State v. Hawley , 2020 Ohio 1270 ( 2020 )

[Cite as State v. Hawley, 2020-Ohio-1270.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108254
v. :
DONALD HAWLEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED, MODIFIED, AND REMANDED
RELEASED AND JOURNALIZED: April 2, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-622290-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl Sullivan, Assistant Prosecuting
Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Erika Cunliffe, Assistant Public Defender, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Donald Hawley, appeals his sentence. He
raises one assignment of error for our review:
Mr. Hawley’s sentence is excessive, contrary to law, and violates due
process because the trial court imposed multiple maximum
consecutive terms, which are not supported by this record, and did so
* * * without making the requisite statutory findings.
Finding merit to his assigned error, we vacate the consecutive portion
of Hawley’s sentence, invoke our power under the Ohio Constitution, Article IV,
Section 3(B)(2) and R.C. 2953.08(G)(2), and modify his sentences to concurrent,
leaving him with an aggregate eight-year prison sentence. We further remand this
case for the trial court to issue a judgment entry reflecting this modification.
I. Procedural History and Factual Background
In October 2017, Hawley was charged with nine counts of illegal use
of a minor in nudity-oriented material or performance in violation of R.C.
2907.323(A)(1), felonies of the second degree, and one count of possessing criminal
tools in violation of R.C. 2923.24(A), a felony of the fifth degree.
The charges arose after Hawley gave his cell phone to his wife when
he was admitted to the psychiatric unit of a hospital. When his wife got home, she
found a video on his phone that appeared to have been taken through the keyhole of
their bathroom door. The video depicted her daughter (Hawley’s stepdaughter)
showering and getting out of the shower. Hawley admitted the acts to police and
also told them that he took his stepdaughter’s underwear and used them to
masturbate. He also told police that “some of the underwear” may have been ripped
because he would “stick his penis inside of the crotch panels.” He would then hide
the underwear throughout the house. There were six videos of Hawley’s
stepdaughter on his cell phone as well as still shots from the videos.
Hawley pleaded guilty in January 2018, to an amended indictment of
seven counts of illegal use of a minor and one count of possessing criminal tools.
The remaining counts were nulled. As part of his plea, Hawley agreed that the
offenses were not allied and would not merge for purposes of sentencing. The trial
court continued the sentencing so that a presentence investigation could be
conducted.
At the sentencing hearing, defense counsel explained to the trial court
that Hawley immediately took responsibility for his actions. He said that Hawley
never denied that he did it. Defense counsel further explained that Hawley has “had
depression issues and [a] suicide attempt related to the shame that he suffers from
this.” Defense counsel stated that Hawley said that he did most of “these activities”
while “he was using a heavy amount of cocaine that interfered with his judgment,”
which he knew was wrong as well. Defense counsel further stated that Hawley was
truly remorseful for his actions and was “very sorry he put his family through this.”
Defense told the court that Hawley had a “fairly rough upbringing with physical
abuse and no real good relationship with his own father.” Defense counsel further
stated that although Hawley produced the videos, he did not distribute them for
commercial gain, which would have been the worst form of this offense and would
have caused more harm to the victim.
The 12-year old victim and her mother explained to the trial court how
Hawley’s actions have affected them. The victim stated that it took her a few weeks
to stop crying and having panic attacks. She also stated that she has trouble sleeping
and showering. The victim’s mother, Hawley’s wife, explained how she discovered
the videos and the underwear that were hidden all through their home. The victim’s
mother explained that she was traumatized by what her husband did and that
thoughts of it took up “every second of [her] time.”
The trial court imposed a sentence of eight years in prison on each
count of illegal use of a minor and ordered that they be served consecutive to one
another. It also imposed 12 months for possessing criminal tools and ordered that
it be served concurrent to the other counts, for an aggregate sentence of 56 years in
prison.
The trial court further notified Hawley that he would be subject to a
mandatory period of five years of postrelease-control upon his release from prison
and be classified as a Tier II sex offender. The court also notified Hawley of the
consequences he would face if he violated the conditions of his postrelease-control
and notified him of the Tier II registration requirements as well as the consequences
for violating them. It is from this judgment that Hawley now appeals.
II. Consecutive Sentences
There are two ways that a defendant can challenge consecutive
sentences on appeal. First, the defendant can argue that consecutive sentences are
contrary to law because the court failed to make the necessary findings required by
R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(b); State v. Nia, 2014-Ohio-2527, 15
N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can argue that the record does
not support the findings made under R.C. 2929.14(C)(4). See R.C.
