State v. Anderson ( 2012 )

[Cite as State v. Anderson, 2012-Ohio-3245.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
State of Ohio, :
:
Plaintiff-Appellee, :
: Case No. 10CA44
v. :
: DECISION AND
Eugene Robert Anderson, : JUDGMENT ENTRY
:
Defendant-Appellant. : Filed: July 17, 2012
______________________________________________________________________
APPEARANCES:
Bryan M. Griffith, Sanborn, Brandon, Duvall & Bobbitt Co., L.P.A., Columbus, Ohio, for
Appellant.
James Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
______________________________________________________________________
Kline, J.:
{¶1} Eugene Anderson appeals the judgment of the Washington County Court of
Common Pleas, which convicted him of 108 felony offenses. Anderson contends that
the trial court erred when it imposed a two-to-ten year sentence for Anderson’s
corruption -of-a-minor conviction. Because the record does not support a two-to-ten
year sentence for Anderson’s corruption of a minor conviction, we agree. Next,
Anderson contends that one of his convictions for promoting prostitution was barred by
the statute of limitations. Because Anderson waived this defense, we disagree. Next,
Anderson contends that the trial court erred when it imposed non-minimum and
maximum sentences upon him. Because the trial court had discretion to impose non-
minimum and maximum sentences, we disagree. Next, Anderson argues that the trial
Washington App. No. 10CA44 2
court erred by imposing consecutive sentences upon him without making findings
required by R.C. 2929.14. Because the trial court was not required to make findings
before imposing consecutive sentences upon Anderson, we disagree. Finally,
Anderson argues that his sentence constitutes cruel and unusual punishment in
violation of the Ohio Constitution and the Eighth Amendment to the United States
Constitution. Because Anderson has not shown that any of his sentences were
disproportionate to the applicable offenses, we disagree.
{¶2} Accordingly, we reverse, in part, and affirm, in part, the judgment of the trial
court.
I.
{¶3} We detailed the facts supporting Anderson’s 108 felony convictions in
Anderson’s direct appeal. See State v. Anderson, 4th Dist. No. 03CA3, 2004-Ohio-
1033, ¶ 3-12 (hereinafter “Anderson I”). We need not recount the facts pertaining to
Anderson’s crimes here. Instead, we will detail the facts relevant to Anderson’s current
appeal.
{¶4} Following a jury trial, Anderson was convicted of the following crimes: 1
count of second-degree-felony pandering obscenity involving a minor in violation of R.C.
2907.321(A)(1)(3); 2 counts of fourth-degree-felony pandering obscenity involving a
minor in violation of R.C. 2907.321(A)(5); 9 counts of second-degree-felony pandering
sexually oriented matter involving a minor in violation of R.C. 2907.322(A); 27 counts of
fifth-degree-felony pandering sexually oriented matter involving a minor in violation of
R.C. 2907.322(A)(5); 10 counts of second-degree-felony complicity to pandering
sexually oriented matter involving a minor in violation of R.C. 2923.03(A)(2) and
Washington App. No. 10CA44 3
2907.322(A); 10 counts of fifth-degree-felony complicity to pandering sexually oriented
matter involving a minor in violation of R.C. 2923.03(A)(2) and R.C. 2907.322(A)(5); 7
counts of second-degree-felony illegal use of a minor in nudity-oriented material in
violation of R.C. 2907.323(A)(1); 7 counts of fifth-degree felony illegal use of a minor in
nudity-oriented material in violation of R.C. 2907.323(A)(3); 14 counts of second-
degree-felony complicity in illegal use of a minor in nudity-oriented material in violation
of R.C. 2923.03(A)(2) and 2907.323(A)(1); 14 counts of fifth-degree-felony complicity in
illegal use of a minor in nudity-oriented material in violation of R.C. 2923.03(A)(2) and
R.C. 2907.323(A)(3); 1 count of fifth-degree felony unauthorized use of computer or
telecommunications property in violation of R.C. 2913.04(B); 1 count of third-degree-
felony corruption of a minor in violation of the former R.C. 2907.04(A); 1 count of
second-degree-felony promoting prostitution in violation of R.C. 2907.22(A)(3); and 4
counts of third-degree-felony promoting prostitution in violation of R.C. 2907.22(A)(3).
