State v. Miller , 2021 Ohio 640 ( 2021 )

[Cite as State v. Miller, 2021-Ohio-640.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-20-14
v.
JERRY KEVIN MILLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 19-CR-425
Judgment Affirmed
Date of Decision: March 8, 2021
APPEARANCES:
Todd A. Anderson for Appellant
Nathan R. Heiser for Appellee
Case No. 9-20-14
ZIMMERMAN, J.
{¶1} Defendant-appellant, Jerry Kevin Miller (“Miller”), appeals the April
21, 2020 judgment entry of sentence of the Marion County Court of Common Pleas
Court. For the following reasons, we affirm.
{¶2} On October 9, 2019, the Marion County Grand Jury indicted Miller on
153 criminal charges, which included: three counts of Rape in violation of R.C.
2907.02(A)(2), all first-degree felonies; seven counts of Kidnapping in violation of
R.C. 2905.01(A)(2), all first-degree felonies; seven counts of Kidnapping in
violation of R.C. 2905.01(A)(4), all first-degree felonies; three counts of Sexual
Battery in violation of R.C. 2907.03(A)(5), all third-degree felonies; six counts of
Gross Sexual Imposition in violation of R.C. 2907.05(A)(1), all fourth-degree
felonies; three counts of Importuning in violation of R.C. 2907.07(B)(1), all fifth-
degree felonies; three counts of Disseminating Matter Harmful to Juvenile in
violation of R.C. 2907.31(A)(1), all fifth-degree felonies; 21 counts of Pandering
Obscenity Involving a Minor in violation of R.C. 2907.321(A)(1), all second-degree
felonies; 51 Pandering Obscenity Involving a Minor in violation of R.C.
2907.321(A)(5), all fourth-degree felonies; 10 counts of Illegal Use of a Minor in a
Nudity-Oriented Material or Performance in violation of R.C. 2907.323(A)(1), all
second-degree felonies; 23 counts of Illegal Use of a Minor in a Nudity Oriented
Material or Performance in violation of R.C. 2907.323(A)(3), all fifth-degree
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felonies; 10 counts of Gross Sexual Imposition in violation of R.C. 2907.05(A)(4),
all third-degree felonies; five counts of Rape in violation of R.C. 2907.02(A)(1)(b),
all first-degree felonies; and one count of Aggravated Possession of Drugs in
violation of R.C. 2925.11(A), (C)(1), a fifth-degree felony.1 (Doc. No. 1). The
indictment included 14 Sexual Motivation Specifications under R.C. 2941.147.
(Id.). Miller appeared for arraignment on October 15, 2019 and entered pleas of not
guilty. (Doc. No. 5).
{¶3} On March 6, 2020, Miller entered into a plea bargain with the State and
pled guilty to one count of Rape, a first-degree felony; one count of Illegal Use of a
Minor in a Nudity-Oriented Material or performance, a second-degree felony; and
one count of Gross Sexual Imposition, a third-degree felony.2 (Doc. No. 59). The
trial court accepted Miller’s guilty plea, found him guilty, and ordered a presentence
investigation (“PSI”) and a sex-offender-risk assessment. (Doc. Nos. 59, 62, 63,
64).
{¶4} On April 20, 2020, the trial court dismissed the 150 remaining counts
against Miller and sentenced him to 11 years in prison on the Rape conviction; eight
years on the Illegal-Use-of-a-Minor-in-a-Nudity-Oriented-Material-or-
1
Notwithstanding the 153-counts in the indictment, the facts presented involve a single minor-child victim
(Miller’s niece) identified as G.M. (Doc. No. 31); (PSI).
2
Miller’s Rape charge is from events occurring on or about February 23, 2016 through April 5, 2016, his
Illegal-Use-of-a-Minor-in-a-Nudity-Oriented-Material-or-Performance charge stemmed from events that
occurred on or about June 20, 2013 through June 5, 2014; and the genesis of Miller’s Gross-Sexual-
Imposition charge occurred sometime between May 31, 2013 through November 22, 2013. (Doc. Nos. 1,
31, 59, 68).
