State v. Polizzi , 2021 Ohio 244 ( 2021 )

[Cite as State v. Polizzi, 2021-Ohio-244.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2020-L-016
- vs - : 2020-L-017
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: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
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 February 4, 2020
judgment entry of the Lake County Court of Common Pleas, following remand from this
court, resentencing him to a total of 358 consecutive months in prison for sex offenses
committed against two victims while he was their high school teacher. For the following
reasons, we affirm the judgment of the trial court.
{¶2} Several years ago, appellant was employed as a history teacher at a small,
private Christian high school in Lake County. Appellant was also a class advisor, mock
trial advisor, and cross-country coach for the school. During his time there, appellant
engaged in inappropriate sexual conduct with two female students—one in 2008 and
another in 2010. Each student was 17 years old when the conduct commenced and over
18 years old when it terminated. Appellant was 31 to 33 years of age and married, now
with children.
{¶3} Appellant was fired in 2010 after another student reported seeing him return
to school with the 2010 victim. Following his termination, appellant completed law school,
passed the bar examination, and began working as an attorney.
{¶4} In 2012, appellant sent the 2010 victim sexually explicit messages under a
fictitious name. The victim immediately suspected appellant, who eventually
acknowledged it was him. These messages alarmed the victim, and she contacted the
authorities. Not much happened with the case until the 2010 victim was contacted by a
new detective in 2017.
{¶5} On July 31, 2017, appellant was indicted on 24 counts alleging sexual
contact and sexual conduct offenses committed against the 2010 victim. The case was
assigned Lake County Court of Common Pleas Case No. 17 CR 000853. On December
29, 2017, appellant was indicted on 56 counts alleging sexual contact and sexual conduct
offenses committed against the 2008 victim. The case was assigned Lake County Court
of Common Pleas Case No. 17 CR 001390. The cases were eventually consolidated.
{¶6} On March 26, 2018, pursuant to a negotiated plea agreement, appellant
pleaded guilty to one count of Gross Sexual Imposition (Felony 4) in each case and three
counts of Sexual Battery (Felony 3) in each case. The charges to which appellant pleaded
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involved acts of sexual touching compelled by force or threat of force, cunnilingus, fellatio,
and digital penetration. The remaining charges in the indictments were dismissed. The
plea agreement did not include an agreed sentence recommendation. The trial court
referred appellant to the Department of Adult Probation for a presentence evaluation,
psychiatric examination, and sex offender report.
{¶7} The presentence report indicates appellant has no criminal history, either
prior to or subsequent to the instant offenses. Appellant’s risk of recidivism under the
Ohio Risk Assessment System is “9/Low.” The report lists seven domains of risk to re-
offend, two of which are categorized as “moderate” risk; to wit: education/employment
and criminal attitudes/behavior. The other five domains—criminal history, family/social
support, neighborhood, substance use, and peer associations—are categorized as “low”
risk.
{¶8} The sex offender evaluation report indicates that appellant’s risk of sexual
recidivism, derived from an actuarial risk assessment tool, is “0”. This falls in the “low”
risk category. According to the most current norms relied on in the report, when a score
of “0” is compared to a routine sample of other offenders with the same score, the five-
year sexual recidivism rate is 2.8%. Said otherwise, for every 100 sex offenders with the
same score, an average of 2 to 4 would be convicted of a new sex offense within five
years. Only one area of assessment, the fact that the victims are unrelated, is elevated.
The other nine areas of assessment are not elevated. The report also finds that appellant
has no historic or immutable predictors of sexual recidivism.
{¶9} The evaluator noted there have been no known crimes or inappropriate
sexual behaviors since appellant had committed these crimes, which occurred eight to
ten years prior, and found no need for sex offender therapy. The evaluator ultimately
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assessed that appellant’s prognosis is “decent” and his risk of an additional sex offense
is “moderate,” due to a concern with his sense of remorse and ability to take full
responsibility for his actions.
{¶10} The victims provided written impact statements for the court’s consideration,
describing ongoing emotional and psychological harm resulting from appellant’s sexual
misconduct. They both described how naïve they were when appellant pursued them
and that it was their first sexual experience of any kind.