{¶5} In Anderson I, we affirmed the judgment of the trial court. See Anderson I at
¶ 112. Anderson appealed our decision to the Supreme Court of Ohio. And while that
appeal was pending, the United States Supreme Court decided Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The Supreme Court of Ohio
denied Anderson leave to appeal our decision in Anderson I. See State v. Anderson,
102 Ohio St. 3d 1533, 811 N.E.2d 1151, 2004-Ohio-3580.
{¶6} On September 3, 2004, Anderson filed a petition for postconviction relief in
the trial court. See State v. Anderson, 4th Dist. No. 06CA32, 2007-Ohio-1517, ¶ 3
(hereinafter “Anderson II”). The trial court dismissed Anderson’s petition for lack of
jurisdiction. Id. Anderson argued that Blakely required the trial court to reconsider
Washington App. No. 10CA44 4
Anderson’s sentence. Id. We concluded that the trial court properly dismissed
Anderson’s petition because Blakely did not create a new federal right. Id. at ¶ 9-10.
Specifically, we determined that “Blakely did not create a new right, because it only
applied the principles that were already established in Apprendi [v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).]” Id. at ¶ 9.
{¶7} While Anderson II was pending, Anderson filed a petition for a writ of
habeas corpus in the United States District Court. See Anderson v. McBride, 602
F. Supp. 2d 911 (S.D.Ohio 2009) (hereinafter “Anderson III”). In Anderson III, the district
court (1) disagreed with our conclusion in Anderson II and (2) held that “Blakely could
not have been anticipated from Apprendi[.]” Anderson III at 915. Therefore, the district
court addressed the merits of Anderson’s petition. Id. at 916.
{¶8} The district court noted that the Supreme Court of Ohio excised portions of
Ohio’s sentencing statutes because the statutes were unconstitutional under Blakely.
Anderson III at 920, citing State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d
470. As a result, the district court conditionally granted Anderson’s petition for habeas
corpus based on Anderson’s claim that his sentence violated Blakely. Id. Additionally,
the district court vacated Anderson’s sentence. Id.
{¶9} The state appealed Anderson III to the Sixth Circuit Court of Appeals. See
Anderson v. Wilkinson, 396 Fed.Appx. 262 (6th Cir. 2010) (hereinafter “Anderson IV”).
The Sixth Circuit affirmed the district court’s decision. Id. at 271.
{¶10} Following Anderson IV, the trial court held a resentencing hearing on
December 8, 2010. In its December 8, 2010 judgment entry, the trial court imposed the
same sentence as Anderson’s original sentence. Anderson’s aggregate prison
Washington App. No. 10CA44 5
sentence is 75 years of definite prison time plus indefinite sentences of 4 to 25 years.
Anderson’s indefinite sentences were for offenses committed before the 1996
amendments to Ohio’s sentencing statutes. The trial court ordered the definite and
indefinite sentences to be served consecutively to each other. Thus, Anderson’s prison
sentence is for 79 to 100 years.
{¶11} Anderson appeals and asserts the following assignments of error: I. “THE
TRIAL COURT ERRED CONTRARY TO LAW BY SENTENCING DR. ANDERSON TO
AN INDEFINITE TERM OF INCARCERATION ABSENT THE STATUTORY FINDINGS
REQUIRED BY R.C. § 2929.11(B), FOR A CRIME COMMITTED PRIOR TO JULY 1,
1996.” II. “THE TRIAL COURT LACKED JURISDICTION TO SENTENCE DR.
