State v. Kubat , 2018 Ohio 3088 ( 2018 )

[Cite as State v. Kubat, 2018-Ohio-3088.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
THOMAS E. KUBAT,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 17 CAS 0012.
Criminal Appeal from the
Court of Common Pleas of Sandusky County, Ohio
Case No. 12 CR 1069
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb,
Judges of the Seventh District Court of Appeals,
sitting by assignment.
JUDGMENT:
Affirmed.
Atty. Timothy Braun, Sandusky County Prosecutor, Sandusky County Courthouse,
622 Croghan Street, Freemont, Ohio 43420, for Plaintiff-Appellee, and
Atty. Karin L. Coble, 316 N. Michigan Street, Suite 600, Toledo, Ohio 43601, for
Defendant-Appellant.
Dated: August 3, 2018
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Donofrio, J.
{¶1} Defendant-appellant, Thomas Kubat, appeals from a Sandusky County
Common Pleas Court judgment re-sentencing him to ten years in prison following his
convictions for five counts of unlawful sexual conduct with a minor in violation of R.C.
2907.04(A)(3), third-degree felonies. This appeal comes after appellant’s previous
appeal resulted in this court remanding this matter for resentencing. State v. Kubat, 6th
Dist. No. S-13-046, 2015-Ohio-4062.
{¶2} On September 12, 2012, appellant was charged with unlawful sexual
conduct with a minor and rape in a 22 count indictment. Counts 1 through 11 were for
unlawful sexual conduct with a minor (one count for each month between September of
2011 and July of 2012). Counts 12-22 were for rape (one count for each month between
September of 2011 and July of 2012). The victim in all of the charges was a minor, E.M.
At the time the offenses began, E.M. was 14 years old and appellant was 32 years old.
{¶3} On October 17, 2013, appellant entered into a plea agreement with the
plaintiff-appellee, the State of Ohio. Appellant entered pleas of no contest to Counts 5
and 6. Appellant also entered pleas of no contest to Counts 13, 14, and 15 which were
amended to unlawful sexual conduct with a minor. The trial court accepted appellant’s no
contest pleas, ordered a presentence investigation, and scheduled a sentencing hearing.
{¶4} At the sentencing hearing, the trial court sentenced appellant to five years
on each count. The trial court ordered that the sentences for Counts 5 and 6 were to run
concurrent. The sentences for Counts 13, 14, and 15 were also to run concurrent. The
sentences for Counts 5 and 6 were to run consecutive to the sentences for Counts 13,
14, and 15 for a total of ten years. Appellant appealed raising four assignments of error.
{¶5} The assignments of error challenged the trial court’s judgment denying
appellant’s motion to suppress and his sentence. This court affirmed the denial of the
motion to suppress and reversed appellant’s sentence on the basis that the trial court did
not make the necessary findings for consecutive sentences at the sentencing hearing.
The matter was remanded to the trial court for resentencing.
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{¶6} On remand, the trial court then made the necessary findings and issued the
same sentence. The trial court entered appellant’s sentence in a judgment entry dated
February 17, 2017. Appellant timely filed a notice of appeal on March 15, 2017.
{¶7} Appellant’s appointed counsel has filed a no merit brief and requested leave
to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967). “Under Anders, if, after a conscientious examination of the case,
counsel concludes the appeal to be wholly frivolous, he should so advise the court and
request permission to withdraw.” State v. Martin, 6th Dist. No. S-17-021, 2018-Ohio-621,
¶ 3 citing Anders at 744. “This request must be accompanied by a brief identifying
anything in the record that could arguably support the appeal.” Id. “In addition, counsel
must provide appellant with a copy of the brief and request to withdraw, and allow
appellant sufficient time to raise any additional matters.” Id. “Once these requirements
are satisfied, the appellate court is required to conduct an independent examination of
the proceedings below to determine if the appeal is indeed frivolous.” Id. “If it so finds, the
appellate court may grant counsel's request to withdraw, and decide the appeal without
violating any constitutional requirements.” Id.
{¶8} Counsel’s brief states that she performed a careful review of the record and
transcripts in this case, communicated with appellant via ordinary mail, and researched
the law and its relation to this case. Counsel concludes that this appeal is wholly frivolous
and without arguable merit. Counsel’s brief also includes a proposed assignment of error
which challenges appellant’s sentence.
{¶9} On May 11, 2017, counsel sent appellant a letter via priority U.S. mail
explaining that she was filing an Anders brief, explaining what an Anders brief is, and
informing appellant that he has the right to file a pro se brief. This letter included a copy
of counsel’s Anders brief. Appellant’s counsel followed the appropriate Anders procedure.
{¶10} On June 1, 2017, appellant requested a continuance in order to file a
supplemental pro se brief. Appellant’s continuance was granted and appellant was given
until January 19, 2018 to file his brief. But appellant did not file a supplemental brief.
{¶11} Before we analyze the merit of appellant’s proposed assignment of error,
we must address a “motion to submit addendum to appeal” filed by appellant pro se dated
April 18, 2018. Per this Court’s prior ruling, appellant was given until January 19, 2018 to
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file his brief in this appeal. As appellant’s motion to submit addendum to appeal is
untimely, it is hereby overruled.
{¶12} Appellant’s counsel’s sole proposed assignment of error states:
THE TRIAL COURT’S IMPOSITION OF SENTENCE IS
UNSUPPORTED BY COMPETENT, CREDIBLE EVIDENCE.