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Performance conviction; and 60 months in prison on the Gross-Sexual-Imposition
conviction. (Apr. 20, 2020 Tr. at 32-39); (Doc. No. 71). The trial court ordered
Miller to serve all prison terms consecutively to one another for an aggregate prison
term of 24 years.3 (Id. at 36); (Id.).
{¶5} On May 18, 2020, Miller filed his notice of appeal and raises three
assignments of error for our review, which we review together. (Doc. No. 74).
Assignment of Error I
The trial court erred as a matter of law in ordering Appellant to
serve his sentences consecutively. See Judgment Entry of
Sentencing (filed April 21, 2020).
Assignment of Error II
The trial court abused its discretion in ordering Appellant to
serve his sentences consecutively. See Judgment Entry of
Sentencing (filed April 21, 2020).
Assignment of Error III
The trial court abused its discretion in ordering Appellant to
serve maximum sentences on each count. See Judgment Entry of
Sentencing (filed April 21, 2020).
{¶6} In his assignments of error, Miller argues that the trial court erred by
imposing maximum, consecutive sentences. Specifically, under the first assignment
of error, Miller argues that the trial court erred in ordering him to serve consecutive
3
The trial court found Miller to be a Tier III sex offender advising him of his lifetime-registration
requirements, and gave Miller 263 days’ jail-time credit for time previously served in its judgment entry of
sentence filed on April 21, 2020. (Apr. 20, 2020 Tr. at 27-31, 37); (Doc. No. 71). On May 14, 2020, the trial
court journalized a nunc pro tunc judgment entry correcting a clerical error. (Doc. No. 73).
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sentences on the basis that such sentences are not supported by the record and are
therefore otherwise contrary to law under R.C. 2929.14(C)(4), (C)(4)(b), and
(C)(4)(c). In the second assignment of error, he argues that the trial court abused its
discretion in its findings under R.C. 2929.14(C)(4), (C)(4)(b), (C)(4)(c). And, in
the third assignment of error, Miller asserts that the trial court’s imposition of the
maximum sentence for each offense is not supported by the record, and thus is
otherwise contrary to law.
Standard of Review
{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Analysis
Maximum Sentences
{¶8} First, we will address Miller’s argument challenging the maximum term
of imprisonment for his criminal offenses. “It is well-established that the statutes
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governing felony sentencing no longer require the trial court to make certain
findings before imposing a maximum sentence.” State v. Maggette, 3d Dist. Seneca
No. 13-16-06, 2016-Ohio-5554, ¶ 29, citing State v. Dixon, 2d Dist. Clark No. 2015-
CA-67, 2016-Ohio-2882, ¶ 14 (“Unlike consecutive sentences, the trial court was
not required to make any particular ‘findings’ to justify maximum prison
sentences.”) and State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907,
¶ 9 (“The law no longer requires the trial court to make certain findings before
imposing a maximum sentence.”). Rather, “‘trial courts have full discretion to
impose any sentence within the statutory range.’” State v. Smith, 3d Dist. Seneca
No. 13-15-17, 2015-Ohio-4225, ¶ 9, quoting State v. Noble, 3d Dist. Logan No. 8-
14-06, 2014-Ohio-5485, ¶ 9, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09,
2013-Ohio-1122, ¶ 20.
{¶9} In this case, Miller’s Rape conviction carries a definite prison term of
three to 11 years in prison; his Illegal-Use-of-a-Minor-in-a-Nudity-Oriented-
Material-or-performance conviction carries a definite prison term of two to eight
years in prison; and his Gross-Sexual-Imposition conviction carries a definite term
of 12 months to 60 months in prison. R.C. 2907.02(A)(2), (B); R.C.