ANDERSON FOR A VIOLATION OF R.C. § 2907.22 MORE THAN SIX YEARS AFTER
THE LAST DATE OF THE CONTINUING OFFENSE.” III. “THE TRIAL COURT ERRED
BY IMPOSING NON-MINIMUM SENTENCES IN VIOLATION OF THE UNITED
STATES SUPREME COURT HOLDING IN U.S. V. BLAKELY.” IV. “THE TRIAL
COURT ERRED CONTRARY TO LAW BY IMPOSING CONSECUTIVE SENTENCES
ABSENT THE FACT FINDING REQUIRED BY R.C. § 2929.14 IN VIOLATION OF THE
UNITED STATES SUPREME COURT HOLDING IN U.S. V. BLAKELY.” And, V. “THE
TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING THE DEFENDANT TO
THE MAXIMUM SENTENCE CONTRARY TO LAW AND IN VIOLATION OF THE OHIO
CONSTITUTION AND THE EIGHTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
II.
Washington App. No. 10CA44 6
{¶12} In his first, third, fourth, and fifth assignments of error, Anderson advances
several arguments regarding his sentence. Because we use the same standard of
review for each of these assignments of error, we will consider them together.
{¶13} We use a two-step approach to review a felony sentence. “First, [we] must
examine the sentencing court’s compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and convincingly
contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed
under an abuse-of-discretion standard.” State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-
4912, 896 N.E.2d 124, ¶ 4.
{¶14} In analyzing whether a sentence is contrary to law, “‘[t]he only specific
guideline is that the sentence must be within the statutory range[.]’” State v. Hines, 4th
Dist. No. 09CA36, 2010-Ohio-2749, ¶ 7, quoting State v. Ross, 4th Dist. No. 08CA872,
2009-Ohio-877, ¶ 10. Accord State v. Slagle, 4th Dist. Nos. 10CA4 & 10CA5, 2011-
Ohio-1463, ¶ 9, overruled in part on other grounds, State v. Pierce, 4th Dist. No.
10CA10, 2011-Ohio-5353, ¶ 10, fn. 2. Additionally, courts must consider the general
guidance factors set forth in R.C. 2929.11 and 2929.12. Foster, 109 Ohio St. 3d 1,
2006-Ohio-856, 845 N.E.2d 470, at ¶ 42; Kalish at ¶ 13.
A.
{¶15} In his first assignment of error, Anderson argues that the trial court erred
when it resentenced him to an indefinite prison term of two (2) to ten (10) years for
corruption of a minor in violation of the former R.C. 2907.04(A) (i.e., Count 122 from
Case No. 01 CR 218).
Washington App. No. 10CA44 7
{¶16} Anderson’s corruption-of-a-minor conviction is a third-degree felony.
Anderson committed this offense prior to the July 1, 1996. Therefore, a previous
version of R.C. 2929.11 applies to Anderson’s corruption-of-a-minor sentence.
{¶17} The applicable version of R.C. 2929.11 provides as follows:
(B) Except as provided in division (D) of this section, * * *
terms of imprisonment for felony shall be imposed as
follows: * * * (6) For a felony of the third degree, the
minimum term shall be two years, thirty months, three years,
or four years and the maximum term shall be ten years[.] * *
* (D) Whoever is convicted of or pleads guilty to a felony of
the third or fourth degree and did not, during the commission
of that offense, cause physical harm to any person or make
an actual threat of physical harm to any person with a deadly
weapon, as defined in [R.C. 2923.11], and who has not
previously been convicted of an offense of violence shall be
imprisoned for a definite term, and, in addition, may be fined
or required to make restitution. The terms of imprisonment
shall be imposed as follows: (1) For a felony of the third
degree, the term shall be one, one and one-half, or two
years[.] (Emphasis added.) R.C. 2929.11 (effective prior to
July 1, 1996).
{¶18} Based on the former R.C. 2929.11, we find that Anderson’s sentence for
his corruption-of-a-minor conviction is contrary to law. Here, the trial court sentenced
Washington App. No. 10CA44 8
Anderson to an indefinite prison term of two (2) to ten (10) years for the corruption-of-a-
minor offense. But in its judgment entry, the trial court noted that Anderson “did not
cause or expect to cause physical harm to persons or property.” Dec. 8, 2010
Judgment Entry at 5. Furthermore, there is no evidence in the record that Anderson
either (1) made a threat of physical harm with a deadly weapon during the commission
of any of his offenses or (2) had previously been convicted of an offense of violence. As
a result, Anderson should have been sentenced to a definite term of one, one and one-
half, or two years for his corruption-of-a-minor offense. Consequently, Anderson’s
indefinite sentence of two (2) to ten (10) years for that offense is contrary to law.