{¶11} Appellant filed a sentencing memorandum, which included 11 letters in
support from friends, family, colleagues, pastors, and community members. Many of the
letters stated that appellant’s behavior was out of character and that he was remorseful
for his actions, although the focus in the majority of the letters was on the impact and
harm that a harsh sentence would have on appellant and his family.
{¶12} 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
in prison. The maximum possible prison term was 396 months.
{¶13} At the first sentencing hearing, the trial court heard from appellant, his wife
and father, and both victims. The victims requested the trial court impose the maximum
sentence. The prosecuting attorney recommended 10 years in prison in each case, to be
served consecutively, for a total of 20 years in prison.
{¶14} The trial court ordered the maximum sentence on every charge in both
cases—all to run consecutively—for an aggregate prison term of 396 months (or 33
years). Appellant was also classified a Tier III sex offender. On appeal, this court
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determined there was no support in the record for some of the trial court’s consecutive
sentence findings. We vacated the sentence and remanded the matter for resentencing.
State v. Polizzi, 11th Dist. Lake Nos. 2018-L-063 & 2018-L-064, 2019-Ohio-2505.
{¶15} Prior to the resentencing hearing, the state submitted a sentencing
memorandum with nine attachments of materials previously provided in the course of
discovery. The attachments consisted of the following: (1) police reports detailing the
investigation into appellant, which identified an additional student as a potential victim of
appellant’s inappropriate conduct and additional “grooming” behavior of the 2008 victim;
(2) the 2012 correspondence between the 2010 victim and appellant, who was using a
fictitious name and sexually explicit email address; (3) the expert report on adolescent
sexual abuse of Diane Daiber, BSN, RN, SANE-A, SANE-P; (4) written statements from
one of the victims, as well as from other students and teachers obtained during the
investigation; and (5) a statement from appellant’s former employer regarding his
termination from the school.
{¶16} The trial court conducted a resentencing hearing on January 30, 2020. Both
victims again made statements to the court. They each expressed the harm caused by
appellant’s actions, including issues with alcoholism, trust and intimacy issues, and
struggles with extreme anxiety such as the need to be sedated during certain medical
appointments.
{¶17} The trial court noted that the offenses against the 2008 victim occurred
during a nine-month time period, and the offenses against the 2010 victim occurred during
a two-month time period. The trial court then ordered 17 months in prison for each of the
two counts of Gross Sexual Imposition and 54 months in prison for each of the six counts
of Sexual Battery, all to be served consecutively, for a total of 358 months in prison (or
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nearly 30 years). Defense counsel made an objection for the record as to the consecutive
nature of appellant’s prison sentence. The trial court again classified appellant a Tier III
sex offender with the most stringent lifetime reporting requirements. The judgment entry
of re-sentence was journalized February 4, 2020.
{¶18} Appellant filed a timely notice of appeal and raises four assignments of
error:
[1.] The trial court erred in imposing consecutive sentences because
imposing consecutive sentences violated the law of the case
doctrine.
[2.] The trial court erred in imposing consecutive sentences because
imposing consecutive sentences violated appellant’s constitutional
right to due process of law.
[3.] The trial court erred in imposing consecutive sentences because
the record on remand did not justify imposing consecutive
sentences.
[4.] The trial court’s imposition of an aggregate sentence of
approximately 30 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.
Law of the Case Doctrine
{¶19} In his first assignment of error, appellant argues the trial court violated the
law of the case doctrine by imposing consecutive sentences on remand after this court
already held in Polizzi that the record did not support consecutive sentences.
{¶20} “Briefly, the doctrine provides that the decision of a reviewing court in a case
remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio
St.3d 1, 3 (1984) (citations omitted).
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The doctrine is considered to be a rule of practice rather than a
binding rule of substantive law and will not be applied so as to
achieve unjust results. However, the rule is necessary to ensure
consistency of results in a case, to avoid endless litigation by settling
the issues, and to preserve the structure of superior and inferior
courts as designed by the Ohio Constitution. In pursuit of these
goals, the doctrine functions to compel trial courts to follow the
mandates of reviewing courts.
