State v. Polizzi , 2019 Ohio 2505 ( 2019 )

[Cite as State v. Polizzi, 2019-Ohio-2505.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2018-L-063
- vs - : 2018-L-064
ANTHONY J. POLIZZI, JR., :
Defendant-Appellant. :
Criminal Appeals from the Lake County Court of Common Pleas.
Case Nos. 2017 CR 000853 & 2017 CR 001390.
Judgment: Reversed; sentence vacated; remanded.
Charles E. Coulson, Lake County Prosecutor; Teri R. Daniel and Alexandra Kutz,
Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box
490, Painesville, OH 44077 (For Plaintiff-Appellee).
Mark Roy Devan and William Christopher Livingston, Berkman, Gordon, Murray &
Devan, 55 Public Square, Suite 2200, Cleveland, OH 44113 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Anthony J. Polizzi, Jr., appeals from the May 8, 2018 judgment
entry of the Lake County Court of Common Pleas, sentencing him to an aggregate total
of 33 years in prison following appellant’s guilty plea on two separate indictments.
{¶2} Appellant held a position as a teacher at a Christian high school following
an unsuccessful attempt to complete law school. He had an inappropriate relationship
with two of his students. One took place in 2008, the other in 2010. Each victim was 17
years old when the conduct commenced, and each was 18 years old when the conduct
terminated. Appellant was fired from his position as a teacher when another student
reported seeing appellant returning to school with the 2010 victim. In 2012, appellant
reached out to this former student with sexually explicit messages under a fictitious name.
The victim immediately suspected appellant, who eventually acknowledged it was he who
sent the messages. These messages were alarming to the 2010 victim, who
subsequently contacted authorities in 2012. For reasons that are not clear in the record,
not much happened with the case until 2017, when the 2010 victim was contacted by a
new detective.
{¶3} In the meantime, after being fired from his teaching position, appellant had
returned to law school, passed the bar examination, and worked for many years as an
attorney. Between the time he was fired as a teacher, and up until sentencing, there is
no indication appellant committed any other offense.
{¶4} On July 31, 2017, appellant was indicted on 24 counts alleging crimes
involving sexual misconduct stemming from a series of sexual relations with the student
from 2010 who appellant taught at Cornerstone Christian Academy. The case was
assigned Lake County Court of Common Pleas Case No. 17-CR-0853.
{¶5} Subsequently, on December 29, 2017, appellant was indicted on 56 counts
alleging crimes involving sexual misconduct stemming from a series of sexual relations
with a second student from 2008, who appellant also taught at Cornerstone Christian
Academy. The case was assigned Lake County Court of Common Pleas Case No. 17-
CR-1390. On March 21, 2018, the trial court granted a motion to consolidate the cases
for trial.
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{¶6} After plea negotiations, the state dismissed most of the counts, based on
appellant’s agreement to enter a plea of guilty to four charges in each case. On March
26, 2018, appellant pled to one count of gross sexual imposition, a felony of the fourth
degree, and three counts of sexual battery, felonies of the third degree, in each of the two
cases.
{¶7} Regarding the six counts of sexual battery, in violation of R.C.
2907.03(A)(7), each indictment alleged that appellant engaged in sexual conduct with
another, not the spouse of the offender, when the offender was a teacher, administrator,
coach, or other person in authority employed by or serving in a school for which the state
board of education prescribes minimum standards pursuant to R.C. 3301.07(D), the other
person is enrolled in or attends that school, and the offender is not enrolled in and does
not attend that school.
{¶8} The trial court referred appellant to the Department of Adult Probation for a
presentence evaluation, psychiatric examination, victim impact statement, and sexual
offender report.
{¶9} At the sentencing hearing on May 4, 2018, appellant, appellant’s counsel,
and appellant’s wife and father, were permitted to address the court. Appellant also filed
a sentencing memorandum which included eleven letters in support. The two victims also
addressed the trial court. Each indicated how naïve they were at the time appellant
pursued them. Each described how their involvement with appellant was their first sexual
experience of any kind. Each asked the trial court to impose the maximum sentence.
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{¶10} The trial court reviewed, among other things, a presentence report and sex
offender evaluation report from the Department of Adult Probation, the psychological
assessment, and a victim impact statement from each of the two victims.