{¶19} The state concedes that, as to Anderson’s corruption-of-a-minor
conviction, Anderson “should have been sentenced to no more than 2 years, based on
the absence of a specification or finding as to physical harm in accordance with ORC
2929.11 (prior to July 1, 1996).” Appellee’s Merit Brief at 5. The state, however, argues
that the doctrine of res judicata bars Anderson from raising the issue because he could
have raised it in his direct appeal in Anderson I, but he chose not to do so.
{¶20} The state’s res judicata argument lacks merit because the federal court
vacated Anderson’s original sentence. As the Sixth Circuit Court of Appeals noted, “the
district court * * * vacate[d] Anderson’s sentence in its entirety[.]” Anderson IV, 396
Fed.Appx. at 270; see also Anderson III, 602 F. Supp. 2d at 920.
{¶21} The Tenth District Court of Appeals addressed the effect of a federal
court’s vacation of a sentence under similar circumstances. See State v. Mickens, 10th
Dist. Nos. 08AP-743, 08AP-744 & 08AP-745, 2009-Ohio-2554. In Mickens, the court
stated that “the federal district court vacated appellant’s sentence and remanded the
Washington App. No. 10CA44 9
cases for resentencing pursuant to Blakely.” Id. at ¶ 49. Accordingly, the Tenth
Appellate District found “that the federal district court’s act of vacating the sentence
means the original sentence must be ‘treated as if it never existed.’” Id., quoting State
v. Smith, 9th Dist. No.06CA0070-M, 2007-Ohio-2841, ¶ 19.
{¶22} Here, as in Mickens, we treat Anderson’s original sentence “‘as if it never
existed.’” Id. Consequently, res judicata does not bar Anderson from arguing that the
trial court erred when it imposed an indefinite two (2) to ten (10) year sentence for
Anderson’s corruption-of-a-minor conviction.
{¶23} (The state requests us to modify Anderson’s sentence for his corruption-of-
a-minor conviction instead of remanding the case to the trial court. We decline to do
this. We note that the trial court has discretion to impose a sentence for Anderson’s
corruption-of-a-minor conviction of one, one and one-half, or two years. We conclude
that the trial court should exercise this discretion in the first instance.)
{¶24} Accordingly, Anderson’s first assignment of error is sustained, and we
vacate Anderson’s sentence for his corruption-of-a-minor conviction in violation of R.C.
2907.04(A) (i.e., Count 122 from Case Number 01-CR-218).
B.
{¶25} Next, we will consider Anderson’s third, fourth, and fifth assignments of
error together.
1.
{¶26} Initially, we will determine whether any of Anderson’s arguments
demonstrate that his sentence is contrary to law.
Washington App. No. 10CA44 10
{¶27} In his third assignment of error, Anderson argues that the non-minimum
terms and maximum terms for various offenses in his sentence violate Blakely, 542 U.S.
296, 124 S. Ct. 2531, 159 L. Ed. 2d 403.
{¶28} Anderson notes that his current sentence is identical to his original
sentence, and his argument consists of a two-page block quote from the Sixth Circuit
opinion from Anderson IV. Presumably, Anderson is arguing that, because his original
non-minimum and maximum sentences violated Blakely, his new (and identical)
sentence must also violate Blakely. This is not so. Anderson’s argument ignores the
effect of relevant decisions from the Supreme Court of Ohio.
{¶29} When Anderson was originally sentenced, Ohio’s sentencing scheme
required the trial court to impose a minimum sentence upon a defendant who was not
serving and had never served a prison term. Anderson IV, 396 Fed.Appx. at 264. As
the Sixth Circuit explained:
[I]f the defendant was not serving and had never served a
term of imprisonment, the trial judge was required to impose
“the shortest prison term authorized for the offense” (a
minimum sentence), [R.C.] 2929.14(B), unless it found “on
the record that the shortest prison term [would] demean the
seriousness of the offender’s conduct or [would] not
adequately protect the public from future crime by the
offender or others.” [R.C.] 2929.14(B)(2). Anderson IV, at
264, quoting the prior version of R.C. 2929.14(B).
Washington App. No. 10CA44 11
Additionally, a trial court could only impose a maximum sentence if the trial court found
“that the defendant ‘committed the worst form[ ] of the offense,’ or ‘pose[d] the greatest
likelihood of committing future crimes.’” (Alterations sic.) Anderson IV at 264, quoting
the prior version of R.C. 2929.14(C).
{¶30} The Sixth Circuit determined that the jury did not make a finding regarding
whether a minimum sentence (1) would demean the seriousness of Anderson’s conduct
or (2) would not adequately protect the public from future crime by Anderson or others.
See id. at 267-268. As a result, the Sixth Circuit held that the trial court’s findings
justifying non-minimum sentences constituted a Blakely violation. Id. Similarly, the jury
did not make a finding regarding whether Anderson (1) committed the worst form of the
offense or (2) posed a likelihood of committing future crime. See id. at 268. Thus, the
trial court’s findings supporting Anderson’s maximum sentences also constituted a
Blakely violation. Id. at 268-270. (The Sixth Circuit also held that Anderson’s 1971
conviction for contributing to the delinquency of a minor was insufficient to demonstrate
a likelihood of recidivism to justify a maximum sentence. Id.)
{¶31} The trial court resentenced Anderson on December 8, 2010, following the
Supreme Court of Ohio’s decision in Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845
N.E.2d 470. In Foster, the court held that the requirement under R.C. 2929.14(B) that a
trial court impose a minimum sentence unless the court, not the jury, made certain
findings was unconstitutional. Id., at ¶ 61. Similarly, the Foster court also held that the
requirement under R.C. 2929.14(C) that the trial court, not the jury, make certain
findings to justify imposition of a maximum sentence was unconstitutional. Id. at ¶ 64.
As a result, the court severed the unconstitutional statutes from the Revised Code. Id.
Washington App. No. 10CA44 12
at ¶ 97. The court also held that “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or give
their reasons for imposing maximum, consecutive, or more than the minimum
sentences.” Id. at ¶ 100.
{¶32} Furthermore, the Supreme Court of Ohio has held that a trial court has
discretion to resentence within the statutory range of sentences even though the
defendant was originally sentenced under a pre-Foster sentencing regime. See State v.
Elmore, 122 Ohio St. 3d 472, 2009-Ohio-3478, 912 N.E.2d 582. Specifically, the court
held that “[r]esentencing pursuant to [Foster], for offenses that occurred prior to
February 27, 2006, does not violate the Sixth Amendment right to a jury trial or the Ex
Post Facto or Due Process Clauses of the United States Constitution[.]” Id. at
paragraph one of the syllabus.
{¶33} In resentencing Anderson, the trial court made many of the same findings
that the federal court cited in support of its conclusion that Anderson’s original sentence
was unconstitutional under Blakely. Nevertheless, we note that the findings themselves
were not unconstitutional in Anderson’s original sentence. Regarding Anderson’s
original sentence, a Blakely violation occurred because Ohio’s sentencing scheme
required the trial court, not the jury, to make certain findings in order to justify
Anderson’s non-minimum and maximum sentences. At Anderson’s resentencing, the
trial court had full discretion to impose a sentence that was within the statutory range.
See Foster at paragraph seven of the syllabus. The trial court was not required to make
findings on the record in order to justify imposition of a non-minimum or maximum
Washington App. No. 10CA44 13
sentence. See id. As a result, the trial court did not violate Blakely when it resentenced
Anderson to non-minimum sentences and maximum sentences.
{¶34} Thus, Anderson’s non-minimum and maximum sentences were not
contrary to law.
{¶35} In his fourth assignment of error, Anderson argues that the trial court erred
by imposing consecutive sentences absent the findings required by R.C. 2929.14.
{¶36} Anderson does not clearly articulate his argument for this assignment of
error. Presumably, Anderson is arguing that the trial court erred by imposing
consecutive sentences without making the statutory findings required by R.C. 2929.14.
