State v. Stevens , 2022 Ohio 2974 ( 2022 )

[Cite as State v. Stevens, 2022-Ohio-2974.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-40
:
v. : Trial Court Case No. 2021-CR-193
:
CHRISTOPHER L. STEVENS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of August, 2022.
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PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, Appellate Division, Safety Building, 201 West Main Street,
Troy, Ohio 45373
Attorney for Plaintiff-Appellee
ALAN D. GABEL, Atty. Reg. No. 0025034, P.O. Box 1423, Dayton, Ohio 45401
Attorney for Defendant-Appellant
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LEWIS, J.
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{¶ 1} Defendant-Appellant Christopher L. Stevens appeals his convictions in the
Miami County Common Pleas Court after entering guilty pleas to ten counts of rape under
13 years old and receiving an aggregate prison sentence of 20-years-to-life. Stevens
argues on appeal that his plea was not knowingly, intelligently, and voluntarily made, and
that his sentence was not supported by the record. For the reasons that follow, the trial
court’s judgment is affirmed.
I. Facts and Procedural History
{¶ 2} On May 20, 2021, Stevens was indicted by the Miami County Grand Jury on
10 counts of rape, in violation of R.C. 2907.02(A)(1)(b) (child under 13), felonies of the
first degree. Following plea discussions, Stevens entered a negotiated guilty plea
wherein he agreed to plead guilty to the indictment as charged and the parties agreed to
jointly recommend concurrent prison sentences, for an aggregate mandatory minimum
prison term of 10-years-to-life. The court sentenced Stevens to a mandatory term of 10-
years-to-life on all counts with Counts 1 through 5 to run concurrently to each other and
Counts 6 through 10 to run concurrently to each other, but Counts 1 through 5 were
ordered to be served consecutively to the concurrent sentences imposed for Counts 6
through 10, making the sentence an aggregate mandatory prison term of 20-years-to-life.
Stevens was designated a Tier III sex offender with life-time registration. Stevens timely
appealed.
II. First Assignment of Error
APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED THROUGH
THE TRIAL COURT’S IMPOSITION OF A SENTECE BASED ON A PLEA
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AGREEMENT THAT WAS UNKNOWINGLY, INVOLUNTARILY, AND
UNINTELLIGENTLY MADE.
{¶ 3} Stevens asserts that his plea was not knowingly, voluntarily, and intelligently
entered, because the trial court induced him to enter his plea by accepting the parties’
jointly-recommended sentence, but not imposing the jointly-recommended sentence.
We find no merit to Stevens’ argument.
{¶ 4} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily.” State v. Barker, 129 Ohio St.3d 472, 2011-
Ohio-4130, 953 N.E.2d 826, ¶ 9. “A guilty plea that is not knowing, intelligent, and
voluntary does not comport with due process and violates the Ohio and United States
Constitutions.” State v. Gilroy, 195 Ohio App.3d. 173, 2011-Ohio-4163, 959 N.E.2d 19,
¶ 31 (2d Dist.), citing State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶ 5} “[W]hen a plea rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30
L.Ed.2d 427 (1971). If the prosecutor fails to fulfill the promise, the defendant is entitled
to either withdraw his or her plea or enforce specific performance of the plea agreement.
Id. at 263. Likewise, if the trial court promises to impose a particular sentence that
induces a defendant to plea, absent a violation of any conditions placed on defendant
prior to sentencing, the plea is not voluntary unless that sentence is imposed. State v.
DeHart, 2018-Ohio-865, 106 N.E.3d 1267, ¶ 15 (2d Dist.).
{¶ 6} The trial court, however, “is not bound to accept the State's recommended
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sentence in a plea agreement.” State v. Downing, 2d Dist. Greene No. 2019-CA-74,
2020-Ohio-3984, ¶ 34, citing Akron v. Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d
119 (9th Dist.1978). “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, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6, quoting State v. Buchanan,
154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dist.).
{¶ 7} In the present case, the trial court in no way promised Stevens that it would
impose the jointly-recommended sentence. Before the plea agreement was placed on
the record, the following discussion occurred:
The Court: All right. This matter comes on for a change of plea. [Defense
counsel], are there any plea bargains that need to be placed on the record?
Defense counsel: There are, Your Honor. The – there’s a joint agreement
of a recommendation of concurrent sentencing to the Court. My client
understands that the Court will carefully consider the joint recommendation,
but the Court has the right to sentence him under the law.
The Court: Thank you [Defense counsel]. [Prosecutor], is that your
understanding?
[Prosecutor]: Yes Your Honor.
