State v. Bentley , 2013 Ohio 852 ( 2013 )

[Cite as State v. Bentley, 2013-Ohio-852.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-12-31
v.
DOUGLAS EUGENE BENTLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 11-CR-517
Judgment Affirmed
Date of Decision: March 11, 2013
APPEARANCES:
Kevin P. Collins for Appellant
Brent W. Yager for Appellee
Case No. 9-12-31
PRESTON, P.J.
{¶1} Defendant-appellant, Douglas Bentley, appeals the Marion County
Court of Common Pleas’ sentence of ten years imprisonment following his guilty
plea to five counts of sexual battery. Bentley argues his sentence is contrary to the
purposes and principles of felony sentencing and that the trial court failed to
provide adequate justification for imposing a consecutive sentence. For the
following reasons, we affirm.
{¶2} On September 29, 2011, the Marion County Grand Jury indicted
Bentley on 30 counts of sexual battery in violation of R.C. 2907.03(A)(5), felonies
of the third degree, 30 counts of rape in violation of R.C. 2907.02(A)(2), felonies
of the first degree, and ten counts of gross sexual imposition in violation of R.C.
2907.05(A)(1), felonies of the fourth degree. (Doc. No. 1).
{¶3} On October 3, 2011, the trial court arraigned Bentley. (Doc. No. 4).
Bentley pled not guilty to the charges. (Id.).
{¶4} On February 23, 2012, Bentley pled guilty to five counts of sexual
battery. (Doc. No. 16). The State dismissed the remaining charges. (Id.); (Apr.
24, 2012 Tr. at 3).
{¶5} On April 24, 2012, the trial court held a sentencing hearing. (Doc.
No. 25). The trial court sentenced Bentley to two years imprisonment on each
count of sexual battery, to be served consecutively for a total of ten years
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imprisonment. (Id.). The trial court filed its judgment entry on April 26, 2012.
(Id.).
{¶6} On May 24, 2012, Bentley filed a notice of appeal. (Doc. No. 27).
Bentley now raises two assignments of error for our review. We elect to
consolidate Bentley’s assignments of error for the purposes of our discussion.
Assignment of Error No. I
The trial court erred to the prejudice of defendant-appellant by
imposing a sentence that is contrary to the purposes and
principles of felony sentencing.
Assignment of Error No. II
The trial court erred to the prejudice of defendant-appellant by
imposing consecutive sentences without adequate justification.
{¶7} In his first assignment of error, Bentley argues the trial court failed to
impose a sentence that is consistent with the purposes and principles of felony
sentencing. Bentley contends that this sentence is the first prison term he will
serve, so the trial court should have imposed the minimum potential sentence.
Bentley also argues that his conduct was less serious than conduct normally
constituting the offense and under circumstances not likely to reoccur. In his
second assignment of error, Bentley argues the trial court failed to make the
findings required by R.C. 2929.14. Bentley also contends that the trial court erred
by imposing a consecutive sentence because in similar cases, the trial court had
imposed a lesser sentence. Bentley argues that since the trial court failed to make
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the required findings, this Court should vacate his sentence and remand the case
for resentencing.
{¶8} As an initial matter, we note that the State has failed to file an
appellee’s brief in this case. Under these circumstances, App.R. 18(C) provides
that we “may accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if the appellant’s brief reasonably appears to sustain such
action.” Upon review of the record and brief in this case, we are not persuaded
that a reversal is warranted.
{¶9} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,
¶ 23 (the clear and convincing evidence standard of review set forth under R.C.
2953.08(G)(2) remains viable with respect to those cases appealed under the
applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,
12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.
1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v.
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Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko,
139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not,
however, substitute its judgment for that of the trial court because the trial court is
‘“clearly in the better position to judge the defendant’s dangerousness and to
ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. No.
2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400
(2001).
{¶10} Pursuant to R.C. 2929.14(A)(3)(a), for a felony of the third degree
that is a violation of R.C. 2907.03, “the prison terms shall be twelve, eighteen,
twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.”
