State v. Wilson ( 2021 )

[Cite as State v. Wilson, 2021-Ohio-3768.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1037
Appellee Trial Court No. CR0202001413
v.
Nicole Wilson DECISION AND JUDGMENT
Appellant Decided: October 22, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Brad F. Hubbell, for appellant.
*****
MAYLE, J.
I. Introduction
{¶ 1} The defendant-appellant, Nicole Wilson, appeals the February 3, 2021
judgment of the Lucas County Court of Common Pleas, convicting her of two counts of
endangering children and sentencing her to serve an aggregate prison term of five years.
For the following reasons, we affirm the trial court’s judgment.
II. Background
{¶ 2} On March 5, 2020, Nicole Wilson and her husband, Francis Wilson, were
indicted on eighteen counts of child endangering. Counts 1 through 9, all third degree
felonies, applied specifically to Nicole Wilson, hereinafter identified as the “appellant.”
{¶ 3} The victims in this case, Z.W., aged 16, and F.W., aged 14, are appellant’s
step-daughter and step-son, respectively. Appellant and her husband also have two
younger, biological children of their own, who are not the subject of this case.
{¶ 4} At a change of plea hearing, appellant entered a guilty plea pursuant to
North Carolina v. Alford to two violations of R.C. 2929.22(B)(3), (E)(1) and (E)(3), as
set forth in Counts 4 and 5, and the state agreed not to prosecute the remaining counts
against her.
{¶ 5} Had the matter proceeded to trial, the state asserted that it would have shown
that appellant forced Z.W. and F.W. to live in the basement of the family home, as a form
of punishment, between July 16, 2018 and July 16, 2019. Although the children were
allowed to attend school and occasionally to work odd jobs, they were required to live in
the basement when at home. According to the record, the door to the basement was
locked from the outside, and the basement windows were inoperable. The cinderblock-
walled basement was not equipped with a bathroom, and the children were allowed brief,
timed use of the bathroom on the ground floor. According to the state, “one or two times
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a day * * * the basement door would be unlocked, and the children would be allowed to
come upstairs to use the bathroom.” Each child was allowed five minutes in the
bathroom; Z.W. was given an extra two minutes if she was menstruating. Otherwise, the
children used a drain and bucket in the basement to relieve themselves. When freed by
police, the basement smelled of urine and excrement.
{¶ 6} With respect to Count 4, the state asserted that it would have shown that
appellant physically restrained F.W., who is handicapped (autism), in a cruel manner or
for a prolonged period of time, that the restraint was excessive and that it created a
substantial risk of serious physical harm to him. With respect to Count 5, the state
asserted that it would have shown that appellant recklessly used corporal punishment
against Z.W. for “minor infractions,” by striking her with a “belt and other instruments”
which created a risk of substantial physical harm to her.
{¶ 7} The trial court engaged in an extensive colloquy with appellant, including an
explanation that she faced a maximum aggregate sentence of 72 months in prison and a
$20,000 fine.
{¶ 8} The trial court found that appellant had been informed of her constitutional
rights, that she understood the nature of the charges, the effect of her plea, as well as the
maximum penalties which could be imposed, and that she had made a knowing,
intelligent and voluntary decision to withdraw her former plea of not guilty and to tender
an Alford plea of guilt. The court accepted appellant’s plea, made findings of guilt, and
ordered the preparation of a presentence investigation (“PSI”).
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III. The sentencing hearing
{¶ 9} At the January 28, 2021 sentencing hearing, appellant’s counsel urged the
court to impose community control in lieu of prison. Counsel cited the absence of any
criminal record, appellant’s “active engagement” in parenting classes, and the fact that
she had “suffer[ed] through collateral consequences,” including being “cut off” from her
biological children for almost a year, a “brief stint” of confinement, and her full
compliance with all court orders during the pendency of the case “all while maintaining
gainful employment.” Counsel expressly denied that appellant had acted in a “malicious
or abusive” manner and argued that her client merely lacked adequate skills to “parent
two special needs teenagers.”
{¶ 10} Appellant also spoke, professing to take “responsibility for any of [her]
wrongdoings.” She claimed to love all four of her children equally and blamed her lack
of parenting skills and her own “negative upbringing” for any mistakes she had made.
