State v. Perrine ( 2013 )

[Cite as State v. Perrine, 2013-Ohio-5738.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99534
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MATTHEW C. PERRINE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-557357
BEFORE: E.T. Gallagher, J., Jones, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: December 26, 2013
ATTORNEY FOR APPELLANT
R. Paul Cushion, II
75 Public Square, Suite 1111
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
James M. Price
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Matthew C. Perrine (“Perrine”), appeals his maximum
consecutive sentences. We find no merit to the appeal and affirm.
{¶2} In January 2011, Perrine was charged with four counts of rape, two counts of
kidnapping, and two counts of gross sexual imposition. All charges included sexually
violent predator specifications pursuant to R.C. 2941.148(A), and the rape charges
included sexual motivation specifications pursuant to R.C. 2941.147(A). The victim
was Perrine’s 11-year-old stepdaughter, S.K.
{¶3} In March 2011, the state moved to revoke Perrine’s bond, alleging that the
victim’s mother (“Katherine”) observed Perrine in a car parked next to the victim’s
daycare center. She also alleged that Perrine intentionally waited for her to pass him on
her way to work and that he was seen outside the victim’s school, Harding Middle
School.
{¶4} Following a hearing, the court denied the motion to revoke bond but modified
the terms and conditions of his bond. The modifications included orders prohibiting
Perrine from: (1) coming within 1,000 feet of the victim and her family and (2) stopping
loitering within 250 feet of the boundaries of Harding Middle School and the victim’s
daycare facility. The court also ordered Perrine to “surrender any guns, rifles, and/or
knives that he owns (regardless of possession) to the Lakewood Police Department,” and
“if the defendant does not own any guns, rifles, and/or knives, he is to submit an affidavit
to [the] court.”
{¶5} In May 2012, the state filed a second motion to revoke Perrine’s bond,
alleging that he “blatantly disregarded the terms and conditions of his bond, which
required him to stay away from the victim, the victim’s mother, and her other children.”
The state also alleged that Perrine failed to surrender any guns, rifles, and/or knives to the
Lakewood police and failed to submit an affidavit stating that he did not own or possess
any guns, rifles, or knives.
{¶6} Perrine subsequently submitted an affidavit to the court attesting that he
owned one gun and that he surrendered it to the Lakewood police. After a hearing on
the state’s second motion to revoke bond, the trial court determined there was insufficient
evidence to support a finding that Perrine violated the terms and conditions of the court’s
previous order. The court acknowledged that Perrine was late in submitting the
affidavit, but that he complied with the order prior to the hearing. Therefore, the court
denied this second motion to revoke bond.
{¶7} Pursuant to a plea agreement, Perrine pleaded guilty to abduction, which
included the sexual motivation specification, and two counts of gross sexual imposition.
The sexually violent predator specifications were nolled. Perrine conceded that the three
offenses were not allied offenses and therefore not subject to merger at sentencing. The
court sentenced Perrine to the maximum sentence of three years for abduction, and five
years for each of the gross sexual imposition charges, to be served consecutively for an
aggregate 13-year prison term. The trial court also imposed five years mandatory
postrelease control and a $15,000 fine. Perrine now appeals and raises two assignments
of error, which we discuss in reverse order for the sake of economy.
Extrinsic Evidence
{¶8} In the second assignment of error, Perrine argues the trial court erroneously
considered extrinsic evidence when it decided to impose maximum consecutive
sentences. He contends the trial court violated his right to due process by considering
victim impact statements presented by S.K.’s mother and a family friend at the sentencing
hearing. He also contends the court should not have considered DNA evidence
presented by the prosecutor.
{¶9} However, R.C. 2929.19(B)(1) imposes a duty on the trial court to consider
evidence of the type Perrine complains was inadmissible. R.C. 2929.19(B) states:
At the sentencing hearing, the court, before imposing sentence, shall
consider the record, any information presented at the hearing by any person
pursuant to division (A) of this section, and, if one was prepared, the
presentence investigation report made pursuant to section 2951.03 of the
Revised Code or Criminal Rule 32.2, and any victim impact statement made
pursuant to section 2947.051 of the Revised Code.