Id. (citations omitted). “Thus, where at a rehearing following remand a trial court is
confronted with substantially the same facts and issues as were involved in the prior
appeal, the court is bound to adhere to the appellate court’s determination of the
applicable law.” Id. (citations omitted); accord State v. Patterson, 11th Dist. Trumbull No.
95-T-5207, 1996 WL 210773, *5 (Mar. 29, 1996).
{¶21} Moreover, “absent extraordinary circumstances, such as an intervening
decision by the Supreme Court, an inferior court has no discretion to disregard the
mandate of a superior court in a prior appeal in the same case.” Id. at syllabus, following
State ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32 (1979) (noting that an example of
an extraordinary circumstance “would be where a holding of the Court of Appeals is
inconsistent with an intervening decision by this court.”); accord Hopkins v. Dyer, 104
Ohio St.3d 461, 2004-Ohio-6769, ¶18 (where the Supreme Court held an intervening
change in the law presented a compelling reason for the courts below to reexamine a
point of law); see also State v. Greenleaf, 9th Dist. Summit No. 25848, 2012-Ohio-686,
¶6.
{¶22} In Polizzi, we sustained appellant’s first and fifth assignments of error, in
which he raised the following issues: (1) the record does not support the sentences
imposed pursuant to R.C. 2929.11 and 2929.12; (2) the record does not support
consecutive sentences under R.C. 2929.14(C)(4); and (3) the court failed to make
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sufficient findings under R.C. 2929.14(C)(4) in order to run the sentences imposed in each
case consecutive to the sentences imposed in the other.
{¶23} We reviewed appellant’s sentencing arguments under the standard
provided in R.C. 2953.08(G)(2) and held as follows:1
 The record does not support some of the trial court’s seriousness
and recidivism findings under R.C. 2929.12, namely, that (1)
appellant is likely to commit future crimes and (2) the harm caused
to the victims is permanent or even the worst type of harm for the
charged offenses;
 The record does not support some of the trial court’s consecutive
sentence findings under R.C. 2929.14(C)(4), namely, that (1)
appellant’s sentence is not disproportionate to the danger he poses
to the public and (2) the harm caused by appellant’s conduct was so
great or unusual that no single prison term for any of the offenses he
committed adequately reflects the seriousness of his conduct.
{¶24} Appellant’s entire sentence was vacated. Our mandate to the trial court on
remand was to resentence appellant consistent with our opinion. Polizzi, supra, at ¶47-
48. In retrospect, our conclusion may have been rendered too imprecisely. Nevertheless,
the trial court held a de novo sentencing hearing, pursuant to R.C. 2929.19(A), following
which it reduced the prison terms previously imposed for each individual offense and
again ordered all terms to be served consecutively.
{¶25} The trial court’s resentencing entry provides, word for word, the exact same
findings as its original sentencing entry with regard to the consecutive nature of the
sentences. Clearly, therefore, the order for consecutive service of all prison terms at
resentencing did not adhere to this court’s mandate in Polizzi, in which we ordered the
1. We also stated, as dicta, that the trial court should not elevate the seriousness of appellant’s sentences
for sexual battery based on his status as a teacher to the victims, as this is a necessary element of the
offense under R.C. 2907.03(A)(7).
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trial court to resentence appellant in part because the record did not support those
findings.
{¶26} The question, then, is whether the trial court was bound to adhere to our
mandate in Polizzi. We must answer this question in the negative. Although the trial
court was confronted with substantially the same facts and issues as were involved in the
prior appeal, our previous holding is inconsistent with two intervening decisions of the
Supreme Court of Ohio on the issue of appellate review of felony sentences and
consecutive service.
{¶27} Subsequent to Polizzi, a plurality of the Supreme Court declared that “* * *
R.C. 2929.11 and 2929.12 both clearly apply only to individual sentences.” State v.
Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, ¶17 (emphasis sic). “Because R.C.
2953.08(G)(2)(a) specifically mentions a sentencing judge’s findings made under R.C.
2929.14(C)(4) as falling within a court of appeals’ review, the General Assembly plainly
intended R.C. 2953.08(G)(2)(a) to be the exclusive means of appellate review of
consecutive sentences.” Id. at ¶16 (citation omitted).
