State v. Henry , 2014 Ohio 1318 ( 2014 )

[Cite as State v. Henry, 2014-Ohio-1318.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee : CASE NO. CA2013-03-050
: OPINION
- vs - 3/31/2014
:
CHARLES B. HENRY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR 2012-05-664
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Matthew T. Dixon, 16 N. Main Street, Middletown, Ohio 45044, for defendant-appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant Charles Henry appeals his sentence from the Butler
County Court of Common Pleas for pandering sexually-oriented matter involving a minor.
{¶ 2} On May 21, 2012, Henry pled guilty to five counts of pandering sexually-
oriented matter involving a minor in violation of R.C. 2907.32.2(A)(1), felonies in the second
degree, and five counts of pandering sexually-oriented matter involving a minor in violation of
Butler CA2013-03-050
R.C. 2907.32.2(A)(5), felonies in the fourth degree. The trial court subsequently sentenced
Henry to five years in prison.
{¶ 3} Henry now appeals from that sentence, raising two assignments of error for our
review.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE SENTENCE OF THE TRIAL COURT IS CONTRARY TO LAW BECAUSE
IT FAILS TO REFLECT ANY CONSIDERATION OF THE PURPOSES AND PRINCIPLES
OF FELONY SENTENCING CONTAINED IN R.C. 2929.11 OR THE SERIOUSNESS AND
RECIDIVISM FACTORS OF R.C. 2929.12.
{¶ 6} Within this assignment of error, Henry makes two arguments. First, he argues
that "purely conclusory statements in the Judgment of Conviction Entry that factors were
considered is insufficient to support review as providing no independent basis for the
reviewing authority to assess whether such consideration was in fact given." Second, Henry
argues that the "record shows that no determination was made that the sentence imposed on
the defendant was the minimum sanction necessary to accomplish the purposes" of R.C.
2929.11.
{¶ 7} This court has recently established that "the standard of review set forth in R.C.
2953.08(G)(2) shall govern all felony sentences." State v. Crawford, 12th Dist. Clermont No.
CA2012-12-088, 2013-Ohio-3315, ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622,
2013-Ohio-2525, ¶ 7. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial
court's felony sentencing decision, "the appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing." However, as explicitly stated in
R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not whether the sentencing
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court abused its discretion."
{¶ 8} Instead, an appellate court may take any action authorized by R.C.
2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record
does not support the sentencing court's findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant," or (2) "[t]hat the sentence is otherwise contrary to law."
In making such a determination, it is "important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford at ¶ 8, quoting
Venes, 2013-Ohio-1891 at ¶ 21. “It does not say that the trial judge must have clear and
convincing evidence to support its findings." Id. Instead, "it is the court of appeals that must
clearly and convincingly find that the record does not support the court's findings." Id.Simply stated, the language in R.C. 2953.08(G)(2) establishes an "extremely deferential
standard of review," as "the restriction is on the appellate court, not the trial judge." Id.{¶ 9} A sentence is not clearly and convincingly contrary to law where the trial court
considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, and sentences the accused within the permissible statutory range. Crawford at ¶ 9;
State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.
{¶ 10} In sentencing Henry in the present case, the judgment entry explicitly states
that the trial court considered the underlying facts of the case, the presentence report, "as
well as the principles and purposes of sentencing under [R.C.] 2929.11, and has balanced
the seriousness and recidivism factors of [R.C.] 2929.12 * * *." While Henry seeks to
minimize the meaning of that portion of the court's entry, we note that a trial court speaks
through its entries. E.g., State v. Grundy, 12th Dist. Warren No. CA2011-09-099, 2012-Ohio-
3133, ¶ 51, fn.1.
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{¶ 11} In addition, the trial court specifically considered at the sentencing hearing that
(1) police found seven computers and multiple DVDs containing children under the age of 14
engaging in sexual activity, (2) Henry admitted to collecting and trading in child pornography
for more than 2 years, (3) Henry was aware of what would happen if he were caught but was
not dissuaded, (4) Henry still cannot comprehend why or how this criminal activity began, (5)
Henry acknowledged that downloading child pornography had become a habit, and (6) Henry
appeared to the probation department to show no remorse for his actions and minimized the
severity of the offenses.
{¶ 12} While the trial court did not use the words "purposes and principles" or
"seriousness and recidivism" at the sentencing hearing, we find such specific language
unnecessary as long as it is clear from the record that such considerations were made. As
evidenced above, the trial court clearly took those factors into consideration. Accordingly, we
cannot find that the trial court's sentence was clearly and convincingly contrary to law.
Unnecessary Burden on State or Local Government
{¶ 13} Henry's second argument under the first assignment of error focuses on the
assertion that the trial court failed to consider the burden of his prison sentence on state or
local government resources.
{¶ 14} We agree with the Second District's holding that:
[a]lthough resource burdens are a relevant sentencing criterion
under newly enacted language in R.C. 2929.11(A), a sentencing
court is not required to elevate resource conservation above
seriousness and recidivism factors. State v. Luyando, 8th Dist.
Cuyahoga No. 97203, 2012-Ohio-1947, ¶ 14, citing State v.
Burton, 10th Dist. Franklin No. 06AP-690, 2007-Ohio-1941, ¶ 19.
Accord, State v. Ober, 2d Dist. Greene No. 97 CA 0019, 1997
WL 624811 (Oct. 10, 1997). "Where the interests of public
protection and punishment are well served by a prison sentence,
the claim is difficult to make that the prison sentence imposes an
unnecessary burden on government resources." State v.
Bowshier, 2d Dist. Clark No. 08-CA-58, 2009-Ohio-3429, ¶ 14,
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citing Ohio Felony Sentencing Law, 2007 Ed. Griffin and Katz, at
966.
State v. Wilson, 2d Dist. Montgomery No. 24978, 2012-Ohio-4756, ¶ 6.
{¶ 15} In the present case, we have already determined that the trial court properly
and explicitly considered the relevant factors under R.C. 2929.11 and R.C. 2929.12. Those
factors include the seriousness and recidivism factors contained therein, as well as the
burden on state and local government resources. The court also made further findings at the
sentencing hearing regarding the nature and extent of the crimes committed by Henry.
Therefore, we find that the court's reasoning for imposing the five-year prison sentence is
sound.
{¶ 16} In light of the foregoing, having found that the trial court properly considered the
purposes and principles of R.C. 2929.11 and the seriousness and recidivism factors of R.C.
2929.12, Henry's first assignment of error is overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} THE SENTENCE IMPOSED BY THE TRIAL COURT, EVEN IF OTHERWISE
LAWFUL, IS UNDULY HARSH AND NOT SUPPORTED BY THE RECORD AS THE
OFFENSES DO NOT APPEAR ON THE RECORD TO BE AGGRAVATED OR MORE
SERIOUS FORMS OF THE OFFENSES CONCERNED AND THEREFORE THE
IMPOSITION OF A MORE-THAN-MINIMUM SENTENCE CONSTITUTES [AN] ABUSE OF
DISCRETION BY THE COURT.
{¶ 19} As stated above, the trial court properly considered the purposes and principles
of R.C. 2929.11 and the seriousness and recidivism factors of R.C. 2929.12, and sentenced
Henry to a prison term within the statutory range. The maximum penalty the trial court could
have imposed would have amounted to 47.5 years in prison, yet the trial court sentenced
Henry to only five years in prison. We cannot find such a sentence unduly harsh.
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{¶ 20} In light of the foregoing, having found that the sentence is within the statutory
range and supported by the record, Henry's second assignment of error is overruled.
{¶ 21} Judgment affirmed.
HENDRICKSON and M. POWELL, JJ., concur.
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