Anderson apparently bases his argument on the decision in Oregon v. Ice, 555 U.S.
160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009).
{¶37} Initially, we note that, in addition to the statutes referenced above, the
Foster court held that the requirements under R.C. 2929.14(E)(4) and R.C. 2929.41(A)
that a trial court make certain findings to justify imposition of consecutive sentences
were unconstitutional. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470, at
paragraphs three and four of the syllabus. In Ice, however, the United States Supreme
Court analyzed an Oregon statute that required a trial court to impose concurrent
sentences unless the trial court, not the jury, made certain statutorily described factual
findings. Ice at 165. The court held that such a sentencing scheme is not
unconstitutional. See id. at 168-169. Thus, a state’s statutory sentencing scheme may
allow a trial court, not a jury, to make certain findings in order to justify the imposition of
consecutive sentences.
Washington App. No. 10CA44 14
{¶38} While he does not explicitly state it, we presume that Anderson argues
that, even though Foster found R.C. 2929.14(E)(4) to be unconstitutional, the Ice
decision revived the statute. Curiously, Anderson argues this point by relying on a
page-long block quote from our decision in State v. Frazier, 4th Dist. No. 10CA15, 2011-
Ohio-1137. Our holding in Frazier, however, reaches the opposite result that Anderson
requests.
{¶39} As we noted in Frazier, “the Supreme Court of Ohio recognized that ‘the
decision in Ice undermines some of the reasoning in the Foster decision that judicial
fact-finding in the imposition of consecutive sentences violates the Sixth Amendment.’”
Frazier at ¶ 12, quoting State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d
768, ¶ 19. However, as we also noted in Frazier, the Hodge court also held that “[t]he
United States Supreme Court’s decision in [Ice], does not revive Ohio’s former
consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which
were held unconstitutional in [Foster].” Hodge at paragraph two of the syllabus; accord
Frazier at ¶ 12 (noting that Hodge held that Ice did not revive R.C. 2929.14(E)(4) and
2929.41(A)).
{¶40} Furthermore, we also note that the enactment of H.B. 130, which modified
R.C. 2929.14, and was effective April 7, 2009, did not revive the requirements regarding
the imposition of consecutive sentences under R.C. 2929.14(E)(4). This is so because
H.B. 130 did not constitute an affirmative reenactment of those provisions. See State v.
Keck, 4th Dist. No. 09CA50, 2011-Ohio-1643, ¶ 34; see also Hodge at ¶ 27, fn. 7.
{¶41} Finally, we acknowledge that the General Assembly recently enacted H.B.
86, effective September 30, 2011, which amends R.C. 2929.14 and requires fact finding
Washington App. No. 10CA44 15
for consecutive sentences. This amendment, however, does not apply to Anderson,
who was resentenced on December 8, 2010, prior to the effective date of H.B. 86. See
State v. Du, 2d Dist. No. 2010-CA-27, 2011-Ohio-6306, ¶ 23.
{¶42} Thus, Anderson’s argument that the trial court erred by imposing
consecutive sentences absent the findings required under R.C. 2929.14(E) lacks merit.
Therefore, Anderson’s consecutive sentences are not contrary to law.
{¶43} In his fifth assignment of error, Anderson argues that his maximum
sentence was both contrary to law and an abuse of discretion in violation of the Ohio
Constitution and the Eight Amendment to the United States Constitution.
{¶44} Anderson asserts that his sentence is “effectively a life sentence, without
the possibility of early release[.]” Appellant’s Merit Brief at 19. As such, Anderson
argues that his sentence is cruel and unusual punishment in violation of Article I,
Section 9 of the Ohio Constitution and the Eighth Amendment to the United States
Constitution.
