State v. Norman , 2014 Ohio 3010 ( 2014 )

[Cite as State v. Norman, 2014-Ohio-3010.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-13-50
v.
TORRANCE K. NORMAN, II, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 13 CR 0079
Judgment Affirmed
Date of Decision: July 7, 2014
APPEARANCES:
Jonathan G. Stotzer for Appellant
Brian O. Boos for Appellee
Case No. 13-13-30
PRESTON, J.
{¶1} Defendant-appellant, Torrance K. Norman, II (“Norman”), appeals the
judgment entry of sentence of the Seneca County Court of Common Pleas
sentencing him to a total term of imprisonment of 19 years following his guilty
pleas to four counts of rape, four counts of sexual battery, two counts of gross
sexual imposition, and one count of importuning. He argues that the trial court’s
sentences were excessive. For the reasons that follow, we affirm.
{¶2} On May 22, 2013, the Seneca County Grand Jury indicted Norman on
13 counts: Counts One, Three, Five, Seven, and Nine of rape in violation of R.C.
2907.02(A)(2), (B), first-degree felonies; Counts Two, Four, Six, Eight, and Ten
of sexual battery in violation of R.C. 2907.03(A)(5), (B), third-degree felonies;
Counts Eleven and Twelve of gross sexual imposition in violation of R.C.
2907.05(A)(1), (C)(1), fourth-degree felonies; Count Thirteen of importuning in
violation of R.C. 2907.07(B)(1), (F)(3), a fifth-degree felony. (Doc. No. 1).
{¶3} On June 6, 2013, Norman entered pleas of not guilty to the counts of
the indictment. (Doc. No. 15).
{¶4} On August 26, 2013, Norman and plaintiff-appellee, the State of Ohio,
reached a plea agreement, and the trial court held a change-of-plea hearing. (See
Aug. 26, 2013 Tr. at 3); (Doc. Nos. 22, 23, 24). As part of the plea agreement, the
State agreed to dismiss Counts Five and Six at the time of sentencing. (Aug. 26,
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2013 Tr. at 5, 17); (Doc. Nos. 23, 27). In return, Norman agreed to plead guilty to
Counts One, Two, Three, Four, Seven, Eight, Nine, Ten, Eleven, Twelve, and
Thirteen. (Aug. 26, 2013 Tr. at 22-26); (Doc. Nos. 23, 24). The trial court
accepted Norman’s guilty pleas and found him guilty on those counts. (Aug. 26,
2013 Tr. at 26); (Doc. No. 24).
{¶5} The trial court held a sentencing hearing on October 2, 2013. (Oct. 2,
2013 Tr. at 3); (Doc. No. 29). The plea agreement did not contain a joint sentence
recommendation; however, in its open sentence recommendation, the State
recommended that the trial court impose a total prison term of 21 years. (Doc. No.
23). At the sentencing hearing, the trial court concluded that Counts Seven and
Eight were allied offenses and merged them for purposes of sentencing. (Oct. 2,
2013 Tr. at 34); (Doc. No. 29). The State elected to proceed on the rape
conviction as set forth in Count Seven. (Id. at 35); (Id.).
{¶6} The trial court sentenced Norman to: seven years imprisonment on
Count One; 48 months imprisonment on Count Two; seven years imprisonment on
Count Three; 48 months imprisonment on Count Four; five years imprisonment on
Count Seven; five years imprisonment on Count Nine; 48 months imprisonment
on Count Ten; 12 months imprisonment on Count Eleven; 12 months
imprisonment on Count Twelve; and 10 months imprisonment on Count Thirteen.
(Id. at 39-40); (Doc. No. 29). The trial court ordered that Norman serve: the
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sentences for Counts One and Two concurrently to each other but consecutively to
all other sentences; the sentences for Counts Three and Four concurrently to each
other but consecutively to all other sentences; the sentence for Count Seven
concurrently to all other sentences; the sentences for Counts Nine and Ten
concurrently to each other but consecutively to all other sentences; and the
sentences for Counts Eleven, Twelve, and Thirteen concurrently to each other and
concurrently to all other sentences. (Id. at 41); (Id.). The total term of
imprisonment to which the trial court sentenced Norman was 19 years. (Id.); (Id.).
