State v. Bell ( 2024 )

[Cite as State v. Bell, 2024-Ohio-1502.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 22CA1160
v. :
CHERITH BELL aka GAPI, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Christopher Pagan, Middletown, Ohio, for appellant1.
Aaron E. Haslam, Adams County Prosecuting Attorney, West Union,
Ohio, for appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:4-12-24
ABELE, J.
{¶1} This is an appeal from an Adams County Common Pleas Court
judgment of conviction and sentence. Cherith Bell, aka Gapi,
defendant below and appellant herein, entered a guilty plea to
pandering sexually oriented matter involving a minor.
{¶2} Appellant assigns three errors for review:
1
Different counsel represented appellant during the trial
court proceedings.
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FIRST ASSIGNMENT OF ERROR:
“BELL’S CONVICTION WAS UNCONSTITUTIONAL BECAUSE
SHE RECEIVED INEFFECTIVE ASSISTANCE [IAC] AT
THE PLEA PROCEEDING.”
SECOND ASSIGNMENT OF ERROR:
“BELL’S CONVICTION WAS UNCONSTITUTIONAL UNDER
DUE PROCESS BECAUSE HER PLEA WAS NOT KNOWING,
INTELLIGENT, OR VOLUNTARY.”
THIRD ASSIGNMENT OF ERROR:
“BELL’S PRISON SANCTION WAS CONTRARY TO LAW.”
{¶3} Appellant and her late husband, Mizael Gapi, engaged in
and recorded sexual activity with a 14-year-old victim and
published the video to the victim. After her husband entered a
guilty plea to pandering sexually oriented matter involving a minor
in violation of R.C. 2907.322(A)(1), the trial court sentenced him
to serve an indefinite stated term of 8 to 12 years in prison.
During his incarceration, Gapi took his own life.
{¶4} An Adams County Grand Jury also returned an indictment
that charged appellant with (1) one count of pandering sexually
oriented matter involving a minor in violation of R.C.
2907.322(A)(1), a second-degree felony, and (2) one count of
disseminating matter harmful to juveniles with the finding that the
material or performance involved is obscene in violation of R.C.
2907.31(A)(1), a fifth-degree felony. Appellant entered not guilty
pleas.
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{¶5} Subsequently, appellant asked to set the matter for a
plea hearing. At the hearing appellant acknowledged that she and
her late husband engaged in sexual activity with a 14-year-old
female. Appellant stated that she “thought she was 16, almost 17.”
In addition, appellant stated that she intentionally recorded and
published the sex videos to the victim. The trial court reviewed
the plea agreement, item by item, and explained the consequences of
a guilty plea, the maximum sentence, post-release control
consequences, sex offender registration requirements, financial
sanctions, and all rights appellant would waive. Appellant then
entered a guilty plea to pandering sexually oriented matter
involving a minor in violation of R.C. 2907.322(A)(1), a second-
degree felony. The state dismissed count two of the indictment.
{¶6} At the sentencing hearing, the trial court also
acknowledged that it reviewed the pre-sentence investigation
report, the victim impact statements, and a summary of the pre-
sentence investigation report. The victim’s mother spoke about the
severe impact on her daughter and family’s lives, along with
appellant and her father. The court observed that appellant “had
oral, vaginal * * * sex * * * with the victim and the victim
performed * * * oral vaginal sex on * * * appellant,” and appellant
and her late husband “took video recordings of the encounters.”
{¶7} The trial court stated that, although appellant had shown
“some genuine remorse” and stated that she “had no intention of
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doing what [she] did,” the court noted “the inherent problem with
that statement is that there was a lot of calculations, curfews,
house arrest contacts in order to effectuate this encounter.” The
court acknowledged that this case is a case that “keeps Judges up”
to balance the victims’ statements and the appellant’s family’s
statements. Nevertheless, the court concluded, “there are times
when people do things so outlandish, so misguided, malicious,
undeserving, and that’s our world now somehow justified the things
that people attempt to do, in this case, you effectuated it.” The
court further noted that the victim could not be restored, nor
could the court assist the desires of the appellant’s father, who
“is a good man and loves his daughter.” However, the court pointed
out, “there must be punishment and in, in this court’s opinion it
must be harsh for the act some people when they do things beyond
the pale of comprehension.”