2907.323(A)(1), (B); R.C. 2907.05(A)(4), (C)(2); 2929.13(D)(1);
2929.14(A)(1)(b), (A)(2)(b), (A)(3)(a). Because the trial court sentenced Miller to
11 years in prison for the Rape conviction, eight years in prison as to the Illegal-
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Use-of-a-Minor-in-a-Nudity-Oriented-Material-or-Performance conviction, and 60
months in prison on the Gross-Sexual-Imposition conviction, the trial court’s
sentence falls within the statutory range. “[A] sentence imposed within the statutory
range is ‘presumptively valid’ if the [trial] court considered applicable sentencing
factors.” Maggette at ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572,
2011-Ohio-2791, ¶ 15.
{¶10} Here, Miller does not dispute that the trial court considered the
applicable sentencing factors under R.C. 2929.11 and R.C. 2929.12. Indeed, at
Miller’s sentencing hearing and in its sentencing entry, the trial court considered the
sentencing factors set forth under R.C. 2929.11 and 2929.12. (Apr. 20, 2020 Tr. at
33-39); (Doc. No. 71). Instead, Miller argues that the record does not support the
trial court’s imposition of maximum sentences under the facts of the instant case.
{¶11} Appellate court review of a felony sentence under R.C. 2953.08(G)(2)
was recently clarified by the Supreme Court of Ohio. See State v. Jones, ___Ohio
St.3d ___, 2020-Ohio-6729, ¶ 39.4 The Supreme Court determined that R.C.
2953.08(G)(2)(a) “clearly does not provide a basis for an appellate court to modify
or vacate a sentence if it concludes that the record does not support the sentence
4
Because Jones was decided after the parties submitted their appellate briefs in this case, neither party has
had the opportunity to address its applicability. However, Jones “does not change the law” but instead
“clarifies existing law and precedents.” State v. Roberts, 5th Dist. Richland No. 2020 CA 0035, 2021-Ohio-
90, ¶ 81 (Jan. 19, 2021), fn. 2. Therefore, we elect to apply Jones to the instant case without the benefit of
supplemental briefing.
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under R.C. 2929.11 and R.C. 2929.12 because * * * R.C. 2929.11 and R.C. 2929.12
are not among the statutes listed in the provision.” Id. at ¶ 31. Hence, the Supreme
Court concluded that an appellate court may not modify or vacate a felony sentence
based upon a finding by clear and convincing evidence that the record does not
support the trial court’s “findings” under R.C. 2929.11 and R.C. 2929.12. See id at
¶ 42 (“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.”).
{¶12} Moreover, in Jones, the Supreme Court concluded that R.C.
2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify or
vacate a felony sentence based upon a finding that the sentence is “contrary to law”
because it clearly and convincingly is not supported by the record under R.C.
2929.11 and R.C. 2929.12. Id. at ¶ 32-39. “As a result of the Supreme Court’s
holding in Jones, when reviewing felony sentences that are imposed solely after
considering the factors in R.C. 2929.11 and R.C. 2929.12,” this court will no longer
analyze whether those sentences are unsupported by the record. State v. Dorsey, 2d
Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. We simply determine whether
those sentences are contrary to law. See id.A sentence is contrary to law when it does not fall within the statutory
range for the offense or if the trial court fails to consider the purposes
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and principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors set forth in R.C. 2929.12.
Id. citing State v. Brown, 2d Dist. Clark No. 2016-CA-53, 2017-Ohio-8416, ¶ 74;
see State v. D-Bey, 8th Dist. Cuyahoga No. 109000, 2021-Ohio-60, ¶ 65.
{¶13} The record before us demonstrates that the prison terms imposed by
the trial court in this case are within the statutory range and that the trial court
considered the statutory factors in R.C. 2929.11 and 2929.12. Consequently, we
cannot conclude that Miller’s sentence is clearly and convincingly contrary to law.
See State v. Burks, 2d Dist. Clark No. 2019-CA-70, 2021-Ohio-224, ¶ 9, (“Under
Jones, this ends the inquiry regarding the individual sentences.”); see also D-Bey at
¶ 75, citing Jones at ¶ 39.
