State v. Ward ( 2021 )

[Cite as State v. Ward, 2021-Ohio-3580.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ANTHONY WARD : Case No. 21-CA-3
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 20CR08-0196
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 4, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE TODD W. BARSTOW
117 East High Street 261 West Johnstown Road
Suite 234 Suite 204
Mount Vernon, OH 43050 Columbus, OH 43230
Knox County, Case No. 21-CA-3 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Anthony Ward, appeals his February 12, 2021
sentence by the Court of Common Pleas of Knox County, Ohio. Plaintiff-Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 20, 2020, the Knox County Grand Jury indicted appellant on one
count of rape in violation of R.C. 2907.02 and one count of gross sexual imposition in
violation of R.C. 2907.05. Said counts arose from an incident between appellant, 32
years old at the time, and a fifteen-year-old minor.
{¶ 3} On January 12, 2021, appellant pled guilty to an amended count of sexual
battery in violation of R.C. 2907.03 and the gross sexual imposition count was dismissed.
A sentencing hearing was held on February 11, 2021. By sentencing entry filed February
12, 2021, the trial court sentenced appellant to fifty-four months in prison.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
BY SENTENCING HIM IN CONTRAVENTION OF OHIO'S FELONY SENTENCING
STATUTES."
I
{¶ 6} In his sole assignment of error, appellant claims the trial court erred in
sentencing him in contravention of the felony sentencing statutes. We disagree.
Knox County, Case No. 21-CA-3 3
{¶ 7} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
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. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That 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;
(b) That the sentence is otherwise contrary to law.
{¶ 8} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in
Knox County, Case No. 21-CA-3 4
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 9} "A sentence is not clearly and convincingly contrary to law where the trial
court 'considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.' " State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶ 10} There is no dispute that the fifty-four month sentence is within the statutory
range for a felony in the third degree. R.C. 2929.14(A)(3)(a).
{¶ 11} Appellant argues the trial court failed to consider the principles and
purposes of felony sentencing under R.C. 2929.11 and the seriousness and recidivism
factors under R.C. 2929.12.
{¶ 12} R.C. 2929.11 governs the overriding purposes of felony sentencing and
states the following in pertinent part:
(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, to punish the offender, and to promote the effective
rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary
Knox County, Case No. 21-CA-3 5
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.
(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the three overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact upon the victim, and
consistent with sentences imposed for similar crimes committed by similar
offenders.
{¶ 13} R.C. 2929.12 governs factors to consider in felony sentencing and states
the following in pertinent part:
(A) Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this chapter upon an
offender for a felony has discretion to determine the most effective way to
comply with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code. In exercising that discretion, the court shall
consider the factors set forth in divisions (B) and (C) of this section relating
to the seriousness of the conduct, the factors provided in divisions (D) and
(E) of this section relating to the likelihood of the offender's recidivism, and
Knox County, Case No. 21-CA-3 6
the factors set forth in division (F) of this section pertaining to the offender's
service in the armed forces of the United States and, in addition, may
consider any other factors that are relevant to achieving those purposes and
principles of sentencing.
{¶ 14} R.C. 2929.11 does not require the trial court to make any specific findings
as to the purposes and principles of sentencing. Likewise, R.C. 2929.12 does not require
the trial court to "use specific language or make specific findings on the record in order to
evince the requisite consideration of the applicable seriousness and recidivism factors."
State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Therefore, although
there is a mandatory duty to "consider" the relevant statutory factors under R.C. 2929.11
and 2929.12, the sentencing court is not required to engage in any factual findings under
said statutes. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17;
State v. Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. "The trial court
has no obligation to state reasons to support its findings, nor is it required to give a
talismanic incantation of the words of the statute, provided that the necessary findings
can be found in the record and are incorporated into the sentencing entry." State v. Webb,
5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 19.
{¶ 15} As recently stated by the Supreme Court of Ohio in State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39, R.C. 2953.08(G)(2)(b) "does not
provide a basis for an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and 2929.12."
"Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the
Knox County, Case No. 21-CA-3 7
evidence in the record and substitute its judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11 and 2929.12." Id. at 42.
{¶ 16} During the plea hearing, appellant admitted he was currently on postrelease
control until 2023. January 12, 2021 T. at 5; R.C. 2929.12(D)(1) and (2). He also admitted
to the brief statement of facts as set forth by the prosecutor (Id. at 13-14):
On the 28th day of July 2020, in the County of Knox and State of
Ohio, Mr. Anthony Ward did engage in sexual conduct with M.K., whose
date of birth is 11/18 of 2004. She was not his spouse at the time. Mr.
Ward knowingly coerced her to engage in that sexual conduct by means
that would present - - prevent resistance by a person of ordinary resolution.
{¶ 17} During the sentencing hearing, the trial court heard from the victim's
grandmother and how the victim suffers from fear and anxiety, has suffered severe
emotional harm, and will receive counseling for years to come. February 11, 2021 T. at
5-6; R.C. 2929.12(B)(1) and (2). The trial court stated it reviewed the presentence
investigation report and letters from family members, and considered the purposes and
principles of sentencing contained in R.C. 2929.11 and the seriousness and recidivism
factors in R.C. 2929.12. Id. at 9-10. The trial court found "a prison term is consistent with
the purposes of Revised Code Section 2929.11, and the defendant is not amenable to an
available community control sanction. Id. at 10. The trial court journalized these
statements in its sentencing entry filed February 12, 2021. In the entry, the trial court
stated the following:
Knox County, Case No. 21-CA-3 8
For the reasons stated and for other relevant factors, the Court finds
the Defendant's conduct is more serious than conduct normally constituting
the offense the Defendant stands convicted of and that the Defendant is not
amenable to an available Community Control Sanction and prison term is
consistent with the purpose of felony sentencing contained in Ohio Revised
Code Section 2929.11.
{¶ 18} Upon review, we find the sentence imposed is not clearly and convincingly
contrary to law. The sentence is within the statutory range for a felony of the third degree,
and the trial court considered the R.C. 2929.11 and 2929.12 factors.
{¶ 19} The sole assignment of error is denied.
{¶ 20} The judgment of the Court of Common Pleas of Knox County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Wise, John, J. concur.
EEW/db