{¶28} A majority of the Supreme Court recently issued a further pronouncement
that R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court to modify or
vacate a sentence based on its view that the sentence is not supported by the record
under R.C. 2929.11 and 2929.12.” State v. Jones et al., ___ Ohio St.3d ___, 2020-Ohio-
6729, ¶39. “Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently
weigh the evidence in the record and substitute its judgment for that of the trial court
concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”
Id. at ¶42.
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{¶29} In Polizzi, unlike the Fifth District Court of Appeals in Gwynne, we did not
analyze the imposition of consecutive sentences solely under R.C. 2929.11 and 2929.12.
We ultimately held that the record did not support the trial court’s R.C. 2929.14(C)(4)
findings. Nevertheless, our analysis regarding the R.C. 2929.14(C)(4) consecutive
service findings was inextricably merged with our analysis regarding the R.C. 2929.12
seriousness and recidivism factors. Polizzi, supra, at ¶30-35. The trial court
acknowledged this on the record at the resentencing hearing. We must conclude,
therefore, that the Supreme Court’s intervening decisions in Gwynne and Jones et al.
created a change in the law that is inconsistent with the holding we reached in Polizzi.
Accordingly, we cannot say the trial court violated the law of the case doctrine when
resentencing appellant to consecutive sentences.
{¶30} Appellant’s first assignment of error is without merit.
Due Process of Law
{¶31} In his second assignment of error, appellant alleges the trial court violated
his constitutional right to due process of law by imposing consecutive sentences on
remand. Specifically, appellant contends that ordering consecutive service, after this
court held it was not supported by the record, suggests the sentence was vindictive in the
absence of an explanation related to appellant’s post-sentence conduct.
{¶32} Appellant’s reliance on the case law of State v. Nichols is inapposite. In
Nichols, the Second District Court of Appeals reversed the trial court’s imposition of
maximum, consecutive sentences and remanded the matter for resentencing. State v.
Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671 (2d Dist.). Upon a request for clarification
from the state, the Second District instructed that a de novo sentencing hearing was not
required and that neither party was entitled to offer additional evidence upon remand
10
unless related to conduct or events that occurred after the time of the original sentencing
proceeding. State v. Nichols, 2d Dist. Clark No. 2010 CA 60, 2011-Ohio-6805, ¶8-10.
{¶33} Here, however, appellant’s original sentence was not merely reversed, it
was vacated in its entirety. A de novo sentencing hearing was not only required upon
remand, it was necessary. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶15,
citing R.C. 2929.19(A) (“A remand for a new sentencing hearing generally anticipates a
de novo sentencing hearing.”); see also State v. Orlando Jones, 8th Dist. Cuyahoga No.
85626, 2005-Ohio-4828, ¶7. Accordingly, the trial court was not limited to considering
appellant’s conduct since the time of his original sentencing hearing.
{¶34} The trial court conducted the resentencing hearing as an independent
proceeding at which appellant was present and permitted to speak, defense counsel and
the prosecuting attorney presented information relevant to the imposition of sentence, the
victims were notified and permitted to make statements, all relevant factors were again
considered, and the sentence was imposed anew. See, e.g., State v. Steimle, 8th Dist.
Cuyahoga Nos. 79154 & 79155, 2002-Ohio-2238, ¶14, citing R.C. 2929.19(A)(1), and
Orlando Jones, supra, at ¶10-11.
{¶35} Additionally, appellant had no reasonable expectation of finality with respect
to his sentence. Appellant successfully challenged his original sentence on direct appeal;
this court properly vacated the sentence and remanded the case for resentencing; and
the trial court was obliged to conduct a de novo sentencing hearing and impose sentence
anew. See State v. Christian, 159 Ohio St.3d 510, 2020-Ohio-828, ¶16-18, citing United
States v. DiFrancesco, 449 U.S. 117, 136 (1980) and State v. Roberts, 119 Ohio St.3d
294, 2008-Ohio-3835, ¶16.