The Court: And is this what you want to do Mr. Stevens?
Mr. Stevens: Yes Ma’am.
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Change of Plea Hrg. Tr. p. 2.
{¶ 8} The plea agreement was placed on the record and included that Stevens
would plead guilty to 10 counts of rape of a child less than 13 years of age, felonies of
the first degree, and the parties would jointly recommend that he serve a concurrent
sentence on all 10 counts. After Stevens acknowledged that that arrangement was the
entirety of the plea agreement, the following discussion occurred:
The Court: Okay. Thank you. Now as [Defense counsel] already went
over on the record, do you understand that [t]he Court is not bound by that
joint sentencing recommendation?
Mr. Stevens: Yes, yes Ma’am.
The Court: Okay. And that the Court can impose any penalties that the
Court deems appropriate within the relevant sentencing guidelines?
Mr. Stevens: Yes Ma’am.
Id. at 7.
{¶ 9} During the plea hearing, Stevens was advised that each offense carried a
mandatory prison sentence of 10-years-to-life. In discussing that Stevens was pleading
guilty to multiple offenses, the trial court confirmed that Stevens understood the difference
between concurrent and consecutive sentences. The following discussion occurred:
The Court: Okay. So you’re pleading guilty to more than one offense.
Do you understand that?
Mr. Stevens: Yes Ma’am.
The Court: All right. So the Court has to determine whether to run your
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sentences concurrent to one another or consecutive.
Mr. Stevens: Yes Ma’am.
The Court: And you know what those terms mean?
Mr. Stevens: Yes I do, Ma’am.
The Court: Okay. Concurrent being at the same time or consecutive
being one right after the other.
Mr. Stevens: Yes Ma’am.
Id. at 16-17.
{¶ 10} The trial court confirmed with Stevens during the plea hearing that he had
reviewed, understood, and signed the plea form. The form explicitly stated in numbered
paragraph 13, “I know that the sentence I will receive is a matter solely within the
discretion and control of the Judge, despite any and all recommendations made to the
Court. I request leniency, but I am prepared to accept any punishment permitted by law
which this Court sees fit to impose. I respectfully request the Court to consider, in
mitigation of punishment, that I have voluntarily entered a plea of Guilty.” Petition to
Enter Plea of Guilty (Felony).
{¶ 11} Having reviewed the record, the trial court made clear that it was not
required to follow the joint recommendation of the parties and did not in any way promise
that Stevens would receive the recommended sentence. The totality of the
circumstances, including the plea colloquy and the signed plea agreement, demonstrate
that Stevens’ pleas were knowingly, intelligently, and voluntarily entered. We therefore
overrule Stevens’ first assignment of error.
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III. Second Assignment of Error
THE TRIAL COURT ERRED IN BASING APPELLANT’S SENTENCE ON
ASSUMPTIONS WHICH WERE UNSUPPORTED BY THE RECORD
AND UPON INCOMPLETE FACTFINDING.
{¶ 12} In his second assignment of error, Stevens argues that the trial court’s
consecutive sentence findings were not supported by the record. We disagree.
{¶ 13} Generally, prison terms are presumed to be served concurrently. R.C.
2929.41(A). However, R.C. 2929.14(C)(4) permits a trial court to impose consecutive
sentences if it finds that (1) consecutive sentencing is necessary to protect the public from
future crime or to punish the offender, (2) consecutive sentences are not disproportionate
to the seriousness of the offender's conduct and to the danger the offender poses to the
public, and (3) at least one of the following applies:
(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.
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(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶ 14} A trial court that imposes a consecutive sentence must make the findings
mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those findings
into its judgment entry, but it has no obligation to state reasons to support its findings.
State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. “[A]s
long as the reviewing court can discern that the trial court engaged in the correct analysis
and can determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶ 29.
{¶ 15} When reviewing felony sentences, appellate courts must apply the standard
of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 1 and ¶ 7. R.C. 2953.08(G)(2) directs appellate courts “to
review the record, including the findings underlying the sentence” and to modify or vacate
the sentence “if it clearly and convincingly finds either * * * [t]hat the record does not
support the sentencing court's findings under division * * * (C)(4) of section 2929.14 * * *
of the Revised Code * * * [or] the sentence is otherwise contrary to law.” “This is a very
deferential standard of review, as the question is not whether the trial court had clear and
convincing evidence to support its findings, but rather, whether we clearly and
convincingly find that the record fails to support the trial court's findings.” State v. Dover,
2d Dist. Clark Nos. 2018-CA-107, 2018-CA-108, 2019-Ohio-2462, ¶ 7, citing State v.
