State v. Wati , 2019 Ohio 4827 ( 2019 )

[Cite as State v. Wati, 2019-Ohio-4827.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-02-033
: OPINION
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:
ELVIS WATI, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-11-2001
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Rodriguez & Porter, Ltd., Paul W. Shonk, 5103 Pleasant Avenue, Fairfield, Ohio 45014, for
appellant
RINGLAND, J.
{¶ 1} Appellant, Elvis Wati, appeals from his conviction and aggregate 96-month
prison sentence he received in the Butler County Court of Common Pleas after he pled guilty
to two counts of sexual battery. For the reasons outlined below, we affirm the trial court's
decision.
{¶ 2} In November 2018, Wati was indicted on two counts of rape and two counts of
sexual battery. The charges stemmed from events which took place on September 23, 2017.
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Specifically, the state alleged that between 9:00 and 10:00 p.m. on September 23, Wati
sexually assaulted a woman by forcing her to engage in fellatio and vaginal intercourse
despite knowing the woman's ability to appraise the nature of or control her own conduct was
substantially impaired.
{¶ 3} In January 2019, Wati pled guilty to the two counts of sexual battery. In return
for Wati's guilty plea, the state agreed to dismiss the two charges of rape included in the
indictment. The trial court accepted Wati's guilty plea and sentenced him to 48 months on
each count, to be served consecutively, for an aggregate prison term of 96 months.
{¶ 4} Wati now appeals, raising one assignment of error.1
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED BY IMPOSING A CONSECUTIVE SENTENCE
UNDER R.C. § 2914(C)(4)(b) BECAUSE THERE WAS INSUFFICIENT BASIS IN THE
RECORD TO CONCLUDE THAT THE DEFENDANT HAD ENGAGED IN A COURSE OF
CONDUCT.
{¶ 7} Wati argues the trial court erred in imposing consecutive sentences because
such sentences are not supported by the record.
{¶ 8} We review the imposed sentence under the standard of review set forth in R.C.
2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court does not review the
sentencing court's decision for an abuse of discretion. Id. at ¶ 10. Rather, R.C.
2953.08(G)(2)(a) directs the appellate court "to review the record, including the findings
underlying the sentence" and to modify or vacate the sentence "if it clearly and convincingly
1. We note that Wati stated two assignments of error in the index of his brief. However, in the body of his brief,
Wati asserted a single assignment of error that encompassed both issues he identified in the index. As a result,
we will address Wati's arguments under the single assignment of error enunciated in the body of Wati's brief.
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finds * * * [t]hat the record does not support the sentencing court's findings under division * * *
(C)(4) of section 2929.14 * * * of the Revised Code." State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, ¶ 28.
{¶ 9} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences. State v. Dillon,
12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find
that the consecutive sentence 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. Third, the trial court must find that one of the
following applies:
(a) The offender committed one or more of the multiple 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.
Id.{¶ 10} At the sentencing hearing, the trial court stated the following when it imposed
consecutive sentences:
The Court has considered the record and the overriding
purposes of felony sentencing, which is to protect the public from
future crime, and to punish the offender, and to promote the
effect of rehabilitation of the offender using the minimum
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sanctions needed to accomplish the purposes without imposing
an unnecessary burden on state or local government resources.
The Court has considered the seriousness and recidivism factors
set forth in Revised Code §2929.11 and §2929.12. The Court
has considered the information contained in the pre-sentence
investigation report. The Court also reviewed the victim impact
statement that was provided to the Court. The Court has
considered the statements of Counsel this morning[.]
The trial court continued:
So I heard what [Wati] had to say this morning. I heard what
counsel had to say, and I agree that there is going to be some
shame whenever he goes back. I mean, he's already been
convicted of another felony offense before Judge Powers. * * *
This woman says that * * * she was taking the short cut and
[Wati] grabbed her, [Wati] took her clothes off, [Wati] forced [his]
penis into her mouth and into her vagina. That doesn't sound
like paying a female prostitute $15 for consensual sex to me.
***
The Court finds that [Wati], obviously, is not amenable to
available community control sanctions in regard to this matter.
The Court firmly believes the statement of the victim in regard to
this case, who suffered a significant sexual assault. * * * So as it
relates to * * * Count II, sexual battery, a felony in the third
degree, the Court will sentence [Wati] to 48 months in the Ohio
Department of Rehabilitation and Corrections. Count IV, sexual
battery, 48 months in the Ohio Department of Rehabilitation and
Corrections.
The Court is going to order that Counts II and Count IV be run
consecutive to each other * * * for a total of 96 months. The
Court finds consecutive sentences based upon all the
information provided to the Court. The consecutive sentences
are necessary to protect the public from future crime or to punish
the offender, but they are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to
the public, and that the harm was so great (indiscernible) term
does not adequately reflect its seriousness or [Wati's] conduct.