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{¶36} All considered, appellant has failed to show that the imposition of
consecutive sentences on remand was the product of actual vindictiveness, and the
imposition of a shorter overall prison term does not imply a reasonable likelihood of
vindictiveness. See Alabama v. Smith, 490 U.S. 794 (1989), citing North Carolina v.
Pearce, 395 U.S. 711 (1969). Pursuant to controlling statutory and case law, appellant
was afforded all process due upon remand of his vacated sentence.
{¶37} The imposition of consecutive sentences at resentencing did not violate
appellant’s constitutional right to due process of law.
{¶38} Appellant’s second assignment of error is without merit.
R.C. 2929.14(C)(4)
{¶39} Under his third assignment of error, appellant contends the trial court erred
in imposing consecutive sentences because the record on remand does not support the
trial court’s findings under R.C. 2929.14(C)(4).
{¶40} We review this argument under the standard provided in R.C.
2953.08(G)(2), which provides, in relevant part:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
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. * * *
The appellate court may take any action authorized by this division if
it clearly and convincingly finds * * * (a) that the record does not
support the sentencing court’s findings under * * * division (C)(4) of
section 2929.14 * * *.
{¶41} As noted by the Supreme Court in Jones et al., this review is more limited
than the review that was available to the reviewing court prior to the amendment of the
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statute in 2000. The prior version permitted the reviewing court to determine that “The
record does not support the sentence.” Jones et al., supra, at ¶35. We are no longer
permitted to consider this “broad stand-alone provision.” Id. at ¶37. The current version
as stated above only allows us to consider whether the record supports the findings made
in determining whether consecutive sentences are warranted.
{¶42} There is a statutory presumption that multiple prison terms are to be served
concurrently. R.C. 2929.41(A). If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court makes certain findings under R.C. 2929.14(C)(4). The
court must find that “the consecutive service is necessary to protect the public from future
crime or to punish the offender.” It must also 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.” Finally, the court must find at least one of the following:
(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.
{¶43} As stated on the record at the resentencing hearing and in the resentencing
judgment entry, the trial court found that consecutive sentences “are necessary to protect
13
the public from future crime or to punish the Defendant”; “are not disproportionate to the
Defendant’s conduct and the danger the Defendant poses to the public”; and, applying
subsection (b), 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
committed by the Defendant 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 Defendant’s conduct.”
{¶44} Appellant takes issue with all three findings. He contends the record does
not support that (1) he poses a danger to the public; (2) consecutive sentences are not
disproportionate to his conduct and the danger he poses to the public; and (3) the harm
caused by his offenses was so great or unusual that a single prison term would not
adequately reflect the seriousness of his conduct.
{¶45} With regard to the first argument, we note the trial court found, as required
under the statute, that consecutive service is necessary to protect the public from future
crime or to punish appellant. Whether the record supports the former is not dispositive,
and appellant does not take issue with the latter. Accordingly, this argument is not well
taken.
{¶46} We further conclude, with regard to the third argument, that the record
supports the trial court’s finding that a single prison term would not adequately reflect the
seriousness of appellant’s conduct. There were two victims of appellant’s conduct,
multiple offenses, and each has suffered enduring emotional and psychological harm.
There also exists a valid concern with the scope of appellant’s remorse for his conduct.
Appellant should be held accountable to these victims with consecutive sentences.
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{¶47} Finally, we find no merit with appellant’s second argument. We cannot
clearly and convincingly find that the record does not support the trial court’s finding that
consecutive sentences are not disproportionate to appellant’s conduct and the danger he
poses to the public. The offenses appellant committed against the 2008 victim occurred
during a nine-month period of time, and those committed against the 2010 victim occurred
during a two-month period of time. The record demonstrates that appellant had no
criminal history prior to these offenses and no juvenile adjudications. Appellant’s sex
offender evaluation reports a low to moderate risk of recidivism, which is further supported
by the fact that he has no criminal record subsequent to these offenses. Even so, without
minimizing the fact that appellant has not reoffended, appellant’s conduct was deplorable
and caused undeniable psychological harm to the victims. It is further apparent that
appellant’s lack of genuine remorse and failure to appreciate the consequences his
actions have had on the victims present a danger to the public. According to some of the
statements and interviews included in the record, appellant spent time grooming his
victims in order to obtain their consent and then threatened them with expulsion if they
told anyone about the sexual conduct. In fact, this conduct resurrected two years after
the 2010 relationship ended by appellant sending an explicit, surreptitious message.
