State v. Newman , 2022 Ohio 4262 ( 2022 )

[Cite as State v. Newman, 2022-Ohio-4262.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2022-0010
JUSTIN NEWMAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2021-0242
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 28, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON
PROSECUTING ATTORNEY 8138 Somerset Road
TAYLOR P. BENNINGTON Thornville, Ohio 43076
ASSISTANT PROSECUTOR
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2022-0010 2
Wise, J.
{¶1} Defendant-Appellant Justin Newman appeals his sentence from the
Muskingum County Court of Common Pleas after entering a plea of guilty to one count
of Gross Sexual Imposition in violation of R.C. §2907.05(A)(1), and one count of Sexual
Battery in violation of R.C. §2907.03(A)(1). Plaintiff-Appellee is the State of Ohio. The
relevant facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On May 5, 2021, Appellant was indicted on one count of Kidnapping in
violation of R.C.§ 2905.01(A)(4), three counts of Gross Sexual Imposition in violation of
R.C. §2907.05(A)(4), one count of Attempted Rape in violation of R.C. §2923.02(A), and
two counts of Rape in violation of R.C. §2923.02(A).
{¶3} On August 5, 2021, Appellant entered a plea of guilty to one count of Gross
Sexual Imposition, in violation of R.C. §2907.05(A)(1) and one count of Sexual Battery,
in violation of R.C. §2907.03(A)(1).
{¶4} The trial court sentenced Appellant to eighteen months on the count of
Gross Sexual Imposition, and eight to twelve years on the count of Sexual Battery to be
served consecutively.
Assignments of Error
{¶5} Appellant timely filed a notice of appeal and herein raises the following two
Assignments of Error.
{¶6} “I. CONSECUTIVE SENTENCES WERE UNLAWFUL AND A VIOLATION
OF DUE PROCESS.
Muskingum County, Case No. CT2022-0010 3
{¶7} “II. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH O.R.C. 2929.11(B).”
I.
{¶8} In Appellant’s First Assignment of Error, Appellant argues the trial court
erred by imposing consecutive sentences. We disagree.
{¶9} R.C. §2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶1.
Pursuant to R.C. §2953.08(G)(2), an appellate court may only “increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing” if the court finds by clear and convincing evidence
“(a) [t]hat the record does not support the sentencing court’s findings[,]” or “(b) [t]hat the
sentence in otherwise contrary to law.” R.C. §2953.08(G)(2)(a)-(b).
{¶10} R.C. §2929.14(C)(4) concerns the imposition of consecutive sentences. In
Ohio, there is a statutory presumption in favor of concurrent sentences for most felony
offenses. R.C. §2929.41(A). The trial court may overcome this presumption by making
the statutory, enumerated findings set forth in R.C. §2929.14(C)(4). State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court
to undertake a three-part analysis in order to impose consecutive sentences.
{¶11} R.C. §2929.14(C)(4) provides:
(C)(4) 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 service
is necessary to protect the public from future crime or to punish the offender
Muskingum County, Case No. CT2022-0010 4
and that 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.
{¶12} Thus, in order for a trial court to impose consecutive sentences, the court
must find that consecutive sentences are necessary to protect the public from future
crime or to punish the offender. The court must also find that consecutive sentences are
not disproportionate to the offender’s conduct and to the danger the offender poses to
the public. Finally, the court must make at least one of three additional findings, which
include that (a) the offender committed one or more of the offenses while awaiting trial
or sentencing, while under a sanction imposed under R.C. §2929.16, §2929.17, or
§2929.18, or while under post release control for a prior offense; (b) at least two of the
Muskingum County, Case No. CT2022-0010 5
multiple offenses were committed as part of one or more courses of conduct, and the
harm caused by two or more of the offenses 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 would
adequately reflect the seriousness of the offender’s conduct; or (c) the offender’s criminal
history demonstrates that consecutive sentences are necessary to protect the public
from future crime by the offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018,
2013-Ohio-2058, ¶36.
{¶13} A trial court must make the findings required by R.C. §2929.14(C)(4) into its
sentencing entry; however, the trial court need not state specific reasons to support its
finding. “[A] word-for-word recitation of the language of the statute is not required, and
as 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. Bonnell, supra.{¶14} In the case sub judice, Appellant does not argue the trial court did not make
the proper findings, but rather that consecutive sentences in this instance were
unnecessary to protect the public and were disproportionate to the seriousness of the
offense.
{¶15} However, the trial court found that the harm caused to the victim, a minor,
was so great that a prison term on just one offense was not enough. Appellant, the
victim’s uncle, entered the victim’s room while she was playing with Barbies and engaged
in sexual conduct and sexual contact with the victim. The consecutive sentence was
necessary because of the harm caused and the danger Appellant presented to the
public.
Muskingum County, Case No. CT2022-0010 6
{¶16} The trial court made the required findings under R.C. §2929.14(C)(4) for
consecutive sentences. It was not contrary to law and was supported by the record.
{¶17} Appellant’s First Assignment of Error is overruled.
II.
{¶18} In Appellant’s Second Assignment of Error, Appellant argues the trial court
erred by sentencing him disproportionately, and this amounts to cruel and unusual
punishment. We disagree.
{¶19} The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted.”
{¶20} Section 9, Article I of the Ohio Constitution sets forth the same restriction:
“Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual
punishment inflicted.”
{¶21} “ ‘The Eighth Amendment does not require strict proportionality between
crime and sentence. Rather it forbids only extreme sentences that are “grossly
disproportionate” to the crime.’ ” State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d
167 (1999), quoting Harmelin v. Michigan, 501 U.S 957, 1001, 111 S.Ct. 2680, 115
L.Ed.2d 836 (1991), (Kennedy, J., concurring in part and in judgment). “A court’s
proportionality analysis under the Eighth Amendment should be guided by objective
criteria, including (i) gravity of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdictions. (Footnotes omitted.)”
State v. Morin, 5th Dist. Fairfield No. 2008-CA-10, 2008-Ohio-6707, ¶69, citing Solem v.
Muskingum County, Case No. CT2022-0010 7
Helm, 463 U.S. 277, 290-292, 103 S.Ct. 3001, 3010-3011, 77 L.Ed.2d 637, 649-650
(1983).
{¶22} “ ‘As a general rule, a sentence that falls within the terms of a valid statute
cannot amount to cruel and unusual punishment.’ ” State v. Hairston, 118 Ohio St.3d
289, 293, 2008-Ohio-2338, 888 N.E.2d 1073, ¶21, quoting McDougle v. Maxwell, 1 Ohio
St.2d 68, 69, 203 N.E.2d 334 (1964).
{¶23} In the case sub judice, Appellant argues that Appellant’s lack of criminal
history should provide for a less severe sentence than a defendant with prior convictions
committing the same crime. Appellant does not challenge the sentencing statutes
pursuant to which he was sentenced, nor does he argue he was not sentenced within a
range permitted by statute. Since the court considered the record, all statements, victim
impact statements, the principles and purposes of felony sentencing under R.C.
§2929.11, and seriousness and recidivism factors under R.C. §2929.12, we find
Appellant has not demonstrated his sentence constitutes cruel and unusual punishment
under the United States and Ohio Constitutions.
Muskingum County, Case No. CT2022-0010 8
{¶24} Appellant’s second Assignment of Error is overruled.
{¶25} For the foregoing reasons, the judgment of the Court of Common Pleas of
Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 1121