{¶ 11} The state countered that appellant had shown “zero remorse” and had
instead called the victims “liars * * * thieves * * * and bedwetters.” And, it noted that
F.W. only wet himself when he was awake, and only then “because he was only allowed
to use the bathroom at certain times.” As punishment, F.W. was forced to sleep on a
“deflated air mattress.” It told the court that, since being removed from the co-
defendants, the victims have “become smart, successful and productive citizens despite
the defendants’ torment.”
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{¶ 12} Both victims provided victim impact statements. Z.W. gave several
examples of the breadth of psychological abuse she suffered at the hands of appellant. To
begin, although the house was equipped with a washer and dryer, Z.W. was required to
hand-wash her own clothes in a bucket outside or purchase detergent from appellant. She
was also forced to sell baked goods outside the home to raise money for household
goods, like toilet paper. Z.W. shared her sorrow over being deprived of being a “big
sister” to the younger girls who were barred from talking, or even looking, at either
victim. According to Z.W., all the siblings came to understand that “we could not be
together.” Although the family had “multiple counselors,” Z.W. could not speak
truthfully to them because “it made [appellant] look bad.” Z.W. expressed skepticism
over appellant’s embrace of parenting classes, pointing out that “[a]ny person would
know not to lock their kids up. * * * I don’t believe any kind of classes will fix any of
that. * * * It’s not much about parenting, it’s more about the people they are.” And,
Z.W. rejected appellant’s claim that she “loved” her, given that appellant “told [Z.W.] for
years that she wanted [her] to get hit by a bus.” Z.W. requested that appellant receive the
“highest sentence.”
{¶ 13} F.W. told the court that he had been “locked in the basement with no way
out * * * for three years.” Referring to a picture of all four siblings in a car, F.W. said
“this is how it would look * * * whenever we were in the car[.] * * * [W]e had to be
looking out the window [because we were] not allowed to look at our sisters.” As a result
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of the abuse, F.W. “changed mentally” by, for example, not showing emotions. This
often led appellant to become “irritated” and then “hit” F.W. for “not having a reaction.”
As a result of being “hit often,” F.W. explained that he “flinch[es] easier than most
people do.” He also moves “faster,” which he attributed to appellant “rushing [him]
whenever [he] did anything because she didn’t want to see [his] face.” F.W. told the
court that he questions whether he is, in fact, autistic. In his words, “[a]s far as I know, it
could have been the circumstances that made me act this way.” Like his sister, F.W.
requested that appellant (and his father) receive the “longest sentence” because “they
should pay for what they did” and because “when they get out, I [will] be an adult [and
will] able to talk to them as an adult to an adult.”
{¶ 14} Before announcing its sentence, the court commented that it had reviewed
“over 1300 pages of documentation” and viewed video statements given by the victims
and the victims’ younger sisters. The court was “struck” by the victims who, despite
being called “untruthful, rebellious and deceitful,” managed to provide “detailed and
separate” statements that were “linear, coherent [and] gut wrenching but logical.” The
court “marvel[ed]” not just at the victims’ “survival skills” but also at their ability to
“progress[] in school after spending hours upon hours upon days locked in a dingy
basement, urinating in drains [and] defecating in buckets.”
{¶ 15} With regard to its sentence, the court said,
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[The victims] have been let down by their biological parents since
their birth. * * * But nothing during that time compares to the last several
years of their life.
The remarriage of their father to [appellant] gave a fake appearance
of stability that became their new normal. It was also when the intentional
abuse started and their father did not protect them. The amount of adverse
childhood experiences these children have faced is off the charts. * * * I
fear these young people will be maneuvering around damage for the rest of
their lives.
Sadly I don’t know what is more appalling, is it the horrible things
that happened to these kids, or the amount of time calls were made to get
them help from witnesses, neighbors or others that were too easily waved
off because the perpetrators would maintain such a sweet and warm
demeanor when inquiries were made[?]
How easy it was to send people away when the stepmother [i.e. the
appellant] laments how hard it is to take care of special needs children and
a rebellious teen.
