant to serve individual counts of a sentence consecutively to each other or to sentences imposed by other courts. R.C. 2929.14(C)(4) provides,
(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.
{¶ 11} In other words, to impose consecutive sentences, the court must find "(1) that consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger posed to the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c)." (Citations omitted.) State v. Sipperley, 6th Dist. Sandusky No. S-19-053, 2020-Ohio-4609, ¶ 9. "[A] trial court must state the required findings as part of the sentencing hearing, * * * [a]nd because a court speaks through its journal, the court should also incorporate its statutory findings into the sentencing entry." State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. While the sentencing court is required to make findings under R.C. 2929.14(C)(4) before imposing consecutive sentences, it is not required to give reasons explaining the findings. State v. Kubat, 6th Dist. Sandusky No. S-13-046, 2015-Ohio-4062, ¶ 33. However, the record must contain evidence to support the trial court's findings. Bonnell at ¶ 29, citing R.C. 2953.08(G)(2)(a).
{¶ 12} In this case, it is clear from the January 8, 2021 judgment entry and the sentencing transcript that the trial court engaged in the appropriate analysis. That is, the judgment entry includes the following findings: that consecutive sentencing "is necessary to protect the public from future crime and to punish the offender;" that consecutive sentences "are not disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public;" and pursuant to Section (C)(4)(b), that "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 multiple offenses 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." The trial court gave a nearly identical recitation at the sentencing hearing.
{¶ 13} While Monhollen concedes that the trial court made the statutory findings that are required by R.C. 2929.14(C)(4), he argues that the record does not support those findings. We disagree.
{¶ 14} First, Monhollen stresses that, despite his "heinous[]" conduct, he has "almost no adult record even though he was 31 [years-old]." Given that the trial court did not rely upon Monhollen's "history of criminal conduct" under R.C. 2929.14(C)(4)(c), but rather upon the fact that "[a]t least two of the multiple offenses were committed as part of one or more course of conduct" under subsection (C)(4)(b), Monhollen's criminal record, or lack thereof, is immaterial. Further, Monhollen agrees that his actions "represent a course of conduct."
{¶ 15} Next, Monhollen argues that the trial court failed to adequately consider the opinion of Timothy Wynkoop, Ph.D. who evaluated him on behalf of the Court Diagnostic & Treatment Center. Dr. Wynkoop administered a sex offender recidivism examination, and based on that exam, he concluded that Monhollen "will be at [a] relatively low risk of reoffending sexually" after serving a single ten year sentence and that "[r]emaining in prison for three decades would have [a] minimal impact" on Monhollen's recidivism score.
{¶ 16} Upon review, it is clear that the trial court placed more emphasis on the need to punish Monhollen rather than upon his propensity to reoffend, which it was authorized to do under R.C. 2929.14(C)(4). See, e.g., State v. Boyd, 12th Dist. Butler No. CA2020-01-012, 2020-Ohio-4180, ¶ 16 (Affirming 10-year sentence for rape to run consecutively with 5-year sentence for pandering "even though the record indicates the likelihood of recidivism is low"). We find that the record supports the trial court's decision in this regard. Indeed, Monhollen also confessed to Dr. Wynkoop that he repeatedly abused the victims in this case "'a couple handful of times' over 'a few months' * * * including fondling, cunnilingus, and genital to genital contact (perhaps intercourse)." In short, we see no error in the trial court's conclusion that Monhollen's depraved actions warranted the maximum punishment.
{¶ 17} Regardless, the record contains additional evidence supporting the trial court's findings that consecutive sentences are "necessary to protect the public from future crime and to punish the offender" and "are not disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public." For example, according to the PSI, which Monhollen did not dispute, S.M. told authorities that she had been repeatedly raped by Monhollen for approximately a year and a half prior to his arrest. The PSI further indicates that Monhollen's Ohio Risk Assessment System ("ORAS") score was 24 "indicating that he [has] a HIGH risk" of reoffending. (Emphasis in the original.) And, we were particularly struck by Monhollen's efforts to deflect all responsibility in this case, first by claiming that he "did not recall" committing the offenses, then blaming "it on the drugs" he was taking, the "oppression]" he suffered at the hands of an "evil family," and even one of the victims, whom he claimed "grabbed" his genitals.
{¶ 18} Finally, the record supports the trial court's finding that Monhollen's course of conduct caused "harm* * *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."
{¶ 19} At sentencing, the trial court heard from the mother of one of the victim's (who was also the aunt of the other victim). According to her, the victims have experienced "unease" and a lack of "closeness" with their male family members as a result of Monhollen's actions. Mother also spoke of how the victims' sleep patterns have been disrupted by "whimper[ing]" and "toss[ing] and turn[ing];" that S.M. was so "embarrassed" that she prefers to keep it "a secret * * * until she no longer feels ashamed and [realizes] this is not her fault," and of her own maternal "heartbreak[]" over witnessing the young girls' pain.
{¶ 20} The court also heard statements read into the record by the victims themselves. A.M. wrote of hating Monhollen "for his actions" but loving him "because he is part of my family," of not wanting to go to her grandma's house "because that is where he did it at," and of not wanting to "ever see him again." S.M. added that being "violated * * * will affect me my whole life."
{¶ 21} "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, consecutive sentences should be upheld." State v. Smith, 6th Dist. Wood No. WD-19-082, 2021-Ohio-150, ¶ 15 quoting Bonnell at ¶ 29 (Affirming consecutive sentences for defendant convicted of corrupting another with drugs and pandering/illegal use of a minor in nudity-oriented material). Here, the trial court engaged in the correct analysis, and the record contains ample evidence to support the trial court's decision to impose consecutive sentences. Accordingly, we find Monhollen's assignment of error not well-taken.
Conclusion
{¶ 22} In imposing consecutive sentences, the trial court engaged in the correct analysis under R.C. 2929.14(C)(4), and the record contains ample evidence to support the trial court's decision. Therefore, we find Monhollen's assignment of error challenging the imposition of consecutive sentences not well-taken, and we affirm the January 8, 2021 judgment of the Ottawa County Court of Common Pleas.
{¶ 23} But, this matter is remanded for the limited purpose of issuing a nunc pro tunc entry to correct the clerical error set forth therein-i.e., the sentencing entry incorrectly indicates that Monhollen was convicted of "R.C. 2907.07," which describes the offense of "Importuning" rather than the offense of rape, as set forth in R.C. 2907.02.
{¶ 24} Monhollen is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.LocApp.R. 4.
Christine E. Mayle, J., Gene A. Zmuda, P.J., Myron C. Duhart J. CONCUR.