State v. Marino, 4th Dist. No. 11CA36, 2013-Ohio-113, ¶ 8. Here, the trial court
sentenced Bentley to 24 months imprisonment on each count of sexual battery in
violation of R.C. 2907.03(A)(5), which is within the statutory range and not the
maximum sentence the trial court could have imposed. The trial court also
ordered Bentley to serve the five 24-month terms of imprisonment consecutively.
{¶11} The revisions to the felony sentencing statutes under H.B. 86 now
require a trial court to make specific findings when imposing consecutive
sentences. State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 11.
Specifically, R.C. 2929.14(C)(4) states:
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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
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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
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{¶12} Although H.B. 86 requires the trial court to make findings before
imposing a consecutive sentence, it does not require the trial court to give its
reasons for imposing the sentence. State v. Frasca, 11th Dist. No. 2011-T-0108,
2012-Ohio-3746, ¶ 57. The First District Court of Appeals has explained:
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 the trial courts to articulate the reasons
supporting their findings at the sentencing hearing. Id. at ¶ 19-20,
794 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 the trial court articulate and justify its findings at the
sentencing hearing.
State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18.
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{¶13} The Courts of Appeals for the Fifth, Ninth, Eleventh, and Twelfth
Districts have likewise held that while H.B. 86 reinserted language in R.C.
2929.14 requiring a trial court to make certain findings before imposing a
consecutive sentence, it removed language requiring a trial court to give its
reasons for selecting the sentence. See State v. Nowlin, 5th Dist. No. CT2012-
0015, 2012-Ohio-4923, ¶ 71; State v. Just, 9th Dist. No. 12CA0002, 2012-Ohio-
4094, ¶ 49; State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-3746, ¶ 57;
State v. Smith, 12th Dist. No. CA-2012-01-004, 2012-Ohio-4523, ¶ 34. The trial
court is not required to recite any “magic” or “talismanic” words when imposing
consecutive sentences, as long as it is “clear from the record that the trial court
engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004-
Ohio-3962, ¶ 12.
{¶14} Additionally, the trial court must consider the purposes and
principals for felony sentencing set forth in R.C. 2929.11 and the factors relating
to the seriousness of the offense and the recidivism of the offender pursuant to
R.C. 2929.12. State v. Pence, 3d Dist. No. 2-11-18, 2012-Ohio-1794, ¶ 7. The
purposes and principles for felony sentencing provided in R.C. 2929.11 are “to
protect the public from future crimes by the offender and others and to punish the
offender, and shall be commensurate with and not demeaning to the seriousness of
the offender’s conduct and its impact upon the victim, and consistent with
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sentences imposed for similar crimes committed by similar offenders.” Hites,
2012-Ohio-1892, at ¶ 8. R.C. 2929.12(B) further requires the sentencing court to
consider factors that indicate the offender’s conduct is more serious than conduct
that normally constitutes the offense, including, in pertinent part, that “[t]he
offender’s relationship with the victim facilitated the offense.” R.C.
2929.12(D)(6).
{¶15} At the sentencing hearing, the State asserted that Bentley, who was
the boyfriend of the victim’s mother, had begun sexually molesting the victim,
C.G., when she was 15 years old. (Apr. 24, 2012 Tr. at 4-5); (PSI). The State
alleged that Bentley was a father figure to C.G. and used his relationship with her
to engage in oral sex and digital penetration. (Apr. 24, 2012 Tr. at 4-5).
{¶16} C.G. and her mother each testified at the hearing. C.G.’s mother
requested that the trial court sentence Bentley to counseling and probation. (Id. at
16). She testified that Bentley, C.G., and she had lived in the same house, but that
C.G. had since moved in with another family member. (Id. at 18-19). C.G.’s
mother continued to live with Bentley. (Id.). She testified that Bentley and C.G.
were sorry for what had occurred, and stated “I just want my family back
together.” (Id.). C.G. testified that she is now 18 years old and that Bentley “is
like a father to me.” (Id. at 27). She testified that the sexual molestation occurred
two to three times per week for about three years. (Id. at 30). C.G. testified that
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she did not want to lose her family and requested that the trial court sentence
Bentley to counseling and probation. (Id. at 25-27).