{¶7} The trial court dismissed Counts Five and Six after granting the
State’s motion to dismiss those counts. (Doc. Nos. 27, 28).
{¶8} The trial court filed its judgment entry of sentence on October 4, 2013.
(Doc. No. 29).
{¶9} On November 1, 2013, Norman filed a notice of appeal. (Doc. No.
33). He raises one assignment of error for our review.
Assignment of Error
The sentences of the trial court were excessive.
{¶10} In his assignment of error, Norman argues that his 19-year sentence
“is so grossly disproportionate to the Offenses [sic] that it does shock the sense of
Justice [sic] of the Community [sic].” (Appellant’s Brief at 16). Specifically,
Norman argues that the three cases cited by the State at the sentencing hearing
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involved sentences of at least six years fewer than his 19-year sentence. He also
argues that he has no substantial prior record, no violent history, no sex offense
record, and no felony record, that he was employed at Whirlpool at the time of the
offenses, that no weapon was used in the offenses, that he had an untreated
drinking problem that impacted his conduct, and that he has accepted
responsibility for his actions.
{¶11} 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; that 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. Defiance No. 4-06-
24, 2007-Ohio-767, ¶ 23 (stating that “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. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶
4; State v. Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19,
citing R.C. 2953.08(G).
{¶12} 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. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
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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. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,
quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).
{¶13} Norman does not argue that his sentence is contrary to law, that the
trial court did not follow the sentencing statutes’ procedure, or that there was not a
sufficient basis for the imposition of a prison term. Nor does Norman argue that
the trial court failed to consider R.C. 2929.11 and 2929.12, or that the trial court
failed to make the necessary consecutive-sentences findings under R.C. 2929.14.
Therefore, we will not address those issues. Rather, it appears that Norman argues
that his sentence is unsupported by the record and that it is disproportionate to
sentences in similar cases.
{¶14} The record supports the findings that the trial court made when it
considered the applicable sentencing statutes. Norman’s victim was his
stepdaughter, who was 14 and 15 years old at the time of the offenses. (Oct. 2,
2013 Tr. at 36); (Presentence Investigation Report (“PSI”)). The trial court
summarized the nature of Norman’s offenses, which took place over the course of
nine months:
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Vaginal intercourse occurred at least ten times. The cunnilingus
occurred at least one time. The felatio [sic] occurred at least two
times. That the victim’s breasts were kissed at least three times.
That there was digital penetration at least five times. There was
masturbation performed on the Defendant at least two times. And
then she was felt up or touched numerous times.
(Oct. 2, 2013 at 39). (See also PSI). Norman threatened the victim by saying,
“Snitches get stitches,” among other things. (Oct. 2, 2013 at 37-38); (PSI).
{¶15} The stepfather-stepdaughter relationship facilitated the offenses. (Id.
at 37); (Id.). The victim suffered serious psychological harm as a result of the
offenses. (Id. at 20-24, 36); (Id.); (Victim Impact Statements). Specifically, the
victim cut herself and had thoughts of suicide. (Id. at 23, 37); (Id.); (Id.). Her
academic performance has declined dramatically, and she has trust issues and
nightmares. (Id. at 21-23, 37); (Id.); (Id.). The injury to the victim was worsened
by the physical and mental condition and age of the victim. (Id. at 36); (Id.); (Id.).
The trial court also observed that Norman did not show genuine remorse for the
offense and continues to blame alcohol for his actions. (Oct. 2, 2013 Tr. at 37);
(PSI). Indeed, even in his brief, Norman argues that he “had an untreated drinking
problem which impacted his conduct.” (Appellant’s Brief at 17).
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{¶16} Norman faced a total prison sentence of 63 years based on the
offenses to which he pled guilty. See R.C. 2929.14. The State recommended a
total sentence of 21 years imprisonment. (Doc. No. 23); (Oct. 2, 2013 Tr. at 17).
