State v. Baker ( 2013 )

[Cite as State v. Baker, 2013-Ohio-2891.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2013CA0001
JAMES E. BAKER, JR. :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Coshocton County
Court of Common Pleas, Case No. 12-CR-
0031
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 1, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON GIVEN JEFFREY MULLEN
Coshocton County Prosecuting Attorney Coshocton County Public Defender
318 Chestnut Street 239 N. Fourth Street
Coshocton, OH 43812 Coshocton, OH 43812
[Cite as State v. Baker, 2013-Ohio-2891.]
Gwin, P.J.
{¶1} On May 21, 2012, James E. Baker, Jr. [“Baker”] was indicted on nineteen
(19) counts. Baker was charged with one count of Rape, R.C. 2907.02(A)(1)(b); eight
counts of Rape, R.C. 2907.02(A)(2); and ten (10) additional counts of Gross Sexual
Imposition.
{¶2} On August 31, 2012 Baker entered pleas of guilty to counts one (1)
through ten (10) of the Indictment, consisting of 9 counts of rape, felonies of the first
degree one count in violation of R.C. 2907.02(A)(1)(b) and eight counts in violation of
R.C. 2907.02(A)(2); and one count of gross sexual imposition a felony of the third
degree in violation of R.C. 2907.05(A)(4). In exchange, the state requested and the
court granted a nolle prosequi of counts eleven (11) through nineteen (19) of the
Indictment. The state also agreed to take no position as it related to Baker’s sentence.
{¶3} Following Baker's pleas of guilty, the court ordered a pre-sentence
investigation (PSI). Additionally, upon Baker’s motion, the court ordered that a
psychological examination of Baker be performed to aid the court in sentencing and as
part of the PSI process. Per said order Dr. Gary Wolfgang, Ph.D., conducted the
examination and filed a report with the court. This report was incorporated into the PSI
and was made part of the record at the time of sentencing.
{¶4} On December 12, 2012, the court conducted a sentencing hearing. The
court imposed a sentence of 10 years to life imprisonment for Count 1, Rape; sentences
of 5 years for each of counts 2 through 9, each a count of Rape felonies of the first
degree; and a sentence of 36 months for Count 10, Gross Sexual Imposition. The
sentencing court ordered that the sentences for counts 2, 3, and 4 were to be
Coshocton County, Case No. 2013CA0001 3
consecutive to each other and consecutive to Count 1; and that the remaining counts be
concurrent to each other, and concurrent to counts 1 through 4. Thus, Baker’s
aggregate sentence is life imprisonment with the possibility of parole in twenty-five (25)
years.
Assignment of Error
{¶5} Baker assigns one assignment of error,
{¶6} “I. THE IMPOSITION OF CONSECUTIVE SENTENCES WAS AN ABUSE
OF DISCRETION.”
{¶7} In his sole assignment of error, Baker challenges his consecutive
sentences.
{¶8} In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d
463, 2003-Ohio-4165, a court may not impose consecutive sentences unless it “finds”
three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the
same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following
enactment of 2011 Am.Sub.H.B. No. 86. The revised version of the statute again
requires the trial court to “find” the factors enumerated.
{¶9} The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in
conjunction with then R.C. 2929.19(B) to reach its conclusion the trial court must also
state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court
“shall impose a sentence and shall make a finding that gives its reasons for selecting
the sentence imposed in any of the following circumstances...(c) if it imposes
consecutive sentences under R.C. 2929.14.”
Coshocton County, Case No. 2013CA0001 4
{¶10} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.
No. 86 now require a trial court to make specific findings when imposing consecutive
sentences. R.C. 2929.14(C)(4) provides, in relevant part:
(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.
Coshocton County, Case No. 2013CA0001 5
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender. (Emphasis added).
{¶11} In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –
–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts
interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior
to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶12} When it is clear from the record that the trial court engaged in the
appropriate analysis, little can be gained by sending the case back for the trial court to,
in essence, recite the “magic” or “talismanic” words when imposing consecutive
sentences. In other words, because the record supports the trial court’s imposition of
consecutive sentences, the trial court cannot err in imposing consecutive sentences
after remand. Our review on appeal of any subsequent resentencing will be directed at
looking at the entire trial court record to determine if that record supports the trial court’s
findings that the R.C. 2929.14(C) factors were met. See, State v. Alexander, 1st Dist.
Nos. C–110828, C–110829, 2012–Ohio–3349, ¶18; State v. Frasca, 11th Dist. 2011–T–
0108, 2012–Ohio–3746, ¶57.
Coshocton County, Case No. 2013CA0001 6
{¶13} The transcript and sentencing entries reveal that the trial court reviewed
Baker’s presentence investigation report and Dr. Wolfgang’s a report.