(Emphasis added.)
The trial court then incorporated these findings into its sentencing entry, including its decision
to impose consecutive sentences pursuant to R.C. 2929.14(C)(4)(b).
{¶ 11} Upon review, we find that the trial court made the appropriate findings before
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imposing consecutive sentences in the instant case and that those findings are supported by
the record. Initially, Wati argues the trial court erred in concluding that he had engaged in a
"course of conduct" because his conduct was "limited to two acts of sexual battery (vaginal
intercourse and fellatio), which occurred at the same time and place as a part of the same
coerced sexual encounter." As such, Wati claims his criminal acts cannot reasonably be
described as a "course of conduct" due to their close temporal proximity, and as part of a
single sexual encounter against a single victim. We disagree. Despite Wati's claims to the
contrary, he pled guilty to and was convicted of committing two separate sexual batteries
against the victim. Moreover, the two sexual batteries of which Wati was convicted consisted
of two distinct acts of sexual assault against the victim, fellatio and vaginal intercourse, which
could not have occurred simultaneously. Accordingly, due to the nature of the crimes of
which he was convicted, the record supports the trial court's finding that Wati engaged in a
course of conduct.
{¶ 12} We also reject Wati's argument that the trial court erred in failing to "fully state
the relevant finding in support of a consecutive sentence" at the sentencing hearing. "A trial
court satisfies the statutory requirement of making the required findings when the record
reflects that the court engaged in the required analysis and selected the appropriate statutory
criteria." State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and CA2013-06-050,
2014-Ohio-2340, ¶ 113. When imposing consecutive sentences, a trial court is not required
to provide a word-for-word recitation of the language of the statute or articulate reasons
supporting its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 27, 29.
"Nevertheless, the record must reflect that the trial court engaged in the required sentencing
analysis and made the requisite findings." State v. Moore, 12th Dist. Clermont No. CA2014-
02-016, 2014-Ohio-5191, ¶ 12. The court's findings must then be incorporated into its
sentencing entry. Id., citing Bonnell at ¶ 37. Therefore, "as long as the reviewing court can
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discern that the trial court engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences should be upheld." Bonnell
at ¶ 29.
{¶ 13} Here, Wati argues that the trial court "omitted any 'course of conduct' language
from its colloquy at the sentencing hearing" and therefore, the basis for the consecutive
sentence was not announced to Wati as required by Bonnell. In imposing consecutive
sentences, the trial court stated at the sentencing hearing that consecutive sentences were:
(1) "necessary to protect the public from future crime or to punish the offender[;]" (2) the
sentences were "not disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public[;]" and (3) that the harm caused by Wati was "so
great (indiscernible) term does not adequately reflect its seriousness or the Defendant's
conduct."
{¶ 14} We note that although part of the trial court's third finding appears in the record
as "indiscernible," the regularity of the proceedings is presumed when the transcript is
incomplete. State v. Cornelius, 12th Dist. Butler No. CA2001-01-008, 2002-Ohio-1429, *11;
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). Accordingly, while the trial
court's third finding is not a perfect recitation of R.C. 2929.14(C)(4)(b), it plainly tracks the
language set forth in the statute, and a word-for-word recitation is not required by Ohio law.
{¶ 15} Moreover, the relevant inquiry here is not whether the trial court used the
"magic" words in imposing consecutive sentences, but whether the trial court engaged in the
appropriate analysis. State v. Adams, 10th Dist. Franklin No. 13AP-783, 2014-Ohio-1809, ¶
18. Based upon the record, including the trial court's description of Wati's conduct as
"forcible sexual assault;" its reiteration of Wati's convictions for mutually exclusive sexual
batteries, fellatio and vaginal intercourse; and its statement that the victim went through "hell
and terror * * * at the hands of Mr. Wati[;]" it is evident the trial court engaged in the
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appropriate analysis pursuant to R.C. 2929.14(C)(4). It is also clear from the record that the
trial court sufficiently explained the basis for the consecutive sentence at the sentencing
hearing. Specifically, when considering the language used by the trial court when stating its
findings, it is apparent that it found that Wati engaged in a course of conduct and that the
harm caused by the sexual batteries was "so great" that it warranted the imposition of
consecutive sentences pursuant to R.C. 2929.14(C)(4)(b). This is reinforced by the trial
court's sentencing entry, which reflects what occurred at the sentencing hearing. The entry
includes a finding that:
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 was so great and unusual that no
single prison term for any of the offenses committed as part of a
single course of conduct adequately reflects the seriousness of
the defendant's conduct.