{¶11} The presentence report contained an Ohio Risk Assessment System rating
of “9/Low” regarding risk of recidivism. The report stated, “[appellant] reported that he
wishes this never happened and he feels very sorry for what he did. [Appellant] stated
that he is truly remorseful and is hoping to be placed on probation, as a result of these
offenses.” The report also characterized appellant’s prognosis as “decent.”
{¶12} The sex offender evaluation report stated that appellant’s risk of re-
offending under the actuarial risk prediction tool was low. The report, however, ultimately
listed his risk of re-offending as “moderate” due to appellant’s inability to fully take
responsibility for his actions. As the trial court noted, appellant made a statement during
the psychological assessment that he wished the victims would experience “misery” for
proceeding with these cases. The report indicated that this failure to take responsibility
prohibited appellant from having the appropriate remorse necessary to avoid future
similar criminal acts.
{¶13} Each of the victim impact statements described trauma and ongoing
psychological harm resulting from appellant’s sexual misconduct with each. Both victims
reiterated their request that the maximum sentence be imposed by the trial court.
{¶14} The eleven letters in support of appellant, attached to his sentencing
memorandum, were from family members, friends, colleagues, and other individuals with
knowledge of appellant from his childhood until the present. Many of the letters reiterated
that he remained remorseful for his actions, although the focus in the majority of the letters
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was on the impact and harm that a harsh sentence would have on appellant and his
family, rather than the harm suffered by the victims.
{¶15} The state recommended an aggregate sentence of ten years in each case,
to be served consecutively, totaling twenty years. This recommendation apportioned
differing sentence lengths based on the specific physical actions taken by appellant in
each charge.
{¶16} Appellant was eligible for probation or community control. In the event the
court sentenced him to prison, the range of the prison term for each of the two counts of
gross sexual Imposition, a fourth-degree felony, was 6 to 18 months. For each of the six
counts of sexual battery, a third-degree felony, the penalty ranged from 12 to 60 months.
{¶17} In considering all of the aforementioned, the trial court ordered the
maximum sentence for each charge in both cases, as follows:
Case No. 17-CR-0853:
Gross Sexual Imposition (R.C. 2907.05(A)(1))- 18 months;
Sexual Battery (R.C. 2907.03(A)(7))- 60 months;
Sexual Battery (R.C. 2907.03(A)(7))- 60 months;
Sexual Battery (R.C. 2907.03(A)(7))- 60 months;
Case No. 17-CR-1390:
Gross Sexual Imposition (R.C. 2907.05(A)(1))- 18 months;
Sexual Battery (R.C. 2907.03(A)(7))- 60 months;
Sexual Battery (R.C. 2907.03(A)(7))- 60 months;
Sexual Battery (R.C. 2907.03(A)(7)- 60 months.
{¶18} In addition, the trial court ordered the sentences to be served consecutively,
stating—among various other things—that appellant was “a predator,” that he was likely
to re-offend because of a lack of remorse, and in a reference to other cases not involving
appellant, that “[t]his keeps happening and nothing ever changes.” Appellant was also
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classified as a Tier III sex offender with the most stringent, lifetime reporting requirements
at the hearing.
{¶19} Appellant filed a timely notice of appeal and raises six assignments of error.
For clarity and convenience, we combine and consider the assignments out of order.
{¶20} Appellant’s first and fifth assignments of error state:
[1.] The trial court erred because Appellant’s sentences are not
supported by the record.
[5.] The trial court erred when it failed to make the factual findings
necessary to impose consecutive sentences in accordance with R.C.
2929.14(C)(4).
{¶21} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence is otherwise
contrary to law.” R.C. 2953.08(G)(2)(a)-(b).
{¶22} R.C. 2929.41, which governs multiple sentences, provides, in pertinent part:
“(A) Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail
term, or sentence of imprisonment shall be served concurrently with any other prison
term, jail term, or sentence of imprisonment imposed by a court of this state[.]” Therefore,
a presumption exists in favor of concurrent sentencing absent the applicable statutory
exception.