{¶14} During the sentencing hearing, the trial judge made the following findings,
Mr. Baker, now we need to get down to the numbers. I believe that
your lawyer has done everything he can for you under the circumstances,
but your lawyer's ability to defend your position is somewhat limited
because of the nature of the crimes and the harm caused by you. I
understand that you have some limited mental abilities, but it's also clear
to me that you knew what you were doing was wrong and you continued
to do that. Because of your actions, and the age of the victim, who was
under age 13 with regard to Count 1, the General Assembly of this state
has decided to allow for a specific penalty, and that penalty is the only one
available to you for Count 1 of the indictment.
In consideration of the criteria established in section 2907.02 and
the penalty section for Count 1, and Count 1, again, is rape, in violation of
Revised Code Section 2907.02(A) (1)(b), a felony of the first degree, when
the victim was less than 13 years of age, meaning the penalty section is
2971.03(B) (1)(a), James E. Baker, you are hereby sentenced to serve for
that offense, again, that's rape, in violation of Revised Code Section
2907.02(A)(1)(b), a felony of the first degree as set forth in Count 1 of the
indictment, you are hereby sentenced to serve a minimum term of 10
years and a maximum term of life imprisonment. That is exactly the way
Coshocton County, Case No. 2013CA0001 7
the statute is set out. A minimum term of 10 years and a maximum term of
life imprisonment. That's the penalty for Count 1.
***
And your lawyer has argued for concurrent sentences, based on
your cooperation and your lack of a criminal history. I have to balance that
cooperation and I do take that into consideration, Mr. Baker, that you did
not require some young girl to come up here and sit on this witness stand
and talk about what it's like to be raped by you, to have to relive those
horrors and explain that to numerous strangers sitting about the
courtroom, specifically those in the jury box. So I do grant you some credit
for that. But, I have to find that the harm caused by you is so great that a
single term of imprisonment cannot adequately punish you for these
offenses. In consideration of the criteria established in sections 2929.12,
13, 14, and all other matters pertinent, including the content and
recommendation of the pre-sentence investigation and report, it is the
judgment and sentence of this court as follows: For the offense of rape, in
violation of Revised Code Section 2907.02(A)(2), a felony of the fifth
degree, the defendant, James E. Baker Jr., is hereby sentenced to serve
five years’ incarceration in a state penal institution.
For the offense of rape, in violation of Revised Code Section
2907.02(A)(2), a felony of the first degree, as set forth in Count 3 of the
indictment, the defendant, James E. Baker Jr., is hereby sentenced to
serve five years' incarceration in a state penal institution.
Coshocton County, Case No. 2013CA0001 8
For the offense of rape, in violation of Revised Code Section
2907.02(A) (2), a felony of the first degree, as set forth in Count 4 of the
indictment, the defendant, James E. Baker Jr., is hereby sentenced to
serve five years’ incarceration in a state penal institution. The sentences
for counts 2, 3, and 4 will be served consecutively with each other. And
consecutively with the sentence imposed in Count 1.
In sentencing the defendant to consecutive prison terms, the court
finds that the consecutive service is necessary to protect the public from
future crime and 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 at least two of the
offenses were committed as part -- I should say, those offenses noted in
counts 1 through 4 were committed as part of a course of conduct and the
harm caused by the multiple offenses 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.
Now, that's a lot of legal terminology for you, Mr. Baker. What I
have just said in terms that you might understand is that when you raped a
little girl, you stole from her, you took from her her innocence. You took
from her something that she can never regain, and you placed upon her a
burden that she will carry around for the rest of her life. The harm caused
by you is absolutely immeasurable, I can't even begin to explain it. And
Coshocton County, Case No. 2013CA0001 9
therefore, you will serve those sentences that I just pointed out
consecutively so that, in effect, it's a life sentence and you will be in prison
for the rest of your life.
***
Sent. T. at 7-11.
{¶15} Upon review of the sentencing entries and the pertinent transcripts, we
find the trial court properly considered the purposes and principles of felony sentencing,
the factors of seriousness and recidivism and the R.C. 2929.14(C) factors when it re-
sentenced Baker. We further hold the trial court's consecutive sentences in this matter
are not unreasonable, arbitrary or unconscionable, and they are not contrary to law.
{¶16} Baker’s sole assignment of error is overruled and the judgment of the
Coshocton County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 0618
[Cite as State v. Baker, 2013-Ohio-2891.]
IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JAMES E. BAKER, JR. :
:
:
Defendant-Appellant : CASE NO. 2013CA0001
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Coshocton County Court of Common Pleas is affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. CRAIG R. BALDWIN