State v. Davis ( 2011 )

[Cite as State v. Davis, 2011-Ohio-3101.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. CT2010-0052
ROBERT DAVIS, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2010-0120
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 23, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH ERIC J. ALLEN
ASSISTANT PROSECUTOR THE LAW OFFICE OF
27 North Fifth Street ERIC J. ALLEN, LTD.
Post Office Box 189 713 South Front Street
Zanesville, Ohio 43702-0189 Columbus, Ohio 43206
Muskingum County, Case No. CT2010-0052 2
Wise, J.
{¶1} Defendant-appellant Robert Davis, Jr. appeals his sentence entered in the
Muskingum County Court of Common Pleas following a plea of guilty to one count of
rape, one count of rape of a person under the age of thirteen and one count of gross
sexual imposition on a person under the age of thirteen.
{¶2} Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On April 6, 2010, the Muskingum County Sheriff's Office responded to a
call concerning the sexual abuse of two minor children and one adult child by the
Appellant. The adult child, J.E.D., and one of the minor children, K.J.D., are the
Appellant's natural children; their mother has been deceased since 1997. E.D. is the
Appellant's step-child. A complaint soon followed.
{¶4} The Sheriff’s investigation uncovered a number of allegations of sexual
offenses perpetrated by Appellant against these victims dating from 1998 to the
present. All three of these victims, in separate interviews, claimed that Appellant
threatened to harm them or other family members if they ever told anyone what he
was doing to them. Further investigation revealed that there were several other victims
as well.
{¶5} On June 9, 2010, a multi-count indictment was returned against Appellant
alleging numerous instances of sexual misconduct with the previously mentioned
victims and with other children.
{¶6} At the arraignment, Appellant pled not-guilty and bond was set at one
million dollars.
Muskingum County, Case No. CT2010-0052 3
{¶7} On August 9, 2010, counsel for Appellant withdrew.
{¶8} On August 11, 2010, with new counsel present, the Prosecutor negotiated
a plea bargain with Appellant whereby Appellant agreed to plead guilty to (1) count of
rape of a person under age 13, (1) count of rape, and (1) count of gross sexual
imposition on a person under the age of 13. In exchange for his guilty plea, the
Prosecutor agreed not to indict Appellant on the remaining counts and to recommend
a sentence of twenty years to life.
{¶9} At the plea hearing, Appellant withdrew his not-guilty plea and entered a
guilty plea. The trial court accepted Appellant's guilty plea and proceeded to
sentencing. After both counsel clarified their understanding of the terms of the plea
bargain, the trial court imposed a sentence of twenty-five years to life.
{¶10} It is from this upward departure that Appellant now appeals, assigning the
following error for review:
ASSIGNMENT OF ERROR
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
THE DEFENDANT TO MORE THAN THE AGREED UPON SENTENCE OF TWENTY
YEARS TO LIFE.”
I.
{¶12} In his sole assignment of error, Appellant asserts that the trial court erred
by failing to sentence him in accordance with the negotiated plea agreement. We
disagree.
{¶13} In the instant case, Appellant argues that the trial court’s decision to
depart from the prosecutor’s recommendation of twenty years to life was influenced by
Muskingum County, Case No. CT2010-0052 4
the prosecutor’s statements to the court that the prepared indictment contained 293
counts, but that the State was willing to negotiate a plea deal which included only a
guilty plea to three separate counts.
{¶14} Initially, we note that the trial court in this matter did not breach the plea
agreement, as it never agreed to sentence Appellant to the twenty to life prison term
recommended by the prosecutor. The agreement that Appellant signed acknowledged
that the trial court was not bound by the prosecutor's recommendation. (T. at 10).
{¶15} “A trial court does not err by imposing a sentence greater than ‘that
forming the inducement for the defendant to plead guilty when the trial court forewarns
the defendant of the applicable penalties, including the possibility of imposing a
greater sentence than that recommended by the prosecutor.’ ” State ex rel Duran v.
Kelsey, 106 Ohio St.3d 58, 2006-Ohio-3674; State v. Buchanan, 154 Ohio App.3d
250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13, quoting State v. Pettiford (Apr. 22,
2002), Fayette App. No. CA2001-08-014.
{¶16} In State v. Kalish, 120 Ohio St.3d 23, 2009-Ohio-4912, the Ohio Supreme
Court set forth a two-step approach for appellate courts to follow in reviewing felony
sentences. “First, they must examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the
trial court's decision in imposing the term of imprisonment shall be reviewed under an
abuse of discretion standard.” Kalish at paragraph 4, State v. Foster, 109 Ohio St.3d
1, 2006–Ohio–856, 845 N.E.2d 470.
Muskingum County, Case No. CT2010-0052 5
{¶17} In the instant case, the sentence Appellant received was within the
permissible statutory range, and the court stated in its judgment that it had considered
the principles and purposes of sentencing under R.C. §2929.11 and balanced the
seriousness and recidivism factors under R.C. §2929.12. We further note that
Appellant does not allege that he was not properly advised of post-release control in
this case.
{¶18} Based on the foregoing, we find that the trial court did not abuse its
discretion in imposing the sentence of 25 years to life on Appellant for one count of
rape of a person under the age of 13, one count of rape and one count of gross sexual
imposition on a person under the age of 13.
{¶19} Appellant herein argues that the trial court was influenced by the
magnitude of the unindicted offenses in this matter. In support, Appellant cites this
Court to the trial court’s statement that “upon review of the presentence investigation
and everything involved in the case the court will impose those sentences
consecutively for a total of twenty-five years.”
{¶20} Subsequent to the Ohio Supreme Court's decision in State v. Foster, i.e.
“* * * trial courts have full discretion to impose a prison sentence within the statutory
range and are no longer required to make findings or give their reasons for imposing
maximum, consecutive, or more than the minimum sentences.” 109 Ohio St.3d 1, 30,
2006–Ohio–856 at ¶ 100, 845 N.E.2d 470, 498.
{¶21} We have reviewed the record in this matter and find that the trial court's
decision was not arbitrary, unconscionable or unreasonable. In considering the
sentence in this case, the trial court had before it the fact that the rape victims in this
Muskingum County, Case No. CT2010-0052 6
case were Appellant’s biological daughters and were only ten and fifteen years old at
the time of the rapes. The victim of the gross sexual imposition was Appellant’s step-
daughter and was only twelve years old when she was assaulted. These facts alone
could account for the trial court’s decision to impose a sentence greater than the
sentence recommended by the State of Ohio.
{¶22} We find Appellant’s sole assignment of error not well-taken and hereby
overrule same.
{¶23} For the foregoing reasons, the judgment of the Court of Common Pleas,
Muskingum County, Ohio, is affirmed.
By: Wise, J.
Gwin, J. and
Delaney, J. concur
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JUDGES
JWW/d 0613
Muskingum County, Case No. CT2010-0052 7
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ROBERT DAVIS, JR. :
:
Defendant-Appellant : Case No. CT2010-0052
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Muskingum County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES