State v. Martin , 2012 Ohio 6282 ( 2012 )

[Cite as State v. Martin, 2012-Ohio-6282.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 12-COA-020
:
:
PAUL J. MARTIN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Ashland County
Court of Common Pleas Case No.
12-CRI-009
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 24, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS MATTHEW J. MALONE
Ashland County Prosecutor 11 ½ East Second Street
Ashland County, Ohio Ashland, Ohio 44805
DANIEL J. PETRICINI
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
[Cite as State v. Martin, 2012-Ohio-6282.]
Edwards, J.
{¶1} Appellant, Paul J. Martin, appeals a judgment of the Ashland County
Common Pleas Court convicting him of gross sexual imposition (R.C. 2907.05(A)(4))
and attempted gross sexual imposition (R.C. 2907.05(A)(4), R.C. 2923.02(A)) upon a
plea of guilty. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In 2011, the nine-year-old daughter of appellant’s girlfriend, disclosed to a
family member that appellant had touched her inappropriately on several occasions.
Ashland County Department of Job and Family Services investigated the complaint.
The victim told a caseworker that appellant touched her vagina on at least five
occasions while her mother was at work. On one occasion, appellant told the victim to
come into her bedroom and remove her pants. He placed his hand down her
underwear and rubbed her vaginal area with his fingers. He also undressed and
instructed her to touch his underwear.
{¶3} When police spoke to appellant, he admitted that he touched the child’s
vagina once or twice and compared the touching to petting a cat.
{¶4} Appellant was charged with two counts of gross sexual imposition and one
count of attempted rape. Pursuant to a plea agreement, appellant pleaded guilty to one
count of gross sexual imposition and one count of attempted gross sexual imposition.
The court sentenced appellant to sixty months incarceration for gross sexual imposition
and eighteen months incarceration for attempted gross sexual imposition, to be served
consecutively. Appellant assigns two errors on appeal:
Ashland County App. Case No. 12-COA-020 3
{¶5} “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,
IMPOSED CONSECUTIVE SENTENCES UPON DEFENDANT/APPELLANT
PURSUANT TO OHIO REVISED CODE SECTION 2929.14(C)(4); SAID
CONSECUTIVE SENTENCES EXCEEDED THE MAXIMUM PRISON TERM
PURSUANT TO OHIO REVISED CODE SECTION 2929.14(A)(3)(A), AND WERE NOT
CONSISTENT WITH THE DIRECTIVES ESTABLISHED IN OHIO REVISED CODE
SECTION 2929.14(C)(4) AND/OR WERE CLEARLY AND CONVINCINGLY
CONTRARY TO LAW.
{¶6} “II. THE SENTENCES IMPOSED BY THE COURT OF COMMON PLEAS
OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE
AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED
CODE SECTION 2929.11(A).”
I
{¶7} In his first assignment of error, appellant argues that the court did not
articulate appropriate findings to support consecutive sentences. He also argues that
based on the facts of the case, consecutive sentences were contrary to law because the
offenses were not “excessively serious in nature,” appellant expressed remorse and he
is not likely to commit future offenses.
{¶8} Appellant was sentenced on May 23, 2012, pursuant to the newly enacted
House Bill 86. 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.
Ashland County App. Case No. 12-COA-020 4
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:
{¶9} “(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:
{¶10} “(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.
{¶11} “(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.
{¶12} “(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).
{¶13} 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
Ashland County App. Case No. 12-COA-020 5
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.
{¶14} The First District Court of Appeals has observed, “The consecutive-
sentence findings required by R.C. 2929.14(C) are not the same as those required by
former R.C. 2929.19(B)(2), which provided that the trial court ‘shall impose a sentence
and shall make a finding that gives its reasons for selecting the sentence * * * (c) If it
imposes consecutive sentences.’ (Emphasis added.) See State v. Comer, 99 Ohio St.3d
463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 14–16. In 2003, the Ohio Supreme Court held
that the requirement that a trial court give its reasons for selecting consecutive
sentences was ‘separate and distinct from the duty to make the findings,’ and it imposed
an obligation on trial courts to articulate the reasons supporting their findings at the
sentencing hearing. Id. at ¶ 19–20, 793 N.E.2d 473. The trial court's obligation to ‘give
its reasons’ is now gone from the sentencing statutes. Gone with it, we hold, is the
requirement that the trial court articulate and justify its findings at the sentencing
hearing. A trial court is free to do so, of course. But where, as here, there is no statutory
requirement that the trial court articulate its reasons, it does not commit reversible error
if it fails to do so, as long as it has made the required findings. See Phillips, 1st Dist. No.
C–960898, 1997 Ohio App. LEXIS 2615, 1997 WL 330605.” State v. Alexander, 1st
Ashland County App. Case No. 12-COA-020 6
Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18. Accord, State v. Frasca, 11th
Dist. 2011–T–0108, 2012–Ohio–3746, ¶ 57.