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Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 31 (2d Dist.). Clear and convincing
evidence is that evidence “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. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 16} In his brief, Stevens does not contend that his sentence is contrary to law.
Rather, he claims the trial court’s findings under R.C. 2929.12 are not supported by the
record and do not justify consecutive sentences. However, while a trial court must
consider the statutory criteria that apply to every felony offense, including those set forth
in R.C. 2929.11 and R.C. 2929.12, R.C. 2953.08(G)(2)(a) does not provide a basis to
modify or vacate a sentence because it is not supported under R.C. 2929.11 or R.C.
2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39.
Thus, our review is limited to whether the trial court complied with the necessary findings
under R.C. 2929.14(C)(4) before imposing consecutive sentences and, if done, whether
we clearly and convincingly find that the record fails to support the trial court's consecutive
sentence findings.
{¶ 17} Prior to imposing sentence, the trial court advised on the record that it had
considered the written statements of the victim and Stevens’ mother, the oral statements
made at the time of sentencing, and the presentence investigation report (“PSI”). The
trial court stated that it had considered the purposes and principles of sentencing in R.C.
2929.11, and the seriousness and recidivism factors under R.C. 2929.12. The trial court
made the required consecutive-sentencing findings under R.C. 2929.14(C)(4), both on
the record and in the termination entry. Specifically, in accordance with R.C.
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2929.14(C)(4)(b), the trial court found that “[a]t least two of [the counts] were committed
as a part of a course of conduct. * * * And the harm caused by these multiple offenses
was so great and unusual and violates all decency and morals and – of our community,
that no single prison term adequately reflects the Defendant’s conduct.” Sentencing Hrg.
Tr. p. 16.
{¶ 18} As the trial court made the requisite findings before imposing consecutive
sentences, our review now turns to whether we clearly and convincingly find that the
record fails to support those findings. The record reflects that Stevens pled guilty to 10
separate counts of rape of a child under 13 years old. The charges arose as a result of
Stevens’ minor daughter performing fellatio on him an “estimated ten times” between
“Thanksgiving and Christmas of 2020,” with the most recent incident occurring “several
weeks” before March 26, 2021. PSI. In exchange for the fellatio, Stevens supplied his
daughter with candy and marijuana. Id. Although he had asked her to have vaginal sex
with him, she refused. Id. In the victim’s statement to the court, she stated that “my
father made me think it was okay to rape - that he raped me, made me touch him, and let
him touch me. This went on since I was eleven years old for about a year.” Sentencing
Hrg. Tr. p. 6. The victim explained that Stevens took away her innocence and she was
very sad as a result of these offenses. Id. at 6-7. She also indicated that because of
Stevens’ actions, she had lost her friends and siblings. Id.
{¶ 19} The trial court concluded that Stevens had groomed his daughter and
identified him as a “manipulator and predator,” explaining to Stevens that he “betrayed
the most fundamental obligation you have as a parent, and that is to protect your child.”
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Id. at 12. The trial court found that Stevens minimized his conduct by claiming it was not
forced rape and attempted to blame his actions on his drug use. This excuse was
provided in contrast to the repeated incestuous conduct that occurred over a lengthy
period of time and Stevens’ admissions that he “got into taboo porn, which led [him] to
father daughter porn.” PSI. He also repeatedly encouraged the victim to send
inappropriate photos of herself to him, telling her not to show them to anyone else, and
tried to progress from oral sex to vaginal sex with the minor victim over the course of a
year. PSI. The trial court’s additional statements on the record indicate it spent a great
deal of time explaining its rationale for the consecutive sentence it ultimately imposed.
Although the trial court stated it “gave great weight to” the joint recommendation for
concurrent sentencing, the trial court found that concurrent sentences were not warranted
because it ignored the seriousness of Stevens’ conduct. Sentencing Hrg. Tr. p. 13.
{¶ 20} Upon review of the record, we conclude that the trial court engaged in the
correct analysis, made the necessary findings required by R.C. 2929.14(C)(4), and
incorporated those findings into its judgment entry. We further conclude that the record
contains evidence to support the statutory findings for imposing consecutive sentences.
Thus, we are unable to clearly and convincingly find that the record fails to support the
trial court’s consecutive sentence findings. Accordingly, we overrule Stevens’ second
assignment of error.
IV. Conclusion
{¶ 21} Having overruled both assignments of error, the judgment of the trial court
is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Paul M. Watkins
Alan D. Gabel
Hon. Jeannine N. Pratt