2953.08(G)(2)(a); Nia at ¶ 16. Hawley raises both arguments in this appeal. Hawley
contends that the trial court failed to make the proper statutory findings before
imposing his sentence. He further maintains that his “multiple maximum
consecutive sentence” is excessive, contrary to law, and violates due process because
it is not supported by the record.
R.C. 2953.08(G)(2) states that when reviewing felony sentences, an
“appellate court’s standard for review is not whether the sentencing court abused its
discretion.” Rather, the statute states that if we “clearly and convincingly” find that
(1) “the record does not support the sentencing court’s findings under [R.C.
2929.14(C)(4)],” or that (2) “the sentence is otherwise contrary to law,” then we
“may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the
sentence and remand the matter to the sentencing court for resentencing.”
The Ohio Supreme Court has explained that when reviewing the
imposition of consecutive sentences, “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 finds * * * [t]hat the
record does not support the sentencing court’s findings under’” R.C. 2929.14(C)(4).
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting
R.C. 2953.08(G)(2)(a).
R.C. 2929.14(C)(4) requires trial courts to engage in a three-tier
analysis in order to impose consecutive sentences. First, the trial court must find
that “consecutive service is necessary to protect the public from future crime or to
punish the offender.” Id. Next, 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 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.
In each step of this analysis, the statutory language directs that the
trial court must “find” the relevant sentencing factors before imposing consecutive
sentences. R.C. 2929.14(C)(4). But “a word-for-word recitation of the language” of
the statute is not required. Bonnell at ¶ 29. “[A]s long as the reviewing court can
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.” Id.In this case, the trial court stated the following at Hawley’s sentencing
hearing:
This court does find that consecutive sentences are necessary to protect
the public from future crime. The court further finds that consecutive
sentences are necessary to punish the offender. The court finds that
consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct. And the court lastly finds that consecutive
sentences are not disproportionate to the danger the offender poses to
the public.
The court notes in its sentencing the following factors as they apply to
this case: The court finds that the defendant was in a position of trust
to both the mother and the daughter and the son and the two young
kids that were in his house; that the mother was the person that was
providing for the family; that the mother left these children in the trust
of the defendant, and the defendant violated the trust that was placed
on him.
The court further finds that this young lady who was the victim in this
case has been traumatized with reference to showering and sleeping at
night; that the mom has been shattered, because she was in love with
the defendant, trusted him, believed in him, tried to make a home and
provide for her family, and that he violated all of those areas of trust;
and that he shows no remorse.
The trial court made the first two consecutive-sentences findings but
we agree with Hawley that it failed to make the third finding, i.e., one of the three
findings under R.C. 2929.14(C)(4)(a) through (c). We acknowledge that a finding
under R.C. 2929.14(C)(4)(b) could arguably be made — that two or more of the
offenses were committed as part of a course of conduct and the harm was so great
or unusual that no single prison term would adequately reflect the seriousness of
Hawley’s conduct. After reviewing the record in this case, however, we find that the
record does not clearly and convincingly support a finding under
R.C. 2929.14(C)(4)(b) because the harm caused was not so great or unusual that a
single prison term would not adequately reflect the seriousness of the offender’s
conduct.
We further find that the trial court’s finding under R.C. 2929.14(C)(4)
— that “consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public” — is not
clearly and convincingly supported by the record. Hawley’s conduct does not reflect
such a seriousness or danger to the public that 56 years in prison is necessary to
protect the public from him.
While Hawley’s actions were reprehensible, there was no evidence
that he shared any of the videos or photos of his stepdaughter with anyone.
Moreover, and most significantly, based upon the record before us, Hawley
masturbated to the videos and photos of his stepdaughter but he never forced her to
have sex with him or touch him in a sexual manner, and he never touched her in an
inappropriate way. Further, although Hawley does have a criminal history, all of his
prior convictions were misdemeanors, he has never been incarcerated, and he does
not have any prior sex-offense convictions.
We further find that Hawley’s 56-year prison sentence is not
“reasonably calculated to achieve” the overriding purposes of felony sentencing set
forth in R.C. 2929.11. R.C. 2929.12(B). Nor is it “commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact upon the
victim, and consistent with sentences imposed for similar crimes committed by
similar offenders.” Id. Although the state cites to eight cases where it claims this
court upheld consecutive sentences in child pornography cases, none of the cases
supports the state’s assertion that a 56-year prison sentence was warranted in this
case.
