State v. Evans , 2012 Ohio 850 ( 2012 )

[Cite as State v. Evans, 2012-Ohio-850.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 11CA16
:
vs. : Released: February 24, 2012
:
LANDON C. EVANS, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
John A. Bay, Bay Law Office L.L.C., Columbus, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Alison
L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a Washington County Court of Common
Pleas journal entry sentencing Appellant to maximum and consecutive
prison terms totaling twenty-four years, stemming from his convictions of
involuntary manslaughter, unlawful sexual contact with a minor, tampering
with evidence and gross abuse of a corpse. On appeal, Appellant contends
that the trial court abused its discretion when it sentenced him to a
cumulative prison term of twenty-four years. As we conclude that the trial
court did not err or abuse its discretion in sentencing Appellant to maximum
Washington App. No. 11CA16 2
and consecutive sentences, we overrule Appellant’s sole assignment of error.
Accordingly, we affirm the judgment of the trial court.
FACTS
{¶2} On April 5, 2011, Appellant pled guilty to a bill of information
containing the following: 1) one count of involuntary manslaughter, a
felony of the first degree, in violation R.C. 2903.04(A); six counts of
unlawful sexual contact with a minor, all fourth degree felonies, in violation
of R.C. 2907.04(A) & (B)(1); one count of tampering with evidence, a
felony of the third degree, in violation of R.C. 2921.12(A)(1); and one count
of gross abuse of a corpse, a felony of the fifth degree, in violation of R.C.
2927.01(B) & (C).1 These charges stemmed from an unlawful sexual
relationship between Appellant and his minor half-sister which culminated
in the birth, and ultimate death, of their child. Appellant did not request that
the transcript of the plea hearing be made part of the record on appeal; thus,
we are not aware of the facts stipulated to in support of the plea.
{¶3} On May 12, 2011, the trial court sentenced Appellant to the
following prison terms: 1) a definite period of ten years for involuntary
manslaughter; eighteen months on each of the six counts of unlawful sexual
1
The record indicates that Appellant was originally indicted on two counts of aggravated murder with
specifications, two counts of unlawful sexual conduct with a minor, tampering with evidence and gross
abuse of a corpse, prior to entering into an agreement with the State to plead guilty to the bill of
information.
Washington App. No. 11CA16 3
conduct with a minor; and five years for tampering with evidence.2 The trial
court further ordered that each of the prison terms be served consecutively to
one another, for a combined sentence of twenty-four years. It is from the
trial court’s May 20, 2011, journal entry that Appellant now brings his
timely appeal, asserting a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SENTENCED MR. EVANS TO A CUMULATIVE PRISON TERM
OF 24 YEARS.”
LEGAL ANALYSIS
{¶4} In his sole assignment of error, Appellant contends that the trial
court abused its discretion when it sentenced him to a cumulative prison
term of twenty-four years. In support of his assignment of error, Appellant
contends that the trial court ignored the explicit direction of the sentencing
statutes, namely R.C. 2929.11(A). Appellant specifically argues that the
trial court did not consider the directives of the statute, that the sentence
“does little more to incapacitate the offender and deter him and others from
future crime than a 10 year sentence would[,]” and that the sentence “forfeits
the benefits of rehabilitation” and restitution possible with a lesser sentence.
Appellant also argues budget and prison overcrowding issues. The State
2
The record indicates that the parties stipulated that tampering with evidence and gross abuse of a corpse
were allied offenses of similar import and merged for purposes of sentencing. Thus, no sentence was
imposed for the conviction for gross abuse of a corpse.
Washington App. No. 11CA16 4
contends that the trial court complied with all of the applicable rules and
statutes and did not abuse its discretion in sentencing Appellant.
{¶5} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, the Supreme Court of Ohio announced the standard for
appellate review of felony sentences. We must employ a two-step analysis.
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.” Kalish at ¶ 4. If
the sentence is not clearly and convincingly contrary to law, we review it for
an abuse of discretion. Id.{¶6} If the trial court's sentence is outside the permissible statutory
range, the sentence is clearly and convincingly contrary to law. Kalish at ¶
15. Here, Appellant was convicted of involuntary manslaughter in violation
of R.C. 2903.04(A), which is a first degree felony, and was sentenced to a
definite prison term of ten years. The applicable version of R.C.
2929.14(A)(1)3 provides that “[f]or a felony of the first degree, the prison
term shall be three, four, five, six, seven, eight, nine or ten years.” Thus,
although a maximum sentence, Appellant’s ten year sentence falls within the
statutory range.
3
The current version of R.C. 2929.14 did not become effective until September 30, 2011. The bill of
information states that the offense of involuntary manslaughter occurred on June 4-5, 2008. Thus, we
apply the prior version of R.C. 2929.14, which has an effective date of January 1, 2008.
Washington App. No. 11CA16 5
{¶7} Appellant was also convicted of six counts of unlawful sexual
conduct with a minor in violation of R.C. 2907.04(A) & (B)(1), each fourth
degree felonies. R.C. 2929.14(A)(4)4 provides that “[f]or a felony of the
fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven,
twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.”
Thus, although the trial court imposed eighteen month maximum sentences
on each count, each sentence was within the statutory range. Finally,
Appellant was convicted and sentenced on one count of tampering with
evidence, a third degree felony in violation of R.C. 2921.12 (A)(1). R.C.