The controlling psychological abuse of their rigid stepmother was a
minefield that [the victims] were not equipped to succeed in. * * * I will
tell you, it’s the words of one of [the younger biological girls] that
confirmed for me that the two of you are monsters. No matter what you
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look like on the outside, when one of your sweet babies was asked about
her older siblings, her immediate response was, always running. The
interviewer asked, to where, and your daughter said, “to the bathroom.” * *
*
Th[at] [same] child was asked if her brother and sister shared a
room, she answered, yes. * * * When asked why [she had never been and
did not want to go down there] she stated because my mom will keep me
downstairs in the basement. This baby was five years old. * * *
I won’t give you the dignity of calling you parents because real
parents would never intentionally hurt their children the way the two of you
chose to do.
[Appellant], you have earned the sentence that the court will be
giving, for the lack of conscious you had, and for inflicting physical and
psychological abuse on your two stepchildren.
{¶ 16} In its February 3, 2021 journal entry, the trial court sentenced appellant to
serve 30 months in prison as to Count 4 and 30 months as to Count 5, to be served
consecutively to one another, for an aggregate prison term of 60 months. It also imposed
a mandatory three-year term of post-release control, as to each count.
{¶ 17} Appellant raises the following assignment of error:
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[T]he trial court did not give proper consideration to the statutory
directives of O.R.C. 2929.11 and O.R.C. 2929.12 in ordering her to serve a
five years [sic] OCRC term of incarceration.
IV. Law and Analysis
{¶ 18} We review a challenge to a felony sentence under R.C.
2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase,
reduce, or otherwise modify a sentence or may vacate the sentence and remand the matter
to the sentencing court for resentencing if it clearly and convincingly finds either of the
following:
(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;
(b) That the sentence is otherwise contrary to law.
{¶ 19} Appellant does not complain that her sentence violated any of the statutes
identified in R.C. 2953.08(G)(2)(a), leaving only Section (G)(2)(b) as the basis for
challenging her sentence—i.e., whether the sentence is “otherwise contrary to law.”
{¶ 20} Here, appellant argues that the trial court’s sentence is “contrary to law”
because the trial court did not “give proper consideration” to the purposes and principles
of sentencing in R.C. 2929.11 and the seriousness and recidivism factors listed in R.C.
2929.12 when sentencing her to a prison term instead of community control. As she did
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at sentencing, appellant argues that the trial court failed to consider all the mitigating
factors set forth in R.C. 2929.12 when it sentenced her to prison. She insists that her lack
of a criminal record, her active engagement in parenting classes, her compliance with all
court orders, and the “collateral consequences” she has already faced warranted a
sentence of community control, rather than prison.
{¶ 21} Although a trial court must comply with R.C. 2929.11 and R.C. 2929.12
when fashioning a felony sentence, “neither R.C. 2929.11 nor 2929.12 requires a trial
court to make any specific factual findings on the record.” State v. Jones, 163 Ohio St.3d
242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. In fact, the trial court’s consideration of the
factors set forth in R.C. 2929.11 and 2929.12 is presumed even on a silent record. State
v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1; State v. Cyrus, 63 Ohio
St.3d 164, 166, 586 N.E.2d 94, (1992).
{¶ 22} Moreover, under Jones, an appellate court may not “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,” nor may it
“modify or vacate a sentence based on its view that the sentence is not supported by the
record under [those statutes].” Jones at ¶ 39, 42; see also State v. Toles, Slip Opinion No.
2021-Ohio-3531, ¶ 1 (Affirming sentencing judgment under the authority of Jones).
Accordingly, we are precluded from reviewing a felony sentence “where—as here—the
appellant’s sole contention is that the trial court improperly considered the factors of R.C.
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2929.11 or 2929.12 when fashioning that sentence.” State v. Stenson, 6th Dist. Lucas No.
L-20-1074, 2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; see also State v. Orzechowski, 6th
Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13-14 (“In light of Jones, assigning error
to the trial court’s imposition of sentence as contrary to law based solely on its
consideration of R.C. 2929.11 and 2929.12 is no longer grounds for this court to find
reversible error.”).
{¶ 23} Because R.C. 2953.08(G)(2) does not authorize this court to consider
appellant’s argument, we find appellant’s sole assignment of error not well-taken.
V. Conclusion
{¶ 24} For these reasons, appellant’s assignment of error is not well taken, and we
affirm the February 2, 2021 judgment of the Lucas County Court of Common Pleas.
Wilson is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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