It is well established that a court speaks only through its journal entries and not by oral
pronouncement. State v. Halsey, 12th Dist. Butler No. CA2014-10-211, 2015-Ohio-3405, ¶
14. Wati does not argue that the sentencing entry does not reflect the findings that were
made at the sentencing hearing or that it is otherwise defective. As a result, we find that Wati
was provided notice of the basis for his consecutive sentences as required by Bonnell.
{¶ 16} In light of the foregoing, we find the record indicates the trial court engaged in
the appropriate analysis pursuant to R.C. 2929.14(C) at the sentencing hearing and that it
made the appropriate findings in accordance with R.C. 2929.14(C)(4)(b). Accordingly, Wati's
assignment of error is overruled.
{¶ 17} Judgment affirmed.
HENDRICKSON, P.J., concurs.
PIPER, J., dissents.
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PIPER, J., dissenting.
{¶ 18} Without the equivalent of any "course of conduct" wording used by the trial
court, the state poses that the required statutory finding can be implied or inferred.
Somewhat differently, the majority opinion determines Wati received notice of the requisite
finding because: "course of conduct" is mentioned in the trial court's entry subsequent to the
sentencing hearing, an inaudible portion of the transcript of the sentencing hearing means
the trial court tracked the language of the statutory finding, and the trial court's discussion of
harm means it is "apparent" the trial court made a course of conduct finding. I respectfully
dissent from our majority opinion today and would reverse the matter for resentencing in
compliance with R.C. 2929.14(C)(4).
{¶ 19} The state argues that when an offender is sentenced to two or more offenses,
the record automatically supports a finding the offenses were committed in a course of
conduct. Today, this court establishes precedent that ventures down a slippery slope using
the trial court's discussion of harm and an inaudible in that discussion, to glean an inference
the trial court expressly made a "course of conduct" finding. We would be prudent to hold the
sentence must be pronounced as the statute plainly and expressly requires.
{¶ 20} The victim and the trial court described the event as a sexual assault. The trial
court's reference to a sexual assault in the singular precludes an inference the trial court
specifically made a finding the harm was caused from a course of conduct due to the two
separate offenses. Without such a finding, the record does not support compliance with R.C.
2929.14(C)(4).
{¶ 21} I agree with the majority that there are no magic words a trial court must
pronounce when making statutory findings. I also agree with the state that a trial court is not
required to explain requisite findings. While magic words and explanations are not
necessary, there must nevertheless be words used in the pronouncement of consecutive
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sentences that demonstrate all requisite findings were made. A subsequent entry containing
the appropriate findings does not cure defective notice at the sentencing hearing of the
findings relied upon by the trial court in rendering consecutive sentences. State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29.
{¶ 22} Justice Stewart, while a judge with the Eight District, explained,
not requiring slavish adherence to the specific wording of the
statute is not the same as relieving the court of the duty to make
the required "findings" * * * In the past, we have found those
findings can be implicit in context when the court's statement
during sentencing are intended to encompass the relevant
provisions of the sentencing statutes. * * * But in doing so, we
have arguably frustrated the purposes underlying the
requirement for findings as a predicate for ordering consecutive
sentences.
State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 14. Trial courts within the
Twelfth District have previously been reminded of the need for the "course of conduct" finding
because without the necessary finding the sentence is contrary to law. State v. Murrill, 12th
Dist. Butler No. CA2018-11-215, 2019-Ohio-3318, ¶ 11-12.
{¶ 23} In Bonnell, the court determined the trial court's discussion of Bonnell's
atrocious criminal record and the seriousness of his offenses did not support the conclusion
that the trial court made the appropriate requisite findings pursuant to R.C. 2929.14(C)(4).
2014-Ohio-3177 at ¶ 36. Thus, the court vacated the sentence and remanded the matter.
Here, discussing the harm also does not satisfy the requirement of a specific finding.
{¶ 24} A trial court is statutorily restrained when pronouncing consecutive sentences.
Id. The affirmative duty to make consecutive sentence findings should not be lightly
regarded, and compliance is often only ensured upon appellate review. I agree with the
majority the record could support the sentence Wati ultimately received. However, I disagree
with the majority in holding the record is "apparent" a course of conduct finding was
expressed by the trial court. The issue raised in Wati's assignment of error is the process
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due in the face of unquestionably clear legislation. Therefore, based upon the record before
us, and because the trial court said nothing equivalent to a "course of conduct" finding, the
sentence is contrary to law and I would reverse for the limited purpose of a new sentencing
hearing.2
2. When the record does not demonstrate a trial court considered requisite statutory factors, the proper recourse
is to remand for the limited purpose of resentencing. State v. Hope, 12th Dist. Preble No. CA2018-12-018, 2019-
Ohio-3719, ¶ 23.
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