{¶48} This is not to say there are no concerns with the overall length of the harsh
sentence imposed here. It is, in fact, even a 10-year increase over what the state had
recommended. However, the sentence is within the range permitted by law, and our
review is limited, under R.C. 2953.08(G)(2)(a), to whether the record clearly and
convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4). The
options before the trial court with regard to the imposition of consecutive sentences
ranged from an aggregate term of 71 months to an aggregate term of 358 months in
15
prison. This broad range of the potential prison term magnifies the need for more
meaningful review of felony sentences than currently permitted under R.C.
2953.08(G)(2)(a). Based on the pronouncement in Gwynne that the R.C. 2929.11 and
2929.12 factors only apply to individual sentences, what is there to guide a trial court
and/or a reviewing court when confronted with such a broad range of potential
sentencing? Felony sentencing statutes must be read as a whole, and “by the express
language of R.C. 2929.12(A), R.C. 2929.11’s sentencing purposes and R.C. 2929.12’s
seriousness and recidivism factors are no less operative when a trial court is imposing
consecutive sentences than when a trial court is imposing an individual sentence.”
Gwynne, supra, at ¶67 (Donnelly, J., dissenting). “Appellate review adds an important
dimension to fundamental justice and is an important check on trial courts’ sentencing
decisions. To bolster the public’s confidence in the justice system, appellate courts must
[be permitted to] exercise the statutory powers granted to them by the General Assembly
to determine the proper application of the laws to a trial court’s sentencing decisions.” Id.
at ¶90 (Donnelly, J., dissenting).
{¶49} We are bound to follow the precedent of the Supreme Court of Ohio,
however, which clearly provides that R.C. 2953.08(G)(2) does not permit an appellate
court to substitute its judgment for that of the trial court. See Jones et al., supra, at ¶30.
{¶50} Appellant’s third assignment of error is without merit.
Cruel and Unusual Punishment
{¶51} Under his fourth assignment of error, appellant contends an aggregate
sentence of approximately 30 years in prison for a first-time offender convicted of third-
and fourth-degree felonies violates the constitutional prohibition against cruel and unusual
punishment.
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{¶52} The Eighth Amendment to the United States Constitution applies to the
states pursuant to the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660(1962). The amendment provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” Section 9, Article I of the
Ohio Constitution sets forth the same restriction: “Excessive bail shall not be required;
nor excessive fines imposed; nor cruel and unusual punishments inflicted.”
{¶53} “‘“The Eighth Amendment does not require strict proportionality between
crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.”’” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,
¶13, quoting State v. Weitbrecht, 86 Ohio St.3d 368, 373 (1999), quoting Harmelin v.
Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring). The Supreme Court of
Ohio has held, however, that this “proportionality review should focus on individual
sentences rather than on the cumulative impact of multiple sentences imposed
consecutively.” Id. at ¶20. “Where none of the individual sentences imposed on an
offender are grossly disproportionate to their respective offenses, an aggregate prison
term resulting from consecutive imposition of those sentences does not constitute cruel
and unusual punishment.” Id. at syllabus.
{¶54} Here, each individual sentence is within the statutory range for each
offense, and appellant has not challenged any of the statutes upon which his sentences
are based. Further, appellant’s proportionality argument is based on the imposition of
consecutive service, the length of which is attributable to the number of offenses he
committed. Because appellant does not contend that the individual sentences imposed
by the court are grossly disproportionate to the offenses he committed, he has not
17
established that the cumulative length of his incarceration constitutes cruel and unusual
punishment under the United States or Ohio constitutions.