{¶8} The trial court then sentenced appellant to (1) serve an
indefinite stated term of 7 to 10 ½ years in prison, (2) serve a
mandatory post-release control term of up to five years, (3)
register as a tier two sex offender for 25 years, and (4) pay $300
restitution and costs. This appeal followed.
I.
{¶9} In her first assignment of error, appellant asserts that
trial counsel rendered ineffective assistance of counsel. In
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particular, appellant contends that because the victim and
appellant’s late husband lied to appellant about the victim’s age,
appellant believed the victim “was a lawful sexual partner,” and,
thus, she lacked the mens rea required for pandering sexually-
oriented matter involving a minor. Therefore, appellant argues,
her trial counsel did not perform reasonably based on her
misunderstanding of the mens rea element of pandering sexually
oriented matter involving a minor.
{¶10} “Due process requires that a defendant's plea be made
knowingly, intelligently, and voluntarily; otherwise, the
defendant's plea is invalid.” State v. Medina, 8th Dist. Cuyahoga
No. 109693, 2021-Ohio-1727, ¶ 6, citing State v. Bishop, 156 Ohio
St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10, citing State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25.
See State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996),
citing Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582,
71 L.Ed. 1009 (1927) (“When a defendant enters a plea in a criminal
case, the plea must be knowingly, intelligently, and voluntarily.
Failure on any of those points renders enforcement of the plea
unconstitutional under both the United State Constitution and the
Ohio Constitution.”); State v. Robinson, 8th Dist. Cuyahoga No.
110467, 2022-Ohio-1311, ¶ 20.
{¶11} The standard of review for ineffective assistance of
counsel claims is de novo. State v. Weaver, 171 Ohio St.3d 429,
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2022-Ohio-4371, 218 N.E.3d 806 ¶ 25, citing State v. Gondor, 112
Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. However, a guilty
plea generally waives a defendant's right to claim that counsel’s
ineffectiveness prejudiced the defendant, except to the extent that
the ineffective assistance of counsel caused the defendant's plea
to be less than knowing, intelligent, and voluntary. State v.
Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11-12,
citing State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351(1992), citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct.
1602, 36 L.Ed.2d 235 (1973).
{¶12} To establish trial counsel’s ineffectiveness, a defendant
must show that counsel's performance was deficient and that the
deficient performance prejudiced the defendant. State v. Bunch,
171 Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773, ¶ 26, citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674. This requires showing that counsel made errors so
serious that counsel failed to function as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. Id.Thus, the question is whether counsel was deficient in her
representation of appellant.
{¶13} In the context of a defendant who entered a guilty plea,
the defendant can prevail under this standard only by demonstrating
(1) deficient performance by counsel, i.e., performance falling
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below an objective standard of reasonable representation, that
caused the defendant's guilty plea to be less than knowing,
intelligent and voluntary, and (2) a reasonable probability that,
but for counsel's deficient performance, the defendant would not
have pled guilty to the offenses at issue and would have insisted
on going to trial. State v. Khoshknabi, 8th Dist. Cuyahoga No.
106117, 2018-Ohio-1752, ¶ 29. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’”
State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989),
quoting Strickland at 694.
{¶14} As a general matter, defense counsel's tactical decisions
and trial strategies — even “debatable” ones — do not constitute
ineffective assistance of counsel. See, e.g., State v. Black,
2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.); see also State
v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶
101, 111. Therefore, reviewing courts “will ordinarily refrain
from second-guessing strategic decisions counsel make at trial,”
even where trial counsel's strategy was “questionable” and even
where appellate counsel argues that they would have defended
against the charges differently. State v. Myers, 97 Ohio St.3d
335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 152; State v. Mason, 82 Ohio
St.3d 144, 169, 694 N.E.2d 932 (1998); State v. Murphy, 4th Dist.
Ross No. 07CA2953, 2008-Ohio-1744, ¶ 42.
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{¶15} In the case sub judice, appellant argues that her trial
counsel's failure to understand the mens rea requirements of R.C.
2907.322(A)(1) (pandering sexually oriented matter involving a
minor) and corresponding failure to advise her to plead guilty
instead to R.C. 2907.31(A)(1) (disseminating matter harmful to
juveniles) rendered her plea involuntary because it forced her to
accept a plea she would not otherwise have accepted when she should
have instead entered a guilty plea to disseminating matter harmful
to juveniles in violation of R.C. 2907.31. Appellant thus contends
that trial counsel did not fully understand R.C. 2907.322(A)’s mens
rea. Specifically, appellant argues that counsel did not
comprehend the difference between character and content.