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{¶23} Pursuant to R.C. 2929.14(C)(4), a trial court may order separate prison
terms for multiple offenses be served consecutively only if the court finds it “necessary to
protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public[.]” The trial court must also find that one of
the following statutory factors applies:
(a) The offender committed one or more of the multiples offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(b) 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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶24} Regarding the imposition of consecutive sentences, the trial court stated:
And those sentences will be consecutive with each other on all the
counts and consecutive to one another. And I find that consecutive
sentences are necessary to protect the public from future crime by
you and to punish you and these, this sentence is not
disproportionate to the seriousness of your conduct and to the
danger you pose to the public.
{¶25} Of the additional statutory factors that must be found, sections (a) and (c)
are inapplicable. The trial court applied section (b), stating that “at least two of these
offenses were committed as part of one or more courses of criminal conduct and the harm
caused by at least two of the offenses committed was so great or unusual that no single
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prison term for any of the offenses committed as part of this course of conduct adequately
reflects the seriousness of your conduct.”
{¶26} The sentencing entry also indicates the same. Therefore, the trial court did
state appropriate statutory grounds for imposing prison and imposing consecutive
sentences.
{¶27} When the trial court properly sets forth the statutory requirements that allow
for imposition of consecutive sentences, our review is limited to whether we clearly and
convincingly find that the record does not support the trial court’s findings. State v.
Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, ¶ 20; State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, ¶23. In doing so, we keep in mind that the “trial court
is not required to give any particular weight or emphasis to a given set of circumstances”
when considering the statutory factors. State v. DelManzo, 11th Dist. Lake No. 2007-L-
218, 2008-Ohio-5856, ¶23.
{¶28} Although appellant has not provided support for this argument, there is case
law that indicates “[a] trial court may not elevate the seriousness of an offense by pointing
to a fact that is also an element of the offense itself.” State v. Sims, 4th Dist. Gallia No.
10CA17, 2012-Ohio-238, ¶16, quoting State v. Davis, 4th Dist. Washington No. 09CA28,
2010-Ohio-555, ¶24, citing State v. Schlect, 2d Dist. Champaign No. 2003-CA-3, 2003-
Ohio-5336, ¶52; see also State v. Galindo-Barjas, 7th Dist. Mahoning No. 12 MA 37,
2013-Ohio-431, ¶11, citing State v. Stroud, 7th Dist. Mahoning No. 07 MA 91, 2008-Ohio-
3187, ¶48. Of relevance here, appellant was a teacher to the victims, which is a
necessary element of the six sexual battery charges under R.C. 2907.03(A)(7), for which
appellant received a maximum sentence of 60 months for each. That relationship is
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accounted for by the legislature when it established most of these offenses as felonies of
the third degree.
{¶29} Further, the imposition of consecutive sentences may be inappropriate
where it would “demean the seriousness of other more violent crimes and the harm to
other victims[.]” State v. Overholser, 2d Dist. Clark No. 2014-CA-42, 2015-Ohio-1980,
¶32.
{¶30} At the sentencing hearing, the trial court made several findings when
considering the aforementioned statutory factors. The trial court found that (1) appellant
was a predator who is likely to be in circumstances where the criminal activity could recur
because of his lack of remorse; (2) the damages caused to the two victims were
permanent, incapable of full recovery, and worse than serious physical injuries such as
gunshot wounds; (3) appellant was likely to re-offend; (4) appellant was a danger to the
public; (5) appellant lacked the appropriate remorse under the statute.
{¶31} The findings of the presentence investigation report and the sex offender
evaluation report indicated that appellant had a low to moderate chance of re-offending.
Other than a lack of remorse, there is no support in the record for concluding that
appellant is likely to re-offend; to the contrary, appellant’s lack of criminal history—both
before and for many years after the present crimes—the letters of support as to his
character, and his inability to ever teach or have interactions with minors under similar
circumstances, due to the Tier III sex offender status, all support a finding that the
opportunity for re-offense is low. There is also little to no support in the record for a finding
that appellant is a danger to the public at large.
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{¶32} While there is some support in the record for the contention that appellant
is remorseful, the trial court found appellant was not remorseful. There are several things
in the record that support the trial court’s conclusion. Chief among those are the crude
emails sent to one victim in 2012 and the comments to the psychologist, between the plea
and sentencing hearings, that he wished the victims “misery.”