Consecutive Sentences
{¶14} Next, we address Miller’s arguments that the trial court erred by
imposing consecutive sentences. “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, another state, or the United States.”
R.C. 2929.41(A). R.C. 2929.14(C) provides:
(4) * * * [T]he 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
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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:
(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.
R.C. 2929.14(C)(4)(a)-(c).
{¶15} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. (Emphasis added.) Id.; Id.Further, the trial court must state the required findings at the sentencing hearing and
incorporate those findings into its sentencing entry. State v. Sharp, 3d Dist. Putnam
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No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, ¶ 29. A trial court “has no obligation to state reasons to support
its findings” and is not “required to give a talismanic incantation of the words of the
statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry.” Bonnell at ¶ 37.
{¶16} In our review of the record we conclude that the trial court’s
2929.14(C)(4) and (C)(4)(b) findings are supported by the record. Here, the trial
court explicitly considered the language of R.C. 2929.14(C)(4) and (C)(4)(b) when
ordering its consecutive sentences. (Apr. 20, 2020 Tr. at 35-37); (Doc. No. 71).
The record supports that Miller (who had a history of prior criminal convictions)
sexually abused and exploited G.M. repeatedly over several years stemming from
his role of transporting her from school. (Id. at 10-13, 19-20); (PSI). Moreover,
even though the 153-count indictment involved just a single minor-child victim, the
record supports that the victim’s disclosure of Miller’s criminal acts (upon her) led
to information that Miller may have had other familial victims. (PSI). Further,
G.M.’s victim-impact statement (“VIS”) (made in open court through the victim
advocate) detailed the enormity of the harm Miller caused to G.M as to whether
Miller would sexually abuse her and how G.M. was re-victimized each time she saw
Miller at family gatherings or had to hear about him from family members. (Id. at
10-12). Moreover, even after Miller stopped driving G.M. to school, she continued
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to live in fear of him regarding if and when she would be abused by Miller again.
(Id.).
{¶17} The trial court also received a VIS from the victim’s advocate (on
behalf of G.M.’s mother) about how Miller violated their trust and how Miller’s
actions have “torn [their] entire family apart”. (Id.). (See Miller’s Sentencing
Memorandum filed Apr. 16, 2020, Exs. A, B, C, D, E, F, G, H, I, J). Further, the
trial court considered G.M.’s father’s statement (in the PSI) detailing Miller’s sexual
contact with G.M. at family gatherings where he dismissed Miller’s sexual contact
(with G.M.) as playful, but in hindsight, criminal.5 (PSI).
{¶18} As to Miller’s convictions, we note that Miller pleaded to three
separate offenses (that are not allied offenses of similar import) that constitute
“multiple offenses” for the purposes of the sentencing factors under R.C.
2929.14(C)(4)(b). Similarly, the separate offenses consist of distinct acts that
occurred during “one or more courses of conduct” for the purposes of R.C.
2929.14(C)(4)(b). Consequently, we conclude these facts support the trial court’s
findings as to “course of conduct” and “great or unusual” harm under the factors set
forth in R.C. 2929.14(C)(4)(b). See State v. Smith, 2d Dist. Montgomery No. 28265,
2019-Ohio-5015, ¶ 72 (“defendant’s repeated sexual abuse of the same minor victim
amounted to a ‘course of conduct’ justifying consecutive sentences”).
5
Importantly, Miller did not dispute the information contained in the PSI. See R.C. 2951.03(B)(2).
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{¶19} Accordingly, we determine that the trial court’s consecutive-sentence
findings are supported by the record and are not otherwise contrary to law.
Therefore, we cannot conclude that there is not clear and convincing evidence that
Miller’s sentences are not supported by the record or that his sentences are otherwise
contrary to law.
{¶20} For these reasons, Miller’s first, second, and third assignments of error
are overruled.
{¶21} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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