{¶17} Bentley apologized for his actions and requested that the trial court
place him on probation. (Id. at 31-33). Bentley argued that the trial court had
previously sentenced similar offenders to lesser sentences than the ten years
imprisonment the State had requested, so a lesser sentence was appropriate in this
case. (Id.).
{¶18} The trial court rejected Bentley’s argument that based on the
sentences the court had imposed on other offenders his sentence should be less
than the ten years imprisonment the State had recommended. The trial court stated
that the illegal conduct in the previous cases did not “multiply out to three, four, or
500 acts which seems to be what we’re dealing with here. I think the scope of
what we’re dealing with here is way over and above anything we’ve dealt with
before in this court.” (Id. at 35). The trial court accepted the State’s
recommendation of ten years imprisonment and further found that “[c]onsecutive
sentences are necessary because of the gravity of the situation and the need to
adequately punish the offender for this type of activity.” (Id. at 35); (Doc. No.
25). The trial court thus made the findings that R.C. 2929.14(C)(4) requires by
making it clear that the sentence was not disproportionate to the offense, and that
the seriousness of Bentley’s conduct and the danger he poses to the public
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required a consecutive sentence. (Apr. 24, 2012 Tr. at 35); (Doc. No. 25). The
trial court also explained that Bentley’s multiple offenses resulted in an offense
that is more serious than the offenses the trial court has previously seen, making a
consecutive sentence appropriate pursuant to R.C. 2929.14(C)(4)(b). (Apr. 24,
2012 Tr. at 35). After reviewing the record, we cannot find that the trial court
failed to provide adequate justification for imposing a consecutive sentence.
{¶19} We also cannot find that Bentley’s sentence of ten years
imprisonment is contrary to the purposes and principles of felony sentencing.
C.G., the victim of Bentley’s offenses, lived with Bentley and viewed him as a
father. (PSI). Bentley used his relationship with C.G. to facilitate the offense,
which is a factor indicating Bentley’s conduct is more serious than conduct
normally constituting the offense. R.C. 2929.12(D)(6). Furthermore, C.G.
testified that Bentley sexually molested her two to three times a week for roughly
three years. (Id.). We note that Bentley’s sentence of ten years imprisonment is
not the maximum sentence the trial court could have imposed for his offenses. See
R.C. 2929.14(A)(3)(a). In light of the seriousness and length of Bentley’s illegal
conduct, as well as his use of his relationship with the victim to commit the
offenses, we cannot find that his sentence is contrary to the purposes and
principles of felony sentencing.
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{¶20} Bentley’s first and second assignments of error are, therefore,
overruled.
{¶21} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, J., concurs.
/jlr
ROGERS, J., Concurring Separately.
{¶22} I concur with the result reached by the majority based on the specific
facts of this case. I write separately because, in my mind, the majority places too
much emphasis on State v. Murrin. Murrin was decided under a previous statute
and the Ohio Supreme Court has yet to determine whether R.C. 2929.14(C)(4)
requires trial courts to explicitly state their findings during sentencing hearings
and/or sentencing entries in order to sustain the imposition of consecutive
sentences. Because the General Assembly saw fit to require certain findings, I
think it appropriate to require the trial court to explicitly state those findings at the
time of sentencing and in its sentencing entry. See State v. Howard, 3d Dist. No.
2-11-32, 2012-Ohio-2836, fn. 2 (stating that the better practice would be to
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explicitly state the mandatory findings of R.C. 2929.14(C)(4) during the
sentencing hearing and in the sentencing entry). I will acquiesce in this case due
to the extensive comments of the trial court during the sentencing hearing, and the
several appellate decisions which seem to find the specific expression of the
findings to be unnecessary. However, I do not believe that the General Assembly
intended that the reviewing court should have to review every comment by the
trial court and weigh those comments in order to determine whether it would make
the necessary findings when the trial court has not.
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