R.C. 2907.322(A)(1) provides:
(A) No person, with knowledge of the character of the
material or performance involved, shall do any of the
following:
(1) Create, record, photograph, film, develop, reproduce,
or publish any material that shows a minor or impaired
person participating or engaging in sexual activity,
masturbation, or bestiality;
Thus, R.C. 2907.322(A)(1) requires that an offender have “knowledge
of the character of the material or performance involved.” R.C.
2901.22(B) defines “knowledge,” and states, in relevant part, that
[a] person has knowledge of circumstances when the person
is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a
person subjectively believes that there is a high
ADAMS, 22CA1160 9
probability of its existence and fails to make inquiry or
acts with a conscious purpose to avoid learning the fact.
Therefore, “to have knowledge, a person need only believe that
certain circumstances probably exist, not that they exist with 100%
certainty.” State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-
Ohio-3145, ¶ 36. See also State v. Sotelo, 6th Dist. Lucas No. L-
19-1240, 2020-Ohio-5368, (defendant acknowledged seeing a thumbnail
of a video of a child and forensic examination revealed defendant
deleted child pornography videos she sent to her boyfriend,
permitting jury to draw reasonable inference defendant knew of the
illicit nature of videos.); State v. Burgun, 56 Ohio St.2d 354,
364, 384 N.E.2d 255 (1978)(precise knowledge of contents of obscene
material not prerequisite to satisfy requirement of scienter to
sustain obscenity conviction and knowledge of character or nature
of obscene material is a constitutionally adequate indicium of
scienter to sustain a conviction.); State v. Jenkins, 1st Dist.
Hamilton No. C–040111, B–0105517–A, 2004-Ohio-7131, (sufficient
evidence of pandering obscenity when defendant knew of character of
the material in a videotape; state need not prove defendant knew
beforehand that materials would be judicially determined obscene).
{¶16} In State v. Kraft, 1st Dist. Hamilton No. C-060238, 2007-
Ohio-2247, the First District concluded that to establish an R.C.
2907.322(A)(1) violation, the state must “prove that Kraft knew the
character of the material: that it involved a real minor engaging
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or participating in sexual activity. The state does not need to
show that the defendant had precise knowledge of the contents of
the material,” Id. at ¶ 87, citing Burgun, supra, 56 Ohio St.2d at
364. The court further observed, “A person has knowledge of
circumstances when he is aware that such circumstances probably
exist,” citing R.C. 2901.22(B), and the state may rely solely on
circumstantial evidence to prove that the defendant knew the
character of the material. Id.{¶17} In the case sub judice, R.C. 2907.322(A)(1) required the
state to prove that appellant knew the character of the material
she published to the victim. At her plea hearing, the trial court
asked appellant “how old was the girl?” Appellant replied, “She was
14 at the time.” The court asked, “So, you, you knew at the time
she was a minor, less than 18 years of age?” Appellant replied, “I
thought she was 16, almost 17.” The court asked, “But you knew she
was less than 18 years of age?” Appellant replied, “Yes.” The
court then asked, “And did you create, record, photograph, film,
develop, reproduce, or publish material?” Appellant replied, “Yes,
* * * record.” Finally, the court asked, “And did you publish that
to anybody? Did you send it to anybody?” Appellant responded,
“Um, I sent it to the girl.” When asked, “And that what you sent
and recorded, did it show the minor you’re referring to the girl
participating or engaging in sexual activity?,” appellant replied,
“Yes.” The court then asked, “and what was the sexual activity?”
ADAMS, 22CA1160 11
Appellant, replied, “it involved me and her and her and my
husband.” The court inquired, “And was it vaginal penetration of
your husband with, with his penis of her vagina?” Appellant
replied, “Yes.” The court further asked, “And your involvement,
did you with the, the minor, was it, um, the act of cunnilingus or
did you penetrate her in any way, albeit minimal with any of your
fingers or digits?” Appellant replied, “Yes.” Finally, the court
asked, “when you recorded this, * * * was it by accident or did you
intentionally record this act of sexual activity with a minor?”
Appellant replied, “Yes.” When asked again, “it was intentional?”