First, five of the cases cited by the state are not applicable because the
defendants were sentenced before H.B. 86 went into effect.1 Thus, the trial courts
in these cases were not required to make any findings before imposing consecutive
sentences under R.C. 2929.14(C)(4), and appellate courts reviewed sentences only
for abuse of discretion. See State v. Stein, 8th Dist. Cuyahoga No. 97396, 2012-
Ohio-2502 (sentenced nine days before H.B. 86 went into effect; defendant received
a 10-year sentence for 80 counts relating to child pornography); State v. Mahan,
8th Dist. Cuyahoga No. 95696, 2011-Ohio-5154 (defendant received a 16-year
sentence for 95 counts relating to child pornography); State v. Carney, 8th Dist.
Cuyahoga No. 95343, 2011-Ohio-2280 (defendant received a 24-year sentence for
21 counts relating to child pornography); State v. Phillips, 8th Dist. Cuyahoga No.
92560, 2009-Ohio-5564 (defendant received a 24-year sentence for 41 counts
relating to child pornography); and State v. Geddes, 8th Dist. Cuyahoga No. 91042,
2008-Ohio-6489 (defendant, who had been found to be a sexual predator 7 years
earlier, received a 24-year sentence for 10 counts relating to child pornography).
1H.B. 86 went into effect on September 30, 2011. The General Assembly expressly
provided in Section 4 of H.B. 86 that “[t]he amendments * * * apply to a person who
commits an offense specified or penalized under those sections on or after the effective
date of this section[.]”
Three of the cases cited by the state, however, are applicable to the
analysis in the present case because the defendants were sentenced after H.B. 86
went into effect. Therefore, trial courts were required to make findings before
imposing consecutive sentences under R.C. 2929.14(C)(4), and appellate courts
review felony sentences under R.C. 2953.08 rather than for abuse of discretion.
Notably, however, the defendants in the three applicable cases cited by the state
received a prison sentence far less than the one that Hawley did here. See State v.
Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795 (defendant received a
15-year sentence for 117 counts relating to child pornography); State v. Duhamel,
8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145 (defendant received a 15-year
sentence for 29 counts relating to child pornography); and State v. Balbi, 8th Dist.
Cuyahoga No. 102321, 2015-Ohio-4075 (defendant received a 10-year sentence for
40 counts relating to child pornography). Not one of the defendants in these three
cases, however, received what is essentially a life sentence of 56 years.
The state cited to one other case, State v. Taylor, 8th Dist. Cuyahoga
No. 100315, 2014-Ohio-3134, for the proposition that “[t]he Eighth District has
upheld another similar case by this honorable trial court that was within the
statutory range of sentence not too long ago.” (Emphasis added.) Taylor, however,
is anything but similar to the present case. In Taylor, the defendant, who was the
victim’s first cousin, digitally and vaginally raped the victim. Despite far more
violent crimes, the defendant in Taylor only received a sentence of 24 years in
prison.
The imposition of consecutive sentences may be inappropriate where
it “demean[s] the seriousness of other more violent crimes and the harms to other
victims[.]” State v. Overholser, 2d Dist. Clark No. 2014-CA-42, 2015-Ohio-1980,
¶ 32. That is exactly what occurred here.
Indeed, a cursory review of a few cases that have been before this
court show just how the 56-year sentence in this case demeans the seriousness of
other more violent offenses. A man who repeatedly raped his stepdaughter over an
eight-year period beginning in 1999 when she was eight years old only received an
aggregate sentence of 16 years in prison. See State v. Schwarzman, 8th Dist.
Cuyahoga No. 100337, 2014-Ohio-2393. A man who lured a 12-year old victim into
his house by deception, violently dragged her from the first floor to his bedroom on
the second floor, choked her, pulled her pants down, raped her vaginally and anally,
and threatened to kill her if she told anyone received an aggregate sentence of 16
years in prison. See State v. Banks, 8th Dist. Cuyahoga No. 82942, 2003-Ohio-6646(this review was before State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, so we had the same review under R.C. 2953.08 as we do now). Even a
man who raped seven women got less time (5 years consecutive for each rape, for a
total of 35 years). See State v. Green, 8th Dist. Cuyahoga No. 101990, 2015-Ohio-
2700 (defendant offered “unassuming victims” help by offering them a ride, and
then when they got into the car, he violently raped them; when he was done, he
threw them out of the car, sometimes without clothing, and left them in an isolated
place).