{¶33} The additional finding that appellant poses a danger to the public is another
matter. This finding could only be made based on appellant’s likelihood of committing
future crimes. R.C. 2929.12 sets forth the following with regard to the likelihood of
committing future crime and remorse:
(D) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors
indicating that the offender is likely to commit future crimes:
(1) At the time of committing the offense, the offender was under
release from confinement before trial or sentencing; was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code; was under post-release control pursuant to
section 2967.28 or any other provision of the Revised Code for an
earlier offense or had been unfavorably terminated from post-release
control for a prior offense pursuant to division (B) of section 2967.16
or section 2929.141 of the Revised Code; was under transitional
control in connection with a prior offense; or had absconded from the
offender’s approved community placement resulting in the offender’s
removal from the transitional control program under section 2967.26
of the Revised Code.
(2) The offender previously was adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to January 1,
2002, or pursuant to Chapter 2152. of the Revised Code, or the
offender has a history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory degree
after previously being adjudicated a delinquent child pursuant to
Chapter 2151. of the Revised Code prior to January 1, 2002, or
pursuant to Chapter 2152. of the Revised Code, or the offender has
not responded favorably to sanctions previously imposed for criminal
convictions.
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(4) The offender has demonstrated a pattern of drug or alcohol abuse
that is related to the offense, and the offender refuses to
acknowledge that the offender has demonstrated that pattern, or the
offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
(E) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors
indicating that the offender is not likely to commit future crimes:
(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the offender had led a law-abiding
life for a significant number of years.
(4) The offense was committed under circumstances not likely to
recur.
(5) The offender shows genuine remorse for the offense.
R.C. 2929.12 (emphasis added).
{¶34} In subsection (D), it is clear that the lack of remorse is the only thing
militating toward appellant’s likelihood of committing future crime. All of the other factors
suggest little or no likelihood. In subsection (E), all of the factors again suggest little or
no likelihood of appellant committing future crime, with the exception of the lack of
remorse.
{¶35} We clearly and convincingly find that the record does not support the trial
court’s determination that appellant poses a great risk to the public based on the likelihood
he will commit future crime. In addition, while the harm to the victims was very significant,
there is no support in the record for the finding that the harm to the victims is permanent.
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Also, the finding that appellant is a predator was based on his relationship to the victims
as their teacher, which is an element of his sexual battery offenses under R.C.
2907.03(A)(7). Finally, the record does not support the conclusion that the conduct was
so great or unusual—in relation to the same offenses committed by other offenders—that
no single prison term for the offenses in each individual indictment would adequately
reflect the seriousness of appellant’s conduct.
{¶36} Further, we agree that the sentence of 33 years imposed here would
demean the seriousness of other more violent crimes. As the Second District Court of
Appeals observed in State v. Overholser, based on substantially similar facts:
Further, without detracting from the criminality of Overholser’s
conduct, and without diminishing the psychological harm caused to
B.D., we note that a sentence of 20 years in this matter may in fact
demean the seriousness of other more violent crimes and the harm
to other victims; for example, rape is a felony of the first degree and
has a maximum sentence of 11 years, and a sentence for murder is
15 years to life.
Overholser, supra, at ¶32. See also, e.g., State v. Rupert, 11th Dist. Lake No. 2001-L-
169, 2002-Ohio-7268; State v. Earle, 11th Dist. Lake No. 2001-L-159, 2002-Ohio-4510.
{¶37} Appellant’s first and fifth assignments of error have merit.
{¶38} Appellant’s second and third assignments of error state:
[2.] The trial court improperly employed the sentencing-packaging
doctrine and its sentence is, therefore, contrary to law.
[3.] The trial court failed to fashion individualized sentences for
Appellant and, therefore, its sentences are contrary to law and
violated Appellant’s right to due process of law.