{¶10} Thus, pursuant to R.C. 2929.19(B)(1), the court was also obligated to
consider DNA evidence establishing that Perrine’s saliva was found in S.K.’s underwear
because it was required to “consider * * * any information presented at the hearing by any
person pursuant to [R.C. 2929.19(A)].” R.C. 2929.19(A) provides that “the prosecuting
attorney * * * may present information relevant to the imposition of sentence in the case.”
Therefore, the DNA evidence was admissible for sentencing purposes.
{¶11} Likewise, R.C. 2947.051, which governs the presentation of victim impact
statements, states that “[t]he court * * * shall consider the victim impact statement in
determining the sentence to be imposed upon the offender.” Thus, failure to consider the
victim impact statement and evidence presented by the prosecutor at the sentencing
hearing would have been an error. Therefore, the trial court was permitted to consider
the victim impact statements and the DNA evidence for sentencing purposes.
{¶12} The second assignment of error is overruled.
Maximum Consecutive Sentences
{¶13} In the first assignment of error, Perrine argues his maximum consecutive
prison term is contrary to law because it fails to comport with the purposes and principles
of sentencing as articulated in R.C. 2929.11(A). He also contends the court failed to
make the findings required by R.C. 2929.14(C) for the imposition of consecutive
sentences.
{¶14} We review consecutive sentences using the standard set forth in R.C.
2953.08. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 8-10.
Under R.C. 2953.08, an appellate court may reverse, modify, or vacate the imposition of
consecutive sentences if: (1) the sentence is “otherwise contrary to law;” or (2) the
appellate court clearly and convincingly finds that the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4). Venes at ¶ 11; R.C.
2953.08(G)(2).
{¶15} R.C. 2929.11(A) provides that a sentence imposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony sentencing: (1) “to
protect the public from future crime by the offender and others,” and (2) “to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes.” R.C. 2929.11(A) directs the trial court to use “the minimum sanctions the
court determines accomplish those purposes without imposing an unnecessary burden on
state or local resources.” Id. Nonetheless, the sentence imposed must be “commensurate
with and not demeaning to the seriousness of the offender’s conduct and its impact on the
victim, and consistent with sentences imposed for similar crimes committed by similar
offenders.” R.C. 2929.11(B).
{¶16} The sentencing court must consider the seriousness and recidivism factors
set forth in R.C. 2929.12 to determine the most effective way to comply with the purposes
and principles of sentencing set forth in R.C. 2929.11. State v. Arnett, 88 Ohio St.3d
208, 213, 724 N.E.2d 793 (2000). R.C. 2929.12 provides a non-exhaustive list of factors
a trial court must consider when determining the seriousness of the offense and the
likelihood that the offender will commit future offenses. State v. Samuels, 8th Dist.
Cuyahoga No. 88610, 2007-Ohio-3904, ¶ 14. The list includes, but is not limited to,
findings that: (1) the victim’s mental injury “was exacerbated because of * * * the age of
the victim,” (2) the victim suffered serious psychological injury as a result of the offense,
and (3) “the offender’s relationship with the victim facilitated the offense.” R.C.
2929.12(A)(1), (2), and (6). R.C. 2929.12(A) also permits the court to consider “any
other factors that are relevant to achieving the purposes and principles of sentencing.”
{¶17} In accordance with R.C. 2929.11 and 2929.12, the trial court found that the
victim suffered serious psychological injuries that were exacerbated by the fact that she
was 11 years old at the time the offenses were committed. The court noted that S.K. was
diagnosed with post-traumatic stress disorder, chronic major depressive disorder, and an
eating disorder as a result of Perrine’s actions. The court also found that Perrine’s
relationship as S.K.’s stepfather facilitated the offenses and that other children were in the
home when the offenses were committed. The court commented that after reporting the
crimes, S.K. attempted suicide on two occasions, suffered nightmares, and committed
self-mutilation.
{¶18} Perrine argues the court failed to consider the mitigating factors enumerated
in R.C. 2929.12(C). R.C. 2929.12(C) requires the trial court to consider the certain
factors that suggest the offender’s conduct is less serious than conduct normally
constituting the offense. These factors include: (1) whether the victim facilitated the
offense, (2) whether the victim provoked the offense, (3) the victim suffered physical
harm, and (4) any other mitigating factors. Id.{¶19} In this case, the trial court considered those factors and determined that
“none of the less serious factors in this matter apply.” S.K. did not induce or facilitate
the offense, S.K. did not provoke the offense, and there were no grounds mitigating the
seriousness of Perrine’s offenses. Although S.K. did not suffer physical harm, the court
found serious psychological injuries. Therefore, the court considered the mitigating
factors enumerated in R.C. 2929.12(C) and determined that they failed to mitigate the
seriousness of Perrine’s conduct.