2929.14(A)(3)5 provides that “[f]or a felony of the third degree, the prison
term shall be one, two, three, four, or five years.” Again, although the trial
court imposed the maximum five-year sentence, it was within the statutory
range. Thus, each individual sentence imposed by the trial court was within
the permissible statutory range. As such, Appellant’s total combined prison
sentence is within the statutory range for his various crimes and is not
clearly and convincingly contrary to law.
4
The current version of R.C. 2929.14 did not become effective until September 30, 2011. The bill of
information charged Appellant with six counts of unlawful sexual conduct with a minor (one in April of
2007, one in May of 2007, one in June of 2007, on in July of 2007, one in August of 2007, and one in
September of 2007). Thus, we apply the prior versions of R.C. 2929.14, which were in effect at those
times, with effective dates of January 2, 2007, April 4, 2007, and April 5, 2007.
5
As the tampering with evidence offense occurred in the summer of 2008, we apply a prior version of R.C.
2929.14(A)(3) with an effective date of January 1, 2008.
Washington App. No. 11CA16 6
{¶8} Appellant also appears to argue that his sentences are clearly and
convincingly contrary to law because the court did not consider the
directives R.C. 2929.11 and R.C. 2929.12. Sentencing courts are “no longer
required to make findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentences[,]” State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the
syllabus; however, they must still consider R.C. 2929.11 and R.C. 2929.12
before imposing a sentence. Kalish at ¶ 13. As set forth above, Appellant
contends that the trial court’s imposition of maximum and consecutive
sentences did not comport with the directives of R.C. 2929.11 with regard to
the issues of deterrence, rehabilitation, and restitution. He also argues the
societal concern of prison overcrowding.
{¶9} Contrary to Appellant’s arguments, however, the trial court
expressly stated that it had considered “the principles and purposes of
sentencing pursuant to Ohio Revised Code Sections 2929.11 through
2929.19[.]” The trial court further stated in its sentencing entry as follows:
“The Court has weighed the seriousness and recidivism factors and has
considered the over-riding purposes of felony sentencing to protect the
public from future crime by this offender and others, and the purpose to
punish this offender, and has considered the need for incapacitating this
offender and deterring the offender and others from future crime, and for
rehabilitating the offender. Thereupon the Court FINDS that the sentence it
is about to impose is reasonably calculated to achieve these purposes, and is
commensurate with, and does not demean the seriousness of the offender’s
Washington App. No. 11CA16 7
conduct, and its impact upon the victim, and is consistent with sentences
imposed for similar crimes committed by similar offenders.”
Because Appellant’s combines sentences did not exceed the permissible
statutory range, and in light of the fact that the trial court expressly stated
that it considered the overriding purposes of the felony sentencing statutes,
we find Appellant’s sentences, both individually and cumulatively, are not
clearly and convincingly contrary to law.
{¶10} We must next determine whether the trial court abused its
discretion in selecting Appellant’s sentences. “The term ‘abuse of discretion’
implies that the court's attitude is arbitrary, unreasonable, or
unconscionable.” State v. Kulchar, Athens App. No. 10CA6, 2011-Ohio-
5144 at ¶ 48; citing State v. Adams (1980), 62 Ohio St.2d 151, 157, 404
N.E.2d 144. As we recently explained in Kulchar:
“ ‘An “abuse of discretion” has * * * been found where a sentence is
greatly excessive under traditional concepts of justice or is manifestly
disproportionate to the crime or the defendant. Woosley v. United States
(1973), 478 F.2d 139, 147. * * * Where the severity of the sentence shocks
the judicial conscience or greatly exceeds penalties usually exacted for
similar offenses or defendants, and the record fails to justify and the trial
court fails to explain the imposition of the sentence, the appellate court's
[sic] can reverse the sentence. [ Id.] This by no means is an exhaustive or
exclusive list of the circumstances under which an appellate court may find
that the trial court abused its discretion in the imposition of [a] sentence in a
particular case.’ ” Kulchar at ¶ 48; citing State v. Davis, Highland App. No.
06CA21, 2007-Ohio-3944, at ¶ 42:
{¶11} In the May 20, 2011, sentencing entry, the trial court found
several prison factors to be present, and also noted several factors which it
Washington App. No. 11CA16 8
believed made the crimes more serious than the norm. Specifically, the trial
court found that the injury to the victim was made worse due to the age of
the victim, that Appellant caused serious psychological harm to the victim as
to the unlawful sexual conduct with a minor convictions, and that
Appellant’s relationship with the victim facilitated the offense. The trial
court further noted Appellant’s prior criminal record and that Appellant had
served a prior prison term. Finally, the trial court stated that “[a]though the
Defendant shows remorse as to the sexual assault crimes the Court finds the
Defendant shows no real remorse as to the remaining crimes, instead he
chose to blame the other party.”
{¶12} Based upon the foregoing, we cannot conclude that the trial
court acted in an arbitrary, unreasonable or unconscionable manner when it
selected Appellant’s sentences and then ordered them to be served
consecutively. As such, we overrule his sole assignment of error.
Accordingly, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
Washington App. No. 11CA16 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant 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 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 sixty 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 proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five 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 sixty days, the stay will terminate as of the date
of such dismissal.
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 Harsha, J.: Concurs in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, 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.