{¶39} Ohio courts have uniformly held that “‘[i]nstead of considering multiple
offenses as a whole and imposing one, overarching sentence to encompass the entirety
of the offenses as in the federal sentencing regime, a judge sentencing a defendant
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pursuant to Ohio law must consider each offense individually and impose a separate
sentence for each offense.’” State v. Wells, 11th Dist. Ashtabula No. 2013-A-0014, 2013-
Ohio-5821, ¶34, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶9. “‘Only
after the judge has imposed a separate prison term for each offense may the judge then
consider in his discretion whether the offender should serve those terms concurrently or
consecutively.’” Id., quoting Saxon, supra, at ¶9 (emphasis deleted). Thus, Ohio has
never adopted the sentencing-package doctrine, and it has no applicability to Ohio
sentencing laws. Saxon, supra, at ¶10. “The sentencing court may not employ the
doctrine when sentencing a defendant, and appellate courts may not utilize the doctrine
when reviewing a sentence or sentences.” Id.
{¶40} At the sentencing hearing, the trial court imposed the maximum sentence
individually for each count on the record. After each count was read and each sentence
was announced, the court announced that the sentences would be served consecutively.
The sentencing entry made a similar, separate sentencing statement for each count
followed by a holding that the sentences would be served consecutively.
{¶41} Therefore, there is no basis in fact to support the assertion that the trial court
applied the sentencing-package doctrine.
{¶42} Appellant’s second and third assignments of error are without merit.
{¶43} Appellant’s fourth and sixth assignments of error state:
[4.] The sentencing proceeding was fundamentally unfair in violation
of Appellant’s right to due process of law.
[6.] The trial court’s imposition of an aggregate sentence of 33 years
imprisonment under the circumstances of this case amounts to cruel
and unusual punishment under the Eighth Amendment of the United
States Constitution and Article I, Section 9 of the Ohio Constitution.
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{¶44} We note that neither of these constitutional issues was raised before the
trial court, and they are asserted for the first time in this appeal. Pursuant to State v.
Awan, 22 Ohio St.3d 120 (1986), syllabus, the “[f]ailure to raise at the trial court level the
issue of the constitutionality of a statute or its application, which issue is apparent at the
time of trial, constitutes a waiver of such issue * * * and therefore need not be heard for
the first time on appeal.” See also State v. Gordon, 28 Ohio St.2d 45 (1971), paragraph
two of the syllabus. We note that the waiver doctrine stated in Awan is discretionary. In
re M.D., 38 Ohio St.3d 149 (1988), syllabus. However, even though this court has
jurisdiction to review the alleged denial of constitutional rights that were not raised at the
trial level, this discretion will not ordinarily be exercised to examine a claim that existed
prior to or at the time of trial. State v. Schlee, 11th Dist. Lake No. 98-L-187, 1999 WL
1313651, *10 (Dec. 17, 1999), citing Awan, supra, at ¶123.
{¶45} Further, “‘[i]t is well settled that [a] court will not reach constitutional issues
unless absolutely necessary.’” State v. Ferry, 11th Dist. Lake No. 2007-L-217, 2008-
Ohio-2616, ¶19, quoting State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, ¶9, citing
In re Miller, 63 Ohio St.3d 99, 110 (1992) and Hall China Co. v. Pub. Util. Comm., 50 Ohio
St.2d 206, 210 (1977).
{¶46} Based on our determinations above, it is not necessary to consider these
constitutional issues for the first time on appeal, and we therefore decline to do so.
CONCLUSION
{¶47} Upon review of the record, there is no support under R.C. 2929.14(C)(4) for
some of the findings the trial court made to justify imposition of consecutive sentences for
each of the individual offenses for which a plea was entered. As noted herein, the record
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does not support a determination that appellant poses a great risk to the public based on
the likelihood he will commit future crime. Appellant’s sentences for sexual battery should
not be elevated based on his status as a teacher to the victims, as this is a necessary
element of the six charges under R.C. 2907.03(A)(7). Finally, while the trial court utilized
the testimony and written statements of the victims to conclude that the harm to those
victims was very significant, there is no support in the record for the finding that the harm
caused is permanent, or even as severe as the worst form of each of the charged crimes.
{¶48} Appellant’s sentence is hereby vacated. The judgment of the Lake County
Court of Common Pleas is reversed, and this matter is remanded for resentencing
consistent with this opinion.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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