{¶15} The trial court is not required to recite any “magic” or “talismanic” words
when imposing consecutive sentences, provided it is “clear from the record that the trial
court engaged in the appropriate analysis.” State v. Nowlin, 5th Dist. No. CT2012–
0015, 2012-Ohio-4923, ¶ 70. An appellate court may only sustain an assignment of
error challenging the imposition of consecutive sentences under R.C. 2929.14 if the
appellant shows that the judgment was clearly and convincingly contrary to law. Id.{¶16} The trial court stated in the judgment entry of sentencing that consecutive
sentences are necessary to protect the public from future crime, that consecutive
sentences are not disproportionate to the seriousness of the appellant’s conduct and
the danger he poses to the public, and due to appellant’s history of criminal conduct
consecutive sentences are necessary to protect the public from future crime by
appellant. The trial court stated from the bench during the sentencing hearing:
{¶17} “I have reviewed and considered and weighed all of the various factors
that the Court must consider and weigh when deciding on an appropriate sentence. I
would note that (inaudible) score in this particular case indicates that your risk level for
reoffending is high. We have had prior prison terms, you were on probation at the time
of the offense, and I agree somewhat with the Prosecutor’s interpretation of whether or
not you’ve shown remorse with regard with the way that you described how the victims
would have felt….
{¶18} “Further making a finding that consecutive service of the two prison
sentences is necessary to protect the public from future crimes and consecutive
Ashland County App. Case No. 12-COA-020 7
sentences are not disproportionate to the seriousness of the offender’s conduct, this
being a nine-year-old girl, and I don’t think it’s disproportionate to the danger that you
continued to pose to the public.
{¶19} “I am further finding and making a determination that your history of
criminal conduct demonstrates the consecutive sentences are necessary to protect the
public from future crimes by you, Mr. Martin.” Tr. 8-10.
{¶20} The trial court made sufficient findings to justify consecutive sentencing.
Further, we cannot find that consecutive sentences in the instant case were clearly and
convincingly contrary to law. Appellant had served prior prison terms and was on
probation at the time of the offense. While he claimed at the hearing to feel remorse, he
had earlier expressed that he believed touching the victim in this manner made her feel
loved and admired. The victim was the nine-year-old daughter of his girlfriend, who he
watched while his girlfriend was at work. The presentence investigation report stated
that he was at high risk to reoffend.
{¶21} The first assignment of error is overruled.
II
{¶22} In his second assignment of error, appellant argues that the sentence
imposed by the court created an unnecessary burden on state resources in violation of
R.C. 2929.11(A).
{¶23} R.C. 2929.11(A) provides:
{¶24} “(A) A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of felony sentencing
are to protect the public from future crime by the offender and others and to punish the
Ashland County App. Case No. 12-COA-020 8
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources. To achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.”
{¶25} As we noted in State v. Ferenbaugh, 5th Dist. No. 03COA038, 2004–
Ohio–977 at paragraph 7, “[t]he very language of the cited statute grants trial courts
discretion to impose sentences. Nowhere within the statute is there any guideline for
what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. No. 2008-COA-
036, 2009-Ohio-3105, this Court reviewed a similar claim. We found that, although
burdens on State resources may be a relevant sentencing criteria, state law does not
require trial courts to elevate resource conservation above seriousness and recidivism
factors, Shull, at paragraph 22, citing State v. Ober, 2nd Dist. No. 97CA0019, 1997 WL
624811 (October 10, 1997).
{¶26} In the instant case, a prison sentence is not an unnecessary burden on
state resources. Appellant had a lengthy criminal history and had served prior terms of
imprisonment. He was on probation at the time of the offense, and had previously
shown an inability to comply with community control sanctions. While in the courtroom
he expressed remorse, he had earlier compared touching the nine-year-old victim’s
vaginal area to petting a cat, and had told authorities that he thought touching her in this
manner made her feel loved and admired. His presentence investigation revealed that
his likelihood of recidivism was high.
Ashland County App. Case No. 12-COA-020 9
{¶27} The second assignment of error is overruled.
{¶28} The judgment of the Ashland County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. concurs and
Hoffman, J. concurs separately
______________________________
______________________________
______________________________
JUDGES
JAE/r1101
Ashland County App. Case No. 12-COA-020 10
Hoffman, J., concurring
{¶29} I concur in the majority’s analysis and disposition of Appellant’s second
assignment of error.
{¶30} I further concur in the majority’s disposition of Appellant’s first assignment
of error, but do so for the reasons set forth in my concurring opinion in State v. Nowlin,
5th Dist. No. CT 2012-0015, 2012-Ohio-4923.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as State v. Martin, 2012-Ohio-6282.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
PAUL J. MARTIN :
:
Defendant-Appellant : CASE NO. 12-COA-020
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Ashland County Court of Common Pleas is affirmed. Costs assessed
to appellant.
_________________________________
_________________________________
_________________________________
JUDGES