{¶45} Essentially, Anderson argues that his sentence is disproportionate to the
crimes for which he was convicted. The United States Supreme Court has held that “a
court’s proportionality analysis under the Eighth Amendment should be guided by
objective criteria, including (i) the 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.” Solem
v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Additionally, the
Supreme Court of Ohio has held as follows:
Washington App. No. 10CA44 16
[F]or purposes of the Eighth Amendment and Section 9,
Article I of the Ohio Constitution, proportionality review
should focus on individual sentences rather than on the
cumulative impact of multiple sentences imposed
consecutively. Where none of the individual sentences
imposed on an offender are grossly disproportionate to their
respective offenses, an aggregate prison term resulting from
consecutive imposition of those sentences does not
constitute cruel and unusual punishment. State v. Hairston,
118 Ohio St. 3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶
20.
{¶46} Anderson claims that the trial court’s sentence violates the first prong of
the proportionality test from Solem. Specifically, Anderson argues as follows:
[H]ad Dr. Anderson raped the three victims, the maximum
sentence he could receive would be thirty years. R.C. §
2929.14(A)(1). If Dr. Anderson had committed murder, he
could be sentenced to life imprisonment with the possibility
of parole after twenty years of imprisonment. R.C. §
2929.03. In this case, Dr. Anderson had consensual sex
with the victims, and he received a sentence of seventy-nine
to one hundred years imprisonment, approximately three
times longer than the sentence for three rapes, and without
Washington App. No. 10CA44 17
the possibility of parole that he could have had if he were
convicted of murder. Appellant’s Merit Brief at 20.
{¶47} Anderson’s characterization of his convictions ignores the multitude of
crimes for which he was convicted. As noted above, Anderson was convicted of 108
felony counts. The trial court ordered Anderson to serve many of his sentences
consecutive to each other. Anderson has not articulated why any individual sentence
was grossly disproportionate to the offense. Instead, Anderson argues that his
aggregate sentence violates the prohibition on cruel and unusual punishment. As
Hairston indicates, however, this argument is insufficient to demonstrate that his
sentence constitutes cruel and unusual punishment.
{¶48} Thus, Anderson’s arguments that his sentence is contrary to law because it
constitutes cruel and unusual punishment lacks merit.
{¶49} Finally, we note that courts must consider the general guidance factors set
forth in R.C. 2929.11 and 2929.12. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845
N.E.2d 470, ¶ 42; Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124 ¶ 13;
State v. Davis, 189 Ohio App. 3d 374, 2010-Ohio-3782, 938 N.E.2d 1043, ¶ 33. The trial
court’s December 8, 2010 judgment entry states that the trial court considered the
principals and purposes of sentencing under R.C. 2929.11 through 2929.19. As a
result, we find that the trial court complied with all applicable rules and statutes in
sentencing Anderson.
{¶50} For the foregoing reasons, we conclude that Anderson cannot demonstrate
that his sentence was contrary to law based on the arguments in his third, fourth, and
fifth assignments of error.
Washington App. No. 10CA44 18
2.
{¶51} If a defendant’s sentence is not contrary to law, we then review the trial
court’s sentence under an abuse of discretion standard. Kalish, 120 Ohio St. 3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The term ‘abuse of discretion’ connotes more
than an error of law or of judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.” State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144
(1980). Sentencing courts “have full discretion to impose a prison sentence within the
statutory range and are [not] required to make findings or give their reasons for
imposing maximum * * * or more than the minimum sentences.” Foster at paragraph
seven of the syllabus; accord Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d
124, at ¶ 11. “Nevertheless, as mentioned above, courts must still consider the general
guidance factors set forth in R.C. 2929.11 and R.C. 2929.12.” State v. Voycik, 4th Dist.
Nos. 08CA33 & 08CA34, 2009-Ohio-3669, ¶ 14.
{¶52} At Anderson’s resentencing, the trial court concluded that Anderson’s
crimes were more serious than the norm for several reasons. For example, the trial
court determined that the injuries to the victims were made worse because of the
victims’ ages. See R.C. 2929.12(B)(1). The trial court also concluded that Anderson’s
actions caused serious psychological harm to the victims. See R.C. 2929.12(B)(2).