For the foregoing reasons, we find that the record does not clearly and
convincingly support the findings that are required to impose consecutive sentences
under R.C. 2929.14(C)(4). We further find that the record does not demonstrate
that a 56-year prison sentence is the minimum sanction to accomplish the purposes
and principles of sentencing without imposing an unnecessary burden on the state.
And finally, we find that the imposition of consecutive sentences in this case
demeans the seriousness of other more violent crimes and the harms to other
victims.
We therefore vacate the consecutive portion of Hawley’s sentence,
invoke our power under the Ohio Constitution, Article IV, Section 3(B)(2) and R.C.
2953.08(G)(2), and modify Hawley’s sentences to concurrent, leaving him with an
aggregate eight-year prison sentence.
Hawley’s remaining argument that the trial court was biased against
him is moot in light of our disposition of his assigned error.
Hawley’s sole assignment of error is sustained.
We do note, however, that although the trial court properly advised
Hawley of postrelease-control at his sentencing hearing, it failed to place anything
in the sentencing entry about postrelease-control. Therefore, upon remand, the trial
court should issue a nunc pro tunc sentencing entry to include the required
postrelease-control notifications. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-
2927, 85 N.E.3d 700, ¶ 14, citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-
1111, 967 N.E.2d 718.
Judgment reversed. The consecutive portion of Hawley’s sentence is
vacated. We modify his sentence to concurrent, leaving him with sentence of eight
years in prison. The remaining aspects of Hawley’s sentence remain intact,
including a $2,000 fine, court costs, a mandatory term of five years of postrelease-
control, and the fact that Hawley is a Tier II sex offender. This case is remanded for
the trial court to issue a judgment entry reflecting this modification as well as the
remaining aspects of Hawley’s sentence and all of the required postrelease-control
notifications.
It is ordered that appellant recover from appellee 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. Case remanded to the
trial court for execution of the modified sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE OPINION
MICHELLE J. SHEEHAN, J., CONCURRING IN PART AND DISSENTING IN
PART:
I concur with the majority opinion that the trial court failed to make
all of the required consecutive-sentence findings under R.C. 2929.14(C)(4). And for
this reason, I would vacate Hawley’s sentence and remand to the trial court to
consider whether consecutive sentences are appropriate under R.C. 292914(C)(4)
and, if so, to make the required findings on the record.
Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,
or otherwise modify a sentence, or vacate a sentence and remand for resentencing if
it “clearly and convincingly finds” that the record does not support the sentencing
court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or
2929.20(I), or the sentence is otherwise contrary to law. The failure to make all of
the findings required under R.C. 2929.14(C)((4) before imposing consecutive
sentences renders the imposition of consecutive sentences contrary to law. See
Bonnell, 14 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. As the Ohio
Supreme Court explained in Bonnell, judicial fact-finding is necessary “to overcome”
the “presumption in favor of concurrent sentences.” Id. at ¶ 23. And where the trial
court fails to make such findings, the sentence is contrary to law and the appellate
court must remand the case for resentencing. Bonnell at ¶ 37 (finding that where
the trial court failed to make the consecutive-sentence findings, the imposition of
consecutive sentences is contrary to law and “we are constrained to reverse the
judgment * * * and remand the matter to the trial court for resentencing”).
It goes without saying that the record cannot support a finding that
has not yet been made by the trial court. Therefore, in light of the trial court’s failure
to make the necessary findings under R.C. 2929.14(C)(4), and in adhering to the
remand instructions in Bonnell, I would find any discussion of whether the record
clearly and convincingly supports the findings to be premature. See State v. Vinson,
2016-Ohio-7604, 73 N.E.3d 1025, ¶ 74 (8th Dist.) (S. Gallagher, J., concurring in
judgment only) (agreeing with the majority’s reversing the imposition of consecutive
service where the trial court failed to make the statutorily mandated findings but
stating that such reversal renders “any discussion of whether the record supports
the finding premature”).
I therefore concur with the majority’s conclusion that the trial court
failed to make the requisite consecutive-sentence findings but respectfully dissent
from the majority’s modification of Hawley’s sentence based upon whether the
record “clearly and convincingly” supports the findings that have not been
completed by the trial court.