State v. Murrill , 2019 Ohio 3318 ( 2019 )

[Cite as State v. Murrill, 2019-Ohio-3318.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-11-215
: OPINION
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:
MICKEY MURRILL, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR-2018-02-0219
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Michele Temmel, 6 South Second Street, #305, Hamilton, Ohio 45011, for appellant
RINGLAND, J.
{¶ 1} Appellant, Mickey Murrill, appeals the sentence he received in the Butler
County Court of Common Pleas after he pled guilty to ten sexual offenses. For the reasons
stated below, we affirm his sentence.
{¶ 2} In February 2018, a Butler County Grand Jury indicted appellant on 25 sexual
offenses that included rape, kidnapping with a sexual motivation specification, illegal use of a
minor in a nudity-oriented material or performance, gross sexual imposition, pandering
sexually oriented matter involving a minor, and voyeurism. These charges stemmed from
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appellant's actions with several children he knew through friends and family.
{¶ 3} In September 2018, appellant pled guilty to ten of the offenses: one count of
rape, a first-degree felony in violation of R.C. 2907.02(A)(1)(b); one count of kidnapping with
a sexual motivation specification, a first-degree felony in violation of R.C. 2905.01(A)(2); one
count of gross sexual imposition, a third-degree felony in violation of R.C. 2907.05(A)(4); two
counts of illegal use of a minor in a nudity-oriented material or performance, one a second-
degree felony in violation of R.C. 2907.323(A)(1), the other a fifth-degree felony in violation of
R.C. 2907.323(A)(3); two counts of pandering sexually oriented matter involving a minor,
both fourth-degree felonies in violation of R.C. 2907.322(A)(5); and three counts of
voyeurism, two fifth-degree felonies in violation of R.C. 2907.08(C), the other a first-degree
misdemeanor in violation of R.C. 2907.08(D).
{¶ 4} At the sentencing hearing in October 2018, the court imposed an indefinite
prison term of 10 years to life for the kidnapping offense and an indefinite prison term of 15
years to life for the rape offense. The court ordered these two sentences to run
consecutively to each other. Based on a stipulation between the state and appellant, the
court imposed the sentences with the possibility of parole after serving the aggregate
minimum sentence. For the remaining eight offenses, one offense merged with the
kidnapping offense, and for the others, the court sentenced appellant to definite prison terms
with these sentences to run concurrently to the indefinite sentences. Therefore, appellant's
aggregate prison sentence is 25 years to life. The trial court designated appellant a Tier III
sexual offender and notified appellant about the conditions of parole and mandatory five-year
postrelease control should he be released from prison.
{¶ 5} Appellant now appeals, raising one assignment of error for review:
{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. MURRILL WHEN
IT SENTENCED HIM TO CONSECUTIVE SENTENCES IN THE OHIO DEPARTMENT OF
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REHABILITATION AND CORRECTIONS.
{¶ 7} In his sole assignment of error, appellant argues that the consecutive
sentences are contrary to law because the trial court failed to make the required findings
pursuant to R.C. 2929.14(C)(4). Specifically, appellant contends that the trial court merely
"acquiesced" by incorporating statements from the prosecutor at the sentencing hearing as
part of its required findings. We find appellant's argument lacks merit.
{¶ 8} This court reviews felony sentences according to R.C. 2953.08(G)(2). State v.
Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate
court may "increase, reduce, or otherwise modify a sentence only when it clearly and
convincingly finds that the sentence is (1) contrary to law and/or (2) unsupported by the
record." State v. McGowan, 147 Ohio St. 3d 166, 2016-Ohio-2971, ¶ 1, citing Marcum at ¶ 7.
{¶ 9} R.C. 2929.14(C)(4) sets forth the requirements for imposing consecutive prison
sentences. Pursuant to this statute, a trial court must engage in a three-part analysis and
make three findings to properly impose consecutive sentences. State v. Smith, 12th Dist.
Clermont No. CA2014-07-054, 2015-Ohio-1093, ¶ 7. Specifically, the trial court must find
that "consecutive service is necessary to protect the public from future crime or to punish the
offender" and second, "consecutive sentences are not disproportionate to the seriousness of
the offender's conduct and to the danger the offender poses to the public." R.C.
2929.14(C)(4); See also State v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493, ¶ 252. Third,
the trial court must find that one of the following provisions applies:
(a) [t]he 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) [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
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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) [t]he 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)(a)-(c).
{¶ 10} The trial court must state these findings at the sentencing hearing and include
the findings in the sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177,
¶ 37. The imposition of consecutive sentences is contrary to law where the trial court fails to
make consecutive sentence findings as required by R.C. 2929.14(C)(4). State v. Burns, 12th
Dist. Clermont No. CA2018-03-015, 2018-Ohio-4657, ¶ 14. Nevertheless, a trial court is not
required to provide a "word-for-word recitation of the language of the statute" or otherwise
make a "talismanic incantation" when it declares its findings. Bonnell at ¶ 29, ¶ 37. As the
Bonnell court held, "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." Id. at ¶ 29.
{¶ 11} Here, the record demonstrates that the trial court made the proper findings
according to R.C. 2929.14(C)(4) at the sentencing hearing and included these findings in the
sentencing entry. Specifically, at the sentencing hearing, the trial court stated:
[The Court]: I find that the consecutive sentences that I've
imposed for Counts I [kidnapping] and Counts VIII [rape] are
necessary to protect the public from future crime or to punish the
offender. And I find that's true for both of those. That's
necessary [sic] to do both of those things. And I find that those
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public. And I make also the following
finding, that the harm in this case, and we've talked about six
victims, I believe, correct, [prosecutor]?
[Prosecutor]: Yes
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[the Court]: That the harm in this case with these six victims
involved here was so great or unusual, that a single term does
not adequately reflect its seriousness or the defendant's conduct.
After making these findings, the court then addressed the parties and asked if there was
anything else that the court needed to address. The prosecutor mentioned that the court
omitted the "one or more courses of conduct" portion from R.C. 2929.14(C)(4)(b). After this
exchange, the trial court stated, "I make that finding as well."
{¶ 12} Based on the foregoing, the record demonstrates that the trial court engaged in
the correct analysis. The trial court did not need to provide a word-for-word recitation of the
statute to be a valid finding. Bonnell at ¶ 29; accord State v. Gilmore, 12th Dist. Butler No.
CA2018-06-118, 2019-Ohio-1046, ¶ 17 (the trial court has no obligation to recite verbatim the
statutory language). Moreover, the trial court clearly showed that it considered the facts and
circumstances of the offenses by identifying the number of victims affected by appellant. The
fact that the trial court incorporated the "courses of conduct" phrase into the consecutive
sentence findings only after the prosecutor addressed the omission is insignificant in this
instance. Therefore, because the trial court made the requisite findings, the sentences are
not contrary to law.
{¶ 13} Furthermore, appellant has not shown by clear and convincing evidence that
the record does not support the trial court's findings. Consequently, the trial court did not err
sentencing appellant to serve his sentences consecutively because the sentences are
supported by the record and not otherwise contrary to law. Accordingly, appellant's sole
assignment of error is overruled.
{¶ 14} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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