The trial court sentenced Norman to a total of 19 years in prison—less than one-
third of the total amount of prison time he faced after pleading guilty. (Doc. No.
29); (Oct. 2, 2013 Tr. at 41). Based on our review of the record, we cannot
conclude that Norman’s sentence was unsupported by the record.
{¶17} Norman also argues that his sentence is disproportionate to sentences
in similar cases—namely, three cases cited by the State at the sentencing hearing.
“A defendant alleging disproportionality in felony sentencing has the burden of
producing evidence to ‘indicate that his sentence is directly disproportionate to
sentences given to other offenders with similar records who have committed these
offenses * * *.’” State v. Ewert, 5th Dist. Muskingum No. CT2012-0002,
2012-Ohio-2671, ¶ 31, quoting State v. Breeden, 8th Dist. Cuyahoga No.
84663, 2005-Ohio-510, ¶ 81. If a defendant fails to argue to the trial court that his
sentence is not consistent with or proportionate to sentences imposed for similar
crimes committed by similar offenders, then the defendant waives that issue for
appeal. Ewert at ¶ 31 , citing State v. Santiago, 8th Dist. Cuyahoga No. 95516,
2011-Ohio-3058, ¶ 42 and State v. Lycans, 8th Dist. Cuyahoga No. 93480, 2010-
Ohio-2780, ¶ 5.
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{¶18} At the sentencing hearing in this case, the State cited three cases in
which the Seneca County Court of Common Pleas sentenced defendants for
similar offenses. (Oct. 2, 2013 Tr. at 8-10). After the State spoke, neither
Norman’s counsel nor Norman raised the issue of sentence proportionality or
otherwise offered any information concerning sentences imposed for similar
crimes committed by similar offenders. (See id. at 24-28). The trial court
proceeded to sentence Norman, noting that that it “considered its previous
sentences and various cases,” including the three cases mentioned by the State and
two other cases. (Id. at 28-29). After the trial court sentenced Norman, his
counsel informed the trial court, when asked, that they had nothing further for the
trial court. (Id. at 42-43).
{¶19} Not only did Norman fail to raise the issue of sentence
proportionality before the trial court, he also failed to offer any information to the
trial court concerning sentences imposed for similar crimes committed by similar
offenders. Even assuming Norman did not waive the sentencing-proportionality
issue for appeal, based on the State’s descriptions of the cases it cited at the
sentencing hearing, it is clear that Norman’s total sentence is not disproportionate
to the total sentences in those cases.
{¶20} The first of the State’s cited cases, State v. Risner, case number 10
CR 0099, involved a total 13-year sentence for one count each of rape, sexual
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battery, and gross sexual imposition. (Id. at 8-9). According to the State, the
victim in that case was “a child in the household.” (Id. at 8). The second case,
State v. Phillips, case number 09 CR 0062, involved a total 13-year sentence for
one count of attempted rape and two counts of gross sexual imposition. (Id. at 9).
According to the State, the victim in that case “was similar in age” to the victim in
Norman’s case. (Id.). The third case, State v. Depinet, case number 11 CR 0288,
involved a total 9-year sentence for one count of attempted rape, two counts of
gross sexual imposition, and one count of importuning. (Id. at 9-10). The State
did not describe the victim in that case. (See id.).
{¶21} The trial court sentenced Norman on four counts of rape, three
counts of sexual battery, two counts of gross sexual imposition, and one count of
importuning. (See Doc. No. 29). Each of the cases cited by the State involved
fewer than half of the number of offenses on which the trial court sentenced
Norman. Furthermore, the trial court sentenced Norman on four first-degree
felonies, all rape offenses. Phillips and Depinet involved no first-degree felonies,
and Risner involved only one first-degree felony. Therefore, Norman’s total
sentence was not disproportionate to the sentences in the three cases cited by the
State at the sentencing hearing.
{¶22} Norman’s assignment of error is overruled.
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{¶23} 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
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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