Appellant replied, “Yes.”
{¶18} Thus, it appears that appellant acknowledged (1) the
victim was a minor (under the age of 18) (R.C. 2907.01(M)), (2)
appellant personally recorded her late husband and herself engaging
in sex acts with the victim, and (3) appellant then published that
material when appellant transmitted that recording to the victim.
We believe that these facts sufficiently established that appellant
possessed the requisite mens rea for a pandering conviction
pursuant to R.C. 2907.322(A)(1). Appellant created and published
the video knowing that the character of the video included “a minor
* * * participating or engaging in sexual activity * * * as
prohibited by R.C. 2907.322(1).” Although we recognize appellant
acted at the behest of her late husband, we conclude that trial
counsel did not render a deficient performance. Therefore, we
ADAMS, 22CA1160 12
conclude that no reasonable probability exists that, but for
counsel’s errors, appellant would not have entered a guilty plea.
{¶19} Accordingly, based on the foregoing reasons, we overrule
appellant’s first assignment of error.
II.
{¶20} In her second assignment of error, appellant asserts that
she did not enter a knowing, intelligent, and voluntary plea.
Here, appellant claims that authorities led her to believe that “it
was irrelevant that [her late husband] and [the victim] conspired
to lie about [the victim’s] age and did so.”
{¶21} In general, when deciding whether to accept a plea a
court must determine whether a defendant enters the plea knowingly,
intelligently, and voluntarily. State v. McDaniel, 4th Dist.
Vinton No. 09CA677, 2010-Ohio-5215, ¶ 8. “‘In considering whether
a guilty plea was entered knowingly, intelligently and voluntarily,
an appellate court examines the totality of the circumstances
through a de novo review of the record to ensure that the trial
court complied with constitutional and procedural safeguards.’”
(Emphasis sic.) Id., quoting State v. Eckler, 4th Dist. Adams No.
09CA878, 2009-Ohio-7064, ¶ 48; State v. Hearn, 4th Dist. Washington
No. 20CA7, 2021-Ohio-594, ¶ 18; State v. Willoughby, 4th Dist.
Pickaway No. 20CA5, 2021-Ohio-2611, ¶ 32.
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{¶22} “Before accepting a guilty plea, the trial court should
engage in a dialogue with the defendant as described in Crim.R.
11(C).” McDaniel at ¶ 8, citing State v. Morrison, 4th Dist. Adams
No. 07CA854, 2008-Ohio-4913, ¶ 9. Crim.R. 11(C)(2) provides:
In felony cases the court may refuse to accept a plea of
guilty or a plea of no contest, and shall not accept a plea
of guilty or no contest without first addressing the
defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the
charges and of the maximum penalty involved and if
applicable, that the defendant is not eligible for
probation or for the imposition of community control
sanctions at the sentencing hearing.
* * *
{¶23} Substantial compliance with Crim.R. 11(C)(2)(a) is
sufficient for a valid plea concerning nonconstitutional rights.
State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621,
¶ 14. “‘Substantial compliance means that, under the totality of
the circumstances, appellant subjectively understood the
implications of his plea and the rights he waived.’” McDaniel at ¶
13, quoting State v. Vinson, 10th Dist. Franklin No. 08AP-903,
2009-Ohio-3240, ¶ 6. As the Supreme Court of Ohio explained in
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
¶ 32:
When the trial judge does not substantially comply with
Crim.R. 11 in regard to a nonconstitutional right,
reviewing courts must determine whether the trial court
partially complied or failed to comply with the rule. If
ADAMS, 22CA1160 14
the trial judge partially complied, e.g., by mentioning
mandatory postrelease control without explaining it, the
plea may be vacated only if the defendant demonstrates a
prejudicial effect. The test for prejudice is “whether
the plea would have otherwise been made.” If the trial
judge completely failed to comply with the rule, e.g., by
not informing the defendant of a mandatory period of
postrelease control, the plea must be vacated. “A complete
failure to comply with the rule does not implicate an
analysis of prejudice.” (Emphasis sic.) (Citations
omitted.)
{¶24} “Crim.R. 11(C)(2)(b) requires the trial court to inform
the defendant of the effect of his guilty or no-contest plea and to
determine whether he understands that effect.” State v. Jones, 116
Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 12; State v.
Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 10-12.