{¶13} This court previously reversed and remanded appellant’s sentence. We
affirmed the trial court’s judgment in all other respects. Therefore, this appeal is limited
to reviewing the re-sentencing hearing and the resulting sentence.
{¶14} An appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does not support the trial
court’s findings under relevant statutes or that the sentence is otherwise contrary to law.
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶ 1, citing R.C.
2953.08(G)(2).
{¶15} Addressing the sentence on each count individually, the trial court
sentenced appellant to five years of incarceration on all five unlawful sexual conduct with
a minor convictions. Pursuant to R.C. 2929.14(A)(3)(a), unlawful sexual conduct with a
minor in violation of R.C. 2907.04 has a prison term of up to sixty months, or five years.
The trial court’s imposition of five years on each count is not clearly and convincingly
contrary to law.
{¶16} In sentencing a felony offender, the court must consider the overriding
principles and purposes set out in R.C. 2929.11, which are to protect the public from
future crime by the offender and others and to punish the offender. The trial court did so
here. It stated that it was sentencing appellant in order to protect the public and to punish
appellant. (Tr. 34).
{¶17} The trial court shall also consider various seriousness and recidivism factors
as set out in R.C. 2929.12(B)(C)(D)(E). While the trial court did not specifically refer to
each factor in this case, the record reveals that the court considered the factors. The
court made several findings going to the statutory factors. For instance, the court noted
that the abuse began when the victim was in eighth grade and of “tender years.” (Tr. 30).
The court also noted that it weighed the damage that was done to the victim “pretty
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heavily.” (Tr. 30). Both of these findings indicate that appellant’s conduct was more
serious than that normally constituting the offense. See R.C. 2929.12(B)(1)(2). The court
also noted that it listened to appellant’s statement in allocution and considered his
remorse and wish that he had acted differently. (Tr. 32). This finding indicates that
appellant expressed genuine remorse and is less likely to commit future crime. See. R.C.
2929.12(E)(5). These findings regarding the statutory seriousness and recidivism factors
demonstrate that the trial court considered the applicable factors.
{¶18} The trial court sentenced appellant to maximum sentences. But although
the General Assembly has reenacted the judicial fact-finding requirement for consecutive
sentences, it has not revived the requirement for maximum sentences. State v. Riley, 7th
Dist. No. 13 MA 180, 2015–Ohio–94, ¶ 34. Therefore, the trial court was not required to
make any special findings before sentencing appellant to maximum sentences.
{¶19} Addressing the imposition of consecutive sentences, in order to issue
consecutive sentences, the trial court must find that (1) consecutive sentences are
necessary to protect the public from future crime or to punish the offender, (2) that
consecutive sentences are not disproportionate to the seriousness of the defendant’s
conduct and to the danger he poses to the public, and (3) one of the findings described
in subsections (a), (b), or (c) of R.C. 2929.14(C)(4). State v. Jackson, 7th Dist. No. 14 MA
99, 2015-Ohio-1365.
{¶20} During appellant’s re-sentencing hearing on February 21, 2017, the trial
court found that “the consecutive sentence is necessary to protect the public from future
crime or to punish the offender.” (Tr. 34). The trial court also found that the “consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger the Defendant possesses to the public[.]” (Tr. 35). Finally, the trial court found
that “at least two of the multiple offenses were committed as a part of one or more courses
of conduct and the harm caused by two or more of the multiple offenses was so great or
unusual that no single prison term for any of the offenses committed as part of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.” (Tr. 34-35).
{¶21} The trial court made the necessary findings for consecutive sentences. With
regard to the R.C. 2929.14(C)(4) subsections, the trial court found that consecutive
sentences were necessary pursuant to R.C. 2929.14(C)(4)(b).
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{¶22} Analyzing the trial court’s February 21, 2017 sentencing entry, the entry
states that a consecutive sentence was necessary to punish appellant. It also states that
“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 was so great that
no single prison sentence for any of the offenses committed adequately reflects the
seriousness of the offender’s conduct.” Finally, the entry states that “consecutive
sentences are not disproportionate to the seriousness of the offender[‘]s conduct and to
the danger the Defendant poses to the public.” These findings are sufficient to satisfy
R.C. 2929.14(C)(4). After a review of the record, appellant’s sentence is not clearly and
convincingly contrary to law.
{¶23} In sum, the proposed assignment of error identified by appellant’s counsel
lacks merit and is overruled. Furthermore, upon review of the case file and appellate
filings, there are no appealable issues.
{¶24} For the reasons stated above, the trial court’s judgment is hereby affirmed
and counsel’s motion to withdraw is granted.
Waite, J., concurs
Robb, P. J., concurs
For the reasons stated in the Opinion rendered herein, the proposed
assignment of error is overruled and it is the final judgment and order of this Court that
the judgment of the Court of Common Pleas of Sandusky County, Ohio, is affirmed.
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Counsel’s motion to withdraw is hereby granted. Costs to be taxed against the
Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
JUDGE GENE DONOFRIO, of the
Seventh District Court of Appeals,
sitting by assignment.
JUDGE CHERYL L. WAITE, of the
Seventh District Court of Appeals,
sitting by assignment.
JUDGE CAROL ANN ROBB, of the
Seventh District Court of Appeals,
sitting by assignment.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 17 CAS 0012