State v. Wilson , 2013 Ohio 3915 ( 2013 )

[Cite as State v. Wilson, 2013-Ohio-3915.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99331
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRYAN K. WILSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-558514
BEFORE: E.T. Gallagher, J., Stewart, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: September 12, 2013
ATTORNEY FOR APPELLANT
Richard Agopian
The Hilliard Building
1415 West 9th St., 2nd Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant Bryan Wilson (“Wilson”) appeals his consecutive
sentences. We find no merit to the appeal and affirm the trial court’s judgment.
{¶2} On July 31, 2011, Wilson and his brother, Spencer Jordan (“Jordan”), went
on a double date with T.K. and her sister H.K. The two couples decided to stay the night
in a hotel because Wilson and Jordan lived some distance away from the two women.
Everyone except H.K., who was pregnant, consumed alcohol. During the night, Wilson
fondled T.K. while she was asleep and had sexual conduct with H.K. against her will.
Consequently, Wilson was charged with rape, kidnapping, and sexual battery.
{¶3} Pursuant to a plea bargain, Wilson pleaded guilty to sexual battery against
T.K. and attempted rape of H.K. The court sentenced Wilson to a one-year prison term
for the sexual battery conviction and a four-year prison term for the attempted rape
conviction, to be served consecutively for an aggregate five-year prison term. This
appeal followed.
{¶4} In his sole assignment of error, Wilson argues the trial court erred when it
sentenced him to consecutive prison terms. He contends the imposition of consecutive
sentences was contrary to law because the trial court failed to comply with the sentencing
provisions set forth in R.C. 2929.14(C)(4), as amended by Am.Sub.H.B. No. 86 (“H.B.
86”).
{¶5} R.C. 2953.08(G)(2), as amended by H.B. 86, states that when reviewing
prison sentences, “[t]he appellate court’s standard for review is not whether the
sentencing court abused its discretion.” Instead, the statute states that if we “clearly and
convincingly” find that, (1) “the record does not support the sentencing court’s findings
under [R.C. 2929.14(C)(4)]” or that, (2) “the sentence is otherwise contrary to law,” then
we “may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the
sentence and remand the matter to the sentencing court for re-sentencing.” State v.
Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 6, quoting R.C. 2953.08(G)(2).
{¶6} R.C. 2929.14(C)(4), as amended by H.B. 86, requires a sentencing judge to
make certain findings before imposing consecutive sentences. State v. Richmond, 8th
Dist. Cuyahoga No. 98915, 2013-Ohio-2887, ¶ 11. First, the trial court must find that
“consecutive service is necessary to protect the public from future crime or to punish the
offender.” R.C. 2929.14(C)(4). Second, the trial court must find that “consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public.” Id. Finally, the trial court must find that 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.
(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).
{¶7} There is no provision in R.C. 2929.14(C)(4), requiring a sentencing court to
articulate reasons for imposing consecutive sentences. Goins at ¶ 11. Nevertheless, trial
courts may state their reasons on the record if they choose, and their reasons may assist
the appellate court in determining whether a court made the required findings. This court
has construed the trial court’s discussion of relevant facts or reasons as an expression of
certain required findings. For example, in State v. Walker, 8th Dist. Cuyahoga No.
97648, 2012-Ohio-4274, we stated:
The trial court did not make an express finding under R.C. 2929.14(C). It
did discuss Dwayne’s criminal history, which could equate to making two
of the findings, namely (1) that consecutive sentences are necessary to
protect the public from future crime or to punish the offender, and (2) that
the offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender. Id. at ¶ 86.1
{¶8} Although the appellate court may detect findings in the trial court’s
statements on the record, it may not infer findings from elsewhere in the record. For
example, in State v. Redd, 8th Dist. Cuyahoga No. 98064, 2012-Ohio-5417, the state
argued that an appellate court should infer from the record that the trial court made two
mandatory findings under R.C. 2929.14(C)(4), because the underlying facts of the case
1 See also State v. Graves, 8th Dist. Cuyahoga No. 98559, 2013-Ohio-2197, ¶
12; State v. Redd, 8th Dist. Cuyahoga No. 98064, 2012-Ohio-5417; State v.
Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415; State v. Blackburn, 8th
Dist. Cuyahoga Nos. 97811 and 97812, 2012-Ohio-4590; and State v. Lebron, 8th
Dist. Cuyahoga No. 97773, 2012-Ohio-4156.
were well known to the trial court. The state asserted that it could be inferred from the
record that the trial court found “‘consecutive service [was] necessary to protect the
public from future crime or to punish the offender’ because ‘the injuries caused by the
appellant are so serious, that it cannot be contested that incarceration is a proper
punishment in this case.’” Id. at ¶ 17. The state also argued we could infer from the
record that the trial court found consecutive sentences were not disproportionate to the
seriousness of the offender’s conduct and to the danger of the public because “[i]t is hard
to imagine any amount of prison time being disproportionate to the seriousness of such an
offense.” Id. at ¶ 17. This court rejected the state’s argument and stated that the trial
court must make findings on the record and that findings cannot be inferred from other
facts in the record. Id.
{¶9} Therefore, this court has consistently held that the court’s discussion of
relevant facts at the sentencing hearing may be construed as findings. The statutory
language in R.C. 2929.14(C)(4) itself “does not have magical powers.” State v.
Kuykendall, 12th Dist. Clermont No. CA2004-12-111, 2005-Ohio-6872, ¶ 24. Rather,
the requirements of R.C. 2929.14(C)(4) are designed to ensure that the trial court engaged
in the required analysis. Id. This holding comports with this court’s uniform statement
that trial courts are not required to use “talismanic words to comply with the guidelines
and factors for sentencing” as long as it is clear from the record that the trial court
actually made the required statutory findings. Goins at ¶ 10.2
2 See also State v. Matthews, 8th Dist. Cuyahoga No. 97916,
{¶10} At the sentencing hearing in this case, the court noted that the victim
initiated the double date through text messages, suggested that Wilson and his brother get
a hotel, and therefore facilitated the offense. Nevertheless, in considering the
seriousness of the offense, the court stated: “I do find that the victims suffered, both of
them, serious physical and psychological harm based on their statements contained in the
PSI,” and that Wilson’s longstanding relationship with the victims facilitated the offenses.
{¶11} The record reflects that the court also found that consecutive sentences were
necessary to protect the public. In this regard, the court stated that although Wilson
showed genuine remorse, he had a criminal history and “ha[s] not responded favorable
[sic] to sanctions previously imposed in the adult or juvenile court.” In sum, the court
stated:
I am able to impose consecutive sentences, if necessary, to protect the
public or punish the offender and not disproportionate — and I need to
make the following findings: * * * I find that the harm was so great or
unusual that a single term does not adequately reflect [sic] seriousness of
the conduct.
Again, my stated reasoning for that is that there were two victims. The
incidents did not happen at the same time. There were separate incidents
2012-Ohio-5174, ¶ 48; State v. Trotter, 8th Dist. Cuyahoga No. 99014,
2013-Ohio-2538, ¶ 9; State v. Thompson, 8th Dist. Cuyahoga No. 98955,
2013-Ohio-2534, ¶ 3 (specific words not required); Graves, 8th Dist. Cuyahoga No.
98559, 2013-Ohio-2197, ¶ 12; Redd, 8th Dist. Cuyahoga No. 98064, 2012-Ohio-5417;
Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415; Blackburn, 8th Dist.
Cuyahoga Nos. 97811 and 97812, 2012-Ohio-4590; Lebron, 8th Dist. Cuyahoga No.
97773, 2012-Ohio-4156; and Walker, 8th Dist. Cuyahoga No. 97648,
2012-Ohio-4274.
that occurred. And I do find that your criminal history shows the
consecutive terms are needed to protect the public.
{¶12} It is clear the trial court made the requisite findings that “consecutive service
is necessary to protect the public from future crime or to punish the offender” and that
Wilson’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)
and 2929.14(C)(4)(c).
{¶13} However, Wilson argues the trial court failed to make a finding with respect
to proportionality. He asserts that the court’s mention of the word “disproportionate”
was not sufficient to make the necessary finding that “consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct.” R.C. 2929.14(C)(4).
However, read in context, it is clear the court meant that it is the court’s duty to ensure
that consecutive sentences are not disproportionate to the seriousness of the offense,
because the judge immediately followed the word “disproportionate” with a statement
that the court must “find that the harm was so great or unusual that a single term does not
adequately reflect [sic] seriousness of the conduct.”
{¶14} As previously stated, the court found the offenses more serious than other
similarly situated offenders based on the victims’ statements and the fact that there were
two separate offenses committed against two victims. The court also noted there was a
period of time between the commission of the two offenses during which Wilson had the
opportunity to consider his conduct and nevertheless chose to sexually assault the second
victim, who was pregnant.