“To satisfy the effect-of-plea requirement under Crim.R.
11(C)(2)(b), a trial court must inform the defendant, either orally
or in writing of the appropriate language of Crim.R. 11(B).” Jones
at ¶ 25, 51. Further, a trial court must also inform the defendant
that upon acceptance of his pleas, it “may proceed with judgment
and sentence.” Crim.R. 11(C)(2)(b).
{¶25} In the case sub judice, appellant claims that her late
husband and the victim “conspired to lie about [the victim’s] age
and did so.” Thus, appellant contends that authorities led her to
believe that this alleged conspiracy was irrelevant. As the state
points out, however, the record is clear that appellant knew the
victim was under age 18 when she engaged in sexual activity, when
ADAMS, 22CA1160 15
she recorded the sexual activity, and when she published the video.
In addition, appellant contends that the trial court overlooked the
mens rea for pandering that required appellant to know the involved
character of the videos, but we believe that this argument has no
merit for the reasons outlined in the discussion of appellant’s
first assignment of error.
{¶26} At the change of plea hearing in the case at bar, the
state agreed to dismiss count two of the indictment. The trial
court addressed appellant, discussed the charges and maximum
sentence, and explained the various rights appellant would waive
with her guilty plea. The court inquired whether appellant had
consulted with her attorney, whether she was satisfied with her
representation, and whether she had any questions regarding the
consequences of her plea. Appellant indicated multiple times that
she understood her plea’s implications. Further, appellant
acknowledged that she understood the allegations, the elements, and
the recommended sentence. See State v. Jackson, 2023-Ohio-3895,
226 N.E.3d. 518 (4th Dist.), ¶ 37.
{¶27} Therefore, after our review, we believe that the trial
court complied with the applicable rules. Further, appellant
acknowledged that she understood the implications of her plea and
the various rights she would waive through a guilty plea.
Appellant, represented by counsel at the plea hearing, did not
assert her innocence, and nothing suggests any confusion or lack of
ADAMS, 22CA1160 16
understanding regarding the effect of her guilty plea.
{¶28} Accordingly, because appellant failed to establish
prejudice, we conclude that appellant knowingly, voluntarily, and
intelligently entered her guilty pleas and we overrule appellant's
second assignment of error.
III.
{¶29} In her final assignment of error, appellant asserts that
at sentencing the trial court neglected to fully consider the
seriousness factors and improperly considered various extraneous
factors.
{¶30} When reviewing felony sentences, appellate courts apply
the standard of review set forth in R.C. 2953.08(G)(2). State v.
Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, at ¶ 12,
citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-
1277, at ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate court's
standard for review is not whether the sentencing court abused its
discretion.” Instead, R.C. 2953.08(G)(2) specifies that an
appellate court may increase, reduce, modify, or vacate and remand
a challenged felony sentence if the court clearly and convincingly
finds either:
(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.
ADAMS, 22CA1160 17
“[C]lear 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 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. Thus, an appellate
court may vacate or modify any sentence that is not clearly and
convincingly contrary to law if the appellate court concludes, by
clear and convincing evidence, that the record does not support the
sentence.
{¶31} The Supreme Court of Ohio has summarized the
applicability of R.C. 2929.11 and 2929.12 as follows:
In Ohio, two statutory sections serve as a general guide
for every sentencing. First, R.C. 2929.11(A) provides that
the overriding purposes of felony sentencing “are to
protect the public from future crime by the offender and
others and to punish the offender.” To achieve these
purposes, the trial court “shall consider the need for
incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender, and
making restitution.” Id. The sentence must be
“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.” R.C. 2929.11(B). * * *
Second, R.C. 2929.12 specifically provides that in
exercising its discretion, a trial court must consider
certain factors that make the offense more or less serious
and that indicate whether the offender is more or less
likely to commit future offenses. * * *
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[A]n offender's conduct is considered less serious when
there are “substantial grounds to mitigate the offender's
conduct, although the grounds are not enough to constitute
a defense.” R.C. 2929.12(C)(4). R.C. 2929.12(C) and (E)
also permit a trial court to consider “any other relevant
factors” to determine that an offense is less serious or
that an offender is less likely to recidivate.