The trial court determined Anderson’s position as the head of the technology
department at his place of employment facilitated the commission of one of Anderson’s
crimes. See R.C. 2929.12(B)(5). Specifically, the trial court noted that Anderson’s job
was “to prevent the very offense which he committed[.]” Dec. 8, 2010 Judgment Entry
Washington App. No. 10CA44 19
at 4. Additionally, the trial court determined that Anderson’s “relationship to the victims
facilitated the offenses for which he was convicted[.]” Id. See R.C. 2929.12(B)(6).
{¶53} Anderson argues that his sentence is inconsistent with the purposes of
felony sentencing under R.C. 2929.11. When Anderson was resentenced, R.C.
2929.11(A) provided that “[t]he overriding purposes of felony sentencing are to protect
the public from future crime by the offender and others and to punish the offender.” As
we noted above, Anderson was convicted of 108 felony counts. Moreover, the trial
court referenced several reasons why Anderson’s crimes were more serious than the
norm. Considering that one of the purposes of felony sentencing is to punish the
offender, we conclude that Anderson has not demonstrated that the trial court’s
sentence is inconsistent with the purposes of felony sentencing.
{¶54} The trial court considered the relevant sentencing factors when it
resentenced Anderson. Moreover, the record demonstrates that the trial court did not
abuse its discretion when it imposed its sentence on Anderson. Accordingly, we
overrule Anderson’s third, fourth, and fifth assignments of error.
III.
{¶55} Finally, we analyze Anderson’s second assignment of error. In his second
assignment of error, Anderson argues that the statute of limitations bars his conviction
for promoting prostitution in violation of R.C. 2907.22(A)(3). Anderson argues that the
statute of limitations had expired before he was indicted for this offense.
{¶56} “[O]ur review of statute of limitations issues involves a mixed question of
law and fact.” State v. Stamper, 4th Dist. No. 05CA21, 2006-Ohio-722, ¶ 30.
“Therefore, we accord due deference to a trial court’s findings of fact if supported by
Washington App. No. 10CA44 20
competent, credible evidence.” Id. But, “[w]e review the legal issues de novo[.]” State
v. Smith, 4th Dist. No. 10CA3148, 2011-Ohio-602, ¶ 18.
{¶57} Here, there are no factual issues to review because Anderson did not file a
motion to dismiss. Crim.R. 12(C)(1) provides that “[t]he following must be raised before
trial: * * * Defenses and objections based on defects in the institution of the
prosecution[.]” Thus, “[i]n order to challenge a charged offense on statute of limitations
grounds * * *, a defendant must file a motion to dismiss prior to trial.” State v. Grant,
12th Dist. CA2003-05-114, 2004-Ohio-2810, ¶ 9; accord State v. Jackson, 2d Dist. Nos.
2008 CA 30 & 2008 CA 31, 2009-Ohio-1773, ¶ 5. The “[f]ailure by the defendant to
raise defenses * * * that must be made prior to trial * * * shall constitute waiver of the
defenses or objections[.]” Crim.R. 12(H); Grant at ¶ 9; Jackson at ¶ 5.
{¶58} Anderson failed to raise his statute of limitations defense prior to trial.
Therefore, Anderson has waived his statute of limitations defense to his charge of
promoting prostitution in violation of R.C. 2907.22(A)(3). See Grant at ¶ 9.
{¶59} Accordingly, Anderson’s second assignment of error is overruled.
IV.
{¶60} In conclusion, we sustain Anderson’s first assignment of error and overrule
all of his other assignments of error. Therefore, we vacate Anderson’s sentence for his
corruption of a minor conviction in violation of R.C. 2907.04(A) (i.e., Count 122 from
Case No. 01 CR 218). Accordingly, we reverse, in part, and affirm, in part, the
judgment of the trial court, and we remand this case to the trial court for further
proceedings consistent with this opinion.
Washington App. No. 10CA44 21
JUDGMENT REVERSED, IN PART, AFFIRMED, IN PART, AND
CAUSE REMANDED.
Washington App. No. 10CA44 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED, IN PART, AND AFFIRMED,
IN PART, and this cause be REMANDED for further proceedings consistent with this
opinion. Appellant and Appellee shall pay equally 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
Washington County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. and McFarland, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________
Roger L. Kline, 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.