{¶55} With respect to this holding, we further adopt the Supreme Court’s
cautionary conclusion in Hairston:
[T]his case should not be heralded as a signal for future sentencing
courts to impose maximum, consecutive terms of incarceration in all
cases. Although Foster eliminated judicial fact-finding, courts have
not been relieved of the obligation to consider the overriding
purposes of felony sentencing, the seriousness and recidivism
factors, or the other relevant considerations set forth in R.C. 2929.11,
2929.12, and 2929.13. When imposing sentence, courts must be
faithful to the law, must not be swayed by public clamor, media
attention, fear of criticism, or partisan interest, and must be mindful
of the obligation to treat litigants and lawyers with dignity and
courtesy.
Id. at ¶25; see also Gwynne, supra, at ¶88 (Donnelly, J., dissenting) (“Consecutive and
lengthy sentences must be reserved for the worst offenses and offenders.”).
{¶56} Appellant’s final assignment of error is without merit.
{¶57} The judgment of the Lake County Court of Common Pleas is hereby
affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
THOMAS R. WRIGHT, J., concurs in part and dissents in part with a Dissenting Opinion.
____________________
THOMAS R. WRIGHT, J., concurs in part and dissents in part with a Dissenting Opinion.
{¶58} I concur in part and dissent in part. I concur to the extent that the first,
second and fourth assignments of error are without merit. As to the third assignment, I
dissent.
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{¶59} It is now abundantly clear that pursuant to Gwynne and Jones, R.C. 2929.11
and R.C. 2929.12 play no role in the review of consecutive sentences due to amendment
of R.C. 2953.08. Those cases, however, in no way limit our ability to review consecutive
sentences under the applicable statutes, i.e. R.C. 2953.08(G) and R.C. 2929.14(C)(4).
{¶60} R.C. 2953.08 states:
{¶61} “(G)(1) If the sentencing court was required to make the findings required
by division (B) or (D) of section 2929.13 or division (I) of section 2929.20 of the Revised
Code, or to state the findings of the trier of fact required by division (B)(2)(e) of section
2929.14 of the Revised Code, relative to the imposition or modification of the sentence,
and if the sentencing court failed to state the required findings on the record, the court
hearing an appeal under division (A), (B), or (C) of this section shall remand the case to
the sentencing court and instruct the sentencing court to state, on the record, the required
findings.
{¶62} “(2) The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶63} “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. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate court may take any
action authorized by this division if it clearly and convincingly finds either of the following:
{¶64} “(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
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{¶65} “(b) That the sentence is otherwise contrary to law.”
{¶66} R.C. 2929.14(C)(4) states:
{¶67} “If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is 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, and if the court also finds any of the following:”
{¶68} Multiple terms were imposed for convictions of multiple offenses. And the
functional effect of R.C. 2929.14(C) is that all are required to be run concurrent unless a
trial court finds and the record supports that consecutive service is necessary:
1. to protect the public from future crimes or to punish the offender;
and
2. that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct; and
3. are not disproportionate to the danger the offender poses to the
public.
{¶69} The statute is written in both the disjunctive and conjunctive. Thus, the first
prong is satisfied when either of the conditions are met but the remaining two prongs are
written in the conjunctive, meaning both must be present for each successive,
consecutive prison term.
{¶70} With respect to the danger Polizzi poses to the public, the record
establishes that he has no prior criminal history; that his sex offender evaluations report
a low to moderate risk of committing future sex crimes (the odds of him committing future
sex offenses is 2.8% or for every 100 sex offenders with the same score, between 2 to 4
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would recommit); that Polizzi has no history of immutable predictors of sex crimes; that
Polizzi had no inappropriate sexual behavior in the eight to ten years between these
offenses and conviction; and that after assessment, he has no need for sex offender
therapy.
{¶71} Polizzi did, however, lack genuine remorse and exhibited anger toward the
victims once his conduct was revealed. And according to some statements and
interviews, Polizzi groomed his victims and secured their silence by suggesting that they
would be expelled from school if they told anyone.
{¶72} While I cannot conclude that the record does not clearly and convincingly
support the sentencing court’s findings and decision to impose consecutive sentences for
some of the multiple offenses, I clearly and convincingly find the record does not support
the findings to impose consecutive sentences for all of the multiple offenses, presumed
to run concurrent, in light of the minimal danger Polizzi poses to the public.
{¶73} Polizzi’s sentence is 29 years and 10 months. Modification is warranted.
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