State v. Day, 2019-Ohio-4816, 149 N.E.3d 122, ¶ 15 (4th Dist.),
quoting State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d
890, ¶ 17–18. This court has held that, generally, a sentence is
not contrary to law if a trial court considered the R.C. 2929.11
purposes and principles of sentencing, as well as the R.C. 2929.12
seriousness and recidivism factors, properly applied post-release
control, and imposed a sentence within the statutory range. Prater
at ¶ 20; Graham at ¶ 16; State v. Perry, 4th Dist. Pike No.
16CA863, 2017-Ohio-69, ¶ 21; State v. Bowling, 4th Dist. Jackson
No. 19CA2, 2020-Ohio-813, ¶ 7. Moreover, neither R.C. 2929.11 nor
2929.12 requires a trial court to make any specific factual
findings on the record. State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, ¶ 20, citing State v. Wilson, 129 Ohio
St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31.
{¶32} In the case sub judice, at the sentencing hearing the
trial court referred to the R.C. 2929.11 purposes of felony
sentencing and stated that it had “considered the seriousness of
recidivism factors of R.C. 2929.12.” The court further stated, “I
cannot restore the victim, I cannot restore [the victim’s mother],
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to a sense of comfort or closure, and I cannot assist the desires
of your father.” Moreover, the court’s decision stated that it
considered both the R.C.2929.11 and R.C. 2929.12 sentencing
factors. A trial court's statement in its sentencing journal entry
that it considered the required statutory factors is alone
sufficient to fulfill its obligations under R.C. 2929.11 and
2929.12. State v. Smith, 4th Dist. 22CA3, 22CA4, 2023-Ohio-681;
State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015–
Ohio–4074, ¶ 72, citing State v. Clayton, 8th Dist. Cuyahoga No.
99700, 2014–Ohio–112, ¶ 9.
{¶33} Appellant also asserts that the trial court relied on
extraneous factors and notes the court’s statement, “There is a
presumption of * * * a prison term and, * * * the court finds your
actions * * * to be literally beyond the pale of comprehension of
this court * * *.” The court further stated, “I cannot restore the
victim. I cannot restore [the victim’s mother] to * * * a sense of
* * * comfort or closure.” Finally, the court stated, “I cannot
assist * * * the desires of your father who * * * is a good man and
loves his daughter. But there must be punishment and * * * in this
court’s opinion it must be harsh for the act some people when they
do things beyond the pale of comprehension.”
{¶34} Appellant cites State v. Bryant, 168 Ohio St.3d 250,
2022-Ohio-1878, 198 N.E.3d 68, ¶ 22 for the proposition that the
court based its sentence on a subjective factor, i.e., “beyond the
ADAMS, 22CA1160 20
pale of comprehension.” Bryant, however, simply reiterates that a
court may not base a sentence on “impermissible considerations -
i.e., considerations that fall outside those that are contained in
R.C. 2929.11 and 2929.12.” Id. Here, the trial court’s statement
that appellant’s actions were “beyond the pale” was simply a
consideration during the portion of the sentencing hearing in which
the court analyzed the R.C. 2929.11 and R.C. 2929.12 factors.
{¶35} Appellant does not explain how this statement constitutes
an improper reliance on extraneous factors. Appellant’s actions
severely damaged a young girl and her family. Thus, we believe the
court’s statement reflects to the seriousness of the offense
pursuant to R.C. 2929.12, nothing more.
{¶36} Finally, appellant contends that the age of consent in
Ohio is 16 years old, R.C. 2907.04(A), and appellant’s late husband
and the victim “lied to [appellant] about [the victim’s] age.”
Thus, appellant asserts that she “cannot be punished for it.” As
the state points out, however, regardless of whether appellant’s
late husband misled her to believe the victim’s age of 16 rather
than her actual age of 14, appellant nevertheless violated R.C.
2907.322(A) because the victim was a juvenile. See R.C.
2907.01(M).
{¶37} After our review, we believe that the trial court
complied with all pertinent sentencing requirements, reviewed and
considered the presentence investigation report, parties’
ADAMS, 22CA1160 21
arguments, victim impact statements and sentencing hearing
testimony, and arrived at a sentence that falls within the
statutory range. Consequently, we conclude that the record
supports the trial court’s sentence and the sentence is not
contrary to law.
{¶38} Accordingly, based upon the foregoing reasons, we
overrule appellant's third assignment of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
ADAMS, 22CA1160 22
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall
recover from appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Adams County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.