{¶20} R.C. 2929.12(D) lists recidivism factors the court must consider to
determine whether the defendant is likely to reoffend. These factors include, inter alia,
whether the defendant has a history of criminal convictions and whether the defendant
shows no remorse. Although the psychologist who evaluated Perrine indicated that he
posed a low risk of recidivism on the Static 99 test, which is used to assess the likelihood
of sexual recidivism, there was evidence that Perrine sexually assaulted S.K. more than
once. Perrine also admitted that he had a prior assault conviction as a juvenile. Despite
his score on the Static 99 test, evidence that Perrine committed multiple offenses weighs
in favor of recidivism.
{¶21} The court found that Perrine showed no remorse and made derogatory
comments to the interviewer who authored the mitigation report. Moreover, the court
found that Perrine attempted to contact the victim and her family in violation of court
orders. It was reasonable for the court to conclude that such an attitude and behavior are
indicative of recidivism.
{¶22} Finally, the court must consider the factors set forth in R.C. 2929.12(E) that
indicate an offender is less likely to reoffend. These factors include the absence of a
criminal record and genuine remorse. As previously stated, Perrine showed no remorse.
The trial court found that Perrine continued to deny culpability even though his DNA was
found in the victim’s underwear. And although Perrine has no criminal record, this is
only one factor of many that the court must consider when selecting a sentence in
accordance with the purposes and principles of sentencing. Accordingly, we find the
trial court considered all the required factors set forth in R.C. 2929.11 and 2929.12.
{¶23} Perrine also argues his consecutive sentence is contrary to law because the
trial court failed to make findings required by R.C. 2929.14(C) for the imposition of
consecutive sentences.
{¶24} R.C. 2929.14(C)(4) requires a sentencing judge to make three distinct
findings before imposing consecutive sentences, in addition to whatever findings the
judge makes with respect to the purposes and goals of sentencing. Id. ¶ 17. First, the
trial court must find that “consecutive service is necessary to protect the public from
future crime or to punish the offender.” R.C. 2929.14(C)(4). Second, the trial court
must find that “consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public.” Id. Finally, the
trial court must find that at least one of the three fact scenarios outlined in R.C.
2929.14(C)(4)(a)-(c) applies. The failure to make these findings is “contrary to law.”
Venes at ¶ 12.
{¶25} Perrine concedes the trial court properly found that consecutive sentences
are necessary to protect the public and that consecutive sentences are not disproportionate
to the seriousness of the conduct and danger Perrine poses to the public. He contends
that the finding required by R.C. 2929.14(C)(4)(a)-(c) is absent from the record.
{¶26} However, R.C. 2929.14(C)(4)(b) authorizes the court to impose consecutive
sentences if the court finds that consecutive sentences are necessary to protect the public,
not disproportionate to the seriousness of the defendant’s conduct, and
at least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple
offenses so committed was so great or unusual that no single prison term for
any of the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct.
{¶27} Perrine conceded, and the court noted, that his convictions for one count of
abduction and two counts of gross sexual imposition were not allied offenses that would
merge for sentencing. Therefore, Perrine’s multiple convictions “were committed as part
of one or more courses of conduct.” The court further found:
The Defendant’s claiming that the victim made this story up, this was an
effort to initiate a divorce. That really does not explain * * * the * * *
severe trauma and diagnosis that this victim has. So it’s really not
consistent with what this victim is reporting and has done to herself and
attempted to have done to herself, mainly attempting to kill herself, cut
herself, burn herself as a result of the acts here. * * * And once again, being
a little bit repetitive here, the Court does find in this case the harm is so
great or unusual that a single term would not adequately reflect the
seriousness of the conduct.
Thus, despite Perrine’s argument otherwise, the trial court made findings required by R.C.
2929.14(C)(4)(b) and made all the findings required under R.C. 2929.14(C) for the
imposition of consecutive sentences.
{¶28} Accordingly, we overrule the first assignment of error.
{¶29} Judgment affirmed.
It is ordered that appellee recover from 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, P.J., and
EILEEN A. GALLAGHER, J., CONCUR