{¶15} Moreover, Wilson never raised proportionality as an issue in the trial court.
In order to support a contention that a sentence is disproportionate to sentences imposed
upon other offenders, the defendant must raise this issue before the trial court and present
some evidence, however minimal, in order to provide a starting point for analysis and to
preserve the issue for appeal. State v. Lang, 8th Dist. Cuyahoga No. 92099,
2010-Ohio-433, ¶ 21.
{¶16} Wilson has also failed to provide this court with any explanation or evidence
as to why or how his sentence is disproportionate. A defendant alleging
disproportionality in felony sentencing has the burden of producing evidence to “indicate
that his sentence is directly disproportionate to sentences given to other offenders with
similar records who have committed these offenses.” State v. Breeden, 8th Dist.
Cuyahoga No. 84663, 2005-Ohio-510, ¶ 81.
{¶17} The trial court made all the findings required by R.C. 2929.14(C)(4).
{¶18} Therefore, the sole assignment of error is overruled.
{¶19} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the common
pleas court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
KENNETH A. ROCCO, J., CONCURS
WITH SEPARATE OPINION
KENNETH A. ROCCO, J., CONCURRING
{¶20} At sentencing, the trial court emphasized the fact that Wilson molested
two victims in this case in two separate incidents. In my opinion, it is evident that the
trial court found that, on these facts, consecutive sentences were not disproportionate to
the seriousness of Wilson’s conduct and were not disproportionate to the danger that
Wilson posed to the public. Wilson is not entitled to a “volume discount” at sentencing
just because these two separate assaults against two different victims were part of the
same indictment. While the trial court could have been clearer in connecting this
finding to the language in R.C. 2929.14(C)(4), the connection was sufficiently made, and
so I concur.
{¶21} But I wish to highlight my concern about an ongoing and troublesome issue
with respect to how the state is dealing with consecutive sentences. In my view, if the
state believes that a consecutive sentence is appropriate in a given case, the best practice
would be to provide the trial court with a sentencing memorandum that includes the
required statutory findings under R.C. 2929.14(C)(4) with citations to the record
supporting each required finding. Another suitable alternative would be for the state to
orally articulate at the sentencing hearing the R.C. 2929.14(C)(4) factors along with
citations to the record that support these factors. But while the state may desire a
consecutive sentence, all too often, it does little at the trial-court level to assist the trial
court in determining whether a consecutive sentence is supported by the record.
{¶22} Then, on appeal, the state regularly defends a consecutive sentence by
leaning heavily on the idea that the trial court is not required to use “‘talismanic words to
comply with the guidelines and factors for sentencing.’”3 State v. Goins, 8th Dist.
Cuyahoga No. 98256, 2013-Ohio-263, ¶ 10, quoting State v. Brewer, 1st Dist. Hamilton
No. C-000148, 2000 Ohio App. LEXIS 5455 (Nov. 24, 2000). I find it unacceptable for
the state to prop up its position on appeal by parroting the “talismanic words” language
when it has failed to provide the trial court with a sentencing memorandum in the first
place.
{¶23} All too often, we are forced to reverse consecutive sentences because the
trial court has not adequately set forth that consecutive sentences were not
disproportionate to the seriousness of the offender’s conduct and were not
disproportionate to the danger the offender posed to the public. See, e.g., State v.
3My impression is that our “talismanic words” jurisprudence in sentencing cases is akin to the
substantial-compliance doctrine in plea colloquy cases. That is, a slight deviation from the text of
the rule is permissible; so long as the totality of the circumstances indicate that the trial court actually
made the findings required by statute. Compare State v. Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748, 893 N.E.2d 462, ¶ 31 (substantial compliance doctrine at a plea colloquy) with Goins at
¶ 10 (talismanic words at a sentencing cases).
Graves, 8th Dist. Cuyahoga No. 98559, 2013-Ohio-2197, ¶ 15; State v. Lebron, 8th Dist.
Cuyahoga No. 97773, 2012-Ohio-4156, ¶ 15; State v. Shepherd, 8th Dist. Cuyahoga No.
97962, 2012-Ohio-5415, ¶ 82. If the state did more to assist the trial court at sentencing
on the front end, we would most likely see a significant reduction in the number of cases
being sent back